                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-4538
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                               v.

ADAM BABUL,
                                         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.
                         ____________
  ARGUED JANUARY 16, 2007—DECIDED FEBRUARY 9, 2007
                    ____________


 Before EASTERBROOK, Chief Judge, and POSNER and
EVANS, Circuit Judges.
   EASTERBROOK, Chief Judge. Both the written and the
practical tests for commercial drivers’ licenses in Illinois
are given only in English; the state does not allow transla-
tors 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 deceit
from beginning to end. First he obtained bogus ad-
dresses 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 meant in their native tongues.
Third Babul directed his clients to David Becker, who
was authorized to administer over-the-road tests in
Wisconsin. For a fee four times the lawful maximum for
giving a road test, Becker promised to assign the appli-
cants passing grades no matter how badly they drove. At
least 200 people obtained commercial licenses through
Babul’s scheme, for which he has been convicted of violat-
ing 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 of
Wisconsin. Babul has been sentenced to 41 months’ im-
prisonment.
   Although the evidence of guilt was overwhelming and
the jury instructions impeccable, Babul contends that he
is entitled to another trial because Magdalena Jelic, one
of Babul’s employees at Bamba who had detailed knowl-
edge of its operations, testified for the prosecution without
first taking an oath to tell the truth, as Fed. R. Evid. 603
requires. When the judge realized what had happened, she
asked counsel how they wished to proceed. The Assistant
United States Attorney suggested recalling Jelic and
asking her under oath whether she stands by her answers.
Babul’s lawyer—apparently thinking that this procedure
would just emphasize Jelic’s testimony, which had been
damaging to his client—formally 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 lawyer lacked the authority to
waive Jelic’s return to the stand. Only the defendant
personally may waive the requirement 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 category; 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 (1983); 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 chips 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 issues. 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 numerous (asking the defendant
each time would be impractical) but also because they
are the sort of choices for which legal training and experi-
ence 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 conduct the defense and not just whis-
per 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 with 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 the absence of authority (no
appellate decision supports the prosecutor, either) may
be attributable to the situation’s rarity—not very often
4                                             No. 05-4538

will judge, court reporter, deputy 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 that United
States v. Odom, 736 F.2d 104, 115-16 (4th Cir. 1984), and
United States 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 when counsel chose; in this case
the record does not reflect whether defendant was pres-
ent when his lawyer waived having Jelic recalled to the
stand. To hold that a defendant’s acquiescence is suf-
ficient is not to imply that it is necessary, however.
  Having a witness under oath facilitates cross-examina-
tion, which is part of the constitutional right to confront
one’s accusers. See Wigmore on Evidence §1362 at 10
(Chadbourn rev. 1974). But this relation between oath
and cross-examination does not imply that decision-
making rests exclusively in the accused’s hands. After a
witness testifies, counsel rather 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 to
forego placing Jelic under an oath that facilitates cross-
examination. No appellate decision of which we are
aware holds that the decision whether (and to what ex-
tent) to cross-examine a witness belongs exclusively to
the defendant—and this 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 in every 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 profes-
sional standards. Babul does not contend that trial coun-
sel furnished substandard assistance; we think it likely,
No. 05-4538                                               5

however, that if counsel had demanded that Jelic return
to the stand, Babul would now be arguing that counsel
undermined his case by enabling the prosecutor to rein-
force damaging evidence against him.
  The remaining arguments concern two sentencing ad-
justments—one the district court 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 United
States as soon as he is released from prison. Babul ob-
serves that his impending removal will preclude any
possibility of early release from prison to a half-way house
and may change the mix of programs 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.3d
301 (7th Cir. 2004). Now that the Guidelines are ad-
visory, however, Babul maintains 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 Guideline ranges are the surest
way to comply with §3553(a)(6), for the Guidelines are
designed to ensure like treatment of like situations, and
thus to avoid unjustified disparities. Thus we held in
Boscarino that “[a] sentence within a properly ascertained
range . . . cannot be treated as unreasonable by refer-
ence 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 with
6                                               No. 05-4538

§3553(a)(6). Judges have more flexibility now than they
did when we decided Meza-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 citizens. Babul does not argue
that he is ineligible for such a transfer. He remains in the
United States by choice and cannot complain that he is
serving the same sentence that 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 offense 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 from Babul’s scam was rela-
tively 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. Subsection (b)(12)(A) provides for a
minimum offense level of 14 if the offense involved “the
conscious or reckless risk of death or serious bodily injury”.
The district judge concluded that putting 200 incom-
petent 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” truck 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 by
No. 05-4538                                                7

drivers’ employers, or through the insurance and tort
systems (drivers who build up records of moving viola-
tions 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 interfere
with market-based means to achieve safety—assigned-
risk 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 the driver is willing to pay, and
even repeat drunk drivers often are allowed back behind
the wheel—so perhaps one must fall back on the licensure
decision. Yet the fact that few 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 both sides of this litigation
have remained silent. They have offered lawyers’ argu-
ments—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 Babul
was caught, convicted, and sentenced; if they are espe-
cially 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 a
8                                              No. 05-4538

classroom-style “it could be argued that . . .” were suffi-
cient. Although pertinent data 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 in the district court. Lawyers’
persistent failure to assemble data that bear on the
evaluation of risks has led us to express frustration and
call on the bar to be more diligent, 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 were presented, we do not think
that fiddling with the burdens of production and persua-
sion is a satisfactory solution. Judges are entitled to
approach many empirical issues with a set of prior beliefs
based on experience, and when the record is silent they
may make decisions based on those priors. That incompe-
tent 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 themselves as more likely to be incom-
petent than drivers who obtain licenses the honest way.
  Published studies conclude that unlicensed drivers are
involved in substantially more 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, while people driving on sus-
No. 05-4538                                               9

pended or revoked licenses are “only” 3.7 times as likely
as licensed drivers to be involved in fatal crashes). Al-
though the published studies are limited to drivers of
personal rather than commercial vehicles, and do not
rule out the possibility that people who have valid per-
sonal licenses are competent truck drivers without hold-
ing 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 “sub-
stantial” or even “material” risk, and Babul’s crime
must have created some risk. 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 appro-
priate. The table of equivalence 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 injury equates to a financial
loss in the $70,000 range. Plunking 200 potentially in-
competent drivers behind the wheel of heavy trucks
readily could create much greater risks, so in the absence
of evidence quantifying the danger the judge was en-
titled 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 (on
10                                         No. 05-4538

the theory that they paid for commercial licenses but
received only worthless paper), then the offense level
would have been even higher.
                                             AFFIRMED
A true Copy:
      Teste:

                     ________________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




                 USCA-02-C-0072—2-9-07
