PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 10-4568
JAMES B. CLAWSON, SR.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(1:09-cr-00367-LMB-1)
Argued: May 13, 2011
Decided: June 30, 2011
Before TRAXLER, Chief Judge, and SHEDD and
DUNCAN, Circuit Judges.
Vacated and remanded by published opinion. Judge Duncan
wrote the opinion, in which Chief Judge Traxler and Judge
Shedd concurred.
COUNSEL
ARGUED: David Brian Goodhand, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellant. Nina Jean Ginsberg, DIMUROGINSBERG, PC,
2 UNITED STATES v. CLAWSON
Alexandria, Virginia, for Appellee. ON BRIEF: Neil H. Mac-
Bride, United States Attorney, Jay V. Prabhu, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellant.
OPINION
DUNCAN, Circuit Judge:
This appeal arises from the district court’s grant of a motion
for reduction of sentence for substantial assistance under Fed-
eral Rule of Criminal Procedure 35(b). In granting the motion,
the court reduced defendant James Clawson’s sentence for
distribution of child pornography from 96 months’ imprison-
ment to one day. The government argues that the district court
exceeded its authority under Rule 35(b) because it did not
base its grant of the motion on Clawson’s assistance to the
government, but instead grounded the reduction solely on the
court’s concern that Clawson would not receive his preferred
medication while in prison. For the reasons that follow, and
in concert with the other circuits to have considered the ques-
tion of whether to grant a Rule 35(b) reduction on grounds
other than substantial assistance, we agree.1 We therefore
vacate the sentence and remand for further proceedings.
I.
We briefly review the undisputed facts and procedural his-
tory. On October 16, 2009, Clawson appeared before the dis-
1
Although our sister circuits agree that a factor other than cooperation
may not justify granting a Rule 35(b) reduction, they differ on whether
such factors may be considered in decreasing the extent of a reduction.
Compare United States v. Shelby, 584 F.3d 743, 749 (7th Cir. 2009), with
United States v. Grant, 636 F.3d 813, 814 (6th Cir. 2011) (en banc).
Because the district court here used a factor other than cooperation to jus-
tify its threshold grant of the motion, we need not reach that issue.
UNITED STATES v. CLAWSON 3
trict court to enter a guilty plea to the charge of distribution
of child pornography in violation of 18 U.S.C. § 2252A(1)(2).
Clawson admitted that, as the administrator of an electronic
bulletin board dedicated to child pornography, he distributed
several thousand images and videos of child pornography.
During the plea colloquy, to determine whether Clawson
was entering his plea knowingly and voluntarily, the court
asked him whether he was being treated for any physical or
mental condition. Clawson responded that he suffered from
Attention Deficit Hyperactivity Disorder ("ADHD"), and pro-
vided the court a letter from his psychiatrist, Lawrence Zinar,
Medical Director of the Mental Health Clinic at the Veterans
Health Administration. Dr. Zinar had been treating Clawson
for ADHD since 1999. Dr. Zinar’s letter explained that Claw-
son was being treated for ADHD with the drug dextroamphet-
amine,2 and that he was also being treated for depression with
the drug mirtazepine. Dr. Zinar further noted that "[w]ithout
his medications, particularly [dextroamphetamine], he has
tended to have mood instability, irritability and problems with
his temper as well as problems in concentrating and focusing
his attention." J.A. 8. He emphasized that it was "imperative
that [Clawson] continue to take his medication regimen." Id.
The court asked Clawson whether he had taken his medica-
tions that day, and Clawson responded that he had missed one
dose. The court then asked him whether he felt affected by the
lack of medication, and Clawson responded that he did not.
The court ultimately accepted Clawson’s guilty plea.
In preparation for Clawson’s sentencing, the Probation
Office calculated his advisory Guidelines range as 324-405
months, but noted that the statutory maximum for Clawson’s
2
Throughout the record and the briefs on appeal, the parties refer to the
drug alternatively as "D-Amphetamine Sulfate" and "dextroamphetamine."
For the sake of consistency, we will refer to the drug by the latter name
in this opinion.
4 UNITED STATES v. CLAWSON
offense was 240 months. In its sentencing memorandum, the
government asked that the court sentence Clawson to 240
months. The government also informed the court that, based
on Clawson’s past substantial assistance in another case, and
his potential testimony in an upcoming trial, it would likely
file a motion for a reduction of sentence under Federal Rule
of Criminal Procedure 35(b). The government asked the court
to delay Clawson’s surrender date to facilitate his planned
cooperation.
Clawson requested that the court sentence him to the statu-
tory mandatory minimum of 60 months. In requesting this
sentence, Clawson focused on the fact that imprisonment
could interfere with his ADHD treatment. In support of his
claim, Clawson submitted a second letter from Dr. Zinar,
which stated:
If [Clawson’s] medication regime is disrupted or dis-
continued, one can only imagine the emotional and
psychological perils he will face each day including
uncontrollable impulsivity, mood swings and loss of
temper, and an inability to follow instructions and
established procedures––all with predictable out-
comes.
Defendant’s Position with Respect to Sentencing, 09-CR-367,
Doc. No. 14 at 15 (E.D.Va. January 5, 2010).
On January 8, 2010, the court sentenced Clawson to 96
months’ imprisonment, citing his "background, mental health
issues, and the nature of the offense," as the reasons for its
variation from the guidelines. J.A. 117. The court also recom-
mended that Clawson be assigned to a facility with a special
program for mental health treatment so that he could continue
to receive ADHD medication. The court asked Clawson’s
counsel whether she had a particular facility in mind, and
counsel responded that she was still awaiting an answer from
the Bureau of Prisons ("BOP") regarding whether Clawson
UNITED STATES v. CLAWSON 5
would have access to his medication while in custody. The
court delayed Clawson’s self-surrender date until April 1,
2010, so that Clawson could "fulfill any testimonial obliga-
tions" to the government and so that Clawson’s counsel could
resolve the medication question with the BOP. J.A. 108, 110.
The government filed its Rule 35(b) motion on March 24,
2010. The motion argued that Clawson "deserve[d] substan-
tial credit for his cooperation" with the government, and
requested that the court reduce his sentence by 20%, which
would result in a sentence of approximately 76 months. J.A.
121.
That same day, Clawson filed an emergency motion
requesting that his April 1 self-surrender date be postponed.
The motion indicated that BOP officials had determined that
Clawson’s ADHD medication, dextroamphetamine, was not
on the BOP’s National Formulary of approved medications,3
and that Clawson did not "meet BOP criteria for ongoing
treatment for ADHD" with such medication. J.A. 124. The
motion further informed the court that the BOP had invited
Clawson to provide additional information to the medical staff
at the prison facility. Clawson requested "additional time to
gather medical evidence relevant to [his] treatment needs." Id.
The court held a hearing on the government’s Rule 35(b)
motion on March 26, 2010. During the hearing, the court
3
The BOP’s Chief of Health Programs described the formulary as fol-
lows:
The BOP’s formulary is a list of medications that are consid-
ered by the organization’s professional staff to ensure high qual-
ity, cost-effective drug therapy for the population served.
Periodically, medications are reassessed and extensively
reviewed for inclusion, exclusion, or restrictions in the formulary
according to current evidence-based practices and security con-
cerns within the correctional environment.
J.A. 139-40.
6 UNITED STATES v. CLAWSON
explained that whether Clawson would be able to receive his
medication would "affect how [it would] address the govern-
ment’s ultimate motion, the Rule 35(b) motion." J.A. 135.
The court stated that it wanted to "get the medication issue
resolved first" before it decided the motion. J.A. 132. It fur-
ther explained its concern about Clawson’s need for care, stat-
ing:
[S]ince we’re in court and I’ve had a chance to
observe Mr. Clawson, even on his medication, he
does tend to have a more active interaction with his
attorney, to say the least. He would easily have prob-
lems in a custodial situation which was regimented.
Id. The court found that the BOP’s response on the issue
seemed "completely unreasonable," especially since Clawson
had been treated with the same medication for twenty-one
years and Clawson’s treating physician was a government
doctor from the Department of Veteran Affairs. J.A. 131.
The court noted that without the prescribed medication "the
quality of this man’s imprisonment will put it at Eighth
Amendment violation levels." J.A. 134. It postponed resolu-
tion of the government’s Rule 35(b) motion and stayed Claw-
son’s self-reporting date "indefinitely until such time as the
[BOP] evaluates this defendant’s medical situation and pro-
vides defense counsel and the government with its medical
plan for treatment," which would then need to be submitted
to Clawson’s treating physician for approval. J.A. 134.
On April 2, 2010, Dr. Jeffery Allen, Chief of the BOP’s
Health Programs, submitted a letter to the court explaining the
BOP’s position on Clawson’s treatment. He reported that dex-
troamphetamine was a "Schedule II controlled substance with
significant potential for abuse," and was not on the BOP’s for-
mulary of approved medications. J.A. 139. He further
explained that "the BOP does have other medications avail-
able on its formulary for treatment of ADHD and has devel-
UNITED STATES v. CLAWSON 7
oped non-formulary use criteria for treatment of ADHD based
on symptom severity." J.A. 140. Dr. Allen also stated that,
"[s]hould Mr. Clawson’s medical team in the BOP determine
that it is necessary to use dextroamphetamine to treat [him],
its use can be requested through the non-formulary request
process." Id. Finally, Dr. Allen observed that "[t]he BOP has
successfully managed other inmates with ADHD and depres-
sion and can provide Mr. Clawson with medical care appro-
priate to his diagnosis." Id.
The court held another hearing on the Rule 35(b) motion on
April 23, 2010. The court indicated that it was dissatisfied
with the BOP’s approach to Clawson’s medical treatment, and
that its dissatisfaction would color its decision on the motion.
It described its consideration of the motion at some length,
explaining:
There is no question . . . that they’re certainly not
going to start Mr. Clawson out on the medication
that appears to have been working for him all these
years. . . .
I’m also concerned . . . that the kind of behavioral
problems that would break out in any medical
change would make this man’s career in the [BOP]
impossible.
...
I’m also satisfied that this defendant . . . does not
in my view pose any real danger to the community
that cannot be adequately controlled with appropriate
supervision, and so I am going to under the [R]ule
35(b) motion resentence the defendant . . . .
J.A. 152-53. The court proceeded to sentence Clawson to
"one day in custody." J.A. 153. It ordered that his one-day
incarceration be followed by a period of supervised release of
8 UNITED STATES v. CLAWSON
fifteen years, the first three years of which would be served
on home confinement with electronic monitoring.
The government timely objected to the court’s ruling, argu-
ing that "the court ha[d] exceeded . . . the role of a [R]ule 35
departure and considered things outside the defendant’s coop-
eration." J.A. 157. The court responded that its decision was
based on "an extraordinary medical record" and on the court’s
belief that "[i]n a prison setting, [Clawson] wouldn’t survive."
J.A. 158.
This appeal followed.
II.
Against this background, we proceed to consideration of
the parties’ arguments on appeal. The government urges that,
in deciding whether to grant a Rule 35(b) reduction for sub-
stantial cooperation, a court may only consider the defen-
dant’s assistance to the government. It therefore asserts that
the court erred in reducing Clawson’s sentence based on a
non-cooperation factor.
Clawson contends that the plain language of Rule 35(b)
does not limit the factors that a court may consider when
reducing a sentence under that rule. He argues that the court
acted within its authority when granting the motion based on
its assessment of Clawson’s medical needs. He further asserts
that, even if we adopt the government’s reading of Rule 35(b),
the reduction was still justified in his case because the court
used it to correct a sentence that would otherwise violate the
Eighth Amendment’s prohibition against cruel and usual pun-
ishment.4
4
Clawson also urges that the government’s decision to file a motion for
reduction based on cooperation after sentencing rather than before sen-
tencing violated his due process rights. He argues that the government’s
strategy essentially lulled the court into thinking that it would have a later
UNITED STATES v. CLAWSON 9
We first address the scope of the district court’s authority
under Rule 35(b) and then consider Clawson’s constitutional
argument. We review both issues de novo. United States v.
Myers, 280 F.3d 407, 416 (4th Cir. 2002); United States v.
Rhynes, 218 F.3d 310, 320 (4th Cir. 2000).
A.
Federal Rule of Criminal Procedure 35(b)(1) allows the
court, upon the government’s timely motion, to "reduce a sen-
tence if the defendant, after sentencing, provided substantial
assistance in investigating or prosecuting another person."
The rule mentions no factors other than assistance that may be
considered in deciding to grant the reduction. Thus, its plain
text suggests that a court’s ruling on a Rule 35(b) motion rests
solely on a finding of whether the defendant provided sub-
stantial assistance to the government.
Even if the rule’s text were ambiguous, its heading further
clarifies the limitations of a Rule 35(b) motion. Although
"[t]he title of a statute and the heading of a section cannot
limit the plain meaning of the text," they are useful "when
opportunity to fully consider the relevant § 3553 factors when deciding the
motion. He therefore asks that we vacate his original 96-month sentence.
However, Clawson’s challenge to his original sentence is not properly
before us. Clawson did not file a cross-appeal and "an appellate court may
not alter a judgment to benefit a nonappealing party." Greenlaw v. United
States, 554 U.S. 237, 244 (2008). Thus, we need not address his argument
on this point.
Clawson further asserts that the government should be estopped from
challenging his sentence because it failed to object at the initial Rule 35(b)
hearing, when the district court first signaled its intention to consider
§ 3553(a) factors in ruling on the motion. However, the government
timely objected to the district court’s imposition of a sentence that
reflected factors other than Clawson’s cooperation with the government.
Clawson points to no legal principle, nor are we aware of any, that would
require the government to anticipatorily object to the court’s potential
future consideration of improper factors. His claim is without merit.
10 UNITED STATES v. CLAWSON
they shed light on some ambiguous word or phrase." United
States v. Hatcher, 560 F.3d 222, 226 (4th Cir. 2009) (quoting
Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co., 331 U.S.
519, 528-29 (1947)); see also United States v. Grant, 636
F.3d 803, 811 (6th Cir. 2011) (en banc). Here, the rule’s head-
ing indicates that a motion under Rule 35(b) pertains to "Re-
ducing a Sentence for Substantial Assistance." Fed. R. Crim.
P. 35(b) (emphasis added). This heading further supports our
determination that substantial assistance is the sole basis on
which a Rule 35(b) reduction may rest.
Our reading is consistent with the history of Rule 35(b). As
recently as 2001, the rule explicitly mandated that a district
court’s reduction of a defendant’s sentence "reflect a defen-
dant’s subsequent, substantial assistance in the investigation
or prosecution of another person who has committed an
offense." Fed. R. Crim. P. 35(b) (2001) (emphasis added); see
also Grant, 636 F.3d at 824 (noting the language change in
2002). The rule’s language was altered in 2002 "as part of the
general restyling of the Criminal Rules to make them more
easily understood." Fed. R. Crim. P. 35(b), advisory commit-
tee’s notes, 2002 amendments. However, the advisory com-
mittee’s notes on the redraft clarified that, with exceptions
that are not relevant here, the "changes [we]re intended to be
stylistic only." Id. (emphasis added).
The government’s reading of Rule 35(b) is also amply sup-
ported by caselaw. Although the Supreme Court has never
directly considered the issue before us, it has repeatedly
invoked Rule 35(b)’s limited function in other contexts. See
Pepper v. United States, 131 S. Ct. 1229, 1248 n.15 (2011)
("Rule 35(b) departures address only postsentencing coopera-
tion with the Government, not postsentencing rehabilitation
generally, and thus a defendant with nothing to offer the Gov-
ernment can gain no benefit from Rule 35(b)." (emphasis
added)); Dillon v. United States, 130 S. Ct. 2683, 2692 (2010)
(noting that "Rule 35 delineates a limited set of circumstances
in which a sentence may be corrected or reduced," and that
UNITED STATES v. CLAWSON 11
Rule 35(b) in particular "authorizes a reduction for substantial
assistance on the Government’s motion" (emphasis added)).
Furthermore, those circuit courts that have considered vari-
ations on this issue have all rejected Clawson’s reading. See
Grant, 636 F.3d at 813-14; United States v. Shelby, 584 F.3d
743, 749 (7th Cir. 2009); see also United States v. Doe, 351
F.3d 929, 933 (9th Cir. 2003) (reading an earlier version of
the rule to allow a district court to consider factors other than
assistance only to the extent that they "may militate against
granting a Rule 35(b) reduction" (internal quotations and
emphasis omitted)); United States v. Manella, 86 F.3d 201,
204 (11th Cir. 1996) (same); cf. United States v. Poland, 562
F.3d 35, 36, 41 (1st Cir. 2009) (deferring the "difficult and
delicate issue of statutory construction" implicated by Rule
35(b)’s impact on a district court’s consideration of factors
other than cooperation, but noting that "Congress has never
changed the statutory rule that [Rule 35(b)] reductions must
reflect only the assistance provided"). These courts based
their holdings on the text and history of the rule, as well as
the troubling potential consequences of a broader reading.
The Seventh Circuit, for example, found that a broader
reading of Rule 35(b) "would almost certainly reduce the
number of such motions filed, to the detriment" of all parties
involved. Shelby, 584 F.3d at 746. The court reasoned that
"the government would rarely make such motions any longer,
not only because by doing so it would lose control of the sen-
tencing process but also because the proceedings on the
motion would be more complex, since the defendant could
ask to be resentenced from the ground up." Id. at 747. Simi-
larly, the Sixth Circuit, sitting en banc, explained that "focus
on § 3553(a) as a starting point for analysis clouds the analyti-
cal exercise that the district court must undertake, which is to
determine whether the defendant is entitled to a reduction for
substantial assistance and, if he is, the extent of the reduc-
tion." Grant, 636 F.3d at 818. We agree with these courts that
12 UNITED STATES v. CLAWSON
a broad reading of Rule 35(b) would frustrate the purpose of
the rule.
For these reasons, we conclude that, when deciding
whether to grant a Rule 35(b) motion, a district court may not
consider any factor other than the defendant’s substantial
assistance to the government. Here, it is clear that the district
court did not adhere to this principle.
In explaining its approach to deciding Rule 35(b) motions,
the court stated: "Once that kind of a motion is filed, my con-
cern is what’s the appropriate bottom line sentence for that
particular defendant looking at the 3553(a) factors which
become more available to the Court especially when there’s
no longer a mandatory minimum." J.A. 129. When granting
the motion, the court made no finding regarding Clawson’s
assistance to the government. Instead, it based its holding
solely on its findings that Clawson would not receive ade-
quate medical care in prison, and that he did not pose a danger
to the community. Thus, we hold that the district court
exceeded its authority under Rule 35(b) by granting the
motion based on factors other than the defendant’s coopera-
tion with the government.
B.
Clawson argues that, regardless of our reading of Rule
35(b), we must nevertheless uphold the reduction because a
longer period of incarceration in his case would violate the
Eighth Amendment’s proscription of cruel and unusual pun-
ishment. He relies on the district court’s finding that the
BOP’s plan for his treatment would "impose upon [Clawson]
a degree of punishment that would be far more excessive than
for the normal person serving a sentence." J.A. 152. He also
notes that the court specifically found that, absent a revised
treatment plan, "the quality of [his] imprisonment [would] put
it at Eighth Amendment violation levels." J.A. 134. Clawson
argues that these findings justify the court’s holding because
UNITED STATES v. CLAWSON 13
"Rule 35(b) clearly should not be construed to require a court
to transgress the protections of the U.S. Constitution." Appel-
lee’s Br. at 21.
Clawson relies on Estelle v. Gamble, 429 U.S. 97 (1976),
in which the Supreme Court held that "deliberate indifference
to serious medical needs of prisoners constitutes the ‘unneces-
sary and wanton infliction of pain’ proscribed by the Eighth
Amendment." Id. at 104 (internal citation omitted). The Court
explained that such deliberate indifference may be "mani-
fested by prison doctors in their response to the prisoner’s
needs or by prison guards in intentionally denying or delaying
access to medical care or intentionally interfering with the
treatment once prescribed." Id. at 104-05 (emphasis added).
Clawson argues that the BOP’s policy in his case violated the
Eighth Amendment because it "announc[ed] its intention to
interfere with the regimen of treatment that he had been pre-
scribed by his government doctor." Appellee’s Br. at 24.
Clawson reads Estelle too broadly. In applying Estelle to
the psychiatric treatment context, we have specifically held
that a mere difference of opinion regarding the adequate
course of treatment does not give rise to an Eighth Amend-
ment violation. In Bowring v. Godwin, 551 F.2d 44 (4th Cir.
1977), we explained:
The right to treatment is, of course, limited to that
which may be provided upon a reasonable cost and
time basis and the essential test is one of medical
necessity and not simply that which may be consid-
ered merely desirable.
...
Along with all other aspects of health care, this
remains a question of sound professional judgment.
The courts will not intervene upon allegations of
mere negligence, mistake or difference of opinion.
14 UNITED STATES v. CLAWSON
Id. at 47-48; see also Wright v. Collins, 766 F.2d 841, 849
(4th Cir. 1985) (holding that "[d]isagreements between an
inmate and a physician over the inmate’s proper medical care"
are not sufficient to raise an Eighth Amendment claim for
purposes of 42 U.S.C. § 1983). Other circuits have reached
similar conclusions. See Gee v. Pacheco, 627 F.3d 1178, 1192
(10th Cir. 2010) ("Disagreement with a doctor’s particular
method of treatment, without more, does not rise to the level
of an Eighth Amendment violation."); Nelson v. Shuffman,
603 F.3d 439, 449 (8th Cir. 2010) (same); Jackson v. Fair,
846 F.2d 811, 817 (1st Cir. 1988) (same). Although an inmate
certainly has a right to necessary medical treatment, he does
not have a right to demand that the opinion of his pre-
imprisonment doctor be permitted to override the reasonable
professional judgment of the prison’s medical team.
Here, it is clear from the record that the BOP was prepared
to reasonably treat Clawson’s condition. The BOP Chief of
Health Programs’ letter to the district court clarified that,
although the BOP did not stock dextroamphetamine, it "does
have other medications available on its formulary for treat-
ment of ADHD and has developed non-formulary use criteria
for treatment of ADHD based on symptom severity." J.A.
140. The letter also explained that "[t]reatment decisions
about a particular inmate’s plan of care are individualized,
following a comprehensive evaluation performed upon the
inmate’s arrival." Id. It further assured the court that if the
BOP’s medical team determined that dextroamphetamine was
necessary to treat Clawson, "its use [could] be requested
through the non-formulary request process." Id. Finally, it
noted that "[t]he BOP has successfully managed other inmates
with ADHD and depression and can provide Mr. Clawson
with medical care appropriate to his diagnoses." Id.
On this record, Clawson’s argument that the BOP’s
response "showed the most profound disrespect and callous
disregard" to the treatment plan he had reached with his phy-
sician is simply unsupported. Appellee’s Br. at 26. To the
UNITED STATES v. CLAWSON 15
contrary, as the government argues, the BOP’s letter "reflects
[a] plan to carefully develop an individualized treatment
regime for Clawson’s ADHD based on a review of his medi-
cal record, his doctor’s treatment recommendations, and a
medical screening." Rep. Br. at 7. The mere possibility of a
change in treatment based on the professional judgment of a
prison’s medical team simply does not give rise to an Eighth
Amendment violation. As a result, the court’s resentencing
cannot be justified on constitutional grounds.
III.
For the reasons stated above, we vacate Clawson’s sentence
and remand for further proceedings. Because reconsideration
of the Rule 35(b) motion by the original sentencing judge
would inevitably invite speculation as to whether the medical
issue continued to play a role in the ultimate ruling, the case
should be reassigned to a new judge on remand.5
VACATED AND REMANDED
5
In reassigning this matter, we simply follow a protocol we have estab-
lished in other cases and imply no personal criticism of the trial judge. See
United States v. Guglielmi, 929 F.2d 1001, 1007-08 (4th Cir. 1991) (not-
ing that we may reassign the case on remand when "reassignment is advis-
able to preserve the appearance of justice").