## In the 

# United States Court of Appeals
For the Seventh Circuit

____________

No. 05-4538

U NITED S TATES OF AMERICA , Plaintiff-Appellee

, v.

A DAM B ABUL , Defendant-Appellant

.

____________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 CR 548— Joan B. Gottschall

, Judge

.

____________ A RGUED J ANUARY 16, 2007—D ECIDED F EBRUARY 9, 2007

____________

Before E ASTERBROOK , Chief Judge , and P OSNERand E VANS , Circuit Judges

. E ASTERBROOK , Chief Judge . Both the written and the practical tests for commercial drivers’ licenses in Illinois are given only in English; th e state does not allow translators to assist applicants. Adam Babul operated Bamba, Inc., which offered a service to recent immigrants in Illinois who wanted to drive trucks for a living but didn’t speak or write English: for $2,000, he would help them secure licenses in Wisconsin, which allows translators to accompany applicants. Babul’s service employed deceitfrom beginning to end. First he obtained bogus addresses for the applicants, so that they appeared to be residents of Wisconsin (and thus eligible for licenses there)2 No. 05-4538

even though they lived in Illinois. Second he recruited translators who told the applicants what answers to give, not just what the questions me ant in their native tongues. Third Babul directed his clients to David Becker, who was authorized to administ er over-the-road tests in Wisconsin. For a fee four ti mes the lawful maximum forgiving a road test, Becker promised to assign the applicants passing grades no matter how badly they drove. At least 200 people obtained commercial licenses throughBabul’s scheme, for which he has been convicted of violating 18 U.S.C. §1014. This statute forbids making false statements to banks and other financial institutions; the statements in question were used to obtain documents that falsely showed the applicants to be residents ofWisconsin. Babul has been sentenced to 41 months’ imprisonment.

Although the evidence of guilt was overwhelming and the jury instructions impecc able, Babul contends that he is entitled to another trial because Magdalena Jelic, one of Babul’s employees at Ba mba who had detailed knowledge of its operations, testif ied for the prosecution without first taking an oath to tell the truth, as Fed. R. Evid. 603 requires. When the judge rea lized what had happened, she asked counsel how they wishedto proceed. The Assistant United States Attorney su ggested recalling Jelic and asking her under oath whether she stands by her answers. Babul’s lawyer—appare ntly thinking that this procedure would just emphasize Jelic’s testimony, which had been damaging to his client—forma lly waived any objection. He told the judge that he had no doubt that Jelic would reaffirm her testimony under oath, and that although he wanted the jury to disbelieve her story he saw no point in having her return to the stand. The judge accepted this waiver, and the trial proceeded.

Waiver means that there was no error; even plain-error review is unavailable. See United States v. Olano , 507 U.S.No. 05-4538 3

725, 732-33 (1993). This leads Babul’s appellate lawyer to contend that his trial la wyer lacked the authority to waive Jelic’s return to the stand. Only the defendant personally may waive the re quirement that testimony be taken under oath, Babul now maintains. Established doctrine has it that some rights are so important that only the defendant may waive them. The right to trial by jury is in this cate gory; so is the right to testify in one’s own defense. See Rock v. Arkansas , 483 U.S. 44 (1987); Jones v. Barnes , 463 U.S. 745 (1 983); Taylor v. United States , 287 F.3d 658 (7th Cir. 2002). What these rights have in common is that exercising, bypassing, or using these rights as bargaining chip s in negotiations with the prosecutor are the most important decisions in the case. The elections are discrete, and one does not need a legal education to appreciate the i ssues. By contrast, choices about trial practice and management—should a given witness’s testimony be presented? should a hearsay objection be made? what language should be proposed for the jury instructions?— are committed to counsel, not only because they are numer ous (asking the defendant each time would be impractical) but also because theyare the sort of choices for which legal training and experience are most helpful. A defendant may act as his own advocate, see Faretta v. California , 422 U.S. 806 (1975), but when he chooses to have a lawyer conduct the defense, the lawyer gets to conductthe defense and not just whisper advice in the defendant’s ear each time a decision must be made.

Babul insists that whether to allow testimony without an oath must be grouped wi th core decisions such as whether to testify (and whether to have a trial at all). As far as we can see, however, no appellate decision supports that proposition. Although th e absence of authority (no appellate decision supports the prosecutor, either) may be attributable to the situation’s rarity—not very often4 No. 05-4538

will judge, court reporter, de puty clerk, and every lawyer in the courtroom overlook a failure to administer the oath—we are not at all tempted by Babul’s invitation to establish a new principle . Babul observes thatUnited States v. Odom , 736 F.2d 104, 115-16 (4th Cir. 1984), and United Stat es v. Wilcoxon , 231 F.2d 384 (10th Cir. 1956), which treated counsel’s waivers of the oath as conclusive, both noted that the defendant either approved counsel’s decision or stood silent whencounsel chose; in this case the record does not reflect whether defendant was present when his lawyerwaived having Jelic recalled to thestand. To hold that a defendant’s acquiescence is sufficient is not to imply that it is necessary, however. Having a witness under oathfacilitates cross-examination, which is part of the co nstitutional right to confront one’s accusers. See Wigmore on Evidence§1362 at 10 (Chadbourn rev. 1974). But this relation between oathand cross-examination does not imply that decisionmaking rests exclusively in the accused’s hands. After a witness testifies, counsel rath er than the client decides whether to cross-examine, and, if so, what lines of inquiry to pursue. If counsel could have elected to limit or forego cross-examination of Jelic, he was equally entitled toforego placing Jelic under an oath that facilitates crossexamination. No appellate decision of which we areaware holds that the decision whether (and to what extent) to cross-examine a witness belongs exclusively to the defendant—andthis absence of authority can’t be chalked up to the fact that the subject rarely arises. Who decides about cross-examination is a question potentially at issue inevery criminal trial. The check on counsel’s decisions is not the defendant’s assent at each step along the way, but the doctrine of ineffective assistance, which ensures that counsel’s work as a whole satisfies professional standards. Babul does not contend that trial counsel furnished substandard assi stance; we think it likely,No. 05-4538 5

however, that if counsel haddemanded that Jelic return to the stand, Babul would now be arguing that counselundermined his case by enabling the prosecutor to reinforce damaging evidence against him.The remaining arguments concern two sentencing adjustments—one the district co urt made and one it did not. The one not made is a reduction on account of Babul’s status as an alien who will be removed from the UnitedStates as soon as he is released from prison. Babul observes that his impending removal will preclude any possibility of early release from prison to a half-way house and may change the mix of pro grams and services offered while he is in prison.

Before United States v. Booker , 543 U.S. 220 (2005), we had held that these differences never justify sentences below the appropriate ranges under the Sentencing Guidelines. See United States v. Meza-Urtado , 351 F.3d301 (7th Cir. 2004). Now that the Guidelines are advisory, however, Babul mainta ins that he is entitled to a reduction to avoid unwarranted disparities between the effective punishment meted out to citizens and the punishment of aliens. See 18 U.S.C. §3553(a)(6). This line of argument does not reckon with United States v. Boscarino , 437 F.3d 634 (7th Cir. 2006), which observed that sentences within the Gu ideline ranges are the surest way to comply with §3553(a)(6), for the Guidelines are designed to ensure like trea tment of like situations, and thus to avoid unjustified disparities. Thus we held in Boscarino that “[a] sentence within a properly ascertainedrange . . . cannot be treated as unreasonable by reference to §3553(a)(6).” 437 F.3d at 638. The lack of an “alienage discount” promotes rather than undermines the objective of §3553(a)(6). This is not to say that a district judge must sentence within the Guideline range in order to comply with6 No. 05-4538

§3553(a)(6). Ju dges have more flexibility now than they did when we decidedMeza-Urtado . Cf. United States v. Gama-Gonzalez , 469 F.3d 1109 (7th Cir. 2006). As we observed in United States v. Mallon , 345 F.3d 943 (7th Cir. 2003), under the Strasburg Convention most aliens are entitled to transfer to prisons in their home nations, where they will receive the benefit of any programs (and release opportunities) limited to citi zens. Babul does not argue that he is ineligible for sucha transfer. He remains in the United States by choice and cannot complain that he is serving the same sentence th at would be meted out to a U.S. citizen for committing the same offense.

Whether that sentence has been determined correctly depends on the application of U.S.S.G. §2B1.1(b)(12)(A). Guideline 2B1.1 deals with fraud and theft offenses, and the principal determinant of o ffense severity is financial loss. Subsection (b)(1) is a table of loss amounts, with higher offense levels attached to higher losses. The demonstrable financial loss fr om Babul’s scam was relatively low, producing a correspondingly low offense level by application of this table. The district court concluded, however, that one of the specific offense characteristics justified an increase. Subsec tion (b)(12)(A) provides for a minimum offense level of 14 if the offense involved “the conscious or reckless risk of de ath or serious bodily injury”.The district judge concluded that putting 200 incompetent truck drivers on the road created such a risk and adjusted the offense level accordingly.

Whether “effectively untested” truck drivers is the same thing as “incompetent” tr uck drivers is an empirical question, on which the record is silent. Does Wisconsin’s licensing system (or that of Illinois), when implemented honestly, ensure that drivers are safe? Or does anyone who applies eventually get a license (applicants may take the test over and over until they pass), leaving safety to be achieved in other ways—through supervision byNo. 05-4538 7

drivers’ employers, or through the insurance and tortsystems (drivers who build up records of moving violations and small accidents may be priced out of the market, through higher insurance premiums, before they cause death or serious injury on the road). States interferewith market-based means to achieve safety—assignedrisk pools and other devices keep accident-prone drivers on the road even when no private insurer is willing to accept the risk for a price th e driver is willing to pay, and even repeat drunk drivers often are allowed back behind the wheel—so perhaps one mustfall back on the licensure decision. Yet the fact that fe w people who want to drive have not been able to obtain licenses, and that more than 40,000 persons die in vehicular collisions annually, implies that the system falls short at filtering out bad drivers.

Whether evading the state’s testing system creates an incremental risk of death or serious bodily injury is an empirical question, on which bo th sides of this litigation have remained silent. They have offered lawyers’ arguments—talk about what might be , rather than data about what is . Yet data are readily available, either from comparing accident rates of licensed and unlicensed drivers or from analysis of the driving records of Babul’s clients. Even if many of Babul’s clients never found work as truck drivers, the rest drove for years before Babulwas caught, convicted, and sentenced; if they are especially dangerous, this would show up in both public and private records (convictions for moving violations and insurance experience). Yet no one thought to examine these records.

Many parts of the Guidelines , in addition to statutes such as 18 U.S.C. §16(b), pose the question whether a particular activity creates a risk of bodily injury or death. Numbers rather than words must supply the answers. Yet time after time counsel provide only talk, as if a8 No. 05-4538

classroom-style “it could be argued that . . .” were sufficient. Although pertinent da ta sometimes are available in governmental compilations or scholarly publications, and we have used what we could find, e.g., United States v. Howze , 343 F.3d 919 (7th Cir. 2003), usually we must rely on the records compiled inthe district court. Lawyers’ persistent failure to assemb le data that bear on the evaluation of risks has led us to express frustration and call on the bar to be more d iligent, and on the Sentencing Commission to quantify risks using its own databases. See,

e.g., United States v. Boyd , No. 06-2431 (7th Cir. Jan. 30, 2007), slip op. 6-7; United States v. Chambers , No. 06-2405 (7th Cir. Jan. 9, 2007), slip op. 5-6. In this litigation, however, words will have to suffice. Tempting as it is to say that the prosecutor, as the proponent of the increase under subsection (b)(12)(A), must lose because no data we re presented, we do not think that fiddling with the burdens of production and persuasion is a satisfactory solu tion. Judges are entitled to approach many empirical issues with a set of prior beliefs based on experience, and whenthe record is silent they may make decisions based on those priors. That incompetent drivers create risks of injury is a fact that no one contests; the annual death toll on the roads greatly exceeds the number of murders and military fatalities. Drivers who elect to use bribery and fraud to obtain licenses identify them selves as more likely to be incompetent than drivers who obta in licenses the honest way.

Published studies conclude that unlicensed drivers are involved in substantially mo re collisions than licensed drivers. See, e.g., David J. DeYoung, Raymond C. Peck & Clifford J. Helander, Estimating the exposure and fatal crash rates of suspended/revoked and unlicensed drivers in California , 29 Accident Analysis & Prevention 17 (1997) (unlicensed drivers have 4.9 times as many fatal crashes apiece as licensed drivers, wh ile people driving on sus-No. 05-4538 9

pended or revoked licenses are “only” 3.7 times as likely as licensed drivers to be invo lved in fatal crashes). Although the published studies are limited to drivers of personal rather than commercial vehicles, and do notrule out the possibility that people who have valid personal licenses are competent truck drivers without holding valid commercial licenses, they provide support for a belief that all drivers who do not hold valid licenses pose extra risk of injury or death. Subsection (b)(12)(A) speaks of“risk” rather than “substantial” or even “materi al” risk, and Babul’s crime must have createdsomerisk. The omission of qualifiers such as “substantial” makes sense. Guideline 2B1.1 as a whole deals with theft and fraud, crimes that generally cause only financial injury. When a fraud creates the risk of physical injury or death, a longer sentence is appropriate. The table of equivale nce tells us that not much risk of physical injury is required: subsection (b)(12)(A) raises the offense level to 14, the same level that is appropriate for embezzling $70,000. (The base offense level under §2B1.1 is 6, to which extra levels are added as the loss increases. A loss between $70,000 and $120,000 adds 8 levels, for a total of 14.) A single death in a road accident imposes losses much greater than $70,000; many bodily injuries also exceed that level. Even a 1-in-50 chance of death or serious in jury equates to a financialloss in the $70,000 range. Plunking 200 potentially incompetent drivers behind the wheel of heavy trucks readily could create much grea ter risks, so in the absence of evidence quantifying th e danger the judge was entitled to invoke this enhancement. Babul’s crime put strangers at greater risk than if he had pilfered $70,000 from a corporation’s treasury. A sentence of 41 months cannot be thought unreasonably high. It may well be unduly favorable to Babul—for if the district court had treated as “loss” the $2,000 paid by each of his clients (on10 No. 05-4538

the theory that they paid for commercial licenses but received only worthless pape r), then the offense level would have been even higher.

A FFIRMED A true Copy:

Teste:

________________________________ Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—2-9-07