United States v. Arroyo

75 F.4th 705

UNITED STATES of America, Plaintiff-Appellee, v. Luis ARROYO, Defendant-Appellant.

No. 22-2008

United States Court of Appeals, Seventh Circuit

Argued April 19, 2023

Decided July 28, 2023

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 19-cr-805-1 — Steven C. Seeger, Judge.

Christine Marie O'Neill, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Michael I. Leonard, Attorney, Leonard Trial Lawyers, Chicago, IL, for Defendant-Appellant.

Before Hamilton, Brennan, and Kirsch, Circuit Judges.

Kirsch, Circuit Judge.

Former State Representative Luis Arroyo accepted thousands of dollars in bribes to promote sweepstakes-gaming interests in the Illinois legislature and executive branch. When the government uncovered the bribery scheme, Arroyo was indicted and pleaded guilty to wire fraud. The district court sentenced him to 57 months' imprisonment and ordered that he forfeit $32,500 in bribe money.

On appeal, Arroyo argues that the district judge committed several errors at sentencing. First and foremost, Arroyo contends that the judge erred by finding his 57-month sentence necessary to deter public corruption when the record lacked empirical evidence supporting that conclusion. We've rejected this argument before and do so again today. District judges need not marshal empirical data on deterrent effects before considering whether a sentence adequately deters criminal conduct. The judge presumed that public officials are rational actors who pay attention when one of their own is sentenced. That presumption was reasonable, and the judge did not err when he justified Arroyo's sentence with the logic of general deterrence—that sentences influence behavior at the margins. Arroyo also contends that the judge erred by deeming several of his allocution statements aggravating and ordering him to forfeit too much money. These arguments lack merit, too, so we affirm.

I

Luis Arroyo served in the Illinois House of Representatives from 2006 to 2019. While in office, Arroyo also managed a lobbying firm. From November 2018 until October 2019, Arroyo's firm received $32,500 in checks from James Weiss's sweepstakes-gaming company. Arroyo admitted that he received payments from Weiss's company in exchange for his official support for the sweepstakes industry in the General Assembly. Despite never expressing a view on sweepstakes gaming before November 2018, Arroyo began pushing for sweepstakes-friendly legislation and encouraging other legislators and executive-branch officials to support the same. All the while, Arroyo concealed his financial arrangement with Weiss.

In August 2019, after failing to pass sweepstakes legislation, Arroyo and Weiss sought to enlist a state senator in their scheme. In a meeting with the senator, Arroyo admitted to receiving payments from Weiss for advancing sweepstakes-gaming interests in the General Assembly, asked the senator to sponsor a gaming bill in the Senate, and promised that the senator would be paid for doing so. Unbeknownst to Arroyo or Weiss, the senator was working with the government and wearing a wire. Three weeks later, Arroyo gave the senator a $2,500 check from Weiss's company and promised "we're going to write you a check per month" for a year.

In October 2019, the government charged Arroyo by complaint with bribery under 18 U.S.C. § 666(a)(2). A year later, a grand jury indicted Arroyo on one count of bribery, three counts of wire fraud, and one count of mail fraud. See id. §§ 666(a)(2), 1341, 1343, 1346. In November 2021, Arroyo pleaded guilty to one count of wire fraud.

The case proceeded to sentencing, where the district judge emphasized the seriousness of Arroyo's offense and the need to deter other public officials who "might be tempted to sell out the public" like Arroyo. Noting that public officials were watching and listening, the judge wanted "to make sure that they hear a message loud and clear" that "[p]ublic corruption isn't worth it." The judge then put the issue in economic terms:

From a supply-and-demand perspective, the length of the sentence matters. The lower the cost—in other words, the lower the sentence—the more public corruption you're going to get. Public officials are rational actors. They think about the costs and benefits of public corruption. They think about how likely it is they're going to get caught. They think about what will happen to them if they do get caught. They think about the costs and benefits of corruption.

The judge emphasized the need "to make sure that the costs of public corruption are high enough to deter other people from engaging in public corruption."

After weighing the other sentencing factors under 18 U.S.C. § 3553(a), as well as aggravating and mitigating facts in the record, the judge imposed a sentence of 57 months—the top end of Arroyo's Sentencing Guidelines range. The judge also ordered Arroyo to forfeit $32,500, concluding that all of the payments Arroyo's lobbying firm received from Weiss's company were bribes. Arroyo appeals, challenging his sentence on procedural grounds and the forfeiture amount.

II

A

Arroyo argues that the district judge's reliance on general deterrence amounted to procedural error. We review procedural challenges to sentences de novo. See United States v. Llanos, 62 F.4th 312, 316 (7th Cir. 2023). A district court procedurally errs when it fails to "adequately explain its sentence in reference to the criteria set out in 18 U.S.C. § 3553(a)." United States v. Saldana-Gonzalez, 70 F.4th 981, 984 (7th Cir. 2023). We question whether Arroyo's challenge is, in fact, procedural and subject to de novo review. But because there was no error under any standard of review, we need not answer that question.

Sentencing judges must consider, among other things, the need for a sentence to "to afford adequate deterrence to criminal conduct."18 U.S.C. § 3553(a)(2)(B). By including general deterrence as a required consideration, Congress embraced the idea that criminal sentences influence behavior in society. See United States v. Goldberg, 491 F.3d 668, 672 (7th Cir. 2007). The idea of general deterrence, put simply, is that the longer the sentence, the more it will discourage similar criminal conduct by others.

Arroyo argues that the judge procedurally erred because the record lacked empirical evidence showing that public officials consider sentences or engage in cost-benefit analysis when it comes to corruption. Arroyo says the judge's analysis was therefore purely speculative and unreliable. The judge, Arroyo further argues, "relied almost exclusively" on general deterrence while ignoring important mitigating facts like his age and lack of criminal history.

Once again, we reject outright the contention that the district judge's "emphasis on general deterrence was unreasonable because the theory that longer sentences deter illegal activity lacks empirical support." United States v. Hatch, 909 F.3d 872, 876 (7th Cir. 2018). Section 3553(a)(2)(B) requires judges to consider general deterrence when fashioning a sentence, and nothing in the statute suggests that empirical findings are a prerequisite. Nor did the district court err by expressing Congress's logic in economic terms. General deterrence is, after all, an economic theory of punishment: "Where the profits to be made from violating a law are higher, the penalty needs to be correspondingly higher to achieve the same amount of deterrence." United States v. Cavera, 550 F.3d 180, 196 (2d Cir. 2008) (en banc) (citing Richard A. Posner, Economic Analysis of the Law, § 7.2 (3d ed. 1986)). What's more, public officials are the "prime candidates for general deterrence" because they "act rationally, calculating and comparing the risks and the rewards before deciding whether to engage in criminal activity." United States v. Brown, 880 F.3d 399, 405 (7th Cir. 2018) (quoting United States v. Warner, 792 F.3d 847, 860-61 (7th Cir. 2015)). Bribery is a premeditated crime—those tempted to sell out the public have plenty of time to weigh the risks and rewards before doing so. The district judge did not err by reasonably presuming that public officials consider the criminal sentences of other politicians, and that a longer sentence for Arroyo was necessary to deter corruption at the margins.

Zooming out, Arroyo also contends that the judge erred by focusing nearly...