United States Court of Appeals

For the Eighth Circuit

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No. 17-3346

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United States of America

 Plaintiff - Appellee

v.

Colin J. Michael

 Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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Submitted: September 25, 2018

Filed: November 30, 2018

[Published]

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Before WOLLMAN, KELLY, and ERICKSON, Circuit Judges.

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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 statementsregarding probation revocations and, on thisrecord,

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-toface 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

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

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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. 

Priorto 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 programat 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 atsentencing 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

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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 conditionsrelated

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 responsesto 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.

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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'tsee the difference it's made in his ability to refrain from being

attracted or to stop from acting out on his impulsesto view pornography

and child pornography.

The court then recited evidence thatsupported 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

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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) sets forth the available options: 2

(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.

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

2

applicable in this case.

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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 ofsupervision 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 (8thCir. 2017) (concluding

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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 wassubstantively 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

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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 wasimposed 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.

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