RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0143p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 06-1447
v.
,
>
CHARLES HIGHGATE, -
Defendant-Appellant. -
-
-
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 04-80449—John Corbett O’Meara, District Judge.
Argued: February 1, 2008
Decided and Filed: April 7, 2008
Before: MERRITT, GILMAN, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: Andrew N. Wise, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for Appellant.
Kevin M. Mulcahy, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
ON BRIEF: Andrew N. Wise, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for Appellant.
Kevin M. Mulcahy, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
COOK, Circuit Judge. A jury convicted Charles Highgate of drug- and firearm-possession
charges, and the district court sentenced him to an aggregate prison term of 360 months. Highgate
appeals his conviction, arguing that a defense witness who invoked his Fifth Amendment privilege
was improperly dismissed because the court did not inquire into the witness’s reasonable fear of
prosecution. While we agree that the district court erred in accepting the witness’s blanket assertion
without further probing, we affirm Highgate’s conviction because we find any resulting error
harmless. Highgate also appeals his sentence, arguing that the court improperly treated the
Sentencing Guidelines as mandatory and inadequately explained its analysis of the 18 U.S.C.
§ 3353(a) factors. Because the district court’s equivocation at sentencing does not assure us that it
appreciated its full sentencing discretion, we vacate Highgate’s sentence and remand for
resentencing consistent with this opinion.
1
No. 06-1447 United States v. Highgate Page 2
I
A
On May 8, 2004, police executing a valid search warrant at a Detroit residence saw Highgate
secreting things beneath a tire in the backyard. A search of that tire revealed a loaded firearm and
multiple packages of cocaine and heroin. Police who entered the home’s front door surprised
LaFrederick Jones, who dropped bags of drugs to the floor upon seeing the officers.
A federal grand jury indicted Highgate for being a felon-in-possession of a firearm, 18
U.S.C. § 922(g); possession with the intent to distribute heroin and cocaine, 21 U.S.C. § 841(a); and
possession of a firearm during and in relation to a drug offense, 18 U.S.C. § 924(c). Jones was
separately charged by state authorities.
At Highgate’s trial, Officer Eric Jarmons testified that he arrested Highgate, and five other
testifying officers corroborated this account. After the government rested, Highgate planned to call
LaFrederick Jones as a witness, but before Jones took the stand, the prosecutor informed the court
that “the marshal said that [Jones] was thinking about whether or not he could take the Fifth
Amendment. And so I would hate to call him out here, throw him on the stand, until we clarified
that that—you know, what’s going on.” Based on this development, the court called a recess,
instructing defense counsel to “find out if he’s going to testify.”
When defense counsel returned, he first proffered that Jones would testify “that Officer
Jarmons did not arrest Mr. Highgate.” Instead, Jones would say it “was the female officer who
arrested Mr. Highgate and brought him into the house.” Counsel underscored that he would not ask
Jones “anything about his conduct.” The court balked, however, declaring “that is not [of] sufficient
materiality, in my opinion, to affect the jury’s judgment in this case.” The prosecutor, countering
defense counsel’s assurances, asserted his right to “ask[] Mr. Jones about his conduct out there . . . to
clarify this whole situation” before the jury.
With that, the court indicated that if Jones took the stand, “we’re going to find out on the
events surrounding . . . May 8, 2004, that he would take the Fifth Amendment, that’s the end of it,
he’s not going to testify to anything else, and I’ll ask him.” Although the court opined that Jones’s
“taking the Fifth isn’t going to be good for the Defendant,” it conceded that “if [defense counsel]
want[s] to put him on there and say that, [he] can do it.” Defense counsel persisted, expressing
doubt about Jones’s legitimate fear of self-incrimination:
It’s my understanding from Mr. Jones that he already . . . has been sentenced for
things he did on that particular day, so I don’t understand where the whole thing
about self-incrimination is coming from. If he’s been convicted of the criminal
conduct he did that particular day, then I don’t understand [how] he can incriminate
himself.
The court agreed that it did not understand, but stated, “That’s the wonderful thing about the Fifth
Amendment. They don’t have to do anything more than say they’re taking it.”
After the jury returned, the defense called Jones to the stand, and the court began, “It’s my
understanding . . . that you would take the Fifth Amendment and not testify with regard to [the May
8] events until you had a chance to consult with a lawyer.” Jones agreed and started to explain, but
the court cut him off: “You don’t have to explain why you don’t want . . . to take the Fifth. I’m
asking you is that your position, that you won’t testify until you’ve talked with a lawyer, that you
will take the Fifth?” When Jones answered in the affirmative, the court excused him. The defense
then rested without objecting further to Jones’s dismissal, and the jury found Highgate guilty on all
counts.
No. 06-1447 United States v. Highgate Page 3
B
Before sentencing, the United States Probation Office prepared a Presentence Report
(“PSR”) identifying Highgate as a Career Offender with a Guidelines-recommended range of 360
months to life. Although neither party objected to the PSR’s calculation, the district court twice
adjourned the sentencing hearing. At the first adjournment, the district court expressed “the need
to counsel with others and think about the heaviness of the sentence that seems to be commanded
by the sentencing guidelines.” The second adjournment notified the government that the court was
considering granting a downward variance.
Although these delays held promise for a sentence below the applicable Guidelines range,
the sentencing hearing did not culminate with a downward variance. Rather, the court decided to
impose the Guidelines-minimum 360-month aggregate sentence instead of a sentence “more
consistent with [the court’s view of] justice, morality, and all of the other considerations under
3553.”
II
In challenging his conviction, Highgate argues that the trial court deprived him of his Sixth
Amendment right to compulsory process when it dismissed LaFrederick Jones without any inquiry
into the legitimacy or scope of Jones’s claimed Fifth Amendment privilege.
We first reject the government’s contention that Highgate forfeited this issue by failing to
raise it before the district court. See Fed. R. Crim. P. 52(b) (“A plain error that affects substantial
rights may be considered even though it was not brought to the court’s attention.”). True,
Highgate’s lawyer neither asked the court to delve into the basis for Jones’s assertion nor objected
when the court dismissed him. We held, however, in United States v. Gibbs, that a witness proffer
sufficiently “br[ings] the issue of the scope of [the witness’s] Fifth Amendment privilege to the
attention of the district court.” 182 F.3d 408, 431 (6th Cir. 1999). Here, defense counsel explained
how Jones’s testimony would aid Highgate’s case and also called the court’s attention to Jones’s
state-court conviction, thus preserving the issue for appeal.
A defendant’s right to compel testimony yields to a witness’s assertion of his or her Fifth
Amendment privilege when the claimed privilege is grounded on a reasonable fear of prosecution.
United States v. Gaitan-Acevedo, 148 F.3d 577, 588 (6th Cir. 1998); see also In re Morganroth, 718
F.2d 161, 167 (6th Cir. 1983) (“Before a witness . . . is entitled to remain silent, there must be a valid
assertion of the [F]ifth [A]mendment privilege.”). In this balancing of interests, the trial court must
decide “whether a witness’ silence is justified and . . . require him to answer if it clearly appears to
the court that the witness asserting the privilege is mistaken as to its validity.” In re Morganroth,
718 F.2d at 167. We have clarified that “[a] blanket assertion of the privilege is not sufficient to
meet the reasonable cause requirement and the privilege cannot be claimed in advance of the
questions.” Id. Highgate thus invokes this circuit’s general rule that a subpoenaed witness must
take the stand and assert the privilege in response to particular questions.
Although a district court errs by accepting a blanket assertion without requiring the witness
to take the stand, Gibbs, 182 F.3d at 431, we also recognize that, as a practical matter, when the
witness takes the stand and “it is clear that the witness intends to invoke the privilege with respect
to any question asked, ‘a particularized inquiry by the court would [be] futile,’” id. (quoting United
States v. Medina, 992 F.2d 573, 587 (6th Cir. 1993)). That said, and notwithstanding the trial court’s
discretion to determine whether the blanket assertion has merit, the court must, after all, actually
“decide whether a witness’ silence is justified.” United States v. Boothe, 335 F.3d 522, 526 (6th Cir.
2003) (emphasis added and internal quotation marks omitted).
No. 06-1447 United States v. Highgate Page 4
In this case, Jones took the stand and made a blanket assertion of his privilege, and the court
credited that assertion without further probing. The court did not question if or why Jones feared
prosecution or whether such a belief was reasonable. See JA 228 (“You don’t have to explain why
. . . you want to take the Fifth.”). Rather, the court only confirmed that Jones would not answer any
questions before consulting a lawyer. When defense counsel questioned Jones’s fear of self-
incrimination in light of Jones’s having been sentenced already for his participation, the court
conceded that it did not understand Jones’s fear but said, “[T]hat’s the wonderful thing about the
Fifth Amendment. They don’t have to do anything more than say they’re taking it.” JA 227. Our
precedent compels the conclusion that1 the district court erred by not inquiring into the legitimacy
or scope of Jones’s claimed privilege.
In such circumstances, we review the trial court’s failure to make a particularized inquiry
under the harmless-error standard. See Medina, 992 F.2d at 587 (“Although it would have been
preferable for the trial judge to have engaged in a deeper inquiry into the scope of the witness’
privilege, no fundamental rights were affected by the court’s ruling.”); United States v. Mahar, 801
F.2d 1477, 1497 (6th Cir. 1986) (finding court’s failure to make a particularized inquiry into the
scope of a Fifth Amendment privilege harmless error).
Applying this standard, we cannot conclude that the court’s error affected the outcome of
Highgate’s trial. Had the district court denied Jones’s claimed privilege and required him to testify,
it is difficult to see how his testimony would have helped Highgate’s case. See Mahar, 801 F.2d at
1496; see also United States v. Baldwin, 418 F.3d 575, 582 (6th Cir. 2005) (“An error is harmless
‘when it appears beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.’” (quoting Mitchell v. Esparza, 540 U.S. 12, 17–18 (2003))). Defense counsel
proposed that Jones would say only that an officer other than Officer Jarmons arrested Highgate, and
Highgate argues this factual discrepancy casts doubt on the officers’ credibility. But six officers
present on the day of the arrest provided uniformly contrary testimony. More importantly, Jones’s
proffered testimony does not dispute any element of the offenses for which the jury convicted
Highgate. Although questioning the arresting officer’s credibility could marginally benefit
Highgate’s defense, this testimony would not have altered the jury’s verdict in light of the
overwhelming evidence of guilt. See Mahar, 801 F.2d at 1479. Therefore, the court’s failure to
inquire into the scope of Jones’s privilege was harmless, and we accordingly affirm Highgate’s
conviction.
III
Highgate also appeals his sentence, arguing that the district court effectively treated the
Guidelines as mandatory and failed to analyze the 18 U.S.C. § 3553(a) factors. Because we agree
with the former claim, we vacate Highgate’s sentence and remand for resentencing without reaching
the latter.
We ordinarily review a defendant’s sentence for reasonableness, which accounts for the
procedural and substantive components of sentencing. Rita v. United States, 127 S. Ct. 2456, 2462
(2007); see also Gall v. United States, 128 S. Ct. 586, 594, 597 (2007) (“Our explanation of
‘reasonableness’ review in the Booker opinion made it pellucidly clear that the familiar
1
In so finding, we acknowledge that the record reveals Jones had at least “a colorable basis to assert the
privilege in that the specter of further . . . prosecution was real.” Medina, 992 F.2d at 586. The government suggests
that his proffered testimony potentially exposed him to (1) substantive or conspiracy charges regarding the drugs that
were otherwise attributed solely to Highgate, see 21 U.S.C. § 846; 18 U.S.C. § 924(c); (2) charges for aiding and abetting
the possession of the firearm in furtherance of a drug trafficking crime, see United States v. Franklin, 415 F.3d 537, 554
(6th Cir. 2005) (“A defendant may be found to have brandished a firearm under an aiding and abetting theory of
liability.”); or (3) perjury charges. But whether such reasons actually motivated the district court to dismiss Jones, we
can only guess.
No. 06-1447 United States v. Highgate Page 5
abuse-of-discretion standard of review now applies to appellate review of sentencing decisions . . . .
[r]egardless of whether the sentence is imposed inside or outside the Guidelines range . . . .”); see
also United States v. Jones, 445 F.3d 865, 869 (6th Cir. 2006). This case implicates Gall’s list of
“significant procedural error[s]”: “failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.”
Gall, 128 S. Ct. at 597 (emphasis added).
Narrowing our review from the typical reasonableness standard is Highgate’s failure to
object to the court’s sentence, despite being invited to offer objections after the sentencing colloquy.
See United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc). Since Highgate forfeited
his sentencing claims, we can correct them on appeal only if he demonstrates plain error. See United
States v. Bailey, 488 F.3d 363, 367 (6th Cir. 2007). To do so, Highgate must demonstrate “(1) that
an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the
error affected defendant’s substantial rights; and (4) that this adverse impact seriously affected the
fairness, integrity or public reputation of the judicial proceedings.” United States v. Davis, 397 F.3d
340, 346 (6th Cir. 2005); see generally Fed. R. Crim. P. 52(b). We find that Highgate succeeds in
satisfying the plain-error standard.
The court essentially pitted the applicable Guidelines range against the § 3553 considerations
and very reluctantly imposed a Guidelines-range sentence out of a misplaced sense of obligation:
[W]hile I started out wanting to find a way I could legitimately under the law make
this a sentence, which in my opinion would be more consistent with justice, morality,
and all of the other considerations under 3553, that I cannot and should not do that
and that I must do what I am now going to do.
JA 307. This and other like comments result in a troubling record of a sentencing court applying
de facto mandatory Guidelines—a plain error that we can correct on appeal. See United States v.
Kosinski, 480 F.3d 769, 778 (6th Cir. 2007) (holding that a district court’s applying the sentencing
guidelines as if they were mandatory justified vacating and remanding for resentencing); see also
United States v. Barnett, 398 F.3d 516, 527 (6th Cir. 2005) (finding plain error where “the district
court imposed a sentence based on the assumption . . . that the Guidelines were mandatory”). The
court explained the delay in sentencing: “I felt the need to counsel with others and think about the
heaviness of the sentence that seems to be commanded by the sentencing guidelines.” JA 298
(emphasis added). It opined, just before announcing the sentence, that the sentence did not reflect
“where justice or equity or morality would end us up.” JA 306. And, the court invited Highgate to
appeal, reiterating, “I don’t like [the sentence]. It’s too heavy as far as I’m concerned. It is the law.”
JA 310. The court’s dilemma over a downward variance, captured on the record, amply supports
Highgate’s bid for our finding prejudice.
At this stage of the game, sentencing courts frustrate effective appellate review by walking
mechanically through the now-advisory Guidelines, lodging their regret all the way. When a
sentencing court does so, yet fails to set forth enough to satisfy the appellate court that it has
“considered the parties’ arguments and has a reasoned basis for exercising [its] own legal
decisionmaking authority,” Rita, 127 S. Ct. at 2468 (emphasis added), it is not always apparent—on
a one-step-removed basis—whether the sentencing2court appreciated the scope of its discretion or
whether it effectively applied a mandatory regime.
2
One member of our panel has commented extensively on the problem of “guidelinitis,” or “the system of rote
sentencing in which the sentencing judge ratchets up the sentence instead of engaging in anything close to the
deliberative or reflective process.” United States v. Sexton, 512 F.3d 326, 337 (6th Cir. 2008) (Merritt, J., dissenting);
see also United States v. Jeross, Nos. 06-2257, 06-2502, slip op. at 22 (6th Cir. Apr. 4, 2008) (Merritt, J., dissenting);
No. 06-1447 United States v. Highgate Page 6
It is true that sentences in the bulk of cases continue to fall within the recommended
Guidelines range; although “the sentencing court does not enjoy the benefit of a legal presumption
that the Guidelines sentence should apply,” id. at 2465, Booker required judges to “take account of
the Guidelines together with other sentencing goals,” United States v. Booker, 543 U.S. 220, 224
(2005). After all, the Guidelines represent the Sentencing Commission’s “examin[ation of] tens of
thousands of sentences and [work] with the help of many others in the law enforcement community
over a long period of time.” Rita, 127 S. Ct. at 2464. They remain “the starting point and the initial
benchmark.” Gall, 128 S. Ct. at 596. But where, as here, the district court so clearly felt
constrained, rather than guided, by the Guidelines, we cannot say the sentence passes procedural
muster, even after the Supreme Court’s recent decisions admonishing that appellate courts should
“not presume that every variance from the advisory Guidelines is unreasonable,” Rita, 127 S. Ct.
at 2467, refrain from proportionality review and instead afford district courts “the requisite
deference,” Gall, 128 S. Ct. at 598, and permit sentencing disparities within the borders of
congressional control, Kimbrough v. United States, 128 S. Ct. 558, 574 (2007). Because the district
court plainly erred in treating the Guidelines as mandatory, we vacate Highgate’s sentence and
remand for resentencing consistent with this decision. We express no opinion as to the substantive
reasonableness of Highgate’s sentence, which may remain the same after resentencing.
Inasmuch as resentencing is in order, we need not reach Highgate’s related claim that the
district court failed to explain its view of the 3553(a) factors. See Rita, 127 S. Ct. at 2468 (“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.”). On remand, it will be explaining itself anew.
IV
For these reasons, we affirm Highgate’s conviction but vacate his sentence and remand for
resentencing.
United States v. Thompson, 515 F.3d 556, 569 (6th Cir. 2008) (Merritt, J., dissenting); United States v. Phinazee, 515
F.3d 511, 521 (6th Cir. 2008) (Merritt, J., dissenting); United States v. Sedore, 512 F.3d 819, 829 (6th Cir. 2008)
(Merritt, J., dissenting). Here, we need not reach to diagnose any such ills, since the district court’s symptoms are self-
diagnosed.