Seventh Circuit Criminal Case of the Week: When Sentencing, Don’t Just Split the Difference

seventh circuitSplitting the difference is a tried and true tactic for resolving disputes.  I use this tactic all the time when I mediate conflict between my kids.  I also used it with great success to settle cases in practice.  But is splitting the difference an acceptable way for judges to resolve disputes? 

On the one hand, we have grown accustomed to think of judges as case managers.  We want them to dispose of cases efficiently, and splitting the difference is often the quickest way to get to a result that everyone can live with.  On the other hand, we also think about the court system as a place where objective truth is sought in an uncompromising way.  This ideal is connected, I think, to the common metaphor of judge as umpire.  In a baseball game, we would be shocked if an umpire began to award “half-strikes” for close pitches.  Or — a better comparison still — imagine a football game in which it was unclear whether a receiver cleanly caught or merely trapped a low pass in the end zone.  The ref announces, “I could take a look at the replay, but that would be a lot of trouble and probably wouldn’t provide a good angle on the play anyway, so I’ll just split the difference and call it a field goal.”  We would think such a call fundamentally inconsistent with the integrity of the game and a proper understanding of the referee’s role.  Should we feel any more comfortable when a judge simply splits the difference, rather than resolving a disputed question of fact?

The Seventh Circuit addressed this question last week in United States v. Dean (No. 08-3287).  A jury convicted Jeffery Dean of conspiring to distribute methamphetamine.  In a special finding, the jury found that the weight of the meth was less than 500 grams.  However, for purposes of determining the appropriate sentencing range under the federal guidelines, the sentencing judge is not bound by jury findings.  In preparing a presentence investigation report, the probabation officer found that Dean should actually be held responsible for more than 150 kilograms of meth. 

The difference between the jury’s finding of 500 grams and the probation officer’s finding of 150 kilograms was a very significant one.  If the judge accepted the jury’s view, then Dean’s maximum sentence under the guidelines would be 121 months, but if the probation officer’s finding prevailed the minimum sentence would be 235 months. 

Rather than expressly resolving the dispute over quantity, the judge stated that she would simply “split the difference.”  Dean then received a sentence of 156 months.

The Seventh Circuit (per Judge Ripple) held that this was an improper way to resolve the dispute and remanded for fact-finding on quantity.

In general, I am sympethetic to the view that judges ought to resolve disputes in a more principled fashion than by splitting the difference.  My own sense of the judge’s proper role is closer to the umpireal than the managerial, which leaves me with real doubts about the legitimacy of difference-splitting adjudication.

Still, two aspects of the result in Dean give me pause.  First, the federal sentencing guidelines have been merely advisory, and not binding on judges, since 2005.  The judge could have almost certainly imposed a sentence of 156 months regardless of the quantity of meth involved.  The legitimacy problem with difference-splitting adjudication seems rather less when the adjudication is not outcome-determinative. 

To go back to the football hypo: if the dispute was not about whether the ball was cleanly caught, but about whether the receiver caught the ball with one hand or two, we would not care how the dispute was resolved — it just doesn’t matter in any way that is significant to the outcome of the game.  Arguably, fact-finding disputes under the federal sentencing guidelines should now be seen as equally inconsequential. 

Indeed, the Seventh Circuit itself indicated earlier this year in United States v. Sanner that sentencing judges need not resolve all factual disputes and are free, in the words of Jon Deitrich, to “skip to the chase.”  (Jon’s insightful post on Sanner is here.)  There seems some tension between Dean and Sanner.  They might be reconciled, however, on the ground that the judge in Dean did not say that the fact-finding on quantity was irrelevant.  Perhaps the lesson for sentencing judges is this: you can skip unnecessary fact-finding, but if you choose to resolve a factual dispute and treat the fact-finding as important to the outcome, then you better find the facts on some more principled basis than splitting the difference.

Second, Dean implicates one of the enduring and powerful criticisms of the federal sentencing guidelines: the guidelines authorize judges to override jury fact-finding.  Thus, for instance, Dean would have faced the exact same sentencing range if the 150 kilos were found by a jury beyond a reasonable doubt as if they were found by a judge using the lower preponderance-of-the-evidence standard.  This approach seems to devalue the constitutional rights of criminal defendants to jury fact-finding beyond a reasonable doubt.  For this reason, there have been repeated calls for the guidelines to be modified so that judges cannot override jury determinations.  A compromise approach would, in effect, split the difference: judges could find facts inconsistent with jury verdicts, but such facts would be given reduced weight in the guidelines calculus.  (This approach has been suggested, for instance, by former Chief Judge Jon Newman of the Second Circuit — one of the most knowledgeable authorities on sentencing on the federal bench.) 

The record in Dean is not entirely clear, but it may be that the sentencing judge was trying to implement just such a weight-reduction concept.  (The judge stated, “It seems reasonable to me to make an adjustment in light of [the jury’s] finding.”)  If so, then the judge split the difference not as a matter of convenience, but based on a principled belief about the best way to show respect for important constitutional values in the sentencing process.  Put differently, the judge was making a policy decision, not a decision about historical fact.  (It may seem odd for a judge to make a policy decision, but this is now a permissible aspect of the judge’s sentencing authority under the Supreme Court’s 2007 holding in Kimbrough v. United States.)  If such was the sentencing judge’s intent, then we might think about her decision to “split the difference” in very different terms.  After all, splitting the difference is a common and accepted way of making policy.

The other new Seventh Circuit opinion in a criminal case last week was:

United States v. Hurt (No. 08-2986) (Bauer, J.) (affirming conviction and sentence in drug case).

This Post Has 3 Comments

  1. Bruce Boyden

    Michael, can you clear something up for a non-expert who’s been reading about the Supreme Court’s decisions in this area? Namely, I was under the impression that all facts that determine a sentence have to be found by a jury now. Under that logic, the judge here would be bound by the jury’s finding of 500 grams. What did I miss?

  2. Michael M. O'Hear

    Bruce, your question gets into one of the truly puzzling aspects of the Court’s recent Sixth Amendment cases. Yes, a jury’s findings control in a system of binding sentencing guidelines, but the federal sentencing guidelines were transformed from mandatory to merely “advisory” in 2005. A judge is permitted to find sentencing facts in the federal system because the judge is not required to give the exact weight to those facts that the guidelines direct. As long as the judge has discretion to decide how much weight to give a particular fact, the judge is free to override jury findings with respect to that fact. Believe me, a lot of ink has been spilled by many law professors tryng to make some sort of logical sense out of this rule. The Court has not explained why judicial fact-finding is okay in an advisory guidelines system, but not a mandatory guidelines system.

  3. Bruce Boyden

    Thanks, I missed the part where the advisory nature of sentencing somehow overrides the jury-factfinding requirement. That seems particularly odd in cases like this. It’s one thing to say that judges can find additional facts in sentencing on issues that the jury didn’t reach — but here, it looks like the judge can flatly override the jury on an issue of pure fact, at least for sentencing purposes. That seems deeply troubling for the traditional divide between judges and juries.

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