United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 18, 2010 Decided July 8, 2011
No. 09-3138
UNITED STATES OF AMERICA,
APPELLEE
v.
TIJANI AHMED SAANI,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00147)
Lisa H. Schertler argued the cause for appellant. With
her on the briefs was Danny C. Onorato.
Kevin R. Gingras, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief was
Lanny A. Breuer, Assistant Attorney General.
Before: GINSBURG, GRIFFITH, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
2
GINSBURG, Circuit Judge: Tijani Ahmed Saani appeals
the sentence he received after pleading guilty to five counts of
filing a false tax return, a violation of 26 U.S.C. § 7206(1).
Saani argues the district court erred in applying the United
States Sentencing Guidelines by increasing his base offense
level on the ground he significantly disrupted a governmental
function and by denying him credit for acceptance of
responsibility. He also argues the district court erred by
varying upward from the Guidelines range pursuant to 18
U.S.C. § 3553(a).
We hold the district court did not err by increasing
Saani’s base offense level because he did significantly disrupt
a governmental function, but we are unable to determine
whether in denying Saani credit for acceptance of
responsibility and varying upward from the Guidelines range,
the court relied solely upon constitutionally permissible
factors. We therefore vacate Saani’s sentence and remand his
case for resentencing.
I. Background
Saani was a contract specialist for the U.S. Air Force at
Camp Arifjan in Kuwait. His responsibilities in that position
included the award of contracts for the supplies, services, and
housing U.S. military personnel need while stationed in
Kuwait. In the aggregate, Saani oversaw the expenditure of at
least one million dollars annually.*
*
The Government alleges Saani oversaw procurement actions
totaling $750 million annually, while Saani maintains he had no
authority to make purchases over $1 million. Insofar as Saani
claims the district court erred in refusing to resolve this dispute, he
does so only summarily in a footnote in his opening brief. His
argument is therefore forfeit. See Bryant v. Gates, 532 F.3d 888,
3
In 2006 the Government began to investigate allegations
of corruption in its contracting offices in Kuwait. That
investigation led to the successful prosecution of eighteen
individuals, including four Army Majors stationed at Camp
Arifjan. The Government also learned that while Saani was
in Kuwait he wired $3.6 million to bank accounts around the
world, at least $2.6 million of which went to non-U.S.
accounts Saani owned or controlled. Indeed, the Government
determined that in 2003 through 2006 Saani spent $2,412,731
more than he received from known sources of income, which
prompted a review of every contract Saani administered and
caused some of them to be “reissued.”
The Government subsequently charged Saani with five
counts of filing a false tax return, in violation of 26 U.S.C.
§ 7206(1), one count for each return filed in the five tax years
2003 through 2007. The indictment alleged Saani’s returns
were fraudulent in three respects: (1) on each return for tax
years 2003 through 2007 Saani falsely stated he did not have
any interest in or authority over a foreign financial account
and, on each return for tax years 2003 through 2006, he (2)
failed to report the interest income he earned from the monies
in those accounts, and (3) underreported his income. The
indictment did not contain any allegation pertaining to the
source of the unreported monies in Saani’s various accounts.
One day before his pretrial conference was to take place,
Saani pleaded guilty to all five counts without having entered
898 (D.C. Cir. 2008) (citing N.Y. Rehab. Care Mgmt., LLC v.
NLRB, 506 F.3d 1070, 1076 (D.C. Cir. 2007) (“It is not enough
merely to mention a possible argument in the most skeletal way,
leaving the court to do counsel’s work” (internal quotation marks
omitted))).
4
into a plea agreement. During the plea colloquy with the
district court, Saani’s counsel stated:
[Saani] is willing to plead guilty ... . He is
prepared to allocute that for the years 2003,
through 2007 ... he filed Federal tax returns
[that] were signed under penalties of perjury,
and that on those tax returns he stated that he
did not have any interest in or signature
authority over any foreign bank accounts, and
that at the time that he made those statements
he knew that those statements were false.
Saani did not then admit (as he did later) he had understated
his income, but the Government did not object and the district
court accepted Saani’s plea.
In its Presentence Report (PSR) the Probation Office
calculated Saani had an offense level of 20, reflecting a base
offense level of 20 geared to the Government’s loss of
$816,485 in taxes, a two-point upward adjustment pursuant to
U.S.S.G. § 2T1.1(b)(2) for use of sophisticated means to
commit a crime, and a two-point downward adjustment
pursuant to § 3E1.1 for acceptance of responsibility. His total
offense level and lack of a criminal history indicated a
sentence of 33 to 41 months in prison. Saani’s refusal, upon
the advice of counsel, to discuss with the Probation Office
matters relating to his net worth and monthly cash flow
prevented that office from specifying the size of the fine the
court should impose, though it noted Saani did appear to be
able to pay a fine.
The Government urged the district court to sentence
Saani to at least 121 months in prison. In particular, the
Government argued the court should refuse Saani credit for
5
acceptance of responsibility (leaving his offense level at 20,
the base, + 2 for his use of sophisticated means) and should
increase Saani’s total offense level by ten (to 32) —
comprising four levels pursuant to § 5K2.7 for significantly
disrupting a governmental function, four levels pursuant to
§ 5K2.21 for two uncharged offenses (filing a false return for
tax year 2002 and making a false statement on an application
for a security clearance), and two levels pursuant to
§ 2T1.1(b)(1) for failing to report income derived from an
illegal source. The Government also sought the maximum
statutory fine, full restitution, and a special assessment,
arguing Saani should not, by refusing to discuss his finances,
be able to avoid a monetary sentence.
For his part, Saani urged the district court to accept
Probation’s conclusion he should receive credit for accepting
responsibility: He had pleaded guilty before his pretrial
conference — what the district court had called “the point of
no return [for] getting acceptance of responsibility credit” —
and, at the plea hearing, the Government had expressly stated
his allocution was sufficient. Saani also later admitted he had
failed to report $2.4 million of income and made a false
statement in an application for a security clearance, and
conceded he could be required to pay the maximum statutory
fine in view of his refusal to cooperate fully with Probation.
At the sentencing hearing the district court adopted most
of the Government’s proposed increases. The court denied
Saani credit for acceptance of responsibility in view of his
“unwillingness to be forthcoming with Probation over and
above his unwillingness to be more forthcoming about his
conduct.” The court also increased Saani’s base offense level
by eight — two levels for use of sophisticated means, four
levels for significantly disrupting a governmental function,
6
and two levels for uncharged conduct, viz., making a false
statement in an application for a security clearance.
In Saani’s favor, the district court concluded the evidence
was insufficient to support a finding he had filed a false tax
return for 2002, and it therefore denied the Government’s
motion for a two-level increase for that uncharged conduct.
The court likewise refused to make an upward adjustment for
Saani’s uncharged failure to report income derived from an
illegal source. As a result, the district court assigned Saani a
total offense level of 28, for which the Guidelines recommend
a sentence in the range of 78 to 97 months in prison.
After hearing argument about the sentencing factors
listed in 18 U.S.C. § 3553(a), the court varied upward from
the Guidelines range and sentenced Saani to 110 months in
prison. The court also sentenced Saani to pay the maximum
statutory fine of $1,632,970,* plus a special assessment, and
to make full restitution.
II. Analysis
In reviewing a sentencing decision, we address purely
legal questions de novo, accept the district court’s factual
findings unless they are clearly erroneous, and give “due
deference” to that court’s application of the Guidelines to the
facts. United States v. Day, 524 F.3d 1361, 1367 (D.C. Cir.
2008) (internal quotation marks omitted); see also United
States v. Bisong, No. 08-3014, 2011 WL 1900736, at *12
(D.C. Cir. May 20, 2011) (the due deference standard “falls
somewhere between de novo and clearly erroneous” review
*
By statute the maximum fine is the greater of $250,000 per count
of conviction or, as here, twice the gross pecuniary loss to the
victim. See 18 U.S.C. § 3571(b), (d).
7
(internal quotation marks and alteration omitted)). Saani
argues the district court erred, first, by increasing his sentence
for significantly disrupting a governmental function and,
second, by denying him credit for acceptance of
responsibility. He also argues the district court erred as a
matter of law in denying him credit for accepting
responsibility and giving him a sentence above the Guidelines
range because, in so doing, the court impermissibly burdened
his right against self-incrimination. The Government
contends the district court did not clearly err in any respect
and did not penalize Saani for his silence.
A. Significant Disruption of a Governmental Function
In ruling from the bench the district court said it would be
an “understatement” to describe Saani’s actions as having a
disruptive effect upon a governmental function. Referring to
the “elaborate affidavit” submitted by a government
investigator, the district court found Saani’s failure to report
his income caused the Government to investigate contracts
“involving millions and millions” of dollars. In view of the
“huge disruptive effect,” the district court concluded
increasing Saani’s offense level by four “was more than
warranted.” Saani argues the district court clearly erred in
applying that provision because (i) it was not his false tax
returns that caused the disruption of the contracting offices in
Kuwait and, even if it was, (ii) the district court failed
adequately to justify the size of the increase.
1. Causation
Saani argues that under § 5K2.7 of the Sentencing
Guidelines the Government must establish a direct link
between the defendant’s misconduct and the alleged
disruption by showing, for example, the defendant used
8
government property or personnel to further his crime. See,
e.g., United States v. Burns, 893 F.2d 1343, 1347 (D.C. Cir.
1990), rev’d on other grounds, 501 U.S. 129 (1991)
(affirming increase pursuant to § 5K2.7 where supervisor
used “administrative resources” such as “time and personnel”
to divert government funds). Here, because there was no
misuse of government resources, Saani argues the
Government cannot identify any effect his failure to report
income had upon the contracting offices in Kuwait. Indeed,
as his crime was discovered only after the Government’s
investigation into allegations of corruption in Kuwait had
begun, Saani argues his conduct could not have caused the
investigation. Nor, Saani adds, may he be punished under
§ 5K2.7 for prolonging an investigation that was already
under way because the “portion of the investigation that
occurred after Saani’s tax crimes were discovered was
fruitless.”
These arguments are not convincing. Although the
Government was initially conducting a broader investigation
into allegations of corruption in the Kuwaiti contracting office
for reasons unrelated to Saani’s crimes, it was, according to
the affidavit of the government investigator, “Saani’s failure
to report the existence of his foreign bank accounts [and his
actual] income, his pattern of concealment [that] led to further
inquiry and scrutiny of his contract actions.” It is irrelevant
that the ensuing investigation was fruitless. Section 5K2.7
permits a district court to increase the defendant’s offense
level where “the defendant's conduct resulted in a significant
disruption of a governmental function”; it does not require
that the disruption be of any particular type or consequence.
Unlawful conduct necessitating an unusually burdensome or
prolonged investigation of a government office may suffice as
a “significant disruption” under § 5K2.7 regardless whether
the investigation proves fruitful. Cf. United States v. Howard,
9
No. 95-1443, 1996 WL 30781, at *1 (2d Cir. Jan. 26, 1996)
(affirming increase in a defendant’s sentence per § 5K2.7
where defendant’s theft of evidence caused several federal
agencies to undertake a sprawling investigation). As a result
of Saani’s conduct the Government was forced to review
contracts involving millions of dollars. This task was so
complex that the investigative team required the assistance of
two senior officials at the Kuwaiti contracting office, who had
to be diverted from their ordinary duties. The district court
did not err clearly in finding that Saani’s conduct significantly
disrupted a governmental function.
2. Magnitude of the Increase
Saani argues the district court also erred by failing to
explain why his conduct warranted an increase of four levels
instead of some lesser number. The district court found the
disruptive effect of Saani’s conduct was “huge” and
particularly harmful because it disrupted the Government’s
functioning during a time of war. Saani did not ask at his
hearing for a more elaborate explanation and the district
court’s failure to provide one sua sponte was not so plain an
error if it was an error at all that “the trial judge and
[the] prosecutor were derelict in countenancing it.” United
States v. Saro, 24 F.3d 283, 286 (D.C. Cir. 1994) (quoting
United States v. Frady, 456 U.S. 152, 163 (1982)); see also
United States v. Tann, 532 F.3d 868, 872 (D.C. Cir. 2008)
(“[o]rdinarily an objection not made in the district court is
reviewable on appeal only for plain error”).
B. Acceptance of Responsibility
Saani next argues the district court should have reduced
by two his base offense level because he “clearly
demonstrate[d] acceptance of responsibility for his offense.”
10
U.S.S.G. § 3E1.1(a). As noted in the Sentencing Guidelines,
the district court is in a “unique position to evaluate a
defendant’s acceptance of responsibility.” § 3E1.1, cmt n.5.
Its decision to grant or deny credit pursuant to § 3E1.1 is
therefore “entitled to great deference on review.” United
States v. Berkeley, 567 F.3d 703, 711 (D.C. Cir. 2009) (citing
§ 3E1.1 cmt n.5). As detailed below, none of Saani’s
objections pertaining to his plea colloquy or his interaction
with the Probation Office undercuts the deference we owe the
district court. Because the court may have erred as a matter
of law, however, by penalizing Saani for invoking his right to
remain silent about certain matters beyond the offense of
conviction, we remand his case to the district court for further
consideration as we explain below.
1. Timeliness of the Plea
Saani first argues the decision to deny him credit under
§ 3E1.1 should not stand because the district court failed to
acknowledge the timeliness of his plea. He points out that at
a status hearing the judge said if he pleaded guilty prior to the
date of the pretrial conference, then he should have “no
problem” getting credit under § 3E1.1. Thus, Saani argues,
the court “essentially promised [him] that a plea by the
deadline would result in a § 3E1.1 adjustment.”
Saani’s contention fails because a “defendant who enters
a guilty plea is not entitled to an adjustment under [§ 3E1.1]
as a matter of right,” § 3E1.1 cmt n.3; indeed, the timeliness
of a defendant’s plea is only one of eight factors the
Guidelines suggest a court may consider, id. cmt n.1. Here,
the district judge did not mention the timing of Saani’s plea,
but did point to reasons for believing Saani had not in fact
accepted responsibility his failure at the plea hearing to
admit he had underreported income and his refusal later to
11
cooperate fully with Probation. Those are adequate reasons
for denying him credit. A dozen years ago we rejected
explicitly Saani’s implicit suggestion to the contrary. See
United States v. Bridges, 175 F.3d 1062, 1067 (D.C. Cir.
1999) (“We see no reason, and have no warrant, to overturn
the district court simply because it did not go through the
exercise of explaining the rejection of choices implicit in the
choice it did make”).
2. Scope of the Allocution
Saani next argues the district court should not have
considered his failure at the plea colloquy to admit all of the
allegations against him because doing so penalized him
unfairly for a decision made by his counsel. More
particularly, defense counsel told the court Saani admitted he
had failed to report his interest in foreign bank accounts, but
Saani’s allocution did not address the allegations he had
underreported his income. According to Saani, it was not
recalcitrance on his part that led him to allocute so narrowly.
Rather, he claims, “The record demonstrates that defense
counsel had incomplete data from the government at the time
of [his] plea” and counsel “advised [him] to permit her to
evaluate the government’s data before agreeing to [the
amount of the tax loss in the Government’s proffer].”
When determining eligibility for an adjustment under
§ 3E1.1, a district court may require the defendant “to provide
a candid and full unraveling of the circumstances surrounding
the offense of conviction,” In re Sealed Case, 350 F.3d 113,
123 (D.C. Cir. 2003) (internal quotation marks omitted), and
may consider whether the defendant truthfully admitted, or
instead falsely denied or frivolously contested, any
“additional relevant conduct for which the defendant is
accountable,” § 3E1.1 cmt n.1. Where, as here, a defendant is
12
accused of making multiple false statements in his tax return,
those alleged false statements are obviously “relevant conduct
for which the defendant is accountable.” The district court
did not, therefore, err by taking into account Saani’s failure to
admit he underreported his income regardless whether he was
acting upon the advice of counsel; a defendant is responsible
for the strategic decisions of his attorney. See Comm’r v.
Banks, 543 U.S. 426, 436 (2005) (“the attorney can make
tactical decisions without consulting the client” because
“[e]ven where the attorney exercises independent judgment
without supervision by, or consultation with, the client, the
attorney, as an agent, is obligated to act solely on behalf of
... the client-principal”); Pittman ex rel. Sykes v. Franklin, 282
F. App’x 418, 427 n.6 (6th Cir. 2008) (an attorney may act
without consulting her client in tactical matters “if [the]
decision is in the best interest of the client and the lawyer is
impliedly authorized to so act”); cf. United States v. Morrison,
98 F.3d 619, 626 n.8 (D.C. Cir. 1996) (lawyer’s failure to
seek the client’s opinion before making a strategic decision
does not render that decision “incompetent or inappropriate”).
And there can be no question defense counsel’s decision to
limit the scope of Saani’s allocution was in fact strategic.*
*
At his sentencing hearing, Saani’s counsel stated:
We [] delayed our acceptance on the unreported
income and tax computations because the
discovery in this case has really been an ongoing
process. ... We continue[d] to receive financial
records and the Government’s computations [of the
claimed tax loss] well past the plea, and I wanted
the opportunity to look at the Government’s
computations ... before I felt comfortable that the
Government’s particular figures were supported.
13
3. Cooperation with Probation
Saani also argues the district court ought not to have
considered his refusal to speak candidly with Probation about
his finances when deciding whether to give him credit under
§ 3E1.1 because he had conceded at the sentencing hearing
that he was able to pay a fine. Ability to pay is not, however,
the only legitimate reason for expecting a defendant to
disclose the location and amount of the income he failed to
report on his tax returns. To the contrary, such details are a
part of the “candid and full unraveling” a court may expect a
defendant convicted of tax evasion to supply in assessing
whether the defendant has accepted responsibility for his
crime, In re Sealed Case, 350 F.3d at 123; see § 3E1.1 cmt
n.1(A), and, as a practical matter, may be the essential detail
if the Government is to recover the lost taxes.**
Defense counsel thereby made clear that instead of increasing the
likelihood Saani would receive credit under § 3E1.1 by providing
the Government with information about the extent of his crime — a
task undoubtedly easier for Saani than it was for the prosecution,
which had to rely upon the cooperation of foreign governments
pursuant to Mutual Legal Assistance Treaties — she believed Saani
would be better off by putting the Government to its proof.
**
Saani argues he had a constitutional privilege to remain silent
about the source of his unreported income because disclosing that
source could subject him to punishment for a crime other than tax
evasion. In arguing the district court erred by considering his
failure to cooperate with Probation, however, Saani does not here
argue the locational information requested by Probation might
subject him to any greater punishment. Cf. United States v. Bolden,
479 F.3d 455, 466 (6th Cir. 2007) (“it is not ... clear whether there
are Fifth Amendment implications of requiring [a defendant] to
disclose the location of ... stolen money [when] such disclosure
14
4. Fifth Amendment Concerns
Finally, with respect to the denial of credit under § 3E1.1,
Saani argues the district court erred as a matter of law insofar
as it relied upon his unwillingness to discuss matters about
which he had a Fifth Amendment privilege not to speak, see
U.S. CONST. amend. V (no person “shall be compelled in any
criminal case to be a witness against himself”). Specifically,
Saani argues the district court refused to give him credit for
acceptance of responsibility because he did not cooperate with
the Government’s bribery investigation by identifying the
source of his unreported funds. The Government contests
Saani’s reading of the record but, like the Supreme Court,
“express[es] no view” on the constitutional issue, see Mitchell
v. United States, 526 U.S. 314, 330 (1999) (holding Fifth
Amendment extends to sentencing phase of criminal
proceeding but reserving question whether silence bears upon
credit for accepting responsibility).
Recall that in deciding whether a defendant should
receive credit for acceptance of responsibility, it is
appropriate for the district court to consider whether the
defendant “truthfully admitt[ed] the conduct comprising the
offense(s) of conviction, and truthfully admitt[ed] or [did] not
falsely deny[] any additional relevant conduct for which the
defendant is accountable.” § 3E1.1 cmt n.1(A). In order to
avoid a potential violation of the defendant’s constitutional
right against self-incrimination, however, the Commentary
further provides:
would not increase the penalty to which [the defendant] was already
subject by pleading guilty to the underlying robbery”).
15
[A] defendant is not required to volunteer, or
affirmatively admit, relevant conduct beyond
the offense of conviction in order to obtain a
reduction under [§ 3E1.1] ... [and] may remain
silent in respect to relevant conduct beyond the
offense of conviction without affecting his
ability to obtain a reduction.
Id.; see also United States v. Hicks, 978 F.2d 722, 726 (D.C.
Cir. 1992) (revision to § 3E1.1 and accompanying application
note was intended to prevent tension between the Guideline
and the Fifth Amendment).
We considered this Commentary in a slightly different
context In re Sealed Case. There the defendant had been
convicted of, among other things, conspiracy to distribute
cocaine. 350 F.3d at 115. The district court denied the
defendant credit under § 3E1.1 in part because he refused to
disclose the identity of his supplier and co-conspirator. Id. at
122. Because the Guidelines “vest a sentencing court with the
latitude to consider all reliable, probative indicia tending to
demonstrate, or countervail, the genuineness” of the
defendant’s remorse, id., we held a sentencing court may
require a defendant seeking credit pursuant to § 3E1.1 “to
provide a candid and full unraveling of the circumstances” of
his offense, including the names of his co-conspirators, id. at
123 (internal quotation marks omitted).
If a defendant convicted of distributing drugs can be
denied credit for failing to reveal the source of his drugs, then
does it follow that Saani may be denied credit for failing to
reveal the source of his unreported income? We are not
certain the analogy holds. The defendant In re Sealed Case
stood convicted of conspiracy and naming his supplier would
not have subjected him to the possibility of prosecution for an
16
additional crime; one who has conspired necessarily has co-
conspirators. Saani, however, asserts that if he were forced to
disclose the source of his funds, then he might face
prosecution for a crime distinct from tax evasion, viz., bribery.
Courts disagree whether the “compulsion” a defendant faces
if he may be denied a reduction of his sentence unless he
provides potentially incriminating information is sufficiently
forceful to trigger the protection of the Fifth Amendment.
Compare United States v. Frazier, 971 F.2d 1076, 1084, 1086
(4th Cir. 1992) (conditioning a reduction under § 3E1.1 “on
the waiver of [a defendant’s] Fifth Amendment right is []
analogous to (and constitutionally indistinguishable from) the
choice confronting the defendants in [a] plea bargain case[]
... [it] may encourage defendants to provide information that
could prove incriminatory, but it does not compel them to do
so”); with United States v. Olivares, 905 F.2d 623, 628 (2d
Cir. 1990) (requiring defendant “to accept responsibility for
crimes other than those to which he has pled guilty ... in effect
forces [him] to choose between incriminating [himself] ... or
forfeiting [a] substantial reduction[]” in his sentence); United
States v. Amico, 486 F.3d 764, 779 (2d Cir. 2007) (same in
dictum); see also United States v. Cohen, 171 F.3d 796, 805
(3d Cir. 1999) (a majority of circuits “construe denied 3E1.1
reductions as ‘denied benefits’ rather than ‘penalties’”).
We do not now resolve the constitutional issue because
we cannot determine from the present record whether the
district court did indeed take into account Saani’s refusal to
disclose specifically the source of his funds when it denied
him credit under § 3E1.1. See Tr. of Sentencing Hearing at 4,
United States v. Saani, No. 08-147 (D.D.C. Dec. 10, 2009)
(denying Saani credit because of his “unwillingness to be
forthcoming with Probation over and above his unwillingness
to be more forthcoming about his conduct here”). Instead, we
vacate Saani’s sentence so the district court may clarify the
17
basis or bases for, and if necessary reconsider, its conclusion
Saani did not accept responsibility for his crimes. See Saro,
24 F.3d at 287 (“For most constitutional errors, an appellate
court is to reverse if it entertains a ‘reasonable doubt’ about
whether the error affected the outcome below”). If the district
court does not consider Saani’s refusal to disclose the source
of the funds in deciding whether to grant or deny him credit
under § 3E1.1, then there will be no Fifth Amendment issue
with respect to that provision.*
C. Upward Variance
After assigning Saani a total offense level of 28, for
which the Guidelines range is 78 to 97 months in prison, the
district court varied upward and sentenced Saani to 110
months. Saani argues the variance violated his right against
self-incrimination because it was, like the denial of credit
pursuant to § 3E1.1, based upon his refusal to disclose the
source of his unreported income.
We agree with Saani that portions of the record can be
read to suggest the district court varied upward, in part,
because Saani refused to disclose the source of his funds. It is
*
At the sentencing hearing the district judge stated the Guidelines
calculations in Saani’s case “wouldn’t matter” because he believed
a sentence of 110 months was appropriate. Based upon that
statement, the Government argues any error the district court may
have committed in calculating Saani’s Guidelines range was
harmless; the district court “would have imposed the same sentence
in any event” and that sentence, irrespective of the Guidelines, “was
“independently justified by the § 3553(a) factors.” The
Government’s argument fails because, as we explain below, there is
an open question whether the sentence imposed under § 3553(a)
was tainted by constitutional error.
18
clear the Fifth Amendment protects a defendant not only from
being compelled to provide information about guilt or
innocence but also from being compelled to provide details
about conduct beyond the offense of conviction that could
increase the severity of his punishment. See Mitchell, 526
U.S. at 325–30 (privilege against self-incrimination extends
through sentencing phase of criminal trial; “defendant [is
often] less concerned with the proof of her guilt or innocence
than with the severity of her punishment”); cf. id. at 340
(Scalia, J., dissenting) (noting Court does not address whether
judge may draw negative inference from defendant’s silence
at sentencing hearing when considering “repentance,
character, and future dangerousness”); United States v.
Kennedy, 499 F.3d 547, 552 (6th Cir. 2007) (Fifth
Amendment does not forbid district court from considering
“defendant’s refusal to [undergo psychological examination]
in assessing what sentence is necessary to protect the public
from further crimes” (internal quotation marks omitted)).
It is not evident a constitutional violation occurred here,
however, because the record makes clear that, in addition to
concern about the source of Saani’s income, the decision to
vary upward was based upon the need to deter tax evasion by
persons entrusted with the expenditure of federal funds. If the
decision of the district court to vary upward rested solely
upon the latter ground, then it would be not only
constitutional but also a reasonable exercise of the district
court’s considerable discretion. Still, out of an abundance of
caution — and having decided on another ground to vacate
Saani’s sentence and remand his case to the district court for
reconsideration — we think it prudent to have the district
19
court also clarify on remand its reason or reasons for varying
upward from the Guidelines, should it again do so.*
D. Remand to a Different Judge
Saani maintains that because the district judge made
certain statements at his sentencing hearing expressing
impatience or disagreement with the Guidelines, the judge
will be unable to take a “fresh look” at his sentence on
remand and we should therefore direct that his case be
reassigned to a different judge. See 28 U.S.C. § 2106
(appellate court may “require such further proceedings to be
had as may be just under the circumstances”); see also United
States v. Wolff, 127 F.3d 84, 88 (D.C. Cir. 1997) (whether a
case should be reassigned depends upon “whether the original
judge would ... have substantial difficulty in putting out of his
or her mind the previously-expressed views ... [and] whether
reassignment is advisable to preserve the appearance of
justice” (quoting United States v. Robin, 553 F.2d 8, 10 (2d
Cir. 1977))). In view of the considerable time and effort the
district judge in this case spent soliciting and considering both
the parties’ arguments, it is evident that irrespective of his
personal views regarding the wisdom of the Guidelines, the
*
We also point out that in view of the district court’s refusal to
increase Saani’s base offense level pursuant to § 2T1.1(b)(1) for
failing to report funds obtained from an illegal source, it would
seem anomalous for the district court later to find the evidence was
sufficient to sustain an upward variance under § 3553(a) for the
same ostensibly unlawful conduct. Cf. United States v. Lawson,
494 F.3d 1046, 1056 (D.C. Cir. 2007) (“it is permissible for a
sentencing court to build a sentence, at least in part, on conduct
[outside the offense of conviction] provided, as here, the court
determined by a preponderance of the evidence that [the defendant]
engaged in the conduct”).
20
district judge knew he was bound by law to consider them.
There is nothing in the record to suggest the district judge on
remand will be unable or unwilling to do so again.
III. Conclusion
The district court did not err in concluding Saani’s
offense level should be increased pursuant to U.S.S.G.
§ 5K2.7 because Saani’s criminal conduct significantly
disrupted a governmental function. We vacate Saani’s
sentence and remand his case to the district court for
resentencing solely because the record is unclear as to
whether an arguably improper consideration infected the
district court’s decisions to deny Saani credit for accepting
responsibility pursuant to U.S.S.G. § 3E1.1 and to vary
upward from the Guidelines sentencing range pursuant to 18
U.S.C. § 3553(a).
So ordered.