Self-Incrimination and Sentence Increases in the Fourth Circuit

1. The Facts and Posture of United States v. Carter 

Does a sentence increase for a defendant who refuses to name their accomplice violate a defendant’s Fifth Amendment right against self-incrimination? The Fourth Circuit, in U.S. v. Carter, 87 F.4th 217 (2023), did not decide the issue, but it highlighted a looming circuit split on the issue it might be eventually forced to decide. 

In U.S. v. Carter, the defendant, Richard Carter, was indicted in federal court for his involvement in two separate robberies. He eventually pled guilty to one count of robbery for the first incident and another count of brandishing a firearm for the second.  

At sentencing, it became known that Carter never identified his accomplice in the robberies. When the court asked Carter to do so, he refused. He did not invoke his Fifth Amendment privilege against self-incrimination. The district court judge surmised that one possible reason for the defendant’s failure to identify his accomplice was a fear of reprisal. 

 The judge, before announcing its sentence, stated this: 

“This [sentencing] is particularly tough because of the choice made by the defendant to protect his co-defendant. The fact that he refuses even now when he’s facing significant prison time to reveal who his co-defendant was shows me a complete and utter disregard of any care for society and for the other people who are in society, including his own mother sitting back there. Now, I may be getting myself into trouble here… But we’ll see what they [The Fourth Circuit Court of Appeals] have to say about me using this as a basis for what I’m going to do. I am going to impose a sentence that is within the guideline range, as requested by the government, at the very top of the guideline range… [because of] the deterrent value to others and the punishment factor of this defendant.” 

2. How the Guidelines Work, where Cooperation Fits, and the Self-Incrimination Issue 

The U.S. Sentencing Guidelines usually provide the basis for criminal sentencing decisions in U.S. Federal Courts. Depending on the crime (Offense Level) and the “criminal history” of the defendant (Criminal History Points), a range of years is recommended by the guidelines.  

Judges can determine the precise sentence within a range of years by considering a variety of factors, such as “the seriousness of the offense, . . . respect for the law, . . . just punishment for the offense; . . . adequate deterrence to criminal conduct; . . . protect[ing] the public from further crimes of the defendant; and . . . provid[ing] the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” 18 USCS § 3553(a)(2)(a)-(d). 18 USCS § 3553(e), U.S. Sentencing Guidelines Manual § 5K1.1, and Fed. R. Crim. P.35(b) allow formal sentence reductions for a defendant who provides substantial assistance in investigating or prosecuting another person. 

As noted by a recent Northwestern Law Review article, cooperation is “rewarding defendants for their assistance in the investigation and conviction of others.” This naturally includes naming accomplices or implicating others in criminal activity. In some instances, the consideration of a defendant’s cooperation, or lack thereof, can cause issues with the Fifth Amendment, which the Supreme Court has asserted is a “safeguard against judicially coerced self-disclosure.” This is because consideration of whether a defendant has cooperated with the government places defendants between a “rock and a hard place;” if the defendant refuses to cooperate, they could be punished in the form of a longer sentence. But if they cooperate, they could expose themselves to further investigation and charges, or retaliation from third parties for their actions.  

3. The Fourth Circuit’s Decision and Approaches from Other Circuits 

The Supreme Court engaged with this issue in Roberts v. U.S., 445 U.S. 522 (1980). In this case, the Court held that it was not a violation of the Fifth Amendment to consider during sentencing a defendant’s lack of cooperation with the government, when the defendant did not invoke the privilege against self-incrimination. Therefore, while Roberts controlled in Carter, it left open the question of whether a sentence increase when a defendant refuses to cooperate by implicating others is a violation of the Fifth Amendment. 

The Fourth Circuit was tasked with evaluating the constitutionality of this form of sentence enhancement—a question presented before several circuit courts before.  

Judge A. Marvin Quattlebaum, writing for the Fourth Circuit, stated that the Fourth Circuit need not weigh on the merits of the appellant’s Fifth Amendment argument since he did not invoke the privilege correctly at the trial level. The judge explained that for a Fifth Amendment self-incrimination issue to have been properly raised, the defendant should have invoked the privilege. The Fourth Circuit also did not rule on the merits of the district court’s hypothesis of whether a fear of reprisal would have been a valid reason to invoke the privilege against self-incrimination. The Court eventually affirmed the conviction and the sentencing.  

The Second, Third, Fifth, and Ninth Circuits have all held that imposing a harsher sentence for refusing to cooperate with the government violated a defendant’s Fifth Amendment right against self-incrimination; only the Seventh Circuit has held the opposite.  

In U.S. v. Rivera, 201 F.3d 99 (2nd. Cir. 1999), the Second Circuit held that a judge violated a defendant’s right against self-incrimination when it explicitly considered their failure to cooperate in its sentencing decision. The lower court stated that 60 months of a 480-month sentence, within the applicable guidelines range, could be directly attributed to the defendant’s failure to cooperate with the government. The Second Circuit rebuked this, declaring that although the judge may consider a failure to cooperate, there was a distinction between “increasing the severity of a sentence for a defendant’s failure to cooperate and refusing to grant leniency.” 
 

There is a distinction between increasing severity and granting leniency when you consider the Fifth Amendment’s purpose. It is supposed to protect individuals from incriminating themselves from compelled admissions and thus exposing them to more punishment; less is said for the withholding of less punishment. See Roberts, 445 U.S. at 570 n.9. (Marshall, J., dissenting). 

Contrarily, the Seventh Circuit held that such a decision to impose a harsher sentence does not violate the Fifth Amendment when the sentence remains within U.S. Sentencing Guidelines. In U.S. v. Klotz, 943 F.2d 707 (7th. Cir. 1991), the defendant refused to cooperate with an investigation into suspected co-conspirators in a drug trafficking scheme. The judge sentenced Klotz just below the maximum set by the guidelines, referencing the defendant’s lack of cooperation. 

The Seventh Circuit wrote that while a judge noting a lack of cooperation could signify a penalty for silence, this could also mean it was merely a factor in determining a character trait relevant to sentencing, such as callousness or lack of concern for others. The Seventh Circuit also shied away from holding judges to certain points within the sentencing guidelines without clear annunciation of the reasoning for their decision, positing “It would fetter judges unduly to hold them to the lower or middle point of the range unless they could come up with an expression that was unambiguously neutral with respect to all constitutional rights.” 

4. Which Approach Should the Fourth Circuit Take? 

While individual cases are, of course, fact dependent, the approach taken in Rivera is clearly the more protective and just interpretation of the Fifth Amendment’s protections. If given the opportunity, the Fourth Circuit should follow the approach taken by the Second Circuit in Rivera. The statement of the district court judge in Carter is more like the statement made in Rivera than in Klotz. In Carter, the statement lambasting the defendant for their lack of cooperation and declaring that it was a “basis” for the sentence they were handing down is analogous to the explicit admission made in Rivera.  

It is possible that the Seventh Circuit decision makes a distinction without a difference since the lack of cooperation in an investigation still appears to at least have played a role in an eventually harsher sentence. The Seventh Circuit raised a valid concern about the functionality of judges being made to assert constitutionally unambiguous reasoning for choosing a sentence within the applicable guideline range. But the district court judge’s proclamation in Carter was not ambiguous; the defendant’s silence was the stated basis for imposing the harshest sentence within the applicable guideline range. It is also on this ground that the Rivera court referenced Klotz, asserting that the Seventh Circuit’s interpretation in that case was not possible with Rivera’s facts. 

The Fourth Circuit should also take heed to the dissent in Roberts, written by Justice Thurgood Marshall. He wrote: “the bare failure to cooperate in an investigation of others cannot, without further inquiry, justify a conclusive negative inference about “the meaning of that conduct with respect to [the defendant’s] prospects for rehabilitation and restoration to a useful place in society.””   

The court could implement Marshall’s “further inquiry.” It could try, on the record, to learn from the defendant as to why they refuse to identify an accomplice or make clear whether they are choosing to invoke their Fifth Amendment privilege. Doing so could help prevent the court from justifying a negative inference about the defendant. In any case, by listening to Justice Marshall’s words and following the lead of the Second Circuit, the Fourth Circuit can bolster a defendant’s constitutional right against self-incrimination. 

Darius Baker is a member of the University of North Carolina School of Law’s class of 2025 and serves as a Staff Member for Volume 4 of the North Carolina Civil Rights Law Review.