In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3611
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T YREE N EAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 00-40101-06-GPM—G. Patrick Murphy, Judge.
A RGUED S EPTEMBER 25, 2009—D ECIDED JULY 6, 2010
Before E ASTERBROOK, Chief Judge, and K ANNE and
S YKES, Circuit Judges.
E ASTERBROOK, Chief Judge. Tyree Neal pleaded guilty
to crack-cocaine offenses and was sentenced to
137 months’ imprisonment. After the Sentencing
Commission reduced the Guideline ranges for crack, and
made those changes retroactive (see Amendment 706,
made retroactive as of March 3, 2008, by Amendment 713),
Neal asked the district court to reduce his sentence, as
2 No. 08-3611
18 U.S.C. §3582(c)(2) permits. The sentencing judge
denied the motion, with this explanation:
The Court declines to exercise its discretion to
reduce Defendant’s sentence. A sentence of 137
months is necessary to promote this defendant’s
respect for the law, to afford adequate deterrence
to criminal conduct, and to protect the public
from further crimes of the defendant. Had the
guideline amendment been in effect when the
original sentence was imposed, the Court would
have imposed a sentence of at least 137 months.
Two weeks later the judge amended his explanation,
elaborating slightly:
The Court declines to reduce the previous term of
imprisonment. If the guideline amendment had
been in effect when the original sentence was
imposed, the Court would have imposed a sen-
tence of at least 137 months under an advisory
guideline system. The Court finds that a sentence
reduction is not warranted. A sentence of 137
months is necessary to promote this defendant’s
respect for the law, to afford adequate deterrence
to criminal conduct, and to protect the public from
further crimes of the defendant.
No real difference so far. Then the judge added this:
Moreover, Defendant’s post-sentencing conduct
does not warrant a reduction. Specifically, prison
officials informed the Court that in August 2008,
Defendant was found guilty in an administrative
No. 08-3611 3
hearing for the second time of masturbating in
the presence of a female corrections officer. This
shows disrespect for the law in general and poor
impulse control in particular. He continues to be
insubordinate and disrespectful toward prison
officials and, as things stand now, it appears that
he has almost no chance of a successful period of
supervised release. The additional incarceration
is needed to give him time to accept and adjust
to the norms of society and authority.
Neal wanted to contest these new propositions but,
because the court’s order was unchanged, and the
revised explanation did not result from a motion for
reconsideration, the statement did not extend the time
for appellate review. Cf. United States v. Rollins, No. 09-
2293 (7th Cir. June 9, 2010). This made an immediate
appeal essential, and one was filed.
If the district court’s first explanation were the com-
plete one, the outcome would be straightforward. A
judge is entitled to take as given the Guideline calcula-
tion made at sentencing, adjusting that calculation
only for the retroactive changes. U.S.S.G. §1B1.10(b)(1).
Reliance on the prior resolution of factual disputes
means that the court usually need not hold evidentiary
hearings before acting on motions under §3582(c)(2). See
United States v. Young, 555 F.3d 611 (7th Cir. 2009). Section
3582(c)(2) gives the judge discretion; it does not compel
the judge to exercise that discretion favorably to any
particular defendant. And neither the statute nor the
Constitution requires the judge to conduct a full
4 No. 08-3611
resentencing in response to a motion. Dillon v. United
States, No. 09-6338 (U.S. June 17, 2010).
Neal’s argument that the judge must notify a de-
fendant of the proposed action and its rationale before
announcing it, so that counsel can address the judge’s
anticipated line of reasoning, is impossible to square
with Irizarry v. United States, 553 U.S. 708 (2008), which
held that there is no such requirement even when the
judge surprises everyone by giving a sentence higher
than the Guidelines recommend. If there is no need to
notify the litigants before varying from the Guidelines,
there is no need to notify them before sticking with a
sentence already announced. Judges need not release
what amount to preliminary opinions or send up trial
balloons.
Although a judge need not foreshadow his thinking,
what this judge said afterward requires separate analy-
sis. That a judge may consider a person’s behavior
in prison no one doubts. See U.S.S.G. §1B1.10 Applica-
tion Note 1(B)(iii). Neal contends that he was entitled to
advance notice of the fact that the judge planned to
rely on this information. His brief says that his disci-
plinary history had not previously been “disclosed.” Yet
it was his history; who knew it better? The principle
of Brady v. Maryland, 373 U.S. 83 (1963), requires the
disclosure of exculpatory evidence, not inculpatory
evidence, United States v. Bagley, 473 U.S. 667, 674–75
(1985), and even then only evidence unknown to the
defense. United States v. Lee, 399 F.3d 864, 865 (7th Cir.
2005). Discovery in criminal prosecutions is limited, see
No. 08-3611 5
Fed. R. Crim. P. 16(a), and discovery in criminal sen-
tencing more limited still. Wade v. United States, 504
U.S. 181, 186 (1992). Rule 16 does not authorize a new
round of discovery before sentencing, and certainly not
before a judge rules on a motion to reduce the sentence.
And the prosecutor’s obligations depend on the defen-
dant’s request. Neal did not request any particulars
about his prison disciplinary record, which he knew
already.
Thus the problem is not lack of notice or the fact that
the prosecutor did not make a spontaneous disclosure.
The problem is that the judge may not have his facts
straight. Neal contends that the judge is mistaken. And a
defendant is entitled to an opportunity to dispute con-
testable factual propositions that affect the sentence.
See U.S.S.G. §6A1.3. The record does not contain a
certified (or any other) copy of Neal’s prison disciplinary
record. This subject is outside the scope of the presen-
tence report, which was prepared in 2001. If the district
judge had referred to the disciplinary record when
denying the motion, then Neal would have had time
to seek reconsideration and request a hearing under
§6A1.3. By withholding the information until the day
on which the time for appeal expired, the district court
disabled Neal from requesting a hearing or presenting
any evidence of his own that would call into question
the judge’s understanding of his record or cast his intra-
prison conduct in a better light.
If the judge is mistaken about Neal’s conduct in
prison, reconsideration is in order. (The prosecutor con-
6 No. 08-3611
tends that the prison record is irrelevant, because the
judge did not mention it the first time; but if it did not
matter, why the amended statement of reasons?) How
did the judge know, or think he knew, about Neal’s
prison disciplinary history? It is not in the record of
these proceedings. The judge stated that “prison officials
informed the Court” about the discipline and Neal’s
(supposed) bad attitude. Informed the court how, exactly?
This is not a subject on which a judge may take judicial
notice. The facts are adjudicatory, not legislative, and
don’t appear to be general public knowledge. They are
not posted on the Bureau of Prisons’ web site, and the
Bureau’s understanding of a given inmate’s infractions
and attitude would be contestable even so.
At oral argument the prosecutor denied providing this
information to the district court. Have ex parte contacts
occurred? Did the judge or his staff ask the Bureau
of Prisons, bypassing the prosecutor and the ordinary
process of acquiring and considering evidence? Did
someone at the Bureau speak with or write to the judge?
Sometimes courts receive letters with information
bearing on the appropriate sentence, but these must be
placed in the record, so that the litigants may re-
spond—and no letter of this kind is in this record. Per-
haps the Probation Office secured the information from
the Bureau, but if so its report should have been
shared with Neal and placed in the record.
We do not know whether anything untoward has
occurred. But we also do not know where the judge’s
information came from or whether it is correct. Neal is
No. 08-3611 7
entitled to an opportunity to contest propositions that
affect how long he must spend in prison. He says that
the due process clause entitles him to a hearing, but
courts do not start with the Constitution. See, e.g., New
York Transit Authority v. Beazer, 440 U.S. 568, 582–83 (1979);
Rehman v. Gonzales, 441 F.3d 506, 508–09 (7th Cir. 2006).
Unless the procedures established by statutes, rules, and
the common law are challenged as insufficient, there
is neither need nor justification for constitutional
decisionmaking. Certainly there’s no need for it here.
The entitlement to a hearing to resolve material disputes
of fact comes from §6A1.3 and ordinary procedural
norms. Section 3582(c)(2) itself refers the court to “ap-
plicable policy statements issued by the Sentencing Com-
mission”, and §6A1.3 fits that bill, because it applies to
any “sentencing determination”.
The order is vacated, and the case is remanded for
a new decision on the motion under §3582(c)(2).
7-6-10