USA v. Arnaldo Cabrera

Filing

OPINION and JUDGMENT filed : Cabrera's sentence is VACATED, and the case is REMANDED for resentencing consistent with the opinion of this court. Decision for publication. Karen Nelson Moore (AUTHORING), Eric L. Clay, and Ronald Lee Gilman, Circuit Judges.

Case: 14-5572

Document: 51-2

Filed: 01/22/2016

Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0017p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

┐
│
│
│
│

No. 14-5572

>

ARNALDO CABRERA,
Defendant-Appellant.

│
│
│
┘

Appeal from the United States District Court
for the Eastern District of Tennessee at Winchester.
No. 4:13-cr-00019—Harry S. Mattice, Jr., District Judge.
Argued: December 4, 2015
Decided and Filed: January 22, 2016
Before: MOORE, CLAY, and GILMAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Steven P. Tramontin, PEAR SPERLING EGGAN & DANIELS, P.C., Ann Arbor,
Michigan, for Appellant. Michael D. Porter, UNITED STATES ATTORNEY’S OFFICE,
Chattanooga, Tennessee, for Appellee. ON BRIEF: Steven P. Tramontin, Joseph M. West,
PEAR SPERLING EGGAN & DANIELS, P.C., Ann Arbor, Michigan, for Appellant. Michael
D. Porter, UNITED STATES ATTORNEY’S OFFICE, Chattanooga, Tennessee, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. A grand jury indicted Arnaldo Cabrera for
being a felon in possession of a firearm after he procured a handgun for a confidential informant
(“CI”). Cabrera claimed that law-enforcement agents had doctored an audio-tape recording of

1

Case: 14-5572
No. 14-5572

Document: 51-2

Filed: 01/22/2016

Page: 2

United States v. Cabrera

Page 2

that transaction. He advanced that theory in pretrial motions and in post-trial submissions to the
district judge. Cabrera did not, however, testify in support of that theory. A jury found him
guilty. At sentencing, the district judge announced that he was sentencing Cabrera to sixty-three
months’ imprisonment—the top of his guidelines range—for two reasons: first, because Cabrera
advanced a “fantastic” claim (that the tape was altered); second, because Cabrera did not testify
in support of that claim. Cabrera’s counsel raised no objection to his sentence.
Cabrera appeals, arguing that both of these factors were impermissible, and that his
sentence is thus procedurally unreasonable. For the reasons set forth below, we VACATE
Cabrera’s sentence and REMAND his case for resentencing consistent with this opinion.
I. FACTS AND PROCEDURE
A. Facts
On May 8, 2013, a CI bought a firearm from Cabrera in a controlled buy. R. 63 (Trial Tr.
(Cavanaugh) at 39) (Page ID #385). Earlier that day, the CI—who at the time was facing
charges for selling cocaine—met Warren County, Tennessee Sheriff’s Department Investigator
Jody Cavanaugh “at a secure location.” Id. at 40 (Page ID #386). The two had worked together
before. Id. at 39 (Page ID #385). Cavanaugh searched the CI to make sure he had no firearms or
drugs on his person. Id. at 40 (Page ID #385). Then Cavanaugh put a wire on him. Id. at 40–41
(Page ID #386–87). The CI called Cabrera to arrange a meeting to purchase a firearm. Id. at 41
(Page ID #387). They agreed to meet at the parking lot of an auto-part manufacturing company.
Id. The CI drove there in his car; Cavanaugh followed. Id.
At the parking lot, the CI and Cabrera spoke about meeting a third, unnamed individual
who had a firearm for sale. Id. at 41–42 (Page ID #387–88). Cabrera got into the CI’s car and
the two drove to a different parking lot, where two men were waiting. Id. (Trial Tr. (CI) at 91–
92) (Page ID #437–38). Cabrera exited the CI’s car and gave $300 to one of the men, who gave
Cabrera a firearm in exchange. Id. Cabrera stuck the firearm in his waistband and re-entered the
CI’s car. Id. at 93 (Page ID #439). The CI drove to a different factory where Cabrera—while
still in the car—fired six or seven rounds out the window. Id. at 97–98, 120 (Page ID #443–44,
466).

Case: 14-5572
No. 14-5572

Document: 51-2

United States v. Cabrera

Filed: 01/22/2016

Page: 3
Page 3

The CI drove Cabrera back to his car, and then drove to meet Cavanaugh. Id. (Trial Tr.
(Cavanaugh) at 44) (Page ID #390). The CI gave Cavanaugh the firearm Cabrera had procured
for him: a Kel-Tec nine-millimeter semi-automatic handgun. Id. Its clip was empty. Id. at 46
(Page ID #392). Cavanaugh and other law-enforcement officers then drove to where Cabrera
had shot the firearm out of the CI’s car window and found six nine-millimeter shells. Id.
B. Procedural History
1. Indictment and Trial
On July 23, 2013, a grand jury indicted Cabrera for being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). R. 1 (Indictment) (Page ID #1).
Because Cabrera was indigent, a magistrate judge appointed counsel to represent him. R. 2
(7/26/13 Order) (Page ID #3).
On September 10, 2013, Cabrera filed two pretrial motions related to the audio-tape
recording of his transaction with the CI. First, Cabrera moved to suppress the tape. R. 11 (Mot.
to Suppress at 1) (Page ID #17). In a two-page affidavit attached to that motion, Cabrera’s thenattorney Aubrey Harper averred that the tape was unintelligible, that Cabrera believed it had
been altered, and that there was information suggesting that Cabrera was actively assisting law
enforcement.

R. 11–1 (Aff. In Support of Mot. to Suppress and Mot. Requesting Expert

Analysis of an Audio Tape (“Harper Aff.”) at 1–2) (Page ID #19–20). The district judge
construed this motion as a motion in limine, and reserved a ruling for trial. R. 61 (Final Pretrial
Conference Tr. at 8–9) (Page ID #297–98).
Second, Cabrera filed a motion requesting an “expert, to analyze whether the tape in
question ha[d] been altered, edited, or otherwise . . . tampered with.” R. 12 (Mot. Requesting
Expert Analysis of Audio Tape at 1) (Page ID #22). Harper attached the same affidavit to that
motion. R. 12–1 (Harper Aff.) (Page ID #24). On September 24, 2013, the magistrate judge
issued an order denying this motion. R. 15 (9/24/13 Order at 4–5) (Page ID #38–39). The
magistrate judge construed the motion as one brought under 18 U.S.C. § 3006A(e) of the
Criminal Justice Act. Id. at 2 (Page ID #36). Cabrera’s motion, however, failed to satisfy

Case: 14-5572
No. 14-5572

Document: 51-2

Filed: 01/22/2016

United States v. Cabrera

Page: 4
Page 4

§ 3006A(e): it did not address why an expert was necessary, and did not specify what work (nor
at what cost) Cabrera hoped an expert would perform. Id. at 3–4 (Page ID #37–38).
Cabrera’s two-day jury trial began on October 10, 2013. R. 63 (Trial Tr. at 1) (Page ID
#347). The government called two witnesses: Cavanaugh and the CI. Id. at 2 (Page ID #348).
Without objection from Cabrera’s counsel, the government introduced a CD with the audio
recording of Cabrera’s transaction with the CI. Id. (Trial Tr. (Cavanaugh) at 52–53) (Page ID
#398–99).
Cabrera did not testify. He put on two witnesses of his own: Marty McGuinness, an
agent with the Tennessee Bureau of Investigation, and Danny Haimelin, Cabrera’s probation
officer. Id. (Trial Tr. (McGuinness) at 134) (Page ID #480); id. (Trial Tr. (Haimelin) at 144)
(Page ID #490). Through both witnesses, Cabrera’s counsel attempted to demonstrate that
Cabrera had been working as a confidential informant when he procured the firearm for the CI.
Id. (Trial Tr. (McGuinness) at 134–37) (Page ID #480–83); id. (Trial Tr. (Haimelin) at 144–46)
(Page ID #490–92). The district judge evidently felt that that defense strained credulity: just
before Cabrera’s counsel called Haimelin to the stand, the judge excused the jury and expressed
his doubts about the defense’s theory, but ultimately let Haimelin testify. Id. (Trial Tr. at 139–
44) (Page ID #485–90).
On October 11, 2013, Cabrera’s jury found him guilty. R. 26 (Verdict Form) (Page ID#
58).
2. Post-Trial Motions and Sentencing
On November 15, 2013, Cabrera filed a hand-written motion alleging that his trial
counsel had been ineffective and requesting new counsel. R. 28 (Request for Reappointment of
Att./Counsel) (Page ID #60). On November 26, 2013, the magistrate judge held a hearing on
Cabrera’s motion, at which Cabrera alleged that his attorney had promised him that he would
prevail at trial. R. 67 (11/26/13 Hr’g Tr. at 10) (Page ID #674). Cabrera’s counsel denied ever
saying this. Id. at 12 (Page ID #676). The magistrate judge told Cabrera that she believed he
had perjured himself, but still appointed new counsel because Cabrera’s relationship with his
attorney had deteriorated so severely. Id. at 16 (Page ID #680).

Case: 14-5572
No. 14-5572

Document: 51-2

Filed: 01/22/2016

United States v. Cabrera

Page: 5
Page 5

On March 16, 2014—just before his sentencing hearing—Cabrera wrote two letters to the
district judge. In the first, he again requested new counsel. R. 43 (First Letter from Arnaldo
Cabrera to Judge Harry S. Mattice, dated 3/16/14) (Page ID #199).

He wrote that his

replacement counsel had been “very disrespectful and ha[d] even called [him] stupid.” Id. at 1
(Page ID #199). In the second letter, Cabrera alleged that there was “something really wrong
about the tape,” that he had been “accused of a crime that [he] was forced to do at gunpoint,” and
that the CI, Cavanaugh, and the Assistant United States Attorney who prosecuted him were all
corrupt. R. 43 (Second Letter from Arnaldo Cabrera to Judge Harry S. Mattice, dated 3/16/14)
(Page ID #201–02). On March 25, 2014, the magistrate judge held a hearing and denied
Cabrera’s request for new counsel as moot after Cabrera agreed to work with his replacement
counsel. R. 65 (3/25/14 Hr’g Tr. at 18–19) (Page ID #643–44).
Cabrera was sentenced on May 2, 2014. R. 57 (Sentencing Hr’g Tr.) (Page ID #265).
With a criminal history category of IV and a total offense level of twenty, Cabrera faced a
guidelines range of fifty-one to sixty-three months’ imprisonment.1 Id. at 5, 9 (Page ID #269,
273). Cabrera’s attorney requested a sentence at the bottom of that range; the government, the
top. Id. at 10 (Page ID #274). Cabrera maintained his innocence at the hearing. Id. at 12 (Page
ID #276).
The district judge sentenced Cabrera to sixty-three months in prison, the top of the
guidelines range. Id. at 12 (Page ID #276). He explained his reasons for selecting that sentence
as follows:
I’ll impose sentence now. Mr. Cabrera, I am, as the government
recommends, going to sentence you at the top of your guideline range. The
reason I’m going to do that, Mr. Cabrera, is because throughout these
proceedings, I have to tell you, you know, your behavior to me at least has
evinced a pretty complete disrespect for the law and for these proceedings
generally.

1

Cabrera’s probation officer had initially added a four-point enhancement under U.S.S.G. § 2K2.1(b)(6)(B)
for possessing a firearm while trafficking methamphetamine. R. 50 (Revised PSR ¶ 17) (Page ID #217). However,
at Cabrera’s sentencing hearing, the government agreed with Cabrera’s counsel that the enhancement did not apply,
and the district judge reduced Cabrera’s total offense level from twenty-four to twenty. R. 57 (Sentencing Hr’g Tr.
at 4–5) (Page ID #268–69).

Case: 14-5572
No. 14-5572

Document: 51-2

Filed: 01/22/2016

United States v. Cabrera

Page: 6
Page 6

I’ll give you some examples. While everybody has the constitutional right
to go to trial, you have at least as far as I’m aware through your attorney and
through letters to me persisted in what I, what I view as some fantastic story
regarding the altering of these tapes, but only your prior attorney has come
forward to even make the slimmest showing. You never put yourself on the
record either at the trial or in support of your request for an expert to have these
tapes viewed. I have to tell you, from my standpoint, and given your experience
with the criminal justice system, I view that as an incredibly cynical attempt to
game the whole system here. I don’t believe any of that. I don’t believe any of
that. I think that’s a fantastical story that you have conjured up, and I believe that
by doing things like that, as well as all of these machinations that you’ve gone
through, just evince a total disrespect for the law. And I believe that a sentence at
the high end of your range is necessary for that reason.
I’ll impose sentence now. The Court has considered the nature and
circumstances of the offense, the history and characteristics of the defendant, and
the advisory guideline range, as well as other factors listed in Title 18, United
States Code, Section 3553(a).
Pursuant to the Sentencing Reform Act of 1984, it’s the judgment of the
Court on Count 1 that the defendant, Arnaldo Cabrera, is hereby committed to the
custody of the Bureau of Prisons to be imprisoned for a term of 63 months.
Id. at 12–14 (Page ID #276–78). Cabrera’s counsel did not object to Cabrera’s sentence. Id. at
15 (Page ID #279). The district judge also revoked Cabrera’s supervised release and sentenced
him to a fourteen-month prison term consecutive to his sixty-three months on the underlying
felon-in-possession charge. Id. at 17 (Page ID #281). Cabrera timely appealed. R. 53 (Notice of
Appeal) (Page ID# 234).
II. ANALYSIS
Cabrera argues that the district judge considered two impermissible factors when he
sentenced Cabrera, each of which implicates a distinct constitutional right. First, Cabrera argues
that the district judge punished him for not testifying—either at trial or in connection with his
request for an expert—in support of his theory that the government doctored the audio-tape of
his controlled buy. Cabrera claims that, by relying on this factor, the district judge violated his
Fifth Amendment right against self-incrimination. Second, Cabrera argues that the district judge
punished him for “challenging the government’s case” by arguing that the government altered
the tape. Cabrera Br. at 15. By relying on this factor, Cabrera contends, the district judge

Case: 14-5572
No. 14-5572

Document: 51-2

Filed: 01/22/2016

United States v. Cabrera

Page: 7
Page 7

infringed his Sixth Amendment right “to subject the prosecution’s case to the crucible of
meaningful adversarial testing.” Id.
“When the sentencing court considers an impermissible factor in calculating a
defendant’s sentence, a reviewing court will vacate and remand for resentencing.” United States
v. Recla, 560 F.3d 539, 545 (6th Cir. 2009). We have not adopted a comprehensive definition of
what constitutes an “impermissible factor.” In general, we have found reversible error where a
district judge relies on a factor that is neither enumerated in nor consistent with the Sentencing
Guidelines or 18 U.S.C. § 3553(a). See, e.g., id. at 546–47 (vacating sentence because district
judge considered likely effect of prosecution’s Rule 35(b) motion in calculating defendant’s
sentence).
Because Cabrera’s counsel did not object to his sentence at his sentencing hearing, we
review Cabrera’s instant challenge for plain error. United States v. Davis, 751 F.3d 769, 773
(6th Cir. 2014) (citing United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc)).
This is a four-part test: to prevail, Cabrera must “show (1) error (2) that ‘was obvious or clear,’
(3) that ‘affected defendant’s substantial rights’ and (4) that ‘affected the fairness, integrity, or
public reputation of the judicial proceedings.’” Vonner, 516 F.3d at 386 (quoting United States
v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).
We hold that the district judge plainly erred when he sentenced Cabrera. The district
judge sentenced Cabrera to the top of his guidelines range in part because he “never put [him]self
on the record.” In doing so, the district judge effectively punished Cabrera for exercising his
Fifth Amendment right against self-incrimination. That is an impermissible sentencing factor.
By relying on this factor here, the district judge committed plain error.

Cabrera’s Sixth

Amendment claim presents a closer question. However, we conclude that the district judge erred
when he sentenced Cabrera for raising a “fantastic” claim (that the tapes were doctored), because
this was also an impermissible sentencing factor.
A. Procedural or Substantive Reasonableness
Before considering the merits of Cabrera’s two claims, we must determine whether he is
challenging the procedural or substantive reasonableness of his sentence.

“Whether

Case: 14-5572
No. 14-5572

Document: 51-2

United States v. Cabrera

Filed: 01/22/2016

Page: 8
Page 8

consideration of an impermissible factor is categorized under the procedural or substantive
reasonableness prong is not fully settled within our Circuit.” United States v. Espericueta-Perez,
528 F. App’x 572, 578 n.5 (6th Cir. 2013); accord United States v. Musgrave, 761 F.3d 602, 607
n.1 (6th Cir. 2014). Here, the distinction is more than semantic. If we interpret Cabrera’s
challenges to his within-guidelines sentence as substantive challenges, we may apply a
presumption of reasonableness to his sentence; if the challenges are procedural, we may not
apply a presumption of reasonableness. United States v. Liou, 491 F.3d 334, 337 n.2, 339
(6th Cir. 2007).
The parties’ briefs do not fully resolve the conflict. Cabrera argues that the district judge
committed procedural error.

The government responds by arguing that his sentence was

procedurally and substantively reasonable.
We addressed this tension in United States v. Malone, 503 F.3d 481 (6th Cir. 2007). In
Malone, we reasoned that a claim that a district judge relied on an impermissible factor goes
“more to the process by which the district court arrived at the given sentence than to the
substantive aspect of the sentence (i.e., the relationship between the length of the sentence and
the strength of the reasoning under § 3553(a)).”2 Id. at 484. “However, whether it is categorized
as being procedural, substantive, or a combination of the two,” we added, “it is clear that a
sentence based on an improper factor fails to achieve the purposes of § 3553(a) and may be
unreasonable regardless of length.” Id. (citation and internal quotation marks omitted).
We agree with Malone that consideration of an impermissible factor is more properly
considered a procedural, not substantive, error. Interpreting Cabrera’s challenges as procedural
is also consistent with Gall v. United States, 552 U.S. 38 (2007), and 18 U.S.C. § 3553(a). Gall
explained that a district judge commits procedural error by, inter alia, “failing to consider the
§ 3553(a) factors . . . or failing to adequately explain the chosen sentence.” Id. at 51. When a
district judge bases a sentence on an impermissible factor, he commits both errors: he sentences
a defendant based on considerations not listed in § 3553(a), and explains that sentence with
reference to those unlisted considerations. See United States v. Smart, 518 F.3d 800, 803–04
2

We reached the same conclusion in an unpublished opinion that relied on Malone: United States v.
Romanini, 502 F. App’x 503, 507 (6th Cir. 2012).

Case: 14-5572
No. 14-5572

Document: 51-2

Filed: 01/22/2016

United States v. Cabrera

Page: 9
Page 9

(10th Cir. 2008) (interpreting district judge’s reliance on factor not listed in § 3553(a) as a
procedural error).
Accordingly, we consider Cabrera’s two arguments as challenges to his sentence’s
procedural reasonableness. The presumption of reasonableness for within-guidelines sentences
in the context of substantive-reasonableness challenges is therefore inapplicable. See Vonner,
516 F.3d at 389–90; Liou, 491 F.3d at 339 n.2.
B. Fifth Amendment Challenge
We begin with Cabrera’s Fifth Amendment claim. At Cabrera’s sentencing, the district
judge cited the fact that Cabrera “never put [him]self on the record either at the trial or in support
of [his] request for an expert to have the[] tapes viewed.” R. 57 (Sentencing Hr’g Tr. at 13)
(Page ID #277). The most Cabrera had done, the judge stated, was have his counsel “come
forward to . . . make the slimmest showing” in support of his claim that the tapes were doctored.
Id.

That “incredibly cynical attempt to game the whole system,” the judge concluded,

demonstrated “a total disrespect for the law.” Id.
This was plain error. The transcript of Cabrera’s sentencing and the record in this case
are clear: the district judge relied on the fact that Cabrera did not testify at trial in calculating his
sentence. That is an impermissible sentencing factor. Cabrera satisfies all four plain-error steps:
he has demonstrated that the district judge (1) made an error, (2) plain at the time of sentencing,
(3) which violated Cabrera’s substantial rights, and (4) undermined the integrity of Cabrera’s
sentencing proceedings. Vonner, 516 F.3d at 386. Finding a plain constitutional violation, we
must vacate Cabrera’s sentence and remand his case for resentencing.
1. The district judge erred by relying on Cabrera’s decision not to testify as
a sentencing factor.
“[A] defendant’s Fifth Amendment right against self-incrimination ‘is fulfilled only when
a criminal defendant is guaranteed the right to remain silent unless he chooses to speak in the
unfettered exercise of his own will, and to suffer no penalty . . . for such silence.’” Ketchings v.
Jackson, 365 F.3d 509, 512 (6th Cir. 2004) (quoting Estelle v. Smith, 451 U.S. 454, 468 (1981)).
Sentencing a defendant for exercising that right vitiates it.

Case: 14-5572
No. 14-5572

Document: 51-2

Filed: 01/22/2016

United States v. Cabrera

Page: 10
Page 10

Cabrera’s sentencing transcript is not a model of clarity, but it is clear that the district
judge sentenced Cabrera to the top of his guidelines range in part because he never testified. The
judge told Cabrera:
You never put yourself on the record either at the trial or in support of your
request for an expert to have these tapes viewed. I have to tell you, from my
standpoint, and given your experience with the criminal justice system, I view that
as an incredibly cynical attempt to game the whole system here.
R. 57 (Sentencing Hr’g Tr. at 13) (Page ID #277). That statement admits of only one reasonable
interpretation: Cabrera’s sentencing judge punished him for not testifying in support of his
audio-tape tampering claim. That is an impermissible sentencing factor, and the district judge
erred when he relied on it at Cabrera’s sentencing.
The government argues that this reading is strained. It claims that the judge’s “put
yourself on the record” comment, “viewed in context, refers to Defendant’s failure to present any
proof whatsoever to support his allegations of evidence-tampering, not specifically to the
decision not to testify at trial.” Gov’t Br. at 15. That explanation fails in two respects. First, it
disregards the words actually spoken. The district judge did reference Cabrera’s failure to
present proof, which explicitly encompassed his failure to “put [him]self on the record.”
Cabrera’s sentencing judge was bothered not only by Cabrera’s failure to prove his tampering
claim, but also by his unwillingness to testify in support of it.
Second, considering the district judge’s statements in context actually reinforces
Cabrera’s reading. The district judge stated that “only [Cabrera’s] prior attorney ha[d] come
forward to even make the slimmest showing” in support of the tampering claim.

R. 57

(Sentencing Hr’g Tr. at 13) (Page ID #277). The district judge was presumably referring to the
affidavit that Cabrera’s attorney, Harper, appended to Cabrera’s motion requesting an expert and
his motion in limine. R. 11–1 (Harper Aff.) (Page ID #19); R. 12–1 (Harper Aff.) (Page ID #24).
The district judge immediately followed that comment with his “put yourself on the record”
statement. The most natural reading of the sentencing transcript is that the district judge drew a
parallel between Cabrera’s former attorney (who “put himself on the record” by submitting an
affidavit) and Cabrera (who did not). That parallel did not simply highlight Cabrera’s failure to

Case: 14-5572
No. 14-5572

Document: 51-2

Filed: 01/22/2016

United States v. Cabrera

Page: 11
Page 11

adduce evidence in support of his tampering claim, but more importantly emphasized Cabrera’s
refusal to testify in support of it.
This reading also aligns with the district judge’s comment that Cabrera made “an
incredibly cynical attempt to game the whole system.” R. 57 (Sentencing Hr’g Tr. at 13) (Page
ID #277). We do not read that statement as an assertion that Cabrera’s defense was cynical
because it was baseless. Rather, it seems that the district judge considered Cabrera’s strategy of
having his attorney put himself on the record—while Cabrera remained silent—cynical.
One issue complicates this otherwise straightforward constitutional violation.

The

district judge evidently believed that Cabrera’s refusal to testify “evinced a pretty complete
disrespect for the law.” R. 57 (Sentencing Hr’g Tr. at 13) (Page ID #277). It is true that
18 U.S.C. § 3553(a)(2)(A) identifies “promot[ing] respect for the law” as a factor that district
judges “shall consider” when calculating a defendant’s sentence. Thus, the government argues,
Cabrera’s sentencing judge seemed to consider a permissible factor when he sentenced Cabrera.
Gov’t Br. at 17.
We disagree. The fact that the district judge cloaked an impermissible sentencing factor
(Cabrera’s refusal to testify) in a permissible one (§ 3553(a)(2)(A)) does not change the fact that
he punished Cabrera for exercising his Fifth Amendment right against self-incrimination.
Moreover, Cabrera did not “disrespect” the law by not testifying in support of his doctored-tape
theory. “Every criminal defendant is privileged to testify in his own defense, or to refuse to do
so.” Harris v. New York, 401 U.S. 222, 225 (1971). The district judge sentenced Cabrera in part
because he exercised that privilege against self-incrimination.

That is an impermissible

sentencing factor.
The government might have a stronger counterargument if the sentencing judge’s “put
yourself on the record” comment was simply a stray statement among other permissible
justifications for Cabrera’s sentence. It was not. Although Cabrera does not raise this precise
argument in his brief, we think it is clear that the district judge failed adequately to explain
Cabrera’s sentence. “Although ‘[t]here is no requirement that the district court . . . engage in a
ritualistic incantation of’ the § 3553(a) factors it considers, . . . the district court’s sentence

Case: 14-5572
No. 14-5572

Document: 51-2

Filed: 01/22/2016

Page: 12
Page 12

United States v. Cabrera

should nonetheless reflect the considerations listed in § 3553(a).” United States v. Chandler,
419 F.3d 484, 488 (6th Cir. 2005) (quoting United States v. Washington, 147 F.3d 490, 491–92
(6th Cir. 1998)). That did not happen here. Indeed, the district judge cited § 3553(a)—in
cursory fashion—just once, and only after he sentenced Cabrera to sixty-three months in prison.
R. 57 (Sentencing Hr’g Tr. at 13) (Page ID #277). Moreover, the district judge identified
(tacitly) just one enumerated § 3553(a) factor:

promoting respect for the law under

§ 3553(a)(2)(A). The only sentencing factors the judge discussed at length were: (1) the fact
that Cabrera advanced a “fantastic” claim and (2) Cabrera’s failure to testify in support of that
claim. Cabrera’s sentencing transcript thus gives little reason to believe that the district judge
considered § 3553(a) in any meaningful way when he sentenced Cabrera. That makes the
violation of Cabrera’s Fifth Amendment right against self-incrimination all the more clear.
In sum, Cabrera received a sixty-three-month prison sentence in part because he
exercised his Fifth Amendment right against self-incrimination. That was error.
2. The district judge’s error was plain.
Having concluded that the district judge erred when he sentenced Cabrera for not
testifying in support of his tampering claim, we must determine whether that error was plain. “A
‘plain error’ is one that is clear or obvious.” United States v. Oliver, 397 F.3d 369, 379 (6th Cir.
2005). Thus, “an error is plain” only if it “is clear under current law.” United States v. Dedman,
527 F.3d 577, 591 (6th Cir. 2008) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)).
In other words, a plain error is one that is not “subject to reasonable dispute.” Puckett v. United
States, 556 U.S. 129, 135 (2009).
The district judge’s error was plain. We are unaware of any cases in which we have
upheld a sentence where a district judge sentenced a defendant for not testifying at trial. Cf.
Fabiano v. Wheeler, 583 F.2d 265, 269 (6th Cir. 1978) (rejecting habeas petitioner’s argument
that sentencing judge “penalized” her for maintaining silence before trial). The Supreme Court
addressed a related issue in Mitchell v. United States, 526 U.S. 314 (1999), where it found
reversible error when a sentencing judge drew an adverse inference from a defendant’s silence at
sentencing. Id. at 330. Mitchell’s holding, as we have recognized, is narrow. “The Mitchell

Case: 14-5572
No. 14-5572

Document: 51-2

Filed: 01/22/2016

United States v. Cabrera

Page: 13
Page 13

majority . . . explicitly limited its holding regarding inferences drawn from a defendant’s silence
to facts about the substantive offense and did not address other inferences that may be drawn
from a defendant’s silence . . . .” United States v. Kennedy, 499 F.3d 547, 552 (6th Cir. 2007).
Even under this reading, Mitchell makes plain that when a district judge draws an adverse
inference from a defendant’s silence, he “impose[s] an impermissible burden on the exercise of
the constitutional right against compelled self-incrimination.” Mitchell, 526 U.S. at 330.
In finding a plain error here, we emphasize that “[t]he privilege against self-incrimination
guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants.”
McKinley v. City of Mansfield, 404 F.3d 418, 437 (6th Cir. 2005) (quoting United States v.
Verdugo-Urquidez, 494 U.S. 259, 264 (1990)). And “[t]o punish a person because he has done
what the law plainly allows him to do is a due process violation ‘of the most basic sort.’” United
States v. Goodwin, 457 U.S. 368, 372 (1982) (quoting Bordenkircher v. Hayes, 434 U.S. 357,
363 (1978)). Just so here. By relying on Cabrera’s silence at trial as a sentencing factor, the
district judge did not simply contravene § 3553; he burdened a fundamental constitutional right.
Our conclusion that the district judge violated a bedrock protection of the Fifth Amendment is
not “subject to reasonable dispute.” Puckett, 556 U.S. at 135.
By purporting to sentence Cabrera at the top of his guidelines range because he “never
put [him]self on the record,” the district judge effectively punished Cabrera for exercising his
Fifth Amendment right against self-incrimination. That error was plain: it clearly and obviously
violated one of Cabrera’s fundamental constitutional rights.
3. The district judge violated Cabrera’s substantial right to be sentenced
pursuant to § 3553(c).
Our conclusion that the district judge violated Cabrera’s right against self-incrimination
does not end our inquiry. Whether this error was reversible turns on a further question: did the
district judge violate Cabrera’s “substantial rights” at sentencing?
We begin by considering two definitions of “substantial rights.” The first equates the
violation of “substantial rights” to prejudice—to hold “that a sentencing error affects substantial
rights where it causes the defendant ‘to receive a more severe sentence.’” Oliver, 397 F.3d at

Case: 14-5572
No. 14-5572

Document: 51-2

Filed: 01/22/2016

United States v. Cabrera

Page: 14
Page 14

379 (quoting United States v. Swanberg, 370 F.3d 622, 629 (6th Cir. 2004)). That approach is
consistent with the Supreme Court’s formulation of “substantial rights” in Olano, where it wrote
that “in most cases . . . [an] error . . . must have affected the outcome of the district court
proceedings” to constitute plain error. Olano, 507 U.S. at 734; accord United States v. Barnett,
398 F.3d 516, 526 (6th Cir. 2005). For Cabrera to prevail on such a claim, he would have to
demonstrate that his within-guidelines sentence would have been shorter absent this sentencing
error.
However, we have adopted a second interpretation of “substantial rights” focused on
§ 3553(c), and in the process identified a substantial right that does not require a showing of
prejudice: the right to meaningful appellate review. Section 3553(c) reads, in relevant part:
The court, at the time of sentencing, shall state in open court the reasons for its
imposition of the particular sentence, and, if the sentence . . . is of the kind, and
within the range, described in subsection (a)(4) and that range exceeds 24 months,
the reason for imposing a sentence at a particular point within the range . . . .
18 U.S.C. § 3553(c). Thus, § 3553(c) requires district judges to “adequately explain [a] chosen
sentence to allow for meaningful appellate review.” Gall, 552 U.S. at 50. Put another way:
“Defendants have a right to meaningful appellate review of their sentences and § 3553(c)
facilitates such a review by requiring the district court to state its specific reasons for imposing a
particular sentence.” United States v. Blackie, 548 F.3d 395, 402 (6th Cir. 2008).
Accordingly, we have held that a district judge violates a defendant’s right to meaningful
appellate review by insufficiently explaining his reasons for selecting a given sentence.
See United States v. Wallace, 597 F.3d 794, 806–07 (6th Cir. 2010); Blackie, 548 F.3d at 402–
03; see also Rita v. United States, 551 U.S. 338, 356 (2007) (“The sentencing judge should set
forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.”). Importantly, both
defendants who receive within-guidelines sentences (pursuant to § 3553(c)(1)) and defendants
who receive outside-guidelines sentences (under § 3553(c)(2)) enjoy the right to meaningful
appellate review. Wallace, 597 F.3d at 806–07; Blackie, 548 F.3d at 401–02.

Case: 14-5572
No. 14-5572

Document: 51-2

Filed: 01/22/2016

Page: 15
Page 15

United States v. Cabrera

The right to meaningful appellate review necessarily encompasses another right: the
right to be sentenced pursuant to § 3553(c). A district judge must comply with § 3553(c) in order
to afford a defendant the right to meaningful appellate review—i.e., to create a record for appeal
that adequately discloses the judge’s reasons for sentencing a defendant. See Blackie, 548 F.3d
at 400–01, 402 (“A sentence imposed without complying with the requirements of § 3553(c)
constitutes error . . . [and] ‘Section 3553(c) bestows on defendants the right to argue more
effectively [whether] . . . a sentence is reasonable.’” (quoting United States v. Lewis, 424 F.3d
239, 247 (2d Cir. 2005) (internal quotation marks omitted))). Without this requirement, the right
to meaningful appellate review is, put simply, not meaningful.

And the only reasonable

construction of § 3553(c) is that a district court’s “reasons for its imposition of the particular
sentence,” 18 U.S.C. § 3553(c), must be permissible (and not, inter alia, violative of a
defendant’s constitutional rights). A district judge, in other words, cannot satisfy § 3553(c) by
citing impermissible reasons for imposing a sentence. That is why § 3553(a) lists factors that a
district judge “shall consider” in calculating a defendant’s sentence:

to provide a list of

permissible sentencing factors that district judges are required to consider.

Id. § 3553(a)

(emphasis added); see Pepper v. United States, 562 U.S. 476, 490 (2011) “([D]istrict courts may
impose sentences within statutory limits based on appropriate consideration of all of the factors
listed in § 3553(a), subject to appellate review for ‘reasonableness.’”).
The substantial right to be sentenced pursuant to § 3553(c) flows naturally from the right
to meaningful appellate review and the text of § 3553. And that right is violated where, as here,
a district judge bases a sentence—even a within-guidelines sentence—on factors that are not only
not enumerated in § 3553, but that violate a defendant’s basic constitutional rights.
By sentencing Cabrera for exercising his Fifth Amendment right against self-incrimination, the
district judge violated Cabrera’s substantial right to be sentenced pursuant to § 3553(c).
4. By punishing Cabrera for not testifying at trial, the district judge
undermined the fairness, integrity, and public reputation of Cabrera’s
sentencing proceedings.
This final plain-error step is straightforward: “failure to comply with § 3553(c) . . .
affects the fairness, integrity, or public reputation of judicial proceedings.” Wallace, 597 F.3d at
807 (internal quotation marks omitted). Section 3553(c) affirmatively obligates district judges to

Case: 14-5572
No. 14-5572

Document: 51-2

Filed: 01/22/2016

Page: 16
Page 16

United States v. Cabrera

justify their sentences with reference to § 3553(a)’s factors. As Justice Breyer wrote for the
majority in Rita:
[T]hat requirement reflects sound judicial practice. Judicial decisions are
reasoned decisions. Confidence in a judge’s use of reason underlies the public’s
trust in the judicial institution. A public statement of those reasons helps provide
the public with the assurance that creates that trust.
Rita, 551 U.S. at 356. Compliance with § 3553(c) thus “promote[s] the perception of fair
sentencing.” Gall, 552 U.S. at 50. Violations of § 3553(c) undermine that perception.
This logic applies with even greater force here. The district judge did not simply fail to
explain Cabrera’s sentence with reference to the § 3553(a) factors.

He selected Cabrera’s

sentence because Cabrera exercised a right that the Constitution enshrines. That decision made
Cabrera’s sentence not only procedurally infirm, but fundamentally unfair. It undermined the
integrity of Cabrera’s sentencing proceedings.

At bottom, it rendered Cabrera’s sentence

procedurally unreasonable.
C. Sixth Amendment Challenge
Cabrera additionally argues that the district judge punished him for arguing (albeit not
testifying) that the audio-tape of his controlled buy was doctored. In doing so, Cabrera contends,
the district judge violated his Sixth Amendment “right to subject the government’s case to
meaningful adversarial testing.” Cabrera Br. at 17.
Although this is a close question, we conclude that the district judge infringed Cabrera’s
Sixth Amendment right.

Because the district judge’s plain violation of Cabrera’s Fifth

Amendment right provides us with an independent basis for reversal, we need not explore
whether its violation of his Sixth Amendment right constituted plain error in order to vacate his
sentence. Nonetheless, because we will remand Cabrera’s case for resentencing consistent with
this opinion, we review his Sixth Amendment challenge on the merits.
When considering a procedural reasonableness challenge, “we review the sentencing
transcript to ensure . . . that the sentencing judge adequately considered the relevant § 3553(a)
factors and clearly stated his reasons for imposing the chosen sentence.” United States v.

Case: 14-5572
No. 14-5572

Document: 51-2

Filed: 01/22/2016

Page: 17
Page 17

United States v. Cabrera

Thomas, 498 F.3d 336, 340 (6th Cir. 2007) (quoting Liou, 491 F.3d at 339). Statements made
during sentencing, however, do not exist in a vacuum. Thus, “we will vacate a sentence if the
context and the record do not make clear the court’s reasoning.” Thomas, 498 F.3d at 340
(quoting Liou, 491 F.3d at 339 n.4) (emphasis added) (internal quotation marks omitted).
Context and the record are important here.

The district judge faulted Cabrera for

advancing a “fantastic story regarding the altering of the[] tapes.” R. 57 (Sentencing Hr’g Tr. at
13) (Page ID #277). The judge also stated that Cabrera had gone through “machinations” to
advance that theory, including sending letters to him. Id. By employing those tactics, the judge
reasoned, Cabrera had “evince[d] a total disrespect for the law.” Id. Those statements suggest
that Cabrera’s sentencing judge was frustrated with what he perceived as Cabrera’s abuses of the
judicial process.
That brings our analysis back to the sole § 3553 sentencing factor that the district judge
mentioned specifically:

§ 3553(a)(2)(A).

It also focuses our inquiry:

does sentencing a

defendant for abusing the judicial process “promote respect for the law” within the meaning of
§ 3553(a)(2)(A)?
We often equate § 3553(a)(2)(A) with specific deterrence: a defendant demonstrates
disrespect for the law by repeatedly violating it. See, e.g., United States v. Sanders, 501 F.
App’x 455, 461 (6th Cir. 2012) (district judge did not give unreasonable weight to defendant’s
criminal history because his “extensive criminal background exhibit[ed] an obvious disrespect
for the law”); United States v. Jennings, 407 F. App’x 20, 21 (6th Cir. 2011) (district judge
adequately explained upward variance by, inter alia, citing “the need ‘to promote respect for the
law’ because ‘the sentences that ha[d] been imposed previously for [defendant’s] drug activities
ha[d] not deterred him from criminal conduct”); United States v. Alexander, 217 F. App’x 417,
423 (6th Cir. 2007) (district judge did not plainly err when he considered that defendant
demonstrated the “ability, but not the desire . . . to conform his conduct to society,” and
accordingly sentenced him within the guidelines “to ‘promote respect for the law’” (quoting
18 U.S.C. § 3553(a)(2)(A))).

Case: 14-5572
No. 14-5572

Document: 51-2

Filed: 01/22/2016

United States v. Cabrera

Page: 18
Page 18

However, it is clear that a district judge may consider a defendant’s abuse of the legal
process at sentencing. Section 3C1.1 of the Sentencing Guidelines is instructive: it authorizes a
two-level enhancement for defendants who “willfully obstruct[] or impede[] . . . the
administration of justice.” U.S.S.G § 3C1.1. Cases addressing perjury also illustrate this point.
When a defendant abuses his right to testify at trial by perjuring himself, his “readiness to lie
under oath . . . may be deemed probative of his prospects for rehabilitation.” United States v.
Grayson, 438 U.S. 41, 52 (1978), superseded by statute on other grounds as recognized by
Barber v. Thomas, 560 U.S. 474, 481–82 (2010). In turn, a district judge may consider a
defendant’s perjury when calculating his sentence. See United States v. Dunnigan, 507 U.S. 87,
95–96 (1993).
Cabrera arguably abused the judicial process. He accused several government officials of
corruption and dishonesty without offering any real justification. He wrote to the district judge
to argue in support of this claim. A magistrate judge stated that Cabrera had committed perjury.
Moreover, even in his brief on appeal, Cabrera provides little reason to suspect that the audio
recording of his controlled buy was in fact doctored. In turn, it seems reasonable that the district
judge, upset by these “machinations,” believed that Cabrera had disrespected the prosecution,
law-enforcement, Cabrera’s court-appointed counsel, and the court itself.
The district judge, however, cited none of these issues when he sentenced Cabrera.
Rather, he chided Cabrera for raising a “fantastic” (or “fantastical”) claim. R. 57 (Sentencing
Hr’g Tr. at 13) (Page ID #277). He cited no other “abuses” or disrespectful acts. Moreover, the
government never sought to enhance Cabrera’s sentence under § 3C1.1, and we note that the
commentary to that guideline provides that it “is not intended to punish a defendant for the
exercise of a constitutional right.” U.S.S.G. § 3C1.1 cmt. 2.
What we are left with, then, are the district judge’s comments that Cabrera disrespected
the law by raising a “fantastic” defense. This was also an impermissible sentencing factor. By
relying on this factor, the district judge violated Cabrera’s Sixth Amendment right to oppose the
government’s case against him. After all, “the Constitution requires . . . that a defendant be
given the right to challenge the State’s case against him using the arguments he sees fit.”
Indiana v. Edwards, 554 U.S. 164, 184 (2008). True, Cabrera had “no constitutional right to file

Case: 14-5572
No. 14-5572

Document: 51-2

Filed: 01/22/2016

Page: 19
Page 19

United States v. Cabrera

frivolous litigation.” United States v. Miller, 531 F.3d 340, 351 (6th Cir. 2008) (quoting Wolfe v.
George, 486 F.3d 1120, 1125 (9th Cir. 2007)).

But he plainly had a right to test the

government’s case by raising the arguments he considered meritorious. See Edwards, 554 U.S.
at 184. The district judge violated that right when he sentenced Cabrera for pursuing his
doctored-tape theory.
In sum, even though the district judge seemed to rely on § 3553(a)(2)(A), his statements
suggest that he misinterpreted the thrust of that statutory sentencing factor. At minimum, the
district judge failed to substantiate his claim that Cabrera disrespected the law within the
meaning of that factor. As a result, Cabrera was punished for exercising his Sixth Amendment
right to challenge the government’s case. We thus conclude that the district judge erred when he
sentenced Cabrera for raising a “fantastic” defense.
III. CONCLUSION
For the reasons set forth above, we VACATE Cabrera’s sentence and REMAND his
case for resentencing consistent with this opinion.