181279P.pdf   04/03/2019  United States  v.  Brian Barthman
   U.S. Court of Appeals Case No:  18-1279
   U.S. District Court for the District of Minnesota - Minneapolis   
   [PUBLISHED] [Shepherd, Author, with Colloton and Stras, Circuit Judges] 
   Criminal Case - sentencing. Government concedes that the district court 
   committed procedural error by assigning six, rather than three, criminal 
   history points for prior state convictions, but argues Barthman forfeited 
   claim. Under plain error review, contrary to the government's argument the 
   error was not plain, the erroneous nature of the ruling in obvious that 
   the state statute criminalizes more conduct than the federal definition of 
   crime of violence and thus does not count. Moreover, Barthman established 
   that there is a risk of unnecessary deprivation of liberty because the 
   concurrent state sentence is not final and may result in him spending more 
   time in prison. Thus, in the exercise of discretion, the sentence is 
   remanded for resentencing. Judge Stras concurs in part and in the 
   judgment.