See, e.g. , United States v. Brown , 623 F.3d 104, 111–12 (2d Cir. 2010) ; Rezzonico v. H & R Block, Inc. , 182 F.3d 144, 149 (2d Cir. 1999).United States v. Thompson , 261 F.2d 809, 810 (2d Cir. 1958) ; see alsoUnited States v. Braun , 382 F. Supp. 214 (S.D.N.Y. 1974) ; United States v. Himsel , 951 F.2d 144 (7th Cir. 1991) ; Benson v. United States , 332 F.2d 288 (5th Cir. 1964) ; United States v. Patrick Petroleum Corp. of Michigan , 703 F.2d 94 (5th Cir. 1982).SeeHimsel , 951 F.2d at 146 (quoting the previous rule)

Rule 35 was amended again, effective December 1, 1991, so as to allow a trial court to correct arithmetical, technical, or "clear" errors in sentencing, but permits a district court to do so only within seven days after the original sentence was imposed, rather than "at any time."See United States v. Himsel, 951 F.2d 144 (7th Cir. 1991); United States v. Strozier, 940 F.2d 985 (6th Cir. 1991); United States v. Smith, 929 F.2d 1453 (10th Cir. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 146, 116 L.Ed.2d 112 (1991); United States v. Rico, 902 F.2d 1065 (2d Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990); United States v. Cook, 890 F.2d 672 (4th Cir. 1989); see also United States v. Betancur, 972 F.2d 1343 (9th Cir. 1992) (unpublished, citing Cook and Rico with approval). These decisions have held that a district court has an "inherent" authority to correct certain fundamental errors in sentencing — notwithstanding the "remand" language in Rule 35(a), as it stood between 1987-1991, which would appear to preclude a district court from resentencing a defendant except on remand from a court of appeals.

For example, while it used to be true, prior to November 1, 1987, that an illegal sentence could "be corrected at any time pursuant to F.R.Cr.P. 35,"Burns v. United States, 552 F.2d 828, 831 (8th Cir. 1977), now, absent a remand from a direct appeal, see Fed.R.Crim.P. 35(a), a federal sentencing court lacks the power to correct even an illegal sentence after seven days. Fed.R.Crim.P. 35(c); see also id., 1991 Commentary; United States v. Blackwell, 81 F.3d 945, 949 (10th Cir. 1996); United States v. Fahm, 13 F.3d 447, 453-54 (1st Cir. 1994); but see United States v. Himsel, 951 F.2d 144, 146-47 (7th Cir. 1991) (Rule 35(c)'s seven-day time limit not a curb on court's authority to correct an illegal sentence). Thus, a defendant could make a serious argument that he has a right to expect that his unappealed sentence will become final after the passage of that period.

Several other circuits have indicated that Rule 35 permits a district judge to correct errors of law. See Cook, 890 F.2d at 675 (noting that the district court could correct a sentencing error because the original sentence “was not a lawful one”); Rico, 902 F.2d at 1068 (upholding a sentencing modification because the original sentence was an “illegal sentence”); United States v. Himsel, 951 F.2d 144, 147 (7th Cir.1991) (noting that “the district judge had authority to vacate [a defendant's] first sentence if that sentence was illegal”); United States v. Quijada, 146 Fed.Appx. 958, 971 (10th Cir.2005) (unpublished) (concluding that a mistake or violation of the law was clear error). The panel opinion represents a divergence (if not a split) from those cases, worthy of the full court's consideration.

With respect to Herrera, these arguments are meritless and need not detain us long. "Any sentence under the Guidelines must be accompanied by a statement of `reasons for [the] imposition of the particular sentence.'" United States v. Himsel, 951 F.2d 144, 147 (7th Cir. 1991) (citing 18 U.S.C. § 3553(c)). In the ordinary case, we would expect the district court to address any and all colorable arguments raised by the defendant, stating clearly the reasons for accepting or rejecting the defendant's position.

" Any sentence under the Guidelines must be accompanied by a statement of `reasons for [the] imposition of the particular sentence'." United States v. Himsel, 951 F.2d 144, 147 (7th Cir. 1991) (citing 18 U.S.C. § 3553(c)) (emphasis added). Initially, we observe the court failed to explain the sentence in light of Application Note 2 to § 3E1.1, which states that the two-level reduction for demonstration of acceptance of responsibility "is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse."

A district court must explain its reasons for both the departure and its extent. United States v. Himsel, 951 F.2d 144, 147 (7th Cir. 1991). All Judge Lindberg said in the instant case was that the guidelines did not adequately account for certain unspecified factors in Muzika's case.