dissenting.
This case presents a disturbing set of circumstances and a genuine conundrum as to the proper legal resolution. The district judge, several months after sentencing and well after any time for possible correction of the sentence under Rule 35 had passed, indicated on the record that she felt she had made an error in judgment in her sentencing, by sentencing within the guideline range rather than granting a substantial downward variance. Such a feeling is certainly not a unique circumstance among all of the thousands of sentences that occur in federal courts each year.
The judge further indicated that this error occurred, at least in part, as a result of conversations she had with a probation officer and pretrial services officer, who conveyed their “feelings,” not “anything they had observed or seen or done or conversations they had with [defendant].” Under these circumstances, although I appreciate the judge’s feelings of remorse, I cannot agree that the judge committed legal error, or should be permitted to alter her sentence at a time when such an alteration would otherwise be barred. I therefore respectfully dissent.
*313A judge is not barred from discussing a presentence report with probation or pretrial court employees, any more than with a judge’s own law clerks. While it would generally be improper for a judge to rely on actual fact-related statements from either source, such as a claim that the clerk or employee had witnessed certain conduct by defendant, a discussion of the import of the record is no more than an extension of the judge’s own thought processes. Had the judge concluded in her own mind that defendant likely had acted on his sexual fantasies, I don’t think anyone would maintain that the judge could come back months later and simply change her mind.
I do not see that the judge’s assessment of a plea for leniency in the form of a downward variance is a “controverted matter” under Rule 32(i)(3)(B). It does not constitute a ruling of fact or law that affects the offense level or criminal history category. I see no authority that a judge must rule separately, as a “controverted matter” on all claims (individually or collectively) that might be made by either side in a general plea for a greater or lesser sentence. The imposition of a sentence that properly considers the factors under 18 U.S.C. § 3553(a) adequately rules on whether a variant sentence is justified.
Because “sentencer’s remorse” is a significant possibility with district judges, especially in light of the very severe limitations on alterations under the current Rule 35(b),1 I am quite hesitant to open the potential loophole that is created by this opinion. While the circumstances of this particular case might be unique, the principle established opens the way for remorseful district judges to alter sentences long after the permitted time. It also opens an avenue for attack on sentences by claims, well-founded or not, that a judge had (or “must have had”) communications with members of the court family (clerks and pretrial and probation officers) that led to a judge’s exercising poor judgment in sentencing.
While I recognize that this case presents quite unusual facts (at least in the judge’s recantation, whether or not in the judge’s discussions), I am reluctant to embrace the principle embodied in the majority opinion, and I therefore respectfully dissent.
. Prior to 1987 and the amendment of Rule 35(b) by Pub.L. 98-473, § 215, 98 Stat. 1837, 2016 (1984), a judge could reduce a sentence within 120 days of imposition.