                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0764n.06

                                            No. 08-6340                                    FILED
                                                                                       Dec 03, 2009
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellant,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
WILLIAM MARK CORUM,                                    WESTERN DISTRICT OF KENTUCKY

       Defendant-Appellee.

                                                /




BEFORE:                RYAN, COLE, and CLAY, Circuit Judges.

       CLAY, Circuit Judge. In this appeal from a re-sentencing under Fed. R. Crim. P. 35(a), the

government argues that the district court was without authority to re-sentence Defendant, William

Mark Corum, because the district court had not committed clear error in the original sentencing on

August 28, 2008. The government contends that the district court improperly re-opened Defendant’s

sentence based upon the district court’s finding that it was clear error to have failed to individually

assess the Defendant’s post-arrest psychiatric treatment under 18 U.S.C. § 3553(a)(1). For the

reasons set forth below, we hold that the district court had jurisdiction under Fed. R. Crim. P. 35(a)

to re-sentence Defendant, and we AFFIRM the district court’s order.
                                            No. 08-6340

                                         BACKGROUND

       Defendant was charged in connection with an Immigration and Customs Enforcement

(“ICE”) investigation that began with the arrest of Defendant’s internet coorespondent in London,

England for production and distribution of child pornography. Defendant pled guilty to three counts

of knowingly distributing, receiving, and possessing child pornography in violation of 18 U.S.C. §§

2252(a)(1), 2252(a)(2), 2252(a)(4)(B), 2252(b)(1), and 2252(b)(2) without benefit of a plea

agreement on February 20, 2008.

       The district court originally sentenced Defendant on August 28, 2008 to a total of 210 months

incarceration – 210 months for Counts 1 and 2 and 120 months for Count 3, to be served

concurrently. On September 2, 2008, the district court notified both the government and Defendant

that it required them to appear at 4:00 pm on September 3, 2008 to discuss the case. The court then

informed counsel that it planned to correct Defendant’s sentence under Fed. R. Crim. P. 35(a) after

having “realized that the sentence that [it] imposed . . . was clear error.” (ROA at 454). The

government requested time to brief its opposition to the proposed sentence correction, but after

consulting the federal rules, the court determined that it strictly must act within the seven day time

limit and so only gave the parties fifteen minutes to quickly find caselaw supporting their positions.

The court then re-sentenced Defendant to 174 months total incarceration – 174 months, for both

Counts 1 and 2, and 120 months, for Count 3, to be served concurrently. After the court issued its

amended sentence, the government renewed its objection that the court did not have jurisdiction

under Fed. R. Crim. P. 35(a) to re-sentence Defendant.




                                                  2
                                           No. 08-6340

       Prior to the filing of formal charges against Defendant, on August 23, 2007, ICE agents

executed a search warrant at Defendant’s home and interviewed Defendant about his activities

involving child pornography. He was cooperative and admitted that he had sent, received, and

possessed many child pornographic images, estimating “his collection of child pornography at

approximately 1000 images.” (ROA at 313). “Within a few days of being arrested,” Defendant

entered treatment with Shea Reed, a licensed professional clinic counselor. (ROA at 169, 254).

       During the time between Defendant’s arrest and sentencing, which was approximately a year,

he continued treatment with Shea Reed for addiction to child pornography. Her treatment program

involved

               individual and group therapy with the goals being identifying his
               thought and behavior patterns that developed into his use of child
               pornography and a look at his life time factors that contributed to that
               behavior; and also, development of a relapse prevention plan focused
               on preventing him from using child pornography in the future.

(ROA at 260). The overall goal of Defendant’s treatment was to “reduce to zero his use of child

pornography.” (Id.). Reed characterized Defendant as committed to his treatment, motivated, and

forthcoming about his feelings such that he was making excellent progress. Another professional

who evaluated Defendant’s behavior characterized his addiction to child pornography as part of a

“long, gradually-worsening, increasingly-anguishing addition to pornography.” (ROA at 165).

Before his arrest, Defendant claims he had attempted to curtail his addiction, but his efforts failed

without the treatment he later received.

       Defendant was also treated for chronic depression in the same time period that he sought

treatment for his child pornography addiction. Dr. Walter Butler, a forensic psychologist, prescribed


                                                  3
                                            No. 08-6340

anti-depressants for Defendant. Butler’s evaluation was that Defendant did not suffer from

pedophilia because he did not physically act on his impulses, but that he was a voyeur of child

pornography in part due to his troubled childhood and his addictive personality, inherited from an

alcoholic father.

       Defendant’s rehabilitative efforts to seek effective treatment for his child pornography were

purportedly quite extensive. Even the government recognized in the first sentencing hearing that he

“made effort to seek counseling and treatment and apparently has made some steps in the right

direction with regard to that and that is good.” (ROA at 413).

       During the original sentencing hearing on August 28, 2008, the district court began his

analysis with calculations under the Sentencing Guidelines. Defendant’s total offense level was

calculated as 37 with a criminal history category of I, leading to a guidelines sentence of 210 to 262

months. He received enhancements under § 2G2.2(b) for the young age of the pictured children, for

distribution, for the images that “involve conduct which is clearly involving or likely to involve

pain,” for the number of images, and for the use of a computer. (ROA at 436). Defendant received

a reduction under § 3E1.1(a) of the guidelines for accepting responsibility for his crimes.

       The district court then went on to consider the relevant factors under 18 U.S.C. § 3553(a).

However, the district court’s discussion of Defendant’s treatment in the original sentencing supports

its later characterization that it “declined to consider it because of a policy reason to avoid sending

messages to manipulative defendants, fearing that this would . . . simply become a treatment

snowball that would get ever bigger as it rolled.” (ROA at 437). The district court noted that




                                                  4
                                           No. 08-6340

Defendant sought immediate treatment after his arrest and that it was a positive step for Defendant

to explore the root cause of his addiction, but then noted that

               giving credit for a person who gets immediate treatment is to my
               mind somewhat difficult because some people can’t afford treatment.
               And it would have a tendency, if adopted as a policy, to encourage
               ever more resentencing treatments in an effort to somehow stand out
               from the crowd here.

(ROA at 439-40). While discussing its wariness of considering post-arrest treatment efforts, the

district court discussed how Defendant came from a dysfunctional family and has an addiction to

pornography, but then said “the court basically assumes that people who are guilty of these types of

crimes have some problems.” (ROA at 440). As a result, the court did not take the treatment

Defendant received into consideration in sentencing him.

       In the second sentencing hearing on September 3, 2008, the court said that it had committed

clear error by using a “policy consideration which is inappropriate because it does not give

individualized consideration to this defendant for what he did for himself individually in this case

after his apprehension but before his sentencing.” (ROA at 457). The district judge said that he

made that prior ruling “to avoid sending messages to manipulative defendants.” (Id.) The court

“declined to consider [Defendant’s post-arrest treatment], even though it was an aspect of his

character, simply because [it] was afraid of doing so.” (ROA at 458).

       The court then went on to discuss its appraisal of Defendant’s efforts at rehabilitation through

his post-arrest treatment. The district judge found Defendant’s treatment efforts to show that he was

“motivated” and that he was “significantly invested in his treatment.” (ROA at 456). Continuing,

the district court found that


                                                  5
                                            No. 08-6340

               he has made valuable progress toward mental health, that he has
               continued the treatment while he was on bond and that he did so, I
               think, genuinely trying . . . [to] deal with the abnormality that he
               clearly has in committing the crimes of conviction. I think that the
               defendant has made efforts and has addressed this in a fashion that is
               quite a bit beyond the average person.

(Id.). Finally the court concluded that had it properly considered Defendant’s treatment, it would

have imposed a sentence of 174 months instead of 210 months.

       Several times throughout the discussion with counsel that took place during the sentencing

hearing, the government objected to the re-sentencing on the grounds that in fact the court was

simply changing its mind or re-weighing the treatment Defendant received, noting that a “defendant

is not constitutionally entitled to individualized sentencing.” (ROA at 463, 471, 472). The court

responded each time with similar words that “this is not a change of mind here . . . the clear,

reversible error in this case was the court refusing to consider characteristics personal to this

defendant on a policy-based reason because of a concern as to what other defendants might do in

other cases now or in the future.” (ROA at 463).

                                           DISCUSSION

       THE DISTRICT COURT’S AUTHORITY TO RE-SENTENCE DEFENDANT
       PURSUANT TO FED. R. CRIM. P. 35(a)

       1.      Standard of Review

       Whether a district court had the authority to re-sentence defendants under Fed. R. Crim. P.

35(a) is a question of law that is reviewed de novo by this Court. See United States v. Houston, 529

F.3d 743, 748-49 (6th Cir. 2008). The applicable rule states in pertinent part that “Within 7 days

after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other


                                                  6
                                              No. 08-6340

clear error.” Fed. R. Crim. P. 35(a). Therefore, this Court reviews de novo whether there was clear

error as a matter of law that would give the district court jurisdiction to correct Defendant’s sentence.

        2.      The District Court Properly Exercised its Authority under Rule 35(a)

        A judge may correct a sentence pursuant to Fed. R. Crim. P. 35(a) for technical or

arithmetical errors or other “clear errors.” In this case, the alleged clear error was the district court’s

failure to consider Defendant’s treatment efforts post-arrest. The government argues that in fact, the

district judge did consider Defendant’s treatment efforts, but afforded little weight to them because

“the court ultimately determined the Defendant’s case was not ‘particularly different.’” (Appellant’s

Br. at 7-8). In response, Defendant argues that the district judge’s own appraisal of his conduct at

the first hearing should control, and that in fact the district court stated that he categorically ignored

Defendant’s rehabilitation efforts. This Court concludes that the district court committed clear error

in the first sentencing by impermissibly adopting a bright-line rule that it would not consider post-

arrest treatment efforts made by defendants rather than giving the required “individualized

assessment based on the facts presented.” Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597

(2007). As a result, the district court had jurisdiction to re-sentence Defendant under Fed. R. Crim.

P. 35(a).

        A district court’s authority to correct a sentence under Fed. R. Crim. P. 35(a) is quite narrow.

Houston, 529 F.3d at 749. It is limited to cases in which the error recognized by the district judge

is “an obvious error or mistake that would have resulted in a remand by this Court.” United States

v. Arroyo, 434 F.3d 835, 838 (6th Cir. 2006) (citing United States v. Galvan-Perez, 291 F.3d 401,

407 (6th Cir. 2002)). The issue in this case is whether the district court was required to give


                                                    7
                                            No. 08-6340

consideration to the treatment Defendant received, whether or not the court ultimately decided to

lower his sentence as a result, such that it would be clear error to do otherwise.

       In recent years, the state of the law on sentencing in the federal courts has been transformed

as a result of the Supreme Court converting a mandatory sentencing scheme into one where the

sentencing guidelines are now advisory in nature. See United States v. Booker, 543 U.S. 220, 258-62

(2005). District courts have been given much more specific guidance in sentencing decisions while

appellate courts have been instructed to give more deference to those district court decisions in

reviewing sentencings for procedural and substantive reasonableness. Gall, 128 S.Ct. at 596-97

(sentencing judge must undertake individualized assessment of relevant factors in sentencing;

appellate review of substantive reasonableness of sentence is for abuse of discretion); Rita v. United

States, 551 U.S. 338 (2007) (sentencing judge must explain reasons for sentencing, but within

Guidelines can be less detailed explanation); United States v. Klups, 514 F.3d 532, 537 (6th Cir.

2008) (procedural reasonableness requires setting forth rationale for sentencing such that appellate

court can see from record that parties’ arguments were considered). Since neither party to this case

challenges the substantive reasonableness of either sentence, the only issue on appeal is procedural

reasonableness.

       Procedural reasonableness is evaluated first by an appellate court in reviewing sentencing

decisions from the district court. See United States v. Bolds, 511 F.3d 568, 578-81 (6th Cir. 2007)

(setting forth the process an appellate court uses to review for reasonableness). “A sentence may be

procedurally unreasonable if the district court ‘did not appreciate the non-mandatory nature of the

guidelines, did not correctly calculate the sentencing range under the guidelines, or did not consider


                                                  8
                                            No. 08-6340

the § 3553(a) factors.’”1 United States v. Phinazee 515 F.3d 511, 514 (6th Cir. 2008) (quoting United

States v. Davis, 458 F.3d 491, 495 (6th Cir. 2006)); accord United States v. Herrera-Zuniga, 571

F.3d 568, 582-83 (2009) (appellate court reviewing for procedural reasonableness must “consider

whether the sentence reflects the considerations set forth in § 3553(a)”).

       A sentence is also procedurally unreasonable if the district court fails to address a

nonfrivolous argument made by the defendant in support of a lower sentence. United States v.

Blackwell, 459 F.3d 739, 774 (6th Cir. 2006) (“the black letter law of this Circuit requires district

courts to consider all factors brought to their attention by a defendant”); see also United States v.

Vonner, 516 F.3d 382, 388 (6th Cir. 2008) (en banc) (the district judge has a duty to consider each

relevant factor in sentencing); United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006) (if

“defendant raises a particular argument in seeking a lower sentence, the record must reflect both that

the district judge considered the defendant’s argument and that the judge explained the basis for

rejecting it”); accord United States v. Studebaker, 578 F.3d 423, 430-31 (6th. Cir. 2009) (the district

court must consider on the record all relevant § 3553(a) factors and all nonfrivolous arguments from

both parties).




       1
        The statute states, in relevant part, that
               (a) Factors to be considered in imposing a sentence.--The court shall impose a
               sentence sufficient, but not greater than necessary, to comply with the purposes set
               forth in paragraph (2) of this subsection. The court, in determining the particular
               sentence to be imposed, shall consider--
                       (1)       the nature and circumstances of the offense and the history and
                                characteristics of the defendant;
                       ...
       18 U.S.C. § 3553(a).

                                                  9
                                             No. 08-6340

        The analysis of procedural reasonableness in this case turns in part on how the Court is to

evaluate the district court’s assessment of its own state of mind during the first sentencing.

Defendant argues that the district court is owed near absolute deference as to its appraisal of what

it did or considered in the first sentencing. There is very little case law on the appropriate amount

of deference an appellate court must give to the district court’s view of its own state of mind, but that

case law weighs in favor of Defendant’s position. See United States v. Guthrie, 557 F.3d 243, 256

(6th Cir. 2009) (“[I]n the absence of any more explicit evidence, we will not impute an improper

analysis to a sentencing judge.”); United States v. Combs, 470 F.3d 1294, 1296 (9th Cir. 2006)

(“Insofar as this inquiry relates to the district judge’s representation as to his own state of mind, such

absolute deference is inevitable.”). The government does not offer any evidence or argument that

the district court was purposefully misrepresenting itself when it characterized its procedural method

at that first sentencing as “completely contrary to [its] responsibility to impose an individualized

sentence on this defendant.” (ROA at 457). So unless it is apparent from the record that in fact the

district court did give individualized assessment to Defendant’s post-arrest treatment efforts and so

was simply reweighing that treatment in the second sentencing, this Court gives great deference to

the district court’s own recounting of its state of mind that it failed to consider the treatment at all

in actually determining Defendant’s sentence.

        The district court’s statements about Defendant’s treatment and its policy concerns about

post-arrest treatment more generally reveal that at the first sentencing the district judge adopted a

policy, or bright-line rule, of categorically ignoring such treatment. This bright-line rule was a clear

error of law because such a rule does not allow for the judge to give individualized assessment to


                                                   10
                                            No. 08-6340

the history and characteristics of the defendant as required by statute. See Gall, 128 S.Ct. at 597.

The district court made several comments in the first sentencing about the nature and quality of

Defendant’s treatment. For example, the district court observed the “certainly [Defendant] has taken

advantage of his treatment options prior to sentencing, which is a good thing.” (ROA at 439).

However, ultimately the district judge made a rule that he would not consider such treatment in

sentencing because of his concern that it would lead to future defendants attempting to manipulate

the system by getting more and more treatment, which in turn would privilege those who could

afford such treatment. This conclusion that the district court adopted a bright-line rule against

weighing the post-arrest treatment efforts of Defendant is bolstered by the district judge’s admission

in the second sentencing hearing that he was correcting the sentence because of “what this court

declined to take into consideration regarding this defendant.” (ROA at 455).

       The government gives great weight in its argument on appeal that the district judge did not

consider Defendant to be an extraordinary defendant, or a “particularly different” one, in order to

show that the court did give consideration to his treatment. (Appellant’s Br. at 11-12, 15). But this

characterization of the district judge’s assessment takes his comments somewhat out of context. The

district judge found Defendant’s personal history to be “fairly unremarkable,” (ROA at 436), but

when he used the phrase “particularly different” it was with respect to determining what sentence

is appropriate within the range of applicable sentences, which factored into his discussion of why

he was not going to consider the treatment in determining Defendant’s sentence. (ROA at 439-40).

       The government argues in part that the district court did give sufficient consideration to

Defendant’s treatment and in part that it was proper for the district judge to consider policy


                                                 11
                                            No. 08-6340

arguments when weighing such treatment. However, the district court did not simply consider policy

arguments vis-á-vis post-arrest treatment; instead, it adopted a policy, or a bright-line rule, that

because of its policy concerns it would not consider or give any weight to such treatment in

Defendant’s case or in any other. That kind of categorical refusal to make an individualized

assessment runs afoul of the statutory requirement that the district court individually assess the

“history and characteristics of the defendant” as interpreted by this Circuit and the Supreme Court.

18 U.S.C. § 3553(a)(1); see also Gall, 128 S.Ct. at 597; Rita, 551 U.S. at 356-57; Klups, 514 F.3d

at 537; United States v. Thomas, 498 F.3d 336, 340-41 (6th Cir.2007).

       The district court in this case did not seek to correct the sentence for reasons that would be

better understood as a “change of mind;” rather, it found a clear procedural error that would have led

an appellate court to remand for re-sentencing. See Houston, 529 F.3d at 749. The court did not

reconsider information about Defendant’s treatment or reweigh it; instead, it corrected its prior

decision to disregard any individualized treatment efforts by defendants in this case or any case

because of the district judge’s rule against taking such treatment into consideration.

       Although, “courts may vary [from Guidelines ranges] based solely on policy consideration,

including disagreements with the Guidelines,” Kimbrough v. United States, 552 U.S. 85, 128 S.Ct.

558, 570 (2007), a district court’s judgment about how to individually assess a factor, including its

weighing of policy concerns, would be subject to an abuse of discretion standard of review on

appeal. See Studebaker, 578 F.3d at 431-32; see also Gall, 128 S.Ct. at 600. Arguably, the district

court committed clear error when it refused to consider such treatment at all, for any defendant.

Instead, if the court is concerned about the possibility of manipulative defendants or the unfairness


                                                 12
                                               No. 08-6340

to defendants who cannot afford treatment, then the court could weigh those policy concerns

alongside the particular history and characteristics of the defendants.

        The government and Defendant both raise arguments about whether there is a constitutional

right to an individualized sentence for non-capital defendants. It is not fully settled whether there

is such a constitutional right, though some precedent in this Circuit may have suggested otherwise.

See United States v. Odeneal, 517 F.3d 406, 415 (6th Cir 2008) (“We have held, however, that there

is no constitutional right to individualized sentencing in non-capital cases.”) (citing United States

v. Levy, 904 F.2d 1026, 1035 (6th Cir.1990); United States v. Gardner, 931 F.2d 1097, 1099 (6th

Cir.1991)). However, we need not settle that issue in this case because there is a clear statutory right

embodied in 18 U.S.C. § 3553(a) to have the district court individually assess “all factors brought

to their attention by a defendant.” Blackwell, 459 F.3d at 774 (6th Cir. 2006). It is under that

statutory right that it was clear error for the district court to adopt a policy, or bright-line rule, of not

considering treatment that defendants such as Defendant seek regardless of whether the particular

defendant appears to be acting in good faith or is being manipulative or simply taking advantage of

his relative financial privilege to afford such treatment in order to mitigate his punishment.

                                             CONCLUSION

        It was clear error under existing precedent in this Circuit and from the Supreme Court for the

district court to categorically refuse to consider Defendant’s post-arrest treatment as part of the

required analysis under 18 U.S.C. § 3553(a). Therefore, the district court had jurisdiction under Fed.

R. Crim. P. 35(a) to correct the sentence, which the district court itself acknowledged was

improperly imposed. Therefore, we AFFIRM the district court’s order.


                                                     13
