United States v. Omar Gonzalez , 315 F. App'x 856 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-15047 FEB 26, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 08-60057-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OMAR GONZALEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 26, 2009)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Omar Gonzalez appeals from his 14-month sentence for willfully and
knowingly making a false statement in a passport application, in violation of 18
U.S.C. § 1542. On appeal, Gonzalez argues that his Fifth Amendment right to
remain silent was violated because the district court improperly relied on the
government’s evidence regarding a pending state firearm possession charge to
impose an upward variance at sentencing. After thorough review, we affirm.
We review questions of constitutional law de novo. United States v. Brown,
364 F.3d 1266, 1268 (11th Cir. 2004).
The Fifth Amendment provides that “[n]o person shall . . . be compelled in
any criminal case to be a witness against himself.” U.S. Const. amend. V. It “not
only protects the individual against being involuntarily called as a witness against
himself in a criminal prosecution but also privileges him not to answer official
questions put to him in any other proceeding, civil or criminal, formal or informal,
where the answers might incriminate him in future criminal proceedings.”
Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). However, the privilege against self-
incrimination guarantees “only that the witness not be compelled to give self-
incriminating testimony.” McKune v. Lile, 536 U.S. 24, 35-36 (2002) (quotations
omitted). A witness’s answers “are not compelled within the meaning of the Fifth
Amendment unless the witness is required to answer over his valid claim of
privilege.” United States v. Vangates, 287 F.3d 1315, 1320 (11th Cir. 2002)
(quotations omitted). Thus, while the strength of the government’s case may push
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a defendant to testify, this pressure is not “compulsion” for Fifth Amendment
purposes. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 287 (1998).
In United States v. Fleming, 849 F.2d 568, 569 (11th Cir. 1988), we held
that the Fifth Amendment does not require a sentencing court to either refuse to
consider evidence of the defendant’s involvement in other criminal conduct, or
grant the defendant immunity from prosecution regarding any statements made
during sentencing. We relied on the Seventh Circuit’s reasoning in a similar case,
United States v. Marshall, 719 F.2d 887 (7th Cir. 1983), wherein the Seventh
Circuit rejected the defendant’s argument that the Fifth Amendment prohibits a
sentencing court from considering the government’s unrebutted evidence of the
defendant’s other criminal wrongdoing. The Seventh Circuit explained that:
[the defendant,] Marshall[,] was not compelled to testify against
himself, nor was he punished for not testifying on his own behalf.
Marshall, like any defendant who chooses not to testify, took the
chance that the uncontradicted [g]overnment testimony would be
deemed credible. If we were to adopt Marshall’s argument, the
privilege against self-incrimination would be a way to completely
rebut the Government’s evidence without the defendant presenting
any evidence of his own. The privilege against self-incrimination has
never been so construed.
Marshall, 719 F.2d at 892.
We find no merit in Gonzalez’s Fifth Amendment challenge to the district
court’s consideration of his pending state law charges at sentencing. As an initial
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matter, the risk that the district court would be persuaded by the government’s
evidence regarding the pending state firearm possession charge in calculating an
appropriate sentence did not create an unconstitutional burden on Gonzalez’s right
against compelled self-incrimination. Gonzalez himself conceded on appeal that
the sentencing court “likely did not draw any direct inference” from his silence.
(Emphasis omitted).
Moreover, under our clear case law, the Fifth Amendment does not require a
sentencing court to either refuse to consider evidence regarding the defendant’s
involvement in other criminal conduct, or grant the defendant immunity from
prosecution regarding any statements made during sentencing. Fleming, 849 F.2d
at 569. Rather, by not testifying, Gonzalez simply took the chance that the
uncontradicted government testimony would be deemed credible. Marshall, 719
F.2d at 892. As a result, Gonzalez was not compelled to testify at sentencing --
and, in fact, he did not testify -- and any pressure that he may have felt to testify in
response to the strength of the government’s evidence regarding the state charge
could not constitute “compulsion” for Fifth Amendment purposes. Woodard, 523
U.S. at 287.1
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To the extent that Gonzalez argues that he was subject to “duplicative punishment”
based on the district court’s consideration of his pending state law charges, this Court need not
consider this argument because it was raised for the first time in the reply brief, and thus, may be
deemed waived. See United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999) (holding that
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AFFIRMED.
a defendant waives a claim that he raises for the first time in his reply brief).
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