Wednesday, December 06, 2006

Facts or Factoids?

United States v. Arturo Orozco-Vasquez, No. 05-3920 (December 5, 2006): Mr. Orozco-Vasquez received a sentence of 120 months, well above his calculated guidelines range of 63 to 73 months. Although the opinion is less than clear, it appears that the district court’s explanation for this substantial variance was Mr. Vasquez’ criminal record, his membership in a gang, and his involvement in uncharged drug crimes. Apparently, none of these factors affected the calculation of the guidelines.

As framed by the Court, the appeal centered around the lack of support for factual findings made by the district court. In approving this sentence, the Court has emphasized or created a distinction that could have validity in some instances, but can create much mischief if not properly employed. Here is the key passage:

. . . not every fact-based statement a judge makes at sentencing is a "factual finding." Much of what a judge says in imposing and explaining a sentence consists of observations and assessments that form the basis of the judge’s consideration of the § 3553(a) sentencing factors. Sentencing post-Booker requires the sentencing judge to properly calculate the advisory guidelines range in the same manner as before Booker and then to make a discretionary decision whether to sentence the defendant within the advisory range or outside it in light of the very broadly stated sentencing factors set forth in § 3553(a). . . . The second step is an evaluative process by which the judge considers the particular statutory factors that inform the sentence he has decided to impose. We have held that the "duty to consider the statutory factors is not a duty to make findings." . . . Judicial observations about such factors . . . are not "facts" requiring "findings,"as when the judge calculates the guidelines range. As we have noted, only where a particular fact is contested and "decisive to the choice of sentence" must there be explicit fact-finding to support the judge’s exercise of sentencing discretion.

It is undoubtedly true that, for example, a defendant’s potential to be rehabilitated is a question that is not entirely factual. But does this obvious truth mean that the judge can be irrational in making conclusions about subsidiary findings that are for the most part factual? Consider two of the "findings" that were the subject of this appeal.

The district judge made a finding that, based on language Mr. Orozco, had used in a wiretapped conversation, he was a repeat drug dealer. The government presented an affidavit from one of its "experts," who opined that "possibly" or "probably" drug code words appeared in the conversation. Whether this sort of affidavit satisfies even the low preponderance standard became irrelevant because, as declared by the Seventh Circuit, the judge’s finding that Mr. Orozco used drug code words was not a "factual finding." A hunch that someone is a bigger drug dealer than is revealed by the evidence is a basis for enhancing a sentence, even though there are not enough facts to jack up the defendant’s relevant conduct.

Likewise, the district judge found that Mr. Orozco was a gang member, relying, in part, on his being shot in the head. Mr. Orozco said he had been shot by a car thief. The district judge thought the shooting was the result of a gang dispute. Once again, the Seventh Circuit thought the district judge’s take on this incident "was not a factual finding." Since this conclusion was not a factual finding, there was no requirement that the judge base it on anything other than surmise, intuition, or worse.

Of course, this framework should also apply to cases in which the government appeals a downward variance.