United States v. Latasha Gamble ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2514
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LATASHA GAMBLE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17-cr-00733-1 — Ronald A. Guzmán, Judge.
____________________
ARGUED MAY 27, 2020 — AUGUST 11, 2020
____________________
Before EASTERBROOK, HAMILTON, and BRENNAN, Circuit
Judges.
HAMILTON, Circuit Judge. Defendant Latasha Gamble was
found guilty of armed bank robbery and sentenced to 151
months in prison. She challenges her sentence on two
grounds that revolve around whether she used a real firearm
in the robbery. First, she argues that the district court erred in
finding that she used a real firearm in the robbery. Second,
2 No. 19-2514
she argues that the district judge violated her Fifth Amend-
ment privilege against self-incrimination by considering at
sentencing his finding that she lied to the FBI about buying
and using a fake gun in the robbery and that she did not help
recover the discarded gun.
We affirm. Ample evidence supported the judge’s finding
that Gamble used a real firearm in the robbery. Also, Gam-
ble’s Fifth Amendment rights were not violated. She did not
remain silent but instead chose to tell the FBI where she got
the gun and how she got rid of it. She thus waived her Fifth
Amendment privilege on those topics. See Anderson v. Charles,
447 U.S. 404, 408 (1980). The district judge was entitled to con-
sider her false statements in deciding on her sentence.
I. Factual and Procedural Background
On November 9, 2017, defendant Latasha Gamble robbed
a branch of Chase Bank in Chicago, a branch where she had
worked until three months earlier. Only two Chase employ-
ees were working at the time of the robbery, Kelly Green and
Lesley Rendon. Gamble entered the bank wearing a disguise
and waited for a few customers to leave. When they did, Gam-
ble pulled out a gun and pushed Green to the ground as
Green opened a secured door to leave the lobby. Gamble then
pointed the gun at Green and ordered her to open the bank’s
vault. When Green said that both employees were needed to
open the vault, Gamble grabbed Rendon by the hair, pressed
the gun against the back of her head, threatened to shoot her,
and brought her to the vault. At trial, Rendon testified that the
gun felt cold and made a clicking noise when it was against
her head. Once Green and Rendon had opened the vault,
Gamble ordered them to put their heads down and again
No. 19-2514 3
threatened to shoot them. Gamble took over $126,000 from the
vault and left the bank.
Despite Gamble’s attempts at disguise, both Green and
Rendon had recognized her. FBI agents arrested Gamble sev-
eral hours later when she showed up for work at another
Chase branch, oddly enough. Gamble waived her Miranda
rights and agreed to speak with an FBI agent. Several hours
into the interrogation, Gamble admitted that she had robbed
the bank earlier that day.
After she confessed, Gamble was asked questions about
the gun, the money, and the clothing that she wore during the
robbery. She said that the gun was a “play gun” that she had
bought at a Walmart store near her home earlier that week.
But a later investigation determined that Walmart did not sell
any fake guns at that location or anywhere else in Illinois.
Gamble also said that she disposed of the gun on Irving Park
Road, stashed the money in a trash can at a nearby grocery
store parking lot, and dumped the clothing in a recycling con-
tainer near her work. That same day, FBI agents canvassed
Irving Park Road for the gun and looked for the money and
clothes, but they found nothing.1
A jury convicted Gamble of armed bank robbery under 18
U.S.C. § 2113. The district court sentenced Gamble to 151
months in prison, the bottom of the calculated guideline
range. In explaining the guideline sentence, the court empha-
sized Gamble’s careful planning, the vicious nature of the rob-
bery, and Gamble’s lack of remorse.
1 Gamble also said at one point that she had “lost” the money. As best
we can tell from the record, the money has not been recovered.
4 No. 19-2514
II. Defendant’s Challenges to Her Sentence
On appeal, Gamble asserts two errors in her sentencing.
First, she argues that the district court erred in finding that
she used a real firearm in the robbery. This error, we are told,
led to both a miscalculation of the applicable Guidelines
range and reliance on misinformation in considering the 18
U.S.C. § 3553(a) factors and determining the appropriate sen-
tence. Second, Gamble argues that the district court violated
her Fifth Amendment privilege against self-incrimination by
considering her statements to the FBI about the firearm and
faulting her for failing to cooperate with the authorities to re-
cover the firearm.
A. Accuracy of Information at Sentencing
The Sentencing Guideline for robbery raises the offense
level in different degrees based on use of different types of
weapons. The court here applied the six-level enhancement
for using a real firearm in the robbery, see U.S.S.G.
§ 2B3.1(b)(2)(B), rather than a four-level enhancement for a
using a dangerous weapon, which may include a fake gun,
§ 2B3.1(b)(2)(D).
At sentencing, the government argued for the higher en-
hancement and presented evidence that the firearm was real.
First, the FBI agent who interrogated Gamble testified based
on his expertise with firearms that the gun in still photo-
graphs taken during the robbery appeared to be “a 1911-style
pistol … patterned after the Colt 1911.” This firearm, he testi-
fied, would make a clicking noise if the trigger were pulled if
there were no round in the chamber, consistent with the noise
described by Rendon at trial. Second, the agent testified about
Gamble’s story that she used a fake gun that she purchased at
No. 19-2514 5
Walmart, the discovery that Walmart does not sell fake guns
in Illinois, and the fact that agents were unable to recover the
gun where she told them it would be. Third, the government
highlighted evidence that Gamble had texted someone the
day before the robbery asking for a “lender.” That person re-
sponded that he found someone who would “do it for the
500” but needed confirmation that “she’ll get it back at 11.”
The judge found that Gamble had used a real gun in the
robbery and faulted Gamble for failing to admit her culpabil-
ity in the crime. He concluded that “she lied about the hand-
gun being a toy,” reasoning that “[i]f the handgun had been a
toy, she would not have lied to the FBI agents about where
she got the toy.” In imposing the sentence, the district judge
also reviewed the defendant’s plans for the robbery and the
evidence of premeditation, noting that the defendant “ar-
ranged to rent a gun [for] $500.”
Gamble frames her argument in terms of due process. A
defendant has a due process right to be sentenced based on
reliable information. United States ex rel. Welch v. Lane, 738 F.2d
863, 864 (7th Cir. 1984), citing United States v. Tucker, 404 U.S.
443, 447 (1972), and Townsend v. Burke, 334 U.S. 736, 741 (1948).
A sentence must be vacated if a defendant shows both that
inaccurate information was before the sentencing court and
that the court relied, at least over a timely objection, on that
inaccurate information in choosing a sentence. United States v.
Oliver, 873 F.3d 601, 608–09 (7th Cir. 2017). In making her ar-
gument, Gamble says that the evidence from which the dis-
trict judge inferred that she rented and used a firearm was
“inaccurate” and that the judge relied upon that inaccurate
information in sentencing her.
6 No. 19-2514
The premise of Gamble’s due process argument is that the
judge made a factual error in determining that she used a real
firearm. She has framed as a due process argument what oth-
erwise looks like a fairly routine sort of fact-based appeal un-
der the Sentencing Guidelines. In this case, however, the
court’s finding about a real firearm affected not only the
guideline calculation but also the more general explanation of
the ultimate sentence. We review the sentencing court’s pro-
cedure de novo and the underlying factual findings only for
clear error. United States v. Pennington, 908 F.3d 234, 238 (7th
Cir. 2018). Because the finding about using a real firearm af-
fected the judge’s ultimate sentencing decision and not just
the guideline determination, we could not deem any guide-
line error here harmless. United States v. Miller, 900 F.3d 509,
514–15 (7th Cir. 2018).
The district court did not clearly err in finding—based on
the evidence summarized above—that the defendant used a
real firearm in the robbery. First, the gun’s appearance and
the clicking noise it made were consistent with its being a real
firearm. Second, the text exchange about renting a “lender”
for $500 seems likely to have referred to a real firearm. The
context suggested that Gamble was acquiring something for
the robbery, and who would rent a toy gun for $500? Third,
and most important, the government presented compelling
evidence that Gamble lied to the FBI about where she ob-
tained and how she disposed of what she claimed was a toy
gun. The judge reasonably inferred from the lies that the fire-
arm was real. Gamble has thus failed to show a clear factual
error in the guideline calculation or as a foundation for her
due process argument. Cf. Welch, 738 F.2d at 865 (sentencing
court relied on a fact that both sides later agreed was false);
Miller, 900 F.3d at 514–15 (vacating sentence under Welch
No. 19-2514 7
where district judge miscounted and relied upon prior felony
convictions). To the extent that Gamble argues that the judge
relied at sentencing on a finding that she rented a gun, this
finding was not clearly erroneous given the content of the text
exchange and other evidence that she used a real firearm in
the robbery. In any event, the difference between owning,
borrowing, and renting a gun would not have been material
to the sentence.
B. Fifth Amendment Privilege
Because there was insufficient evidence to prove beyond a
reasonable doubt that Gamble used a real firearm in the
robbery, she was not charged under 18 U.S.C. § 924(c) with
using a firearm in a crime of violence. If she had admitted to
using a real firearm, told authorities how she obtained it, or
led the authorities to recover the firearm, the government
would have had the proof it needed to convict her of the
additional § 924(c) offense with its mandatory minimum
consecutive sentence. Gamble claims that by considering her
statements and conduct aimed at avoiding a § 924(c) charge
and conviction, the district court imposed an unconstitutional
penalty for invoking her Fifth Amendment privilege against
self-incrimination.
The government argues that Gamble forfeited her Fifth
Amendment argument by failing to raise it in the district
court. We disagree. The factual foundation for the argument
was the court’s explanation of her sentence. Federal Rule of
Criminal Procedure 51(a) provides that a party need not state
an “exception” to a ruling the court has already made in order
to preserve her rights on appeal, so the argument was not for-
feited. Pennington, 908 F.3d at 238.
8 No. 19-2514
On the merits of the argument, the Fifth Amendment pro-
tects a person from being “compelled in any criminal case to
be a witness against himself.” This privilege extends to sen-
tencing. Mitchell v. United States, 526 U.S. 314, 322 (1999) (Fifth
Amendment provides a “safeguard against judicially coerced
self-disclosure”), quoting Brown v. United States, 356 U.S. 148,
156 (1958). A court impermissibly burdens the exercise of this
privilege by penalizing its invocation. Spevack v. Klein, 385
U.S. 511, 515 (1967), citing Griffin v. California, 380 U.S. 609, 614
(1965). Other circuits have held that a court may not penalize
a defendant at sentencing for failing to cooperate when doing
so would force the defendant to admit guilt to uncharged
crimes. See United States v. Rivera, 201 F.3d 99, 102 (2d Cir.
1999); United States v. Benjamin, 138 F.3d 1069, 1073 n.2 (6th
Cir. 1998), citing United States v. Barrett, 890 F.2d 855, 866 (6th
Cir. 1989); United States v. Safirstein, 827 F.2d 1380, 1388 (9th
Cir. 1987); see also Roberts v. United States, 445 U.S. 552, 559
(1980) (argument that judge punished defendant with higher
sentence for exercising Fifth Amendment privilege and not
cooperating would merit “serious consideration” if properly
presented).
At the same time, a defendant’s decision not to cooperate
with the authorities in a criminal investigation may be a rele-
vant and permissible consideration for a judge deciding on an
appropriate sentence. Roberts, 445 U.S. at 557–58. A defendant
who cooperates may be rewarded with a lower sentence, just
as a defendant who pleads guilty may be rewarded with a
lower sentence. United States v. Turner, 864 F.2d 1394, 1398 (7th
Cir. 1989). Our criminal justice system functions by “reward-
ing” the accused who gives up her constitutional rights. See
Missouri v. Frye, 566 U.S. 134, 144 (2012) (“[Plea bargaining] is
No. 19-2514 9
not some adjunct to the criminal justice system; it is the crim-
inal justice system.”), quoting Robert E. Scott & William J.
Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912
(1992).
The problem posed by these two principles is evident. To
determine whether a sentence impermissibly punished a
defendant for exercising her privilege against compelled self-
incrimination or permissibly denied a reward for failing to
cooperate, a reviewing court would need to identify a
baseline sentence against which to compare. We need not
decide here whether this sentence applied a penalty or denied
a reward. The more basic problem for Gamble is that she was
not “silent” on how she obtained and disposed of the firearm.
The Fifth Amendment privilege can be waived, and the
scope of the waiver is determined by the subject matter on
which the defendant breaks her silence. The Supreme Court
cases on cross-examination of testifying criminal defendants
illustrate the consequences of breaking one’s silence. A
defendant who takes the stand at trial may be cross-examined
and have her testimony impeached, and a refusal to answer
an appropriate question in cross-examination may be held
against her. Kansas v. Cheever, 571 U.S. 87, 94 (2013), citing
Fitzpatrick v. United States, 178 U.S. 304, 315 (1900), and Brown,
356 U.S. at 156; accord, e.g., United States v. Kovic, 684 F.2d 512,
515–16 (7th Cir. 1982). Similarly, an accused “who voluntarily
speaks after receiving Miranda warnings” may be cross-
examined about prior inconsistent statements: “As to the
subject matter of his statements, the defendant has not
remained silent at all.” Anderson, 447 U.S. at 408; see also
United States v. Agee, 597 F.2d 350, 354–56 (3d Cir. 1979) (en
10 No. 19-2514
banc).2 To invoke the privilege against self-incrimination, a
defendant must have actually maintained her silence. She
may not protest when her statements themselves are
scrutinized.3
This threshold rule for invoking the privilege applies with
full force to statements made by a Mirandized suspect during
interrogation. Just as a prosecutor may ask about a prior in-
consistent statement in cross-examining a defendant at trial, a
sentencing judge may consider a defendant’s statements—
and draw inferences from those statements—in considering
the § 3553(a) sentencing factors and imposing an appropriate
sentence. If the defendant has broken her silence, there is no
privilege.
Gamble was free to remain silent on the matter of the fire-
arm, but she did not. Instead, she told the FBI that the firearm
was a “play gun” that she bought at a Walmart store near her
home and that she threw the firearm out on Irving Park Road.
The judge reasonably determined that these statements were
lies and faulted Gamble for lying to the authorities instead of
2Anderson addressed not the Fifth Amendment privilege but a crimi-
nal defendant’s due process rights under the Fourteenth Amendment. See
Doyle v. Ohio, 426 U.S. 610, 618–19 (1976) (holding that the prosecution
may not use a defendant’s silence against him after he has received gov-
ernment assurances). But the “silence” it contemplated is the privilege
against self-incrimination provided by the Fifth Amendment and pro-
tected by Miranda.
3 Other circuits have observed that the scope of such a waiver must be
strictly limited to subject matter of the defendant’s statements. Hendrix v.
Palmer, 893 F.3d 906, 925 (6th Cir. 2018); United States v. Caruto, 532 F.3d
822, 830 (9th Cir. 2008). Here, the judge’s consideration of the firearm issue
was based on the defendant’s statements on exactly that subject.
No. 19-2514 11
cooperating. The privilege against self-incrimination is a priv-
ilege to remain silent, not a privilege to lie without conse-
quence. See Harris v. New York, 401 U.S. 222, 226 (1971). The
district court did not violate Gamble’s Fifth Amendment
rights by considering her statements at sentencing.
The judgment of the district court is
AFFIRMED.