U.S. v. Ross

• Decision Date: 03 February 2009
• Docket Number: No. 07-41098.,07-41098.
• Citation: 557 F.3d 237
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Patrick ROSS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

557 F.3d 237

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Patrick ROSS, Defendant-Appellant.

No. 07-41098.

United States Court of Appeals, Fifth Circuit.

February 3, 2009.

James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Joseph R. Barroso, Corpus Christi, TX, for Ross.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES, Chief Judge, and OWEN and SOUTHWICK, Circuit Judges.

OWEN, Circuit Judge:

Timothy Patrick Ross pled guilty to one count of possession of child pornography and was sentenced to sixty months imprisonment. Shortly after the initial sentencing hearing, the district court sua sponte resentenced Ross to seventy months to correct what it deemed to be "clear error" within the meaning of Federal Rule of Criminal Procedure 35(a). Ross argues that the district court did not have the authority to make this modification. We agree. Accordingly, we vacate and remand for reinstatement of the original sentence.

I

Ross was arrested after a police search of his computer and other electronic media storage devices revealed a number of pornographic images of minors. Ross pled guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). In addition to the federal proceedings, Ross was under investigation in Colorado in relation to online communications, sexual in nature, with an undercover officer whom he believed to be a twelve-year-old female. Ross had also developed an online relationship with a female from Texas that began when she was approximately twelve years old.

The presentence report (PSR) determined Ross's offense level to be twenty-seven. With no criminal history, this yielded an advisory Guidelines sentencing range of seventy to eighty-seven months. At the sentencing hearing, Ross asked for leniency based on various factors, including his lack of prior offenses, strong family support, and relatively young age. Dr. Hughes, a psychiatrist who evaluated Ross, testified at the sentencing hearing that, in her opinion, Ross was at a low risk of recidivism. The district court sentenced Ross to sixty months, a below-Guidelines sentence.

Ten days after sentencing, the district court sua sponte scheduled a resentencing hearing. The court expressed concern that Ross had progressed from possession of pornography, to possession of child pornography, to initiating contact with children. Explaining that it had not focused sufficiently on Ross's escalating behavior and that it was "clearly erroneous" not to do so, the district court increased Ross's sentence to seventy months. The court also noted the seriousness of the offense from the victim's perspective and the need for adequate deterrence. The court concluded that the Guidelines were reasonable as applied to Ross's case, and the court chose a sentence at the low end of the range.

The district court relied on Rule 35(a) of the Federal Rules of Criminal Procedure as the basis for its authority to modify Ross's sentence. Ross, in turn, claims that the district court did not have the requisite authority and thus asks this court to reinstate his original sentence of sixty months.

II

A district court's authority to modify a previously imposed sentence is limited. By statute, such modifications are appropriate in the following circumstances: (1) upon a motion for reduction by the Director of the Bureau of Prisons, after review of the relevant statutory factors, if there are "extraordinary and compelling factors" warranting such a reduction; (2) to the extent otherwise expressly permitted by statute or Rule 35 of the Federal Rules of Criminal Procedure; or (3) if the case involves a defendant sentenced based on a sentencing range that has subsequently been lowered by the Sentencing Commission and such a reduction would be consistent with the Commission's policy statements.¹

Of these alternatives, the only potential basis for resentencing in this case was Rule 35(a) of the Federal Rules of Criminal Procedure, which provides:

Within 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.²

The district court acted within the seven-day time limit (when an intervening weekend and court holiday are excluded), and the only issue on appeal is whether Ross's original sentence resulted from "arithmetical, technical or other clear error" within the meaning of Rule 35(a).

III

Whether the district court had authority to resentence a defendant pursuant to Rule 35(a) is a question of law that we review de novo.³ Our court considered at some length, in United States v. Lopez, the history and meaning of Rule 35(a), although we did not purport "to address exhaustively the contours of the district court's authority to correct a sentence pursuant to Rule 35([a])."⁴ Nor will we today attempt to demarcate the outer boundaries of "other clear error" within the meaning of Rule 35(a) because our precedent and the history of Rule 35(a) establish that the re-sentencing at issue here was not due to "arithmetical, technical, or other clear error."⁵

As we observed in Lopez, the Advisory Committee's notes regarding the 1991 amendments to Rule 35 reflect that the Committee intended the scope of a district court's authority to modify a sentence to be "very narrow and ... extend only to those cases in which an obvious error or mistake has occurred in the sentence, that is, errors which would almost certainly result in a remand of the case to the trial court for further action under [then existing] Rule 35(a)."⁶

At the time these comments referencing the then-extant Rule 35(a) were written, Rule 35(a) set forth the bases on which appellate courts could vacate and remand for resentencing:

(a) Correction of a Sentence on Remand. The court shall correct a sentence that is determined on appeal under 18 U.S.C. 3742 to have been imposed in violation of law, to have been imposed as a result of an incorrect application of the sentencing guidelines, or to be unreasonable, upon remand of the case to the court—

(1) for imposition of a sentence in accord with the findings of the court of appeals; or

(2) for further sentencing proceedings if, after such proceedings, the court determines that the original sentence was incorrect.⁷

The Advisory Committee's notes explain that in adding what was then Rule 35(c) and is now Rule 35(a), the intent was to "in effect codif[y] the result in ... two cases but provide[] a more stringent time requirement."⁸ The two cases cited were the Fourth Circuit's decision in United States v. Cook⁹ and the Second Circuit's decision in United States v. Rico.¹⁰

In Cook the district court had stated that it intended to sentence in accordance with U.S.S.G. § 5C2.1(c), but it initially imposed a sentence that was not permitted by that provision of the Guidelines.¹¹ The district court subsequently realized its error in interpreting section 5C2.1(c) and sua sponte issued an amended sentencing order imposing a different sentence.¹² The Fourth Circuit affirmed the district court, stating that among its reasons for doing so was the fact that the original sentence "was not a lawful one" because it was not authorized by the then-mandatory sentencing Guidelines.¹³

In Rico the district court accepted a plea agreement that stipulated the sentence was to include three years of imprisonment. ¹⁴

At the sentencing hearing, counsel for the Government mistakenly advised the district court that the plea agreement specified a cap of three years imprisonment rather than a sentence of that length.¹⁵ The district court accepted the presentence report's recommendation of a term of imprisonment of six months, which was a typographical error, and imposed a sentence of time-served, which was approximately ten months.¹⁶ The government brought the mistakes to the court's attention three days later, and the court resentenced the defendant to three years imprisonment less time served.¹⁷ The Second Circuit acknowledged that "the district court mistakenly deviated from, but did not reject, the plea agreement,"¹⁸ and upheld the new sentence, referring to the sentence originally and erroneously imposed under a then-mandatory sentencing regime as an "illegal sentence."¹⁹

The decision in Cook reasoned, in part, that "[t]he power of a district court to amend a sentence does not extend to a situation where the district judge simply changes his mind about the sentence."²⁰ The Advisory Committee's comments regarding the promulgation of current Rule 35(a) adopted this limitation:

The subdivision is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sentence. Nor should it be used to reopen issues previously resolved at the sentencing hearing through the exercise of the court's discretion with regard to the application of the sentencing guidelines.²¹

Our court in Lopez similarly observed that Rule 35(a) does not authorize re-sentencing when the basis for doing so is that the district court changed its mind about the appropriateness of the sentence.²² We quoted the foregoing comments by the Advisory Committee, and we confirmed that Rule 35(a) "should [not] be used to reopen issues previously resolved at the sentencing hearing through the exercise of the court's discretion with regard to the application of the sentencing guidelines."²³

There is at least some tension within the Advisory Committee's notes regarding what was then Rule 35(c) and is now Rule 35(a). As noted, the Committee indicated that the scope of a district court's authority to re-sentence was "very narrow" and did not extend to discretionary decisions, and the Advisory Committee also stated that the subdivision "addresses obvious technical mistakes." But in describing the reach of a district court's authority to withdraw a...