Judge-found facts are a "questionable foundation," says the Tenth Circuit

The Tenth Circuit released a succinct and eloquent opinion today reversing a criminal sentence for various procedural violations. (If you saw "succinct," "eloquent," and "Tenth Circuit" and said "Judge Gorsuch!" give yourself a prize.)

Here's the Court's description of the first error:

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. . . .

As the Court goes on to say, district courts are supposed to find the facts first and then apply the law to them, not decide what answer they want and then find facts to suit. (The Court doesn't use this metaphor, but it reminds me of people who cheated in their science lab work by just drawing the data points they knew they were supposed to get from the equations.)

There's lots more in the opinion, including some arithmetic corrections, an important holding about "plain error" review in federal sentencing, and the declaration that "courts are not machine presses and sentences are not widgets to be churned out on some criminal justice conveyor belt." But from my perspective the other observation of interest was this one:

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 (2014) (Scalia, J., dissenting from denial of certiorari). But in our case Mr. Sabillon-Umana has not challenged the district court's power to find facts at sentencing.

I covered Justice Scalia's dissent from denial in Jones here. Perhaps in a case where the issue is properly raised, Judge Gorsuch and other Tenth Circuit judges would be receptive to the Sixth Amendment argument?