United States v. Lawrence

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 20, 2011 Decided November 15, 2011

No. 09-3110

UNITED STATES OF AMERICA,
APPELLEE

v.

MELVIN LAWRENCE,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:03-cr-00092-1)

Beverly G. Dyer, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.

Michelle Parikh Brown, Assistant U.S. Attorney, argued
the cause for appellee. On the brief were Ronald C. Machen Jr.,
U.S. Attorney, and Roy W. McLeese III, John P. Mannarino, and
Ann K.H. Simon, Assistant U.S. Attorneys.

Before: SENTELLE, Chief Judge, ROGERS and GRIFFITH,
Circuit Judges.
 2

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Upon remand by this court after
affirming one of his convictions, United States v. Lawrence, 471
F.3d 135 (D.C. Cir. 2006), the district court granted a variance
from the U.S. Sentencing Guidelines (“U.S.S.G.”) range for
career offenders and re-sentenced Melvin Lawrence to 250
months imprisonment (and five years supervisory release) for
unlawfully distributing more than 5 grams of cocaine base.
Lawrence challenges his re-sentencing on four grounds. We
conclude that none has merit.

First, although Lawrence correctly points out that the
amount of cocaine base of which he stands convicted was 21.1
grams, not the 29.6 grams of cocaine base stated in the
Presentence Report (“PSR”) and adopted by the district court in
re-sentencing him,1 both amounts fell within the same quantity
range under U.S.S.G. § 2D1.1(c)(7) and carried a maximum
sentence of 40 years, see 21 U.S.C. § 841(b)(1)(B)(iii) (2009),
when he was re-sentenced on October 5, 2009. Thus, his
Guidelines offense level would have been 34 regardless.

Second, Lawrence contends that the district court likely
would have imposed a lower sentence but for its refusal to
continue his re-sentencing and to consider the effect of pending
legislation to eliminate the disparity between crack and powder
cocaine on his career offender sentencing range. Pending
legislation is far too removed for this court to compel district
courts to consider at sentencing, and that is especially well
illustrated here where the legislation was never enacted. So far

1
Re-sentencing was scheduled before a district court judge
who did not preside at Lawrence’s trial for crack cocaine distribution
in the amount of 21.1 grams on April 30, 2003. Sent’g. Tr., Sept. 3,
2009, at 15–16.
 3

as Lawrence now claims that his re-sentencing reflected a
misunderstanding by the district court of the effect of the
pending legislation on career offender status, not only is that
contention infected with the same remoteness and uncertainty as
the other arguments surrounding the pending legislation, but it
was never raised below. Defense counsel suggested only that
the pending legislation, if enacted, might make a “slight
difference” on the mandatory minimums, conceded any effect
was “not clear,” and argued Lawrence should not be treated as
a career offender at all, neither referring to the link between the
career offender sentencing and the statutory maximum nor
objecting to the district court’s statement that the pending
legislation did not address the career offender provisions. The
district court granted Lawrence’s request for a variance from the
guideline career offender sentencing range in view of the district
court’s policy disagreement with the 100:1 crack-powder
disparity. Lawrence, therefore, can show no error, much less
plain error.

Contrary to Lawrence’s third challenge, the district court
did not plainly err, in violation of his Fifth Amendment right
against self incrimination, by referencing at re-sentencing his
failure to express remorse and accept responsibility. The
reference was limited to evaluating the credibility of Lawrence’s
request for leniency because he had changed while incarcerated.
The district court never suggested such failure would be
punished by a higher sentence. Indeed, the district court pointed
to Lawrence’s parole violations as support for its conclusion
about his lack of remorse or acceptance of responsibility
throughout his adult life. In the absence of precedent sustaining
his Fifth Amendment claim, the error, if any, was not plain.

Finally, Lawrence’s challenge to the reasonableness of his
below-Guidelines reentencing fails to demonstrate the district
court abused its discretion in applying the career offender
 4

guideline provision. Even though his two prior convictions were
old and involved the distribution of small amounts of drugs, the
district court reasonably explained that drug distribution was a
serious offense and Lawrence had a long history of disobeying
the law.

I.

On direct appeal, this court affirmed Lawrence’s conviction
at his first trial of selling 21.1 grams of cocaine base on April
30, 2002, reversed his convictions at a second trial of drugs and
firearms for lack of sufficient evidence of constructive
possession, and remanded the case for re-sentencing. Lawrence,
471 F.3d at 143. Re-sentencing was scheduled for August 27,
2009. The PSR stated that: the drug offense involved 29.6
grams of cocaine; Lawrence was a “career offender” under
U.S.S.G. § 4B1.1 based on two 1991 drug convictions and his
offense level was 34 (increased from 26) and that his criminal
history category was VI (increased from IV), resulting in a
Guidelines sentencing range of 262–327 months’ imprisonment.

Prior to his scheduled re-sentencing date of August 27,
2009, Lawrence filed a motion to continue the sentencing
hearing “until October 2009" because “[o]n July 29, 2009, the
‘Crack Bill was voted out of the House Judiciary Committee and
will amend the current law dramatically in a way which could
effect the defendant herein.” Mot. for a Downward Departure or
Variance (“Mot. D/V”) at 1.2 As described in his motion, H.R.

2
The bill, H.R. 3245, to amend the Controlled Substances
Act and the Controlled Substances Import and Export Act regarding
penalties for cocaine offenses, and for other purposes, was introduced
on July 16, 2009, 111th Cong., 1st Sess. (2009), and ordered reported
by voice vote of the Judiciary Committee on July 29, 2009, but not
enacted.
 5

3245 proposed to “make the mandatory minimums for powder
apply also to crack and . . . eliminate the separate mandatory
minimums for crack.” Id. The government opposed a
continuance on the grounds that it was impossible to speculate
when the bill might become law, if at all, and that Lawrence’s
“sentence was calculated based upon his status as a career
offender, not with respect to any sentencing ratios regarding
crack and powder cocaine or even with respect to the mandatory
minimum sentences for such offenses.” Gov’t Opp’n. to Mot.
to Cont. at 2. The district court agreed about the uncertainty of
enactment and denied Lawrence’s motion but rescheduled the
re-sentencing because of a scheduling conflict.

When Lawrence appeared for re-sentencing on September
3, 2009, defense counsel argued that Lawrence’s sentence
should take account of the criticism of the crack/powder
disparity. The district court, observing that the Sentencing
Commission had lowered the ratio, “but it is not one to one,”
Sent’g Tr., Sept. 3, 2009, at 14, responded:

Part of the reason that I went forward with the
sentencing is my understanding from looking at the
legislation, and frankly speaking to Judge Walton, who
has been the one spearheading to some degree the
[move to] try[] to get rid of the disparity, has indicated
that the pending legislation certainly moves towards
making the parity between crack and powder.

There is in there [the provision] about the
mandatory minimums, but it doesn’t touch the career
offender in terms of . . . across the board, whether it’s
crack cocaine or whatever. . . . [A]s I understand it,
that’s not what has been moving forward. It may
eventually, but it hasn’t at this point. So, it’s the career
offender . . . that puts [Lawrence] in the additional
 6

categories, not really necessarily the disparity between
the crack and the powder.

Sent’g Tr., Sept. 3, 2009, at 14–15. Defense counsel then
acknowledged that the pending legislation, H.R. 3245, “might
[make] a slight difference in terms of [Lawrence] qualifying
where the mandatory minimum [sentencing guideline range] is
calculated based on the maximum penalty. It might be slightly
less based on powder, but . . . it’s not clear to me that it would
be. So . . . I do agree with the Court that [the pending
legislation] would not . . . necessarily make the difference.” Id.
at 15. Defense counsel accordingly urged the district court,
particularly in view of the reversals on appeal, to exercise its
discretion to “go outside of the guidelines” in re-sentencing
Lawrence. Id.3 Re-sentencing was again continued because of
confusion about a parole violation stated in the PSR that
Lawrence challenged.

At the rescheduled re-sentencing on October 5, 2009, the
district court found, adopting unchallenged findings in the PSR,
that: (1) Lawrence was found guilty of unlawful distribution of
five grams or more of cocaine base, for which the mandatory
minimum was five years’ imprisonment and the statutory
maximum was forty years’ imprisonment; (2) the base offense
level of 26 was raised to 34 because he was a career offender;
(3) his criminal history category would be IV, based on his two

3
In a written motion for a downward departure or variance,
defense counsel stated that the PSR calculation indicated his
Guidelines range of 30–37 months was increased, due to the career
offender enhancement, to 262–325 months. Mot. D/V at 3–4.
Counsel stated that such an increase, particularly in view of “the 1;1
ratio[] of [c]ocaine to [c]ocaine [b]ase,” “cannot be reasonable given
the extremely small quantities involved in the predicate offenses and
their remoteness in time.” Id. at 4.
 7

prior felonies (distribution of cocaine and of PCP) and having
committed the present offense while on parole for earlier
offenses, but was raised to category VI by his career offender
status; and (4) the resulting Guidelines sentencing range was
262 to 327 months. Defense counsel argued for a variance in
order to nullify the crack-powder disparity and to relieve
Lawrence of the consequences of being classified as a career
offender, suggesting that 92 to 115 months, the Guidelines range
without the criminal history category, would meet the statutory
goals of 18 U.S.C. § 3553. Counsel noted that Lawrence was
guilty of distributing “a total of less than 30 grams, as I calculate
it, of crack cocaine”; that while incarcerated he had completed
“a number of educational programs”; and that his violation of
parole in 2000 was not by being arrested for a new offense but
by failing to report, failing to take a mandated drug test, and
testing positive for marijuana. During allocution, Lawrence
asked for leniency: he noted his elderly mother’s need for help
in caring for his 11-year old son, claimed that although he had
“gotten into some altercations” while serving his sentence in the
present case, he wanted to be a “productive citizen” and “do the
right things,” and stated that to that end he read the Bible,
attended church, school, and college.

Before re-sentencing Lawrence the district court reviewed
his history of law violations, beginning at age 12 and continuing
steadily while he was an adult.4 The district court rejected

4
The undisputed findings in the PSR relevant to the re-
sentencing stated that, between the ages of 12 and 17, Lawrence had
been adjudicated a juvenile delinquent for second degree burglary,
assault with a deadly weapon, burglary, multiple simple assaults, and
PCP distribution, with commitments to juvenile facilities on three
occasions. As an adult, Lawrence had been convicted, beginning at
age 18, of attempted distribution of marijuana; his Youth Act
probation was revoked and he was later paroled. Eight months after
 8

defense counsel’s argument that Lawrence’s criminal history
category substantially over-represented the seriousness of his
criminal history, noting there were no long intervening periods
when he was not involved in criminal behavior, locked up, or
not complying with parole. The district court observed that
“selling drugs is a serious offense[,] [n]o matter what amount of
drugs[;] it tears the fabric of our community[;] it can result in
violence[;] [t]his is not a victimless crime,” and that Lawrence
“know[s] from [his] own experience how destructive [selling
drugs in the community] actually is.” Sent’g Tr., Oct. 5, 2009,
at 20. The district court concluded that his promise to “turn over
a new leaf” – “always easier to indicate . . . when you’re locked
up” – was undercut “to some extent” by his failure to express

his parole, he was arrested and later convicted for distribution of
cocaine, which resulted in revocation of his parole and a sentence of
6 to 18 years imprisonment. Two months before sentencing for the
cocaine conviction, at age 21, he was arrested for distribution of PCP;
upon conviction he was sentenced to 8 to 24 years imprisonment, the
sentence to run concurrently with his cocaine sentence. In 1996,
Lawrence was paroled in each case. In 2000, he violated conditions
of both paroles. He was arrested for the cocaine distribution count for
which he was to be re-sentenced while on parole for his two earlier
drug convictions. He had eight arrests that did not result in
convictions, and one arrest where his conviction was reversed on
appeal. He was expelled from school in the tenth grade, re-enrolled,
dropped out, and secured a General Education Degree while
incarcerated. He was unemployed at the time of the offense for which
he was to be re-sentenced, and he had no reported income from 2000
through 2006. He had “experiment[ed]” with PCP from ages 9 to 20;
with marijuana from ages 13 to 20; and intermittently from 2000 until
his arrest in this case with crack cocaine from ages 16 to 20. He had
abused alcohol from age 26 until his arrest here. The PSR also found
that on April 30, 2002, an undercover police officer purchased 29.6
grams of crack cocaine from Lawrence for $1,100; Lawrence
challenges the drug quantity for the first time in the instant appeal; see
Appellant’s Br. 10–15.
 9

remorse or accept responsibility for his conduct in this case and
by his earlier, repeated violations of the conditions of his
paroles. Sent’g Tr., Oct. 5, 2009, at 20–21. On the other hand,
the district court observed that his pursuit of educational
opportunities while in prison “show[ed] some maturing.” Id. at
22. Then, observing again that its understanding was that the
pending legislation “doesn’t address the career offender issue”
and the crack/powder disparity “doesn’t effect” career offender
status, the district concluded that “somewhat of a variance” was
warranted, “although not as substantial as [defense] counsel has
requested,” in order to ameliorate “the continuing policy
regarding higher penalties for crack cocaine versus powder,”
with which the district court “disagree[d].” Id. at 24. The
district court re-sentenced Lawrence to 250 months
imprisonment, which was twelve months below the bottom of
the career offender guideline range (with five years supervised
release).

II.

Lawrence contends that the district court clearly erred in
adopting the PSR’s finding that he stood convicted after his
appeal of distributing 29.6 grams of crack cocaine, that it did
likewise in concluding that the pending legislation would not
lower his career offender sentencing guideline range, and that
the combination of these errors requires a second re-sentencing.
He maintains that but for these errors the district court likely
would have continued re-sentencing or imposed a lower
sentence.

Our review of sentencing challenges that have been
properly preserved is for abuse of discretion under a two-step
analysis: first to “ensure that the district court committed no
significant procedural error, such as . . . selecting a sentence
based on clearly erroneous facts”; and second, to ensure,
 10

“[a]ssuming that the district court’s sentencing decision is
procedurally sound,” the sentence is substantively reasonable.”
Gall v. United States, 552 U.S. 38, 51 (2007). The more
demanding plain error standard of review applies where timely
objections to findings in the PSR are not made, cf. United States
v. Saro, 24 F.3d 283, 286 (D.C. Cir. 1994), or where a defendant
fails to raise a claim at his sentencing hearing or fails to object
to a district court’s ruling, see In re Sealed Case, 349 F.3d 685,
690–91 (D.C. Cir. 2003) (citations omitted). Under plain error,
there must be error, that is plain, and that affects a defendant’s
substantial rights; “[i]f all three conditions are met, an appellate
court may exercise its discretion to notice a forfeited error, but
only if [] the error seriously affects the fairness, integrity, or
public reputation of the judicial proceedings.” In re Sealed
Case, 349 F.3d at 691. The court observed in Saro that “the
plain-error doctrine was well-entrenched as a background legal
principle” when Congress enacted 18 U.S.C. § 3742(f)(1), which
provides courts of appeals “shall” remand cases for re-
sentencing if the sentence “was imposed in violation of law or
imposed as a result of an incorrect application of the sentencing
guidelines,” and concluded that it would be “fanciful to suppose
that Congress intended § 3742(f)(1) to override that doctrine.”
24 F.3d at 286. The court noted the other circuits applied plain
error to sentencing, see id. They, like we, see, e.g.,United States
v. Anderson, 632 F.3d 1264, 1269 (D.C. Cir. 2011), have
continued to do so.5 Consistent with Saro’s observation and
absent Supreme Court or Congressional guidance to the

5
See, e.g., United States v. Durham, 645 F.3d 883, 899 (7th
Cir. 2011); United States v. Wallace, 461 F.3d 15, 32–33 (1st Cir.
2006).
 11

contrary, we apply plain error to objections not raised at
sentencing.6

A.
Lawrence correctly points out that the re-sentencing
involved only his conviction for distributing 21.1 grams of crack
cocaine. See Lawrence, 471 F.3d at 137, 138. In re-
sentencing him, the district court relied on the PSR, which stated
he had been convicted of distributing 29.6 grams. Neither the
prosecutor nor defense counsel alerted the district court to the
error in the PSR. Although defense counsel failed to object at
sentencing, Lawrence is not now barred from complaining
because, the government suggests, the error was “invited.”
Invited error occurs when defense counsel induces the error.
See, e.g., United States v. Ginyard, 215 F.3d 83, 88 (D.C. Cir.
2000); United States v. Harrison, 103 F.3d 986, 992 (D.C. Cir.
1997). Here, the district court’s finding on drug quantity
preceded defense counsel’s reference to “less than 30 grams,”
and although the context indicates defense counsel may have
believed 29.6 grams was accurate, the reference to “less than 30
grams” does not exclude the correct amount – both 21.1 and
29.6 are less than 30. At most, Lawrence “acquiesced in what
he now claims is error, but he did not invite it.” In re Sealed
Case, 108 F.3d 372, 374 (D.C. Cir. 1997).

6
In urging review for clear error, Lawrence overlooks the
exceptions noted in the dictum on which he relies in In re Sealed
Case, 552 F.3d 841, 849 (D.C. Cir. 2009) (Edwards, J., joined by
Silberman, J., concurring). The two judges who suggested in admitted
dictum that clear error might apply to some sentencing appeals
regardless of whether there was an objection at sentencing
acknowledged both that timely objections to the findings in a PSR
must be made to preserve an objection for appeal and that plain error
review applies where timely objections are not made and new claims
are raised for the first time on appeal. See id.
 12

Although the error regarding the quantity of drugs was not
“obvious,” as that word is defined in Saro, 24 F.3d at 291, we
need not reach this issue. Lawrence cannot show plain error
because, at least standing alone, this error was not prejudicial.
As in Williams, 358 F.3d at 967, “[t]here is simply nothing . . .
to suggest any likelihood that the District Court would have
assigned [the defendant] a different base offense level had it”
corrected the mistake regarding quantity. Under U.S.S.G. §
2D1.1(c)(7), the base offense level was 26 for “[a]t least 20 G
but less than 35 G of Cocaine Base.” Lawrence correctly
concedes that an offense involving 29.6 grams of cocaine base
as well as an offense involving 21.1 grams of cocaine base was
subject to a 5 to 40 years sentencing range prior to enactment of
the Fair Sentencing Act of 2010 on August 3, 2010.7 See
Appellant’s Br. at 13–14. As such, a correction to the PSR with
respect to the amount of cocaine base would still have resulted
in a career offender offense level of 34 under U.S.S.G.
§ 4B1.1(b).

B.
The district court denied Lawrence’s motion to continue the
initial August 27, 2009 re-sentencing based on the pending
legislation because it was impossible to know when or if that
legislation would be enacted and become law. Prompted by
defense counsel’s general statements about shifts in thinking
about the crack/cocaine guidelines, the district court made
several observations about the pending legislation, the gist of
which was that Lawrence’s re-sentencing was driven by the
career offender provision rather than the crack-powder cocaine
disparity. See Sent’g Tr., Sept. 3, 2009, at 14–15, quoted supra.
At the October 5th re-sentencing, the district court repeated that
“the pending legislation doesn’t address the career offender
issue.” Id., Oct. 5, 2009, at 24.

7
Pub. L. No. 111-220, 129 Stat. 2372 (2010).
 13

1. As a threshold matter, Lawrence appears to base his
contention that he is entitled to be re-sentenced on the district
court’s denial of his motion to continue the August 27, 2009 re-
sentencing. To that extent, his contention fails because he
cannot show an abuse of discretion by the district court, see
United States v. Celis, 608 F.3d 818, 839 (D.C. Cir. 2010), much
less prejudice, see id. Pending legislation is generally too
removed for this court to compel district courts to consider at
sentencing, and that is especially well illustrated here where the
legislation was never enacted. The government pointed out, in
opposing Lawrence’s motion to continue re-sentencing, that
there was “no indication of whether or when such a bill would
be considered by the full House of Representatives, or the
Senate, let alone whether or when such bill would be passed by
either house of Congress or signed into law by the President.”
Gov’t Opp’n at 1. To the extent Lawrence connects the denial
of a continuance and the district court’s asserted
misunderstanding of the pending legislation in maintaining that
the district court would have either continued re-sentencing or
imposed a lower sentence, whether the motion to continue was
granted is not relevant to the relief he seeks. Lawrence is
seeking a new sentence because, in his view, the district court
misunderstood the pending legislation.

2. So far as Lawrence claims that his re-sentencing
reflected a misunderstanding by the district court of the effect of
the pending legislation on career offender sentencing, not only
is that claim infected with the same remoteness and uncertainty
as the other contentions surrounding the pending legislation, but
it was never raised below. Lawrence’s counsel argued in the
district court that if enacted and made retroactive, the pending
legislation “might” make “a slight difference” in the applicable
mandatory minimum. But counsel did not suggest that the
pending legislation would have an effect on his career offender
status, nor take exception to the district court’s stated
 14

understanding that it would have no such effect. As such, plain
error review applies.

To the extent Lawrence maintains that the district court was
considering what amounted to a policy argument based on the
crack-powder cocaine disparity that would be modified by the
pending legislation, Lawrence’s focus on the enacted legislation
is irrelevant because that was not the subject of the district
court’s understanding.8 Furthermore, Lawrence incorrectly
frames the issue as whether the pending or enacted legislation
“would . . . [have] affect[ed] the career offender guideline
range.” Appellant’s Br. 13. This was not the import of the
district court’s statements. The district court did not state that
the career offender guideline provision and Lawrence’s re-
sentencing would be wholly unaffected by the pending
legislation if enacted; instead, it stated that the pending
legislation was not directed toward fixing the effects of the
crack-powder cocaine disparity in the context of the career
offender guideline provision. It was Lawrence’s two prior
felonies that caused the increase in his guidelines sentencing

8
S. 1789, to restore fairness to Federal cocaine sentencing,
was introduced on October 15, 2009, 111th Cong., 1st Sess., six and
one-half weeks after Lawrence sought a continuance of his re-
sentencing and ten days after he was re-sentenced. The bill, enacted
on August 3, 2010 as the Fair Sentencing Act of 2010, did not become
law until nine and one-half months after he sought a continuance and
eight months after he was re-sentenced. The 2010 Act increased the
threshold for the 40-year statutory maximum from 5 grams to 28
grams of cocaine base (i.e. crack), see 21 U.S.C. §§ 841(b)(1)(B)(iii)
(2010), with a quantity less than 28 grams subject to a 20-year
statutory maximum, id. § 841(b)(1)(C). The result was a 18:1
disparity for crack to powder cocaine, not the 1:1 ratio proposed in
H.R. 3245, which legislation was pending when Lawrence was re-
sentenced.
 15

range and the pending legislation did not address his career
offender status. The question, rather, is whether the district
court’s statement regarding the pending legislation was, as
Lawrence now claims, incorrect and if so, whether Lawrence
can show plain error.

Application of the career offender guideline provision,
U.S.S.G. § 4B1.1, requires taking the greater offense level
between the offense level calculated independent of § 4B1.1,
and the career offender offense level, which is based on the
statutory maximum. See United States v. Berry, 618 F.3d 13, 15
(D.C. Cir. 2010). As the district court found, the Guidelines
offense level was 26, see U.S.S.G. § 2D1.1(c)(7), and the
statutory maximum under the law at the time of re-sentencing
was 40 years, see 21 U.S.C. § 841(b)(1)(B) (2009), resulting in
a career offender offense level of 34. Had the pending
legislation been enacted, at least prior to Lawrence’s re-
sentencing,9 it would have repealed 21 U.S.C. § 841(b)(1)(B)(iii)
(2009), which created the sentencing disparity between crack
and other cocaine substances, see 21 U.S.C. § 841(b)(1)(B)(ii),
treating crack cocaine equally with all other cocaine substances.
As such, a crime involving less than 500 grams of cocaine —
whether crack or powder — would be subject to a 20-year
statutory maximum, as provided in 21 U.S.C. § 841(b)(1)(C).
A 20-year statutory maximum, in turn, translates to a career
offender offense level of 32. According to Lawrence, under the
pending legislation his career offender sentencing guideline

9
There is a split in the circuits on the retroactivity of the Fair
Sentencing Act of 2010, supra notes 7 & 8. Compare United States
v. Dixon, 648 F.3d 195, 203 (3d Cir. 2011); United States v. Rojas,
645 F.3d 1234, 1239–40 (11th Cir. 2011); United States v. Douglas,
644 F.3d 39 (1st Cir. 2011) with United States v. Fisher, 635 F.3d 336,
340 (7th Cir. 2011); United States v. Spires, 628 F.3d 1049, 1055 (8th
Cir. 2011). We have no occasion to address this issue.
 16

range would have been 210–262 months rather than 262–327
months. See Appellant’s Br. 9.

Put simply, if enacted the pending legislation would have
eliminated any disparity in statutory maximum sentences for
crack and powder cocaine, and in doing so also eliminated any
disparity in the application of the career offender sentencing
guideline provision. This was not defense counsel’s argument,
however. In requesting a sentence below the career offender
guideline range, counsel focused on the statutory minimums and
argued that Lawrence’s designation as a career offender, and the
resulting criminal history category VI, either “substantially
overrepresents the seriousness of the defendant’s criminal
history or the likelihood that the defendant will commit other
crimes.” Mot. D/V at 1. Rather than urge the district court to
depart or vary Lawrence’s sentence from the guideline range for
career offenders because the pending legislation addressed the
disparity reflected in the career offender guideline provision,
counsel conceded agreement at the October 5, 2009 re-
sentencing hearing with the district court’s statement that the
pending legislation did not address the disparity for purposes of
career offender status. To the extent this exchange reflected a
miscommunication — although the district court and defense
counsel agreed that Lawrence’s two felony convictions qualified
him for career offender status and the pending legislation did not
affect that, whereas defense counsel intended to communicate
that the career offender sentencing range would be reduced
under the pending legislation — the burden was on defense
counsel to make clear to the district court that its understanding
of the defense position was either inaccurate or incomplete. See
United States v. Pinnick, 47 F.3d 434, 439 (D.C. Cir. 1995).
Absent such a clarification, the district court could not plainly
err by failing to read defense counsel’s mind.
 17

In any event, any error in the district court’s understanding
of the pending legislation’s effect on the career offender
sentencing range would not have been prejudicial, for in the
plain error standard context, a defendant must demonstrate
“some basis for suspecting that a reduction in his sentence is
sufficiently likely to justify a remand.” See Williams, 358 F.3d
at 966 (citing Saro, 24 F.3d at 292). The district court acted on
the basis that the statutory maximum was 40 years and the
career offender provision increased Lawrence’s criminal history
category to VI; that the pending legislation proposed to
eliminate the 100:1 disparity, with which it disagreed as a matter
of policy, but there was nothing to indicate when, much less if,
Congress would enact it. Congress never did. There is, then,
nothing in the record to indicate, as Lawrence now contends,
that the district court’s variance would have been greater
because its own policy disagreement with the disparity would
have been more in line with the pending legislation. The district
court noted at the time that the Sentencing Commission’s
recommended adjustment to the disparity was not 1:1.10 Thus,
to the extent that Lawrence would link the district court’s denial
of his motion for a continuance and its alleged misunderstanding
of the pending legislation, his conclusion that had the district
court realized the pending legislation would, if enacted, affect
career offender sentencing, it would have continued the re-
sentencing or imposed a lower sentence is pure speculation.

10
At the time of Lawrence’s re-sentencing, the Sentencing
Commission had “concluded that increasing the five-year mandatory
minimum threshold quantity to at least 25 grams, resulting in a drug
quantity ratio of not more than 20 to 1, would provide a penalty
structure for crack cocaine offenses that would more closely reflect the
overall penalty structure established by the 1986 Act.” U.S.S.C., 2007
COMMISSION REPORT TO THE CONGRESS: COCAINE & FEDERAL
SENTENCING POLICY, 8 & n.26 (citing the U.S.S.C., 2002 COMMISSION
REPORT at 106-07).
 18

Additionally, whatever nuance about the effects of the
pending legislation the district court might not have understood,
it granted Lawrence a sentencing variance of twelve months
below the bottom of the Guidelines range based on the same
policy disagreement with cocaine sentencing that motivated the
pending legislation. Thus, what Lawrence asks us to assume
might have happened — that the district court would have
granted a variance based on a policy shift that favored lowering
sentences for defendants like Lawrence — already occurred. He
points to nothing that suggests the district court likely would
have imposed a lower sentence. Rather, the district court
recognized that the variance it gave was “not as substantial as
[defense] counsel [had] requested,” Sent’g. Tr., Oct. 5, 2009, at
24, suggesting that the district court’s sentencing policy
disagreement was only a limited factor in its sentencing
calculus.

Even assuming, as Lawrence contends, the district court’s
understanding of the pending legislation should be treated as
factual finding, it was not a finding made “in support of a
particular sentence.” In re Sealed Case, 552 F.3d at 849
(dictum); see Gall, 552 U.S. at 51. The district court’s first
challenged “understanding” was made in denying his motion for
a continuance. Sent’g Tr., Sept. 3, 2009, at 15. The second
challenged “finding” adopting the PSR drug amount has no
apparent role in the district court’s selection of a “particular
sentence” because the difference between 29.6 grams and 21.1
grams was irrelevant. See supra Part II.A. Similarly, Lawrence
cannot establish error with regard to the district court’s
“understanding” that the pending legislation would not “touch
the career offender” rules that put him “in the additional
categories” that largely determined his guideline range. Sent’g
Tr., Sept. 3, 2009, at 14–15. To the extent the district court’s
“understanding” of the pending legislation’s effect on the career
offender sentencing guideline range may be a factual finding,
 19

the legislation was never enacted and the district court did not
err by sua sponte failing to recognize otherwise. The district
court, the government suggests, was not in a position to
“recognize” the “likely impact” of the pending legislation in
denying a continuance or re-sentencing Lawrence. Appellee’s
Br. 17–18. Lawrence has not shown that at re-sentencing a
“‘mistake has been committed,’” United States v.
Brockenborrugh, 575 F.3d 726, 738 (D.C. Cir. 2009) (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)),
much less plain error, as would entitle him to a second re-
sentencing.

III.

Lawrence also contends that the district court plainly
violated his Fifth Amendment right against self-incrimination by
considering at re-sentencing his failure to express remorse or
take responsibility for his conduct in the present case. During
allocution Lawrence stated that he had “been trying to do the
right things” since he had been incarcerated on the current drug
offense. Sent’g Tr., Oct. 5, 2009, at 11–12. In response, the
district court acknowledged his promise to “turn over a new
leaf” but rejected his plea for leniency because it did not see
“any signs of remorse or acceptance of responsibility” for his
conduct. Id. at 20. Observing that “[i]t is always easier to
indicate you’re going to turn over a new leaf when you’re
locked up for getting out,” the district court explained that it did
not “get the sense there’s an appreciation, frankly of the conduct
you’ve engaged in.” Id. at 21. Noting that Lawrence’s criminal
history and parole violations undercut his promise, see id. at
21–22, the district court added:

[Y]ou don’t seem to have — as I said, the appeal is
done, so that’s finished. I can understand your not
wanting to potentially say anything while . . . your
 20

appeal is pending, but there doesn’t seem to be any
sign of remorse, acceptance of responsibility of
anything in terms of what you’ve done.

Id. at 23. Because Lawrence did not object to the district court’s
statements at the time of re-sentencing, review of his Fifth
Amendment challenge is for plain error. See Anderson, 632
F.3d at 1269.

Contrary to the government’s suggestion, Lawrence has not
waived his Fifth Amendment privilege by failing to invoke it at
sentencing. He invoked his privilege at trial, see Lawrence, 471
F.3d at 138, and unlike in Roberts v. United States, 445 U.S.
552, 559 (1980), on which the government relies, the district
court here was aware that self-incrimination might be an issue,
at least prior to the completion of his direct appeal of his
conviction. See Sent’g Tr., Oct. 5, 2009, at 23. Under Roberts,
the non-self-executing nature of the Fifth Amendment privilege
is qualified, for the Court stated that timely invocation is
required “[a]t least where the Government had no substantial
reason to believe that the requested disclosures are likely to be
incriminating.” Id.

Lawrence fails, however, to demonstrate plain error. The
government cites Mitchell v. United States, 526 U.S. 314, 321
(1999), which held that a defendant does not waive the Fifth
Amendment privilege at sentencing by pleading guilty. That
case concerned whether the government can enlist a defendant
in proving facts relevant to the crime at the sentencing phase —
the drug amount attributable to the defendant in a conspiracy.
The Court left unaddressed “[w]hether silence bears upon the
determination of a lack of remorse, or upon acceptance of
responsibility.” Id. at 330. If the district court’s response to
Lawrence’s request for leniency was error by reason of
 21

references to remorse and acceptance of responsibility, the error
was not plain under Mitchell.

The same is true under this court’s precedents. Like other
circuits, this court has held that a convicted yet-to-be-sentenced
defendant “retains a legitimate protectable Fifth Amendment
interest in not testifying as to incriminating matters that could
yet have an impact on his sentence.” United States v. Lugg, 892
F.2d 101, 103 (D.C. Cir. 1989) (citations omitted). The court
has held that a district court may not pressure a defendant into
expressing remorse such that the failure to express remorse is
met with punishment. See United States v. Hopkins, 464 F.2d
816, 822 (D.C. Cir. 1972); Scott v. United States, 419 F.2d 264,
267–68 (D.C. Cir. 1969). It is unclear, however, whether these
principles extend to a district court’s consideration of a
defendant’s lack of remorse with respect to mitigation or
leniency under either the Guidelines or 18 U.S.C. § 3553(a).
Other circuits have held that lack of remorse is a proper
consideration at sentencing. See, e.g., United States v. Cruzado-
Laureano, 527 F.3d 231, 237 (1st Cir. 2008) (citations omitted).
In United States v. Barrington, 648 F.3d 1178, 1197 (11th Cir.
2011), the Eleventh Circuit held that even if the district court
erred in asking whether the defendant felt remorse, no
substantial right was affected because of the low-end Guideline
sentence that was imposed. Outside of the Fifth Amendment
context, this court rejected a challenge to the reasonableness of
a sentence in United States v. Reed, 522 F.3d 354 (D.C. Cir.
2008), where the district court’s treatment of a leniency plea
included “express[ing] frustration with [the defendant’s] ‘total
lack of remorse,’” id. at 363 (citation omitted). In the context of
a Guidelines reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1, this court has yet to resolve any lurking Fifth
Amendment issue. See United States v. Saani, 650 F.3d 761,
769–70 (D.C. Cir. 2011); United States v. Taylor, 937 F.2d 676,
680–81 (D.C. Cir. 1991).
 22

Given the dearth of precedent from this court on the
relevant issue and the absence of statutory or constitutional
command resolving the issue, the district court’s reference, if
error, was not “plain.” See In re Sealed Case, 573 F.3d 844,
851–52 (D.C. Cir. 2009). Notably, Lawrence’s situation is
distinguishable from those in which a Fifth Amendment claim
would be on stronger ground, such as where, for example, the
district court sua sponte remarked that it was imposing a
particular sentence because Lawrence failed to express remorse,
or imposed a higher sentence for that reason. See United States
v. Johnson, 903 F.2d 1084, 1089–90 (7th Cir. 1990); cf. United
States v. Jones, 997 F.2d 1475, 1478–79 (D.C. Cir. 1993) (en
banc). By allocuting for leniency on the basis of having
changed since his incarceration, however, Lawrence placed that
question in issue and the district court properly offered an
explanation for its rejection of his plea for leniency. Cf. Gall,
552 U.S. at 51. In United States v. Dozier, 162 F.3d 120, 128
(D.C. Cir. 1998), the court observed, in concluding no plain
error occurred when the district court failed to explain its denial
of a two-level reduction under U.S.S.G. § 3E1.1(a) for
acceptance of responsibility, that “[w]hile the district court lacks
the power to force a defendant to express remorse he does not
feel, it is not required to reward a remorseless defendant with a
decrease in his offense level.” Here, moreover, the district court
indicated that another factor, namely, Lawrence’s parole
violations, affected its determination of an appropriate sentence
based on his lack of acceptance of responsibility. See Sent’g
Tr., Oct. 5, 2009, at 21.

IV.

Finally, Lawrence challenges the substantive
reasonableness of his re-sentencing. Although acknowledging
that he qualified by reason of his two prior felony convictions
for sentencing as a career offender, see U.S.S.G. § 4B1.1(a),
 23

Lawrence contends that his prior convictions — 1991 sales to
undercover officers of .257 grams of cocaine base worth $50
and PCP-laced marijuana worth $25 — involved too small a
quantity of drugs and were too remote in time to justify
sentencing as a career offender. Although initially seeking
either a downward departure or a variance, defense counsel
clarified on October 5, 2009, that Lawrence was seeking a
variance. See Sent’g Tr., Oct. 5, 2009, at 9–10. The district
court imposed a sentence based on a variance 12 months below
the career offender guideline sentencing range.

Our standard of review is highly deferential, particularly
given the rebuttable presumption of reasonableness that attaches
to sentences within the Guidelines range. United States v.
Gardellini, 545 F.3d 1089, 1092–93 (D.C. Cir. 2008). “The
court reviews the substantive reasonableness of a sentence under
the abuse of discretion standard even when no objection was
raised in the district court,” United States v. Wilson, 605 F.3d
985, 1034 (D.C. Cir. 2010).

Doubtless, sentences below the career offender range have
been determined upon appeal to be reasonable. Lawrence relies
on cases affirming sentences below career offender ranges,
where the issue was whether departure from the career offender
guideline was substantively reasonable. On reply, Lawrence
cites United States v. Amezcua-Vasquez, 567 F.3d 1050,
1054–55 (9th Cir. 2009), where the court concluded that a 16-
level enhancement for unlawfully entering or remaining in the
United States after committing a crime of violence was
unreasonable because the conviction was over 20 years old and
there was no subsequent criminal activity. Amezcua-Vasquez is
readily distinguishable, to the extent it may be persuasive.11

11
The Ninth Circuit “attach[ed] no presumption of
reasonableness” to Amezcua-Vasquez’s correctly-calculated sentence,
 24

The district court acknowledged its discretion to depart
downward under U.S.S.G. § 4A1.3 or to grant a discretionary
variance under 18 U.S.C. § 3553(a). See Sent’g Tr., Oct. 5,
2009, at 13–24. It rejected Lawrence’s argument that his
criminal history was overstated, explaining that although his
felony convictions were over a decade old at the time of his
initial sentencing in 2005, distributing drugs is a serious offense
no matter the amount of drugs involved and that his criminal
activity continued throughout the 1990s, including incarceration
and he continued to have behavior and alcohol abuse problems.
See supra note 4. Lawrence offers no reply to this criminal
history other than to maintain that the district court’s reliance on
the 1991 felony convictions was unreasonable because of their
age and the small amounts of illegal drugs. The district court
acted within its discretion in evaluating the seriousness of his
prior drug offenses, cf. United States v. Wilson, 605 F.3d 985,
1035–36 (D.C. Cir. 2010), and Lawrence fails to rebut the
presumption of reasonableness.

Accordingly, we affirm the amended judgment filed
October 12, 2009 reflecting the re-sentencing of October 5,
2009.

Amezcua-Vasquez, 567 F.3d at 1055, whereas this court would have,
see United States v. Law, 528 F.3d 888, 902 (D.C. Cir. 2008), making
reversal more unlikely, see Gardellini, 545 F.3d at 1093, and the prior
conviction in Amezcua-Vasquez was too old to be counted under the
criminal history score, U.S.S.G. § 4A1.2, unlike here.