Appeal from the United States District Court for the District of Colorado. (D.C. No. 1:12-CR-00113-WYD-3).
Robert S. Berger of Robert S. Berger, P.C., Denver, Colorado, for Defendant-Appellant.
J. Bishop Grewell, Assistant United States Attorney (John F. Walsh, United States Attorney, and Stephanie N. Gaddy, Special Assistant United States Attorney, on the brief), Denver, Colorado, for Plaintiff-Appellee.
Before GORSUCH, SENTELLE,[*] and MURPHY, Circuit Judges.
GORSUCH, Circuit Judge.
Sentencing someone to prison has to be one of the district judge's toughest tasks. So much is at stake for the defendant, the victim, and the community. So much responsibility rests on the judge's shoulders, along with the high expectation that the judge will wisely weigh things that cannot be easily weighed. How much punishment is enough to protect the public? To deter future wrongdoing? To reflect the gravity of the offense? And how much punishment suffices to accomplish all these things without verging on cold revenge or needless retribution? There's rarely a single right answer to hard questions like these. So our system depends, as perhaps it must, on the discretion of thoughtful judges.
One tool district judges have to help them in their unenviable task is the advisory sentencing guidelines. The guidelines seek to supply some sense of what other courts across the country are doing in similar cases and what sentencing experts think may be appropriate. See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 1A3.1 (2012); Rita v. United States, 551 U.S. 338, 349, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Of course, each defendant must be assessed on his or her own terms: courts are not machine presses and sentences are not widgets to be churned out on some criminal justice conveyor belt. But a properly calculated guidelines sentence provides useful data, a " starting point" or " initial benchmark," even as it remains the judge's duty to tailor every sentence to the case and defendant at hand. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In this case we confront two errors in the district court's benchmark guidelines analysis.
The first arose this way. Early in the sentencing hearing the district judge noted that Mr. Sabillon-Umana was but a bit player in a larger drug operation. In that light, the judge stated that he thought a guidelines base offense level of 32 sounded about right and he asked the probation officer to offer some justification for that number. The probation officer promptly obliged. He told the court that finding Mr. Sabillon-Umana responsible for 1.5 kilograms of cocaine and 1.5 kilograms of heroin sold by the larger conspiracy would yield the court's desired base offense level. By the hearing's end, the district court adopted those findings as its own and imposed a sentence based on them.
This upended the normal course of events. When sentencing a defendant involved in a conspiracy, the district court is supposed to start by making factual findings about how much of the conspiracy's criminal activity the defendant agreed
to and could've reasonably foreseen. See U.S.S.G. § 1B1.3, cmt. n.2; United States v. Green, 175 F.3d 822, 837 (10th Cir. 1999). Then, with a full appreciation of those facts, the court must calculate the defendant's base offense level and the advisory guidelines sentence that flows from that calculation. See United States v. Figueroa-Labrada, 720 F.3d 1258, 1267 (10th Cir. 2013). Finally, with the guidelines' advice in hand, the court may decide whether a variance is warranted to ensure a just sentence. See Gall, 552 U.S. at 49-50. Put simply, the court is supposed to start with the facts, then consult empirics about similarly situated defendants and the expertise of the Sentencing Commission, and only then make an individualized judgment about the case at hand informed by that information. The district court in this case failed to follow this order of operations, starting with a conclusion about the appropriate guidelines sentence before backing into factual findings to support its conclusion. This was error.
We admit the proper order of operations we've outlined rests in part on a questionable foundation. It assumes that a district judge may either decrease or increase a defendant's sentence (within the statutorily authorized range) based on facts the judge finds without the aid of a jury or the defendant's consent. It is far from certain whether the Constitution allows at least the second half of that equation. See, e.g., Jones v. United States, 135 S.Ct. 8, 190 L.Ed.2d 279 (2014) (Scalia, J., dissenting from denial of certiorari). But in our case Mr. Sabillon-Umana has not challenged the district court's power to ...