{"id":282,"date":"2024-03-05T22:54:32","date_gmt":"2024-03-05T22:54:32","guid":{"rendered":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/?p=282"},"modified":"2024-03-05T22:54:32","modified_gmt":"2024-03-05T22:54:32","slug":"self-incrimination-and-sentence-increases-in-the-fourth-circuit","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/2024\/03\/self-incrimination-and-sentence-increases-in-the-fourth-circuit\/","title":{"rendered":"Self-Incrimination and Sentence Increases in the Fourth Circuit"},"content":{"rendered":"\n
  1. The Facts and Posture of <\/strong>United States v. Carter<\/em><\/strong> <\/li><\/ol>\n\n\n\n

    Does a sentence increase for a defendant who refuses to name their accomplice violate a defendant\u2019s Fifth Amendment right against self-incrimination? The Fourth Circuit, in U.S. v. Carter<\/em>, <\/em>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. <\/p>\n\n\n\n

    In U.S. v. Carter<\/em>, 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.  <\/p>\n\n\n\n

    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\u2019s failure to identify his accomplice was a fear of reprisal. <\/p>\n\n\n\n

     The judge, before announcing its sentence, stated this: <\/p>\n\n\n\n

    \u201cThis [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\u2026 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<\/strong>. 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\u2026 [because of] the deterrent value to others and the punishment factor of this defendant.\u201d <\/p>\n\n\n\n

    1. How the Guidelines Work, where Cooperation Fits, and the Self-Incrimination Issue<\/strong>\u00a0<\/li><\/ol>\n\n\n\n

      The U.S. Sentencing Guidelines<\/a> usually provide the basis for criminal sentencing decisions in U.S. Federal Courts. Depending on the crime (Offense Level) and the \u201ccriminal history\u201d of the defendant (Criminal History Points), a range of years is recommended by the guidelines.  <\/p>\n\n\n\n

      Judges can determine the precise sentence within a range of years by considering a variety of factors, such as \u201cthe seriousness of the offense, . . . respect for the law, <\/strong>. . . just punishment for the offense; <\/strong>. . . adequate deterrence to criminal conduct; <\/strong>. . . protect[ing] the public from further crimes of the defendant; <\/strong>and . . . provid[ing] the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.\u201d 18 USCS \u00a7 3553(a)(2)(a)-(d). 18 USCS \u00a7 3553(e), U.S. Sentencing Guidelines Manual \u00a7 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. <\/p>\n\n\n\n

      As noted by a recent Northwestern Law Review article<\/a>, cooperation is \u201crewarding defendants for their assistance in the investigation and conviction of others.\u201d This naturally includes naming accomplices or implicating others in criminal activity. In some instances, the consideration of a defendant\u2019s cooperation, or lack thereof, can cause issues with the Fifth Amendment, which the Supreme Court has asserted<\/a> is a \u201csafeguard against judicially coerced self-disclosure.\u201d This is because consideration of whether a defendant has cooperated with the government places defendants between a \u201crock and a hard place;\u201d 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.  <\/p>\n\n\n\n

      1. The Fourth Circuit\u2019s Decision and Approaches from Other Circuits<\/strong> <\/li><\/ol>\n\n\n\n

        The Supreme Court engaged with this issue in Roberts v. U.S.<\/em><\/a>, 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\u2019s lack of cooperation with the government, when the defendant did not invoke the privilege against self-incrimination. Therefore, while Roberts<\/em> controlled in Carter<\/em>, 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. <\/p>\n\n\n\n

        The Fourth Circuit was tasked with evaluating the constitutionality of this form of sentence enhancement\u2014a question presented before several circuit courts before.  <\/p>\n\n\n\n

        Judge A. Marvin Quattlebaum, writing for the Fourth Circuit, stated that the Fourth Circuit need not weigh on the merits of the appellant\u2019s 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\u2019s 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.  <\/p>\n\n\n\n

        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\u2019s Fifth Amendment right against self-incrimination; only the Seventh Circuit has held the opposite.  <\/p>\n\n\n\n

        In U.S. v. Rivera<\/em><\/a>, 201 F.3d 99 (2nd. Cir. 1999), the Second Circuit held that a judge violated a defendant\u2019s 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\u2019s 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 \u201cincreasing the severity of a sentence for a defendant’s failure to cooperate and refusing to grant leniency.\u201d 
         <\/p>\n\n\n\n

        There is a distinction between increasing severity and granting leniency when you consider the Fifth Amendment\u2019s purpose. It is supposed to protect individuals from incriminating themselves from compelled admissions and thus exposing them to more <\/em>punishment; less is said for the withholding of less punishment. See<\/em> Roberts,<\/em> 445 U.S. at 570 n.9. (Marshall, J., dissenting). <\/p>\n\n\n\n

        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<\/em>,<\/a> 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\u2019s lack of cooperation. <\/p>\n\n\n\n

        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 \u201cIt 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.\u201d <\/p>\n\n\n\n

        1. Which Approach Should the Fourth Circuit Take?<\/strong> <\/li><\/ol>\n\n\n\n

          While individual cases are, of course, fact dependent, the approach taken in Rivera<\/em> 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<\/em>. The statement of the district court judge in Carter<\/em> is more like the statement made in Rivera<\/em> than in Klotz<\/em>. In Carter<\/em>, the statement lambasting the defendant for their lack of cooperation and declaring that it was a \u201cbasis\u201d for the sentence they were handing down is analogous to the explicit admission made in Rivera<\/em>.  <\/p>\n\n\n\n

          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\u2019s proclamation in Carter<\/em> was not ambiguous; the defendant\u2019s silence was the stated basis for imposing the harshest sentence within the applicable guideline range. It is also on this ground that the Rivera<\/em> court referenced Klotz<\/em>, asserting that the Seventh Circuit\u2019s interpretation in that case was not possible with Rivera<\/em>\u2019s facts. <\/p>\n\n\n\n

          The Fourth Circuit should also take heed to the dissent in Roberts<\/em>, written by Justice Thurgood Marshall. He wrote: \u201cthe bare failure to cooperate in an investigation of others cannot, without further inquiry, justify a conclusive negative inference about \u201cthe meaning of that conduct with respect to [the defendant’s] prospects for rehabilitation and restoration to a useful place in society.\u201d\u201d   <\/p>\n\n\n\n

          The court could implement Marshall\u2019s \u201cfurther inquiry.\u201d 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\u2019s words and following the lead of the Second Circuit, the Fourth Circuit can bolster a defendant\u2019s constitutional right against self-incrimination. <\/p>\n\n\n\n

          Darius Baker is a member of the University of North Carolina School of Law\u2019s class of 2025 and serves as a Staff Member for Volume 4 of the North Carolina Civil Rights Law Review<\/em>. <\/p>\n","protected":false},"excerpt":{"rendered":"

          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\u2019s 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 …<\/a><\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[9],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/posts\/282"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/comments?post=282"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/posts\/282\/revisions"}],"predecessor-version":[{"id":283,"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/posts\/282\/revisions\/283"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/media?parent=282"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/categories?post=282"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/nccivilrightslaw\/wp-json\/wp\/v2\/tags?post=282"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}