District Court Lacks Power, Under Rule 35(a), To Revise a Reasonable Sentence

United States v. Ross, No. 07-41098 (5th Cir. Feb. 3, 2009) (Jones, Owen, Southwick)

As the court tidily sums it up:

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). [The court believed its failure to sufficiently account for Ross's "escalating behavior"---"from possession of pornography, to possession of child pornography, to initiating contact with children" was clear error.] 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.

The court's exegesis of Rule 35(a) and its history is pretty involved, but boils down to whether the imposition of a sentence that would be found unreasonable on appeal amounts to "clear error" within the meaning of the rule. Per the court,

We are at least skeptical that Rule 35(a), after Booker, permits a district court to change a sentence on the basis that the original sentence was “unreasonable.” We are confident, however, that a district court is not permitted to withdraw a reasonable sentence and impose what is, in its view, a more reasonable one.

Because Ross's 60-month sentence was not unreasonable, "[a]ny subsequent misgivings about the leniency or severity of the sentence do not constitute the type of error that is contemplated by Rule 35(a). Accordingly, the district court did not have authority to re-sentence Ross."

A couple of things to note:

First, the court needed very little discussion to conclude that Ross's below-Guidelines sentence was reasonable:

Given the considerable discretion the district court had when it first imposed the sentence, we cannot say that imprisonment for sixty months, which was ten months below the lower limit of the seventy to eighty-seven month advisory Guidelines range, was unreasonable. The district court initially considered all the relevant facts and imposed a sentence within its discretion.

Second, the opinion appears to leave intact the court's 1994 decision in United States v. Lopez, which held that what is now 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."