Judge’s sentencing process does not violate due process

The United States 7th Circuit Court of Appeals ruled a judge’s process to sentence a man who pleaded guilty to possession of cocaine did not violate the Fifth Amendment Due Process
Clause, and may even be a process to be emulated by other judges in the future.

James Thomas was sentenced to 235 months, below the guideline of 292 to 365 months, for possessing cocaine with intent to distribute. Thomas appealed, not challenging the length of his sentence, but said the process Northern District of Indiana Judge Theresa L. Springmann used to get there violated his due process rights.

Springmann used a six-step process that included the probation office preparing a pre-sentence report, which was given to counsel. After that, counsel for the defendant and the prosecution submitted written responses. Then, the judge held a telephone conference to determine how to proceed. Counsel then filed papers memorializing the positions they had taken during the conference. Two days after the conference, the judge issued a short opinion summarizing the conference, and approved Thomas’ request for a below-guideline sentence. Finally, the sentencing trial was held and Springmann sentenced him as she said she would. Thomas did not object to anything in writing or at the telephone conference.  

Thomas said step three, the telephone conference, and step five, issuing an early decision, violated his due process rights because he was not present at those steps. Circuit Judge Frank Easterbook wrote the decision in the case and said “no federal court ever has held or even suggested that there is anything problematic about a telephonic conference to discuss what issues need resolution in open court, or that a judge is forbidden to resolve on paper issues that can be resolved in advance of sentencing. Rule 43(b)(3) says that a defendant’s presence is not required for the consideration of legal issues.”

Also, Easterbrook said if steps 3 and 5 were problematic, what about steps 1, 2 and 4. Thomas was not present at those either, even though he was represented by counsel. Easterbrook said he didn’t even know how Thomas could have been present for the preparation of the opinion, which was done over the span of days. Thomas does not contend that it would violate due process for a judge to think the propositions contained in the opinion, and Easterbrook said, “We cannot conceive how the Due Process Clause would forbid a judge to notify counsel about thoughts entertained on the way to decision.”

Indeed, Easterbrook said Springmann’s process gave Thomas more representation than was required, not less. “Other district judges may deem it worthy of emulation; it is enough for us to call it constitutional,” Easterbrook wrote.

The case is United States of America v James A. Thomas, 15-1731.