No. 15-­--1731 UNITED STATES OF AMERICA v. James A. Thomas

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-­‐‑1731
UNITED STATES OF AMERICA,
Plaintiff-­‐‑Appellee,
v.
JAMES A. THOMAS,
Defendant-­‐‑Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:11-­‐‑CR-­‐‑22-­‐‑TLS — Theresa L. Springmann, Judge.
____________________
ARGUED FEBRUARY 24, 2016 — DECIDED MARCH 8, 2016
____________________
Before EASTERBROOK, ROVNER, and HAMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. James Thomas pleaded
guilty to possessing cocaine with intent to distribute and
was sentenced to 235 months’ imprisonment—a term below
the Guideline range of 292 to 365 months for someone with
his criminal history who distributed as much cocaine as he
did. His appeal does not contest the length of his sentence
but does maintain that the procedure the judge used to ar-­‐‑

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2 No. 15-­‐‑1731
rive at the sentence violated the Due Process Clause of the
Fifth Amendment.
The district judge arrived at the sentence after a multi-­‐‑
step procedure that the parties agree is the norm in her
court:
1. The probation officer prepared a presentence re-­‐‑
port, which was given to counsel. Fed. R. Crim. P.
32(d), (e).
2. Counsel for both the defendant and the prosecu-­‐‑
tion submitted written responses, outlining areas
of agreement and disagreement with the proba-­‐‑
tion officer’s conclusions and recommendations.
Fed. R. Crim. P. 32(f). Counsel also made recom-­‐‑
mendations about the appropriate sentence.
Thomas objected to the PSR’s calculation of rele-­‐‑
vant conduct (the quantity of cocaine for which he
was accountable); he also requested a sentence
lower than the Guideline range.
3. Next the judge held a telephonic conference to
discuss how to proceed. At this conference, de-­‐‑
fense counsel and the prosecutor agreed that no
witnesses would be called at sentencing. Thomas’s
lawyer withdrew all objections to the PSR’s calcu-­‐‑
lation of the Guideline range but maintained his
request for a below-­‐‑Guideline sentence.
4. Counsel promptly filed papers memorializing the
positions they had taken during the telephonic
conference.
5. Two days after the telephonic conference—and a
week before the date set for sentencing—the dis-­‐‑

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No. 15-­‐‑1731 3
trict court issued a short opinion that both sum-­‐‑
marized the extent of consensus at the conference
(for example, the parties’ agreement that evidence
would not be presented on the day of sentencing)
and tentatively approved Thomas’s request for a
below-­‐‑Guideline sentence. The judge wrote that it
was appropriate to sentence Thomas as if the
Guideline range were two levels lower than the
one the PSR had calculated (i.e., as if the range
were 235 to 293 months). The judge mentioned
Thomas’s age as the principal reason for this re-­‐‑
duction. He was 67 at the time, and the judge
thought him a reduced recidivism risk after a
lengthy sentence, even though his record (and his
age at the time of the offense) demonstrate that he
is a career criminal. The opinion stressed that the
conclusion is tentative and that the sentence
would be set only after proceedings in court.
6. With the defendant present, the judge listened to
arguments from counsel, heard allocution from
Thomas (Rule 32(i)(4)), and pronounced a sen-­‐‑
tence of 235 months’ imprisonment. Neither
Thomas nor his lawyer asked the judge to recon-­‐‑
sider anything covered in her opinion of a week
prior, though they did ask for a sentence lower
than 235 months. The judge also sentenced Thom-­‐‑
as to eight years of supervised release, subject to
nine conditions. These conditions had been pro-­‐‑
posed by the PSR, and Thomas did not object to
any of them in writing (step 2), at the telephonic
conference (step 3), or at sentencing.

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4 No. 15-­‐‑1731
In this court, Thomas contends that steps 3 and 5 violate
the Due Process Clause, principally because he was not pre-­‐‑
sent during these stages. He does not contend that the dis-­‐‑
trict judge departed from Fed. R. Crim. P. 32, which specifies
requirements for sentencing. Nor does he contend that the
judge violated Fed. R. Crim. P. 43(a)(3), which requires the
defendant’s presence at sentencing. Thomas was in court,
and exercised his opportunity to address the judge personal-­‐‑
ly, on the day of sentencing, and the judge’s earlier opinion
(step 5) specified that nothing it contained was definitive.
As far as we have been able to discover, no federal court
ever has held or even suggested that there is anything prob-­‐‑
lematic 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. Judges
regularly hear argument and rule on issues such as the suffi-­‐‑
ciency of the indictment (Rule 12(b)(3)(B)) and contested
matters such as discovery (Rule 16) outside the defendant’s
presence.
The Due Process Clause covers civil litigation as well as
criminal proceedings (it deals with deprivations of “life, lib-­‐‑
erty, or property”), and no one believes that a judge violates
the Due Process Clause in a civil suit by receiving submis-­‐‑
sions from counsel (step 3) or issuing tentative opinions
(step 5). Indeed, civil cases can be finally resolved under
Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 56 without the liti-­‐‑
gants ever seeing the judge. Criminal defendants are entitled
under the Due Process Clause to be present when that is es-­‐‑
sential to “a fair and just hearing”, United States v. Gagnon,

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No. 15-­‐‑1731 5
470 U.S. 522, 526 (1985), but representation by counsel suffic-­‐‑
es when presenting legal arguments to a judge and discuss-­‐‑
ing what issues require hearings. Criminal defendants also
enjoy protection under the Public Trial Clause of the Sixth
Amendment, but at oral argument Thomas’s lawyer dis-­‐‑
claimed any reliance on the Sixth Amendment.
If the conference (step 3) was problematic, what are we to
make of the distribution of the presentence report (step 1)
and counsels’ written submissions (steps 2 and 4)? Thomas
was not present for any of those steps either. He was, how-­‐‑
ever, represented by counsel, and he has not contended that
his lawyer disobeyed any of his instructions concerning
what arguments to advance or withdraw. If counsel may
make arguments on paper (step 2), what sense would it
make to forbid discussion of those submissions (step 3) to
see whether an evidentiary hearing was essential? This court
heard oral argument from counsel without Thomas’s pres-­‐‑
ence; as that procedure is compatible with the Due Process
Clause, why would the telephonic conference not be?
We don’t understand how, even in principle, a defendant
could be present for the preparation of the opinion (step 5),
something the judge did in chambers over the course of
hours or days. If the judge may prepare such an opinion in
chambers, as she may, see United States v. Burton, 543 F.3d
950, 953 (7th Cir. 2008), what could be wrong with releasing
that opinion through the clerk’s office a week before sentenc-­‐‑
ing? A judge could delay release until sentencing begins and
the defendant is in court, but that would harm rather than
help the defense. Releasing the opinion a week earlier allows
both the defense and the prosecution to tailor their presenta-­‐‑
tions to the judge’s thoughts. No surprises means not only a

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6 No. 15-­‐‑1731
presentation more helpful to the judge but less potential
need to recess the sentencing (grant a continuance, in law-­‐‑
yer-­‐‑speak) to deal with surprises.
More than that: Thomas does not contend that it would
violate the Due Process Clause for a judge to think the prop-­‐‑
ositions contained in the opinion. No judge arrives at sen-­‐‑
tencing with an empty head. The opinion issued at step 5
gives both sides potentially valuable information about the
judge’s thoughts without compromising the need to keep the
judge’s mind open to new information. See United States v.
Dill, 799 F.3d 821, 825 (7th Cir. 2015). Similarly, oral argu-­‐‑
ment in a court of appeals allows counsel to hear judges’ ten-­‐‑
tative thoughts and to address them before it is too late. We
cannot conceive how the Due Process Clause would forbid a
judge to notify counsel about thoughts entertained on the
way to decision.
The Due Process Clause requires notice and an oppor-­‐‑
tunity for a hearing. See, e.g., Jones v. Flowers, 547 U.S. 220
(2006). The procedure the district judge used gave Thomas
more notice than Rule 32 requires, and more opportunities to
be heard than Rules 32 and 43 require. It eliminated any dis-­‐‑
pute about the terms of supervised release, which have be-­‐‑
deviled district courts (and this court) in recent years. See,
e.g., United States v. Orozco-­‐‑Sanchez, No. 15-­‐‑1252 (7th Cir.
Feb. 26, 2016); United States v. Kappes, 782 F.3d 828 (7th Cir.
2015). The early announcement of an inclination to deduct
two offense levels allowed everyone to prepare for a focused
argument on just where in the 235-­‐‑ to 293-­‐‑month range the
sentence should fall, without extinguishing the prosecutor’s
opportunity to argue for a sentence higher than 293 months
or the defense’s opportunity to ask for fewer than 235

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No. 15-­‐‑1731 7
months. Both sides used that opportunity. The procedure
made everyone better off. Philosophers and economists
might call it a Pareto-­‐‑superior, if not a Pareto-­‐‑optimal, ap-­‐‑
proach to sentencing. Other district judges may deem it wor-­‐‑
thy of emulation; it is enough for us to call it constitutional.
AFFIRMED

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