United States of America v. Lorenzo Johnson

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 21-3345
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LORENZO JOHNSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:20CR7-001 — Philip P. Simon, Judge.
____________________
ARGUED NOVEMBER 29, 2022 — DECIDED JANUARY 15, 2025
____________________
Before SYKES, Chief Judge, and HAMILTON and BRENNAN,
Circuit Judges.
SYKES, Chief Judge. Lorenzo Johnson ran an online child-
pornography scheme in which he induced destitute women
to send him sexually explicit photos of their young children
by promising them money. Law enforcement identified the
IP address, social-media accounts, and cellphone Johnson
used to carry out his scheme. Officers then searched John-
son’s home and recovered his phone, which contained

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2 No. 21-3345
evidence of the crimes; they also recovered a handgun.
Johnson confessed key details of his scheme in two recorded
interviews with FBI agents. A jury found him guilty of
conspiracy to produce child pornography, distribution of
child pornography, and unlawful possession of a firearm as
a felon.
On appeal Johnson raises three claims of procedural er-
ror. First, he claims that either the magistrate judge or the
district judge should have granted his requests for new
counsel. He also challenges the district judge’s denial of his
motion for a new trial based on a late disclosure of potential
Brady/Giglio evidence. Last, he argues that the judge made an
improper factual finding at sentencing regarding his causal
role in the suicide of one of the women who participated in
his scheme.
We affirm. The magistrate and district judges appropri-
ately exercised their discretion in denying Johnson’s requests
for new counsel. The district judge also properly denied
Johnson’s motion for a new trial because it was undevel-
oped. Finally, Johnson’s claim of sentencing error is mis-
placed. Not everything a judge says at sentencing is a factual
finding. The judge discussed the coconspirator’s suicide as
part of his holistic assessment of the seriousness of the
crimes. His comments did not amount to a factual finding
that Johnson was causally responsible.
I. Background
The facts of Johnson’s child-exploitation scheme are un-
settling. But he does not challenge the jury’s verdict, so a
summary will suffice to put his claims of procedural error in
context. We omit the disturbing details.

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No. 21-3345 3
In January 2020 a grand jury in the Northern District of
Indiana returned an indictment charging Johnson with five
crimes: three counts of conspiracy to produce child pornog-
raphy in violation of 18 U.S.C. § 2251(a), (e); one count of
distribution of child pornography, id. § 2252(a)(2), (b)(1); and
one count of unlawful possession of a firearm as a felon, id.
§ 922(g)(1). The charges arose out of Johnson’s online child-
pornography scheme in which he targeted women in dire
financial straits and induced them to send him sexually
explicit photos of their very young children—first by prom-
ising a quick payment of money and then by threatening to
expose their involvement once they began sending him
photos.
Johnson’s scheme generally operated as follows: he initi-
ated contact with the women over Facebook using an ac-
count in the name of “Ashley Campbell.” Once a target
responded and signaled some interest in continuing the
conversation, he added his own Facebook account as an
additional method of communication. He then used his
cellphone to receive, store, and distribute the child pornog-
raphy he solicited from his targets.
Johnson’s scheme was operational for at least several
months during the summer and fall of 2019. In October a
woman he tried but failed to enlist in the scheme reported
his activities to law enforcement. With her consent, an officer
took control of her Facebook account and, impersonating
her, continued the online chat Johnson had initiated. The
conversation went on for several weeks as the undercover
officer tried to elicit more information from Johnson about
his child-pornography operation. In tandem with the online
undercover investigation, forensic investigators also gath-

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4 No. 21-3345
ered digital evidence about the IP address and Facebook
accounts Johnson was using. The IP address was registered
to Johnson’s home in Hammond, Indiana.
When they had enough evidence, investigators obtained
a search warrant for Johnson’s home, where they recovered
his cellphone and other evidence of the crimes, together with
a Taurus .40 caliber handgun. In a recorded interview with
FBI agents, Johnson confessed to key inculpatory details
about the scheme, including that he had operated the “Ash-
ley Campbell” account and that the agents would find
sexually explicit photos of children on his cellphone. He also
admitted that the gun found in his home was his. Because
Johnson’s criminal record includes an Illinois felony convic-
tion for aggravated sexual abuse of a minor, he was required
to register as a sex offender and was prohibited from pos-
sessing firearms.
Johnson’s phone contained sexually explicit photos of
children sent by three women between July and October
2019. The women took photos of their children’s genitalia
and sent them to Johnson in response to his specific requests.
The children were very young—three boys (ages two, four,
and six) and a girl (age one).
In a second recorded interview with FBI agents, Johnson
admitted additional details about his child-pornography
operation. The three charged conspiracy counts pertained to
Johnson’s conduct with each of the three identified women
who responded to his online outreach and sent him sexually
explicit photos of their children between July and October
2019. One of the women was charged as a codefendant in the
indictment against Johnson in Northern District of Indiana;
the other two were indicted on similar charges in the North-

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No. 21-3345 5
ern District of Illinois. The distribution count pertained to
Johnson’s redistribution of the child pornography between
July and December 2019.
Johnson faced enhanced penalties on the conspiracy and
distribution counts based on his prior felony conviction for
aggravated sexual abuse of a minor. See §§ 2251(e),
2252(b)(1). The case was initially set for trial in late March
2020, but the trial was postponed until mid-July and then
early November 2020.
In August 2020—about eight months after Johnson was
arraigned and at the height of the Covid-19 pandemic—
Johnson sent a letter to the court complaining about inade-
quate communication from his appointed counsel Adam
Tavitas. Johnson reported that he had a videoconference
meeting with Tavitas in April and described his unsuccess-
ful attempts since then to reach the attorney to discuss his
case ahead of the November trial date and to request that he
file a motion for home confinement because of Covid. John-
son’s letter made passing reference to aspects of his defense
and concluded by saying that he did not know if he could
get a new lawyer or what could be done about his situation.
He asked the court for help.
The magistrate judge assigned to Johnson’s case struck
the pro se letter and convened a telephonic status conference
to address the attorney-client situation. At the hearing, the
judge explained that he struck the letter because it contained
some rudimentary references to Johnson’s possible defense
and also because Johnson was represented by counsel; the
judge admonished Johnson to communicate with the court
only through his appointed attorney.

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6 No. 21-3345
The judge then asked Johnson’s attorney to address the
complaint about inadequate communication. Tavitas ex-
plained that several attorneys had contacted him about
possibly representing Johnson, which led him to believe that
his client might be hiring new counsel. Tavitas assured the
magistrate judge that he and Johnson had met and worked
through this misunderstanding and were now “on good
terms.” He added that he thought Johnson still wanted him
to remain as his lawyer.
The magistrate judge then addressed Johnson directly,
reiterating that he should communicate with the court
through his attorney and explaining that if he wanted Tavi-
tas to remain as his counsel, then nothing more needed to be
done. The judge also said, however, that if Johnson wanted
Tavitas to withdraw, then the two should discuss that option
and the attorney would file an appropriate motion. After
some additional discussion between Tavitas and the judge
about the defense attorney’s trial schedule, the judge con-
cluded the hearing by reminding Johnson that any time he
communicated directly with the court instead of through his
counsel, he risked “exposing things that the Government
shouldn’t know,” and “we don’t want that.” The judge also
assured Johnson that Tavitas “is a very caring and experi-
enced lawyer”—but he added that if Johnson and his attor-
ney had “irreconcilable differences for whatever reason,”
then he would consider appointing another lawyer.
For the next year or so, no concerns were raised about the
attorney-client relationship. In the meantime, the November
trial date was postponed to February 2021 and then to April
2021, and the case was administratively reassigned to a
different district judge. In March 2021 the codefendant—one

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No. 21-3345 7
of the women who participated in Johnson’s scheme—
committed suicide. In early April Johnson’s attorney moved
to continue the trial date again. The newly assigned judge
granted the motion and set a firm trial date of August 11,
2021.
On August 9—two days before trial—Tavitas moved to
withdraw as Johnson’s counsel. The motion was brief,
saying only that Johnson had become argumentative during
a meeting on August 6, and the next day had advised Tavi-
tas that he wanted a new lawyer and a postponement of the
trial date.
At a hearing on August 10, the district judge excused the
prosecutor and then asked Tavitas to elaborate on the bare-
bones motion. The lawyer explained that Covid-related jail
restrictions had prevented him from meeting with his client
as often as he would have liked since Johnson’s arraignment
20 months earlier. But he said he met with Johnson at the jail
at least four or five times in recent months in preparation for
trial and spoke with him on the phone several times. The
judge asked him to be more specific about the nature of the
breakdown in the attorney-client relationship. The attorney’s
response was generic: Tavitas said only that Johnson was
unhappy with his trial preparation but was not more specif-
ic. He also told the judge that their August 6 meeting was
quite heated and might have turned physical had there not
been a glass partition separating them.
The judge then asked Johnson if he had anything to say.
Johnson’s response was similarly nonspecific. He generally
complained that Tavitas had not adequately explained why
he had declined to file a suppression motion and had not
shared enough information about the evidence in the case.

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8 No. 21-3345
When asked to respond, Tavitas assured the court that he
had discussed the evidence and litigation strategy with his
client multiple times. Johnson also complained that Tavitas
spent too much time talking about a possible plea deal even
though he made clear that he didn’t want one.
After a brief recess, the judge returned to the bench and
denied the motion. In his oral ruling, he cited the Supreme
Court’s decision in Martel v. Clair, which identifies three
primary factors to guide decisions on motions for substitute
counsel: the timeliness of the motion, the adequacy of the
court’s inquiry into the nature of the defendant’s complaint,
and the asserted grounds for the motion, including the
nature and extent of the conflict or communication break-
down between lawyer and client. 565 U.S. 648, 663 (2012).
Starting with the timeliness question, the judge noted the
obvious: the motion was filed on the eve of trial, which
weighed heavily against granting it. Regarding the adequacy
of his inquiry into the reasons for the motion, the judge
explained for the record that he had just spent 30–35 minutes
“delving into the nature of [Johnson’s] complaint,” implicitly
concluding that this level of consideration was adequate
under the circumstances.
Regarding the third and final factor, the judge was un-
convinced that there was any real breakdown in communi-
cation between lawyer and client—and certainly no
indication of a conflict serious enough to warrant appoint-
ment of new counsel and adjournment of the trial. The judge
emphasized that Tavitas had met with Johnson “many,
many times” and that they had reviewed the relevant evi-
dence and information about the case. Though the two had
recently “argue[d]” and it got “heated at times,” the judge

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No. 21-3345 9
explained that “clashes in personality are an insufficient
basis to merit a substitution of counsel.” Citing circuit
caselaw—specifically, United States v. Volpentesta, 727 F.3d
666 (7th Cir. 2013)—the judge observed that “butting heads
does not equal a total breakdown in communication,” and
“simply disagreeing does not mean you’re failing to com-
municate.” With all relevant factors weighing against John-
son’s request, the judge denied the motion and said the trial
would proceed the next day as planned.
The defense strategy at trial centered on a contention that
law enforcement should have investigated other suspects
who might have been operating the “Ashley Campbell”
Facebook account—in particular, someone named Alonzo
Brandon, whom Johnson had mentioned in his first FBI
interview as another person who had access to the account.
The defense also emphasized that the two principal FBI case
agents had declined to investigate an unidentified woman
who was in Johnson’s home at the time of the search.
The jury convicted Johnson on all counts. Two weeks be-
fore sentencing, the prosecutor filed an ex parte motion for a
protective order explaining that she had recently learned of a
romantic relationship between the two principal FBI case
agents. The motion noted that the government had asked the
agents before they testified if they had any relationships
with other witnesses that could be viewed as undermining
their objectivity or improperly influencing their testimony.
Neither agent mentioned their romantic relationship at that
time. When it came to light after the trial, both agents as-
sured the prosecutor that the relationship had not affected
their objectivity or influenced their testimony.

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10 No. 21-3345
The prosecutor asked the court to seal the motion and
enter a protective order so that she could disclose this newly
acquired information to the defense without unnecessary
burden on the agents’ privacy interests. The motion also
noted the government’s position that the belated disclosure
of this potential Giglio evidence1 was not prejudicial because
the information likely would have been excluded as irrele-
vant and not a proper basis for cross-examination. The judge
sealed the motion, entered the requested protective order,
and directed the government to disclose the new infor-
mation to Johnson’s counsel.
At the beginning of the sentencing hearing, the judge
briefly addressed the matter and asked the defense attorney
to confirm that he had received the sealed information from
the government. Tavitas replied that he had, adding that he
had discussed it with his client, who instructed him to orally
move for a new trial based on the government’s belated
disclosure. The judge pressed Tavitas to explain the materi-
ality of the new information—more particularly, how it
could have been used during cross-examination of the FBI
agents. The attorney declined to be more specific. He said
only that he had given Johnson his opinion on the potential
admissibility of the new information, and that Johnson had
asked him to move for a new trial “even after” hearing his
opinion.
The judge denied the motion as undeveloped, explaining
that it was “barebones” and the defense had not explained
how the new information would have been relevant or
material to the cross-examination of the agents. In the
1 Giglio v. United States, 405 U.S. 150 (1972).

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No. 21-3345 11
judge’s view, the new information seemed “entirely irrele-
vant to anything that took place during this trial.”
Before moving on, we note one additional development
at sentencing that bears on this appeal. In its sentencing
memorandum, the government had discussed the codefend-
ant’s suicide, and at sentencing the prosecutor argued that
Johnson was partly to blame “because if she [had] never had
this man drop into her life, maybe she’d still be here today.”
The judge addressed this subject in his sentencing re-
marks, describing the three women who participated in
Johnson’s scheme as “both victims and co-conspirators.” In
evaluating the sentencing factors under 18 U.S.C. § 3553(a)—
particularly the nature and seriousness of Johnson’s
crimes—the judge described the codefendant’s suicide as “a
tremendous tragedy.” He continued: “[S]urely[] the burden
… and the publicity from the case and the other shame that
she likely endured … played a role” in her death. He added
that “[n]o one could conclude otherwise.” The judge
acknowledged, however, that Johnson “didn’t have any
intention of that happening,” and he was “not suggesting”
otherwise. Still, the judge concluded that “the nature of the
offense could hardly be more serious” because of the harm
to the very young children depicted in the photos, the
criminal consequences for the two women who were con-
victed in another district as coconspirators, and the suicide
of Johnson’s codefendant.
Based on the egregiousness of Johnson’s conduct and his
prior felony conviction for aggravated sexual abuse of a
minor, the judge imposed a sentence of 50 years in prison,
below the life term recommended by the Sentencing Guide-
lines.

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12 No. 21-3345
II. Discussion
Johnson raises three arguments on appeal. First, he con-
tends that either the magistrate judge or the district judge
should have granted his request for new counsel. Next, he
challenges the district judge’s rejection of his motion for a
new trial. Finally, he challenges his below-guidelines sen-
tence on procedural grounds, arguing that the judge relied
on inaccurate or unreliable evidence to make a factual
finding that he caused the codefendant’s suicide.
A. Motion for New Counsel
Johnson’s claim that the magistrate and district judges
wrongly denied his requests for new counsel is resoundingly
refuted by the record. To begin, we note that resolving
attorney-client concerns in criminal cases is highly contextu-
al and entrusted to the sound discretion of the district court.
Martel, 565 U.S. at 663. Magistrate and district judges have
broad discretion in this area given their superior position to
evaluate the nature and degree of the problem and whether
a change in counsel is needed. “Because a trial court’s deci-
sion on substitution is so fact-specific, it deserves deference;
a reviewing court may overturn it only for an abuse of
discretion.” Id. at 663–64; see also United States v. Campos-
Rivera, 15 F.4th 826, 829 (7th Cir. 2021).
Starting with Johnson’s challenge to the magistrate
judge’s handling of his August 2020 pro se letter, we note
first that Johnson never actually requested new counsel. His
letter complained about inadequate communication from his
attorney and asked the court for help. The magistrate judge
carefully addressed the situation, resolving it to everyone’s
satisfaction. First, the judge appropriately struck the pro se

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No. 21-3345 13
letter, telling Johnson that he “could get into trouble by filing
direct letters [and] … revealing some issue with [his] case
that the [g]overnment would not have known.” The judge
also explained that because Johnson was represented, he
should communicate with the court through his counsel—a
well-established principle. See United States v. Cross, 962 F.3d
892, 899 (7th Cir. 2020) (“A defendant does not have a right to
represent himself when he is also represented by counsel. A
court thus has wide discretion to reject pro se submissions by
defendants represented by counsel … .” (quotation marks
omitted)).
The magistrate judge then got to the bottom of the com-
munication concern: Tavitas explained that he had been
contacted by other attorneys about possibly representing
Johnson, leading him to believe that his client might be
hiring new counsel. Tavitas assured the court that he and
Johnson had resolved their miscommunication and were on
good terms, and that his client wanted him to stay on the
case. And Johnson concurred. The judge made it clear,
however, that if an “irreconcilable difference” arose “for
whatever reason,” then he would address it and consider
appointing new counsel. Because Johnson did not in fact
request a new attorney and the judge appropriately ad-
dressed the nascent problem between attorney and client,
the argument that the magistrate judge mishandled the pro
se letter is a nonstarter.
Nor is there any support in the record for Johnson’s chal-
lenge to the district judge’s ruling on Tavitas’s motion to
withdraw and request for substitute counsel, which came a
year later. Quite the opposite: the record reflects that the
judge handled the motion flawlessly, citing the Supreme

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14 No. 21-3345
Court’s decision in Martel and carefully evaluating the
relevant factors.
Our review covers the same ground: we consider “the
timeliness of the motion; the adequacy of the district court’s
inquiry into the defendant’s complaint; and the asserted
cause for that complaint, including the extent of the conflict
or breakdown in communication between lawyer and client
(and the client’s own responsibility, if any, for that conflict).”
Martel, 565 U.S. at 663. “Reversible error occurs only when
the conflict between attorney and client ‘was so great that it
resulted in a total lack of communication preventing an
adequate defense.’” Campos-Rivera, 15 F.4th at 830 (quoting
Volpentesta, 727 F.3d at 673).
The eleventh-hour motion for new counsel—filed just
two days before the already much-extended trial date—was
clearly untimely, as the judge held. See, e.g., United States v.
Jones, 844 F.3d 636, 642 (7th Cir. 2016) (a substitution request
made three weeks before trial left “not much time to pre-
pare” for trial); United States v. Burgos, 539 F.3d 641, 646 (7th
Cir. 2008) (a request submitted on the morning of trial came
too late); United States v. Harris, 394 F.3d 543, 552–53 (7th Cir.
2005) (same); United States v. Huston, 280 F.3d 1164, 1167 (7th
Cir. 2002) (same); United States v. Hall, 35 F.3d 310, 313–14
(7th Cir. 1994) (affirming the denial of a request for new
counsel filed ten days before sentencing). Untimely requests
for new counsel can be “nothing more than tactics to manip-
ulate or delay the trial.” Huston, 280 F.3d at 1167 (citing
United States v. Golden, 102 F.3d 936, 941 (7th Cir. 1996)).
Turning to the second factor, the judge’s inquiry into the
claimed attorney-client conflict was thorough and easily
adequate under the circumstances. The motion itself was

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No. 21-3345 15
short and almost entirely content-free, noting only that
Johnson was “argumentative” in a meeting three days earlier
and otherwise claiming only generally that there was “a
breakdown in the attorney client relationship.” The judge
spent 30 to 35 minutes trying to tease out more specifics
about the nature and extent of the conflict between Tavitas
and Johnson. He asked questions about how frequently the
two had met and whether they had communicated ade-
quately during those meetings. He gave Tavitas and Johnson
ample opportunity to explain the nature of the problem.
When his initial inquiry failed to produce sufficient infor-
mation, he asked follow-up questions and gave them addi-
tional time to explain. Indeed, Johnson has not meaningfully
challenged the adequacy of the judge’s inquiry, and we can
find no shortcomings in it ourselves.
That brings us to the nature and extent of the conflict be-
tween attorney and client. Here too we see no reason to
second guess the judge’s determination that there was no
real breakdown in communication between attorney and
client. Tavitas and Johnson both confirmed that they had met
multiple times in preparation for trial, reviewed the evi-
dence, and discussed the defense strategy. Johnson protested
that it wasn’t enough. He said he wanted Tavitas to chal-
lenge the search warrant; he also complained that Tavitas
had spent too much time talking about a possible plea deal.
The judge was right to view this as a disagreement about
case strategy rather than “a total breakdown in communica-
tion.” Campos-Rivera, 15 F.4th at 830. The relationship be-
tween attorney and client may have been acrimonious at
times, but that alone does not warrant substitution of coun-
sel. See Volpentesta, 727 F.3d at 673–74. In short, there is no
evidence of a “total lack of communication preventing an

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16 No. 21-3345
adequate defense.” Campos-Rivera, 15 F.4th at 830 (quoting
Volpentesta, 727 F.3d at 673). The judge properly denied
Johnson’s request for new counsel.
B. Motion for New Trial
Johnson next challenges the judge’s denial of his motion
for a new trial based on the belated disclosure of the FBI
agents’ romantic relationship. As we’ve noted, the motion
was made orally at sentencing and was unaccompanied by
any argument. Though the judge asked for the specific basis
for the motion, none was forthcoming. For the sake of the
record, the judge asked counsel how the new evidence
would have been relevant or useful in cross-examining the
agents. Tavitas replied carefully, saying only that he had
given his client his considered opinion on that question, and
“even after” hearing his opinion, Johnson still wanted him to
make an oral motion for a new trial. There was no further
elaboration. It's no surprise, then, that the judge denied the
motion as undeveloped.
We could construe this unsupported motion as insuffi-
cient to preserve this issue for appeal. But the government
hasn’t argued waiver—probably because the motion was
plainly meritless and the judge’s rejection of it was manifest-
ly correct.
The government’s late disclosure of the agents’ relation-
ship arguably raises a question under the familiar principles
of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United
States, 405 U.S. 150 (1972). Brady held that “the suppression
by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good

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No. 21-3345 17
faith or bad faith of the prosecution.” 373 U.S. at 87. Giglio
extended the Brady principle to material evidence bearing on
the reliability of the testimony of a government witness. 405
U.S. at 153–54.
A successful Brady/Giglio claim must meet three criteria.
The evidence in question (1) “must be favorable to the
accused”; (2) “must have been suppressed by the govern-
ment”; and (3) “must be material, that is, there must be ‘a
reasonable probability that the suppressed evidence would
have produced a different verdict.’” United States v. Morales,
746 F.3d 310, 314 (7th Cir. 2014) (quoting Strickler v. Greene,
527 U.S. 263, 281–82 (1999)).
We focus on the third requirement—as the district judge
did, albeit without the benefit of any argument. The likely
effect of the new evidence on the outcome of the trial “must
be determined in light of the full context of the weight and
credibility of all evidence actually presented at trial.” United
States v. Silva, 71 F.3d 667, 670 (7th Cir. 1995). And because
the trial judge is best positioned to assess Brady/Giglio evi-
dence in full context, we review the judge’s decision deferen-
tially, reversing only if we find an abuse of discretion. Id.
(citations omitted).
The judge was at a loss to conceive of any way in which
the information about the FBI agents’ romantic relationship
could have been helpful to the defense in cross-examination.
He therefore concluded that the new information was imma-
terial. We agree.
On appeal Johnson argues that the romantic relationship
might have caused the agents to be distracted or to make
mistakes and try to cover up each other’s errors. This argu-

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18 No. 21-3345
ment is both speculative and entirely unmoored from the
trial record. The evidence of Johnson’s guilt was overwhelm-
ing and included Johnson’s two recorded inculpatory state-
ments and irrefutable digital evidence from his phone, IP
address, and social-media accounts tying him to the crimes.
Nothing required the jury to resolve a dispute about the
agents’ credibility. Like the district judge, we struggle to see
the relevance of the agents’ romantic relationship to the
investigative choices they made. The judge was well within
his discretion to deny Johnson’s motion for a new trial.
C. Sentencing Error
Finally, Johnson argues that the judge committed proce-
dural error at sentencing by making factual findings based
on unreliable or inaccurate information—more specifically, a
finding that that he was causally responsible for his code-
fendant’s suicide. To win resentencing based on this type of
procedural error, the defendant must establish both that
inaccurate information was before the court and that the
judge actually relied on it in making the sentencing decision.
See United States v. Campbell, 99 F.4th 957, 960 (7th Cir. 2024);
United States v. Wood, 31 F.4th 593, 599 (7th Cir. 2022).
Johnson’s argument runs aground on the truism that “not
every fact-based statement a judge makes at sentencing is a
‘factual finding.’” United States v. Orozco-Vasquez, 469 F.3d
1101, 1107 (7th Cir. 2006). “There is a difference between
formal factual findings and judicial observations that explain
conclusions about sentencing factors.” Id. at 1104. “Much of
what a judge says in imposing and explaining a sentence
consists of observations and assessments that form the basis
of the judge’s consideration of the § 3553(a) sentencing
factors.” Id. at 1107. Finally, “[j]udicial observations about

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No. 21-3345 19
such factors as the nature and seriousness of the offense, the
characteristics of the defendant, and the need to protect the
public are not ‘facts’ requiring ‘findings,’ as when the judge
calculates the guidelines range.” Id. (cleaned up).
There is no dispute that Johnson’s codefendant—one of
the women he induced to participate in his scheme—
committed suicide while awaiting trial. The judge made a
common-sense observation that the burden and publicity of
the case—and no doubt shame over what she had done—
very likely contributed to her decision to take her own life.
The judge’s remarks on this subject did not amount to a
factual finding that Johnson caused the suicide. They were
instead a part of the judge’s evaluation of the seriousness of
the case in the exercise of his § 3553(a) discretion. There was
no sentencing error.
AFFIRMED

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