                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-3346
                        ___________________________

                            United States of America

                                      Plaintiff - Appellee

                                        v.

                                 Colin J. Michael

                                    Defendant - Appellant
                                 ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                         Submitted: September 25, 2018
                           Filed: November 30, 2018
                                   [Published]
                                 ____________

Before WOLLMAN, KELLY, and ERICKSON, Circuit Judges.
                          ____________

PER CURIAM.

       Colin Michael appeals the 96-month term of imprisonment imposed upon him
after revocation of his five-year term of probation. Because we conclude that the
district court committed procedural error in failing to consider the Sentencing
Commission’s policy statements regarding probation revocations and, on this record,
the error is not harmless, we remand for resentencing.
      I.       Background

       On May 12, 2016, pursuant to a plea agreement, Colin Michael pled guilty to
possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4). The offense
has a statutory maximum term of imprisonment of 120 months. At sentencing, the
district court found pursuant to the United States Sentencing Guidelines (“Sentencing
Guidelines” or “U.S.S.G.”) that Michael’s offense level was 30 and that he was in
criminal history category I. The court determined that the applicable advisory
sentencing guideline range was 97 to 120 months’ imprisonment.

       The prosecutor recommended a term of imprisonment of 40 months. Michael
requested a sentence of probation. Two people, who had professional relationships
with Michael, testified at the sentencing hearing. The first witness was Dr. Steven
Peterson, a general and forensic psychiatrist, who forensically evaluated Michael at
the request of defense counsel. Dr. Peterson interviewed Michael, who was 35 years
old, for four and a half hours in October 2014. He also interviewed Michael’s
parents. In conducting his evaluation, Dr. Peterson administered psychological tests
“to address [Michael’s] functioning from an alternative perspective and just face-to-
face presentation.”

      Based on his interviews and tests, Dr. Peterson opined that:

      Colin has significant developmental difficulty called Asperger's
      Syndrome, which has now been reclassified as one of the autism
      spectrum disorders. And while he has the ability to discern right from
      wrong, he also has significant difficulties with social reciprocity, and
      basically his psychosexual and psychological development plateaued
      around early teens, and so that affects his judgment.1



      1
          Sent. Tr. p. 18 (Nov. 17, 2016).

                                             -2-
Dr. Peterson testified that his reference to early teens meant 12–or 13–years old and
added that Michael behaved in some ways like a child that was 9–or 10–years old.
Examples of the more immature behavior noted by Dr. Peterson included collecting
die cast cars, collecting shot glasses, and rearranging VHS tapes and DVDs
compulsively up to 20 times a month. Dr. Peterson described Michael’s social
development as consistent with a person of late pre-adolescent or adolescent age. He
also noted Michael’s susceptibility to manipulation and high level of dependence on
structure from his family.

       Prior to sentencing, Michael had been actively involved in a treatment program
at Hope Harbor for close to one year. Hope Harbor, which had been in existence for
23 years, was described at sentencing as one of the largest sex offender treatment
programs in eastern Kansas. The treatment program Michael participated in had two
components: individual psychotherapy sessions and group psychotherapy. Dr.
Bascom W. Ratliff, who holds a Ph.D. in clinical social work, was the director of
associates at Hope Harbor, and facilitated the sex offender treatment program at Hope
Harbor, testified that Michael started treatment at the clinic in December 2015. Dr.
Ratliff saw Michael weekly. He had anticipated that Michael would continue the
treatment program for a minimum of twelve additional months. Dr. Ratliff explained
that during treatment a participant can have a lapse in judgment. Part of the reason
given by Dr. Ratliff for the extended program was because he expected lapses to
happen, especially with people involved in pornography. When a lapse in judgment
happens, the issue is addressed with the offender and it becomes part of prevention
planning. According to Dr. Ratliff, when the active care portion of the treatment is
completed, participants in the program who have been convicted of a crime continue
on in the after care program until their period of probation or parole expires.

      Dr. Peterson explained at sentencing that a young person with the social delays
typically associated with Asperger syndrome is at increased risk for obsessive
preoccupation with things on the Internet. This obsession can lead a person to

                                         -3-
pornography and child pornography. Dr. Ratliff described Michael’s participation at
Hope Harbor as “active,” meaning he completed all assigned activities and exercises
and kept a journal that he shared with the group. Continued participation in the
treatment program at Hope Harbor caused Dr. Peterson to believe that Michael was
at a lower risk of recidivism.

       Upon consideration of the parties’ recommendations and “considerable
consideration to the testimony of the[] two witnesses,” the district court imposed a
five-year term of probation with detailed conditions and $2,500.00 in restitution to
be paid during the probationary term. The court varied from the advisory sentencing
guidelines range on the grounds that it was “the best solution for [Michael’s]
Asperger’s problem and mental status.” The court explained: (1) the guidelines
inadequately addressed Michael’s conduct relating to the charge and “inadequately
differentiates between gradients of Section 2252-8,” and (2) the federal penal system
is not in a position at this time to house inmates, like Michael, with Asperger
syndrome and a limited mental capacity. In conclusion, the court found that the
probationary sentence was “a reasonable sentence for punishment, deterrence and to
serve the ends of justice.”

       On September 11, 2017, Michael was arrested on a warrant issued at the
request of Michael’s supervising probation officer based on alleged violations of
conditions of probation. The petition alleged that Michael violated conditions related
to: (a) possession of materials involving pornographic/erotic or sexually explicit
conduct; (b) participation in sex offender counseling; (c) use of a computer or
electronic device with online access without the prior approval of the probation
officer; and (d) untruthful responses to questions asked by the probation officer. The
probation officer’s investigation appears to stem from answers given by Michael
during a polygraph test that was part of Michael’s sex offender therapy.




                                         -4-
       Michael’s case was randomly assigned to a different judge for proceedings
relating to the probation violations. Michael admitted to each of the violations
contained in the petition. The prosecutor argued at the revocation hearing that the
court should revoke Michael’s probation and impose the 40-month term of
imprisonment that he originally requested because Michael was not amendable to
treatment and he posed a risk to the public. Defense counsel pleaded with the judge
not to ignore the evidence presented at the initial sentencing hearing regarding
Michael’s mental illness, noted that the guideline range in the revocation table was
three to nine months, and requested that Michael be given a sentence of nine months’
imprisonment with the reinstatement of supervision to allow Michael to participate
in additional treatment programs that were available.

       The judge expressed some uncertainty about the specific “mental illness” being
raised by defense counsel. After Michael informed her of his Asperger syndrome
diagnosis in 2014 and his long-term counseling with a psychologist who has acted as
his “life coach” since seventh grade, the court responded.

      In looking at the presentence investigation report, it does set forth that
      Mr. Michael has been seeing Judy Moore since approximately age 12,
      and I don't see the difference it's made in his ability to refrain from being
      attracted or to stop from acting out on his impulses to view pornography
      and child pornography.

       The court then recited evidence that supported the sentencing judge’s decision
to place Michael on probation and concluded “with 20/20 hindsight that was the
wrong assessment.” The court interpreted the violation in the case as attempted
possession of child pornography. The judge believed that Michael “knows in his
heart he was viewing child pornography, just wasn’t caught.” After articulating these
reasons, the judge imposed a sentence of 96 months, which was more than twice
what the prosecutor recommended. While the sentence imposed constituted an 87-
month upward variance from the guideline range, it was a one-month variance from

                                          -5-
the low end of the applicable guideline range as calculated at the time of Michael’s
original sentencing. The court attributed the one-month variance to Michael’s
“characteristics” and lack of criminal history.

      II.    Discussion

      Michael advances two arguments on appeal: (1) the court procedurally erred
by failing to adequately explain the basis for the sentence, and (2) the sentence
imposed is substantively unreasonable. We consider each in turn.

        At the revocation hearing, in determining the appropriate sentence, the court
relied on the applicable guideline sentencing range that was calculated at Michael’s
initial sentencing hearing. The prosecutor requested the same sentence, and noted he
would not object if the court imposed a higher sentence on revocation. Michael asked
the court to consider the revocation table set forth in Chapter 7 of the Sentencing
Guidelines. In Michael’s case, the advisory revocation sentencing guideline range
was a term of imprisonment of three to nine months. Michael recommended the
imposition of a sentence of nine months in custody.

      In order to analyze Michael’s first argument, we begin with the sentencing
options available to the district court. If a defendant violates a condition of probation,
18 U.S.C. § 3565(a)2 sets forth the available options:

      (1) continue [the defendant] on probation, with or without extending the
      term or modifying or enlarging the conditions; or

      (2) revoke the sentence of probation and resentence the defendant under
      subchapter A.


      2
       18 U.S.C. § 3565(b) provides for mandatory revocation in circumstances not
applicable in this case.

                                           -6-
       Subchapter A, among other things, sets forth the factors a court is to consider
in imposing a sentence. In the case of a probation violation, the court is specifically
directed to consider “the applicable guidelines or policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3553(a)(4)(B).

       Under 28 U.S.C. § 994(a)(3), the Sentencing Commission has issued policy
statements applicable to probation and supervised release revocations. The
Sentencing Commission elected to develop a single set of policy statements for
probation and supervised release revocations based on the determination that the
purpose of supervision for both probation and supervised release “should focus on the
integration of the violator into the community, while providing the supervision
designed to limit further criminal conduct.” U.S.S.G. Ch. 7, pt. A(4). The pertinent
policy statements, as contained in Chapter 7 of the Sentencing Guidelines, classifies
violations of probation or supervised release conditions into one of three grades and
then sets forth an advisory sentencing range based on the grade of the violation and
the defendant’s original criminal history category. U.S.S.G. §§ 7B1.1 and 7B1.4.

       After Michael admitted to violating his conditions of probation, the district
court had the options of continuing him on probation, or revoking probation and
imposing any sentence that initially could have been imposed. Under either option,
the statute requires the court to consider “the policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3553(a)(4)(B). Here, there is no indication
the court considered or weighed the applicable policy statements before imposing the
sentence. The court performed none of the mechanical functions associated with the
sentencing guidelines or the sentencing statute. The court did not find the grade of
the violation, as required by U.S.S.G. § 7B1.1.

     The court’s procedural error when imposing Michael’s sentence requires
remand. See United States v. Sullivan, 853 F.3d 475, 480 (8th Cir. 2017) (concluding

                                         -7-
that a court’s failure to sufficiently explain its upward departure is a significant
procedural error requiring remand).

       Michael also argues that the sentence imposed was substantively unreasonable.
“We review a revocation sentence under the same ‘reasonableness’ standard that
applies to initial sentencing proceedings.” United States v. Merrival, 521 F.3d 889,
890 (8th Cir. 2008). “We do not require a district court to mechanically list every §
3553(a) consideration when sentencing a defendant upon revocation of supervised
release.” United States v. Petreikis, 551 F.3d 822, 824–25 (8th Cir. 2009) (quotation
omitted). However, “[t]he sentencing judge should set forth enough to satisfy the
appellate court that [it] has considered the parties’ arguments and has a reasoned basis
for exercising [its] own legal decisionmaking authority.” Rita v. United States, 551
U.S. 338, 356 (2007); see Gall v. United States, 552 U.S. 38, 50 (2007) (“After
settling on the appropriate sentence, [the district court] must adequately explain the
chosen sentence to allow for meaningful appellate review and to promote the
perception of fair sentencing.”). “If the court of appeals considers an explanation
inadequate in a particular case, it can send the case back to the district court for a
more complete explanation.” Chavez-Meza v. United States, –– U.S. ––, 138 S.Ct.
1959, 1965 (2018) (citing Molina-Martinez v. United States, –– U.S. ––, 136 S.Ct.
1338, 1348 (2016) (“[A]ppellate courts retain broad discretion in determining
whether a remand for resentencing is necessary.”)).

       In Michael’s case, the judge presiding over the revocation sentencing was not
the same judge who imposed the initial sentence. The court is mindful of the
difficulties that can occur when a case is reassigned. Sentencing judges in this
predicament are to familiarize themselves with the record in order to ensure that a
sentence modification or revocation is consistent with the entire history of the case.
We are concerned that the record does not demonstrate familiarity with Michael’s
unique circumstances and characteristics. For example, there was extensive
testimony at Michael’s initial sentencing hearing about Asperger syndrome and how

                                          -8-
the illness affected Michael’s intellectual and social development, as well as the
offense at issue in this case and the likelihood of there being lapses in judgment.
When defense counsel referred to Michael’s mental illness as part of her sentencing
recommendation during the probation revocation proceeding, the judge expressed
uncertainty as to which mental illnesses were present in Michael’s case. It also
appears that the sentence may have been based on facts not contained within the
record. We are unable to find evidence to support the sentencing judge’s comment
that Michael “knows in his heart he was viewing child pornography, just wasn’t
caught.”

        Our concerns about whether the court was sufficiently informed about
Michael’s case combined with the failure to explain its decision to impose a sentence
seven years above the guideline range leaves us with an evidentiary record that does
not support the sentence that was imposed. Under these circumstances, we find the
sentence imposed is substantively unreasonable.

      III.   Conclusion

       The procedural error of ignoring entirely Chapter 7 of the Sentencing
Guidelines is not harmless. The record does not demonstrate that the district court
considered evidence regarding Michael’s mental illness, which was a fundamental
consideration at the time the initial sentence was imposed and remained an important
part of the case when assessing the appropriate sentence for the probation violations.
We vacate Michael’s sentence and remand to the district court for resentencing.
                        ______________________________




                                         -9-
