United States v. Harold Junior Stanberry

SEYMOUR, Circuit Judge,

concurring.

I concur in most of the court’s opinion. I write separately because I see no basis in either logic or experience for the dicta regarding special verdicts on sentencing factors, see majority opinion at 1326 n. 2. Now that sentencing courts must make a number of particularized findings of fact under the Sentencing Guidelines, see e.g., Guidelines, §§ 2B1.1(b)(1) (loss calculation), 2D1.1 (drug quantity), 3B1.1 (organizer, leader, manager, or supervisor of criminal activity), those courts may desire the impressions of juries which have carefully heard and evaluated the evidence.

The defendant, of course, has “no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact,” McMillan v. Pennsylvania, 477 U.S. 79, 93, 106 S.Ct. 2411, 2420, 91 L.Ed.2d 67 (1986), and the district court therefore commits no error when it refuses to submit a special interrogatory to the jury, United States v. Smith, 938 F.2d 69, 70 (7th Cir.), cert. denied, — U.S. —, 112 S.Ct. 254, 116 L.Ed.2d 208 (1991). Even when it does seek the jury’s recommendation on sentencing-related facts, the court remains responsible for making findings on its own independent assessment of the evidence. United States v. Levy, 955 F.2d 1098, 1106 (7th Cir.1992). The court’s parameters in this task are less restrictive than those of the jury. The court may consider information unavailable to the jury and “may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information [it] may consider, or the source from which it may come.” United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). Sentencing factors, moreover, need only be proven by a preponderance of the evidence. Accordingly, the court’s findings may well differ from the jury’s. See United States v. Jacobo, 934 F.2d 411, 417-18 (2d Cir.1991). So long as courts do not accept the juries’ findings as conclusive in matters relevant to sentencing, however, see United States v. Prior, 941 F.2d 427, 430-31 (6th Cir.) (remand with instructions that district court may use jury verdict on quantity of drugs only as recommendation), cert. denied, — U.S. —, 112 S.Ct. 613, 116 L.Ed.2d 635 (1991); Jacobo, 934 F.2d at 416-18 (sentencing court not bound by jury verdict on drug quantity), I see absolutely no harm in the court asking the jury for guidance in the form of special interrogatories.

The use of such advisory juries is now common in a number of courts, including but not limited to the cases cited by the majority. See, e.g., Prior, 941 F.2d 427; Smith, 938 F.2d 69; Jacobo, 934 F.2d 411. A court that asks the jury’s view of sentencing factors does not thereby abdicate its responsibility1 for making the ultimate determinations of those facts, nor does it *1328limit in any way its ability to apply appropriate guidelines to the facts it finds. I am therefore at a loss as to the meaning of the majority’s assertion, unsupported by either law or example, that special verdicts “promise increased complexity and may debase the Sentencing Guidelines.” I respectfully disagree.

. Indeed, as discussed above, it may not.