United States v. Alsante

• Decision Date: 05 February 2016
• Docket Number: No. 15–5343.,15–5343.
• Citation: 812 F.3d 544
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. James ALSANTE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

812 F.3d 544

UNITED STATES of America, Plaintiff–Appellee,
v.
James ALSANTE, Defendant–Appellant.

No. 15–5343.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 27, 2016.
Decided and Filed: Feb. 5, 2016.

812 F.3d 546

ARGUED:Laura E. Davis, Federal Defender Services of Eastern Tennessee, Inc., Knoxville, Tennessee, for Appellant. Brooklyn Sawyers, United States Attorney's Office, Knoxville, Tennessee, for Appellee. ON BRIEF:Laura E. Davis, Federal Defender Services of Eastern Tennessee, Inc., Knoxville, Tennessee, for Appellant. Brooklyn Sawyers, United States Attorney's Office, Knoxville, Tennessee, for Appellee.

Before: GUY, SUTTON, and McKEAGUE, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

James Alsante pleaded guilty to failing to register as a sex offender under federal law. At his sentencing hearing, the district court permitted the government to introduce evidence that Alsante had committed other sexual-misconduct crimes with a minor, all of which were the subject of pending state court charges. The district court relied on that conduct in imposing a 54–month sentence, an upward variance from his advisory guidelines range. Is that fair or more to the point constitutional? Did the court violate Alsante's due process rights or his rights against self-incrimination by permitting the government to introduce evidence related to pending state court charges at his federal sentencing hearing? Alsante says that it did because any attempt to rebut the government's evidence at the federal sentencing hearing hampered his ability to defend himself in state court. For the reasons that follow, we hold that it did not.

The Sex Offender Registration and Notification Act requires convicted sex offenders to register periodically with state officials, updating their address and other identifying information along the way. 42 U.S.C. § 16913. Alsante pleaded guilty to failing to comply with these requirements. See 18 U.S.C. § 2250(a). The probation officer initially calculated a 15–21 month advisory guidelines range. In his presentence investigation report, however, the officer noted that Alsante faced pending charges in Tennessee state court, where he stood accused of three counts of statutory rape by an authority figure and one count of being a sex offender living with a minor. The charges stemmed from Alsante's alleged "sexual[ ] penetrat[ion] [of] a female victim" on three occasions in 2011. R. 25 at 9.

Due in part to this other conduct, the government sought an upward departure and an upward variance from the guidelines range, urging the court to impose a ten-year prison sentence, the statutory maximum. See 18 U.S.C. § 2250(a). The government also notified the court that it intended to introduce testimony related to Alsante's pending state law charges at his sentencing hearing.

At the hearing, the court admitted this evidence over Alsante's objection. The government called S.W., the alleged victim of Alsante's state law offense, to testify. She said that Alsante had been in a relationship with her mother and had lived with the family for a period of time. When she was fourteen, she added, Alsante sexually abused her on several occasions. The government next called S.W.'s mother, who described several "red flags" that had alerted her to the possibility of sexual contact between Alsante and S.W. R. 39 at 60. After cross-examining both witnesses, defense counsel put on testimony by Alsante's mother, who discussed her relationship with Alsante and his prior run-ins with the law. Before delivering its sentence, the district court asked Alsante whether he wished to make a statement. He declined.

812 F.3d 547

The district court denied the government's motion for an upward departure but granted its motion for an upward variance. "[I]t is evident from Mr. Alsante's history and the testimony we have heard here today," the court explained, "that the public needs to be protected from future crimes perpetrated by Mr. Alsante." Id. at 153–54. The court mentioned S.W.'s "very credible" testimony and sentenced Alsante to 54 months in prison—well below the government's request but well above the initially calculated guidelines range. Id. at 154.

Due Process Clause. Alsante's due process argument begins with a concession. He acknowledges that, under a federal statute, "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." 18 U.S.C. § 3661. He acknowledges that the same is true under the sentencing guidelines. U.S.S.G. §§ 1B1.4, 6A1.3(a). And he acknowledges that the statute and guidelines authorized the district court to admit testimony by S.W. and her mother.

The problem, says Alsante, is that the court's evidentiary approach, as applied to his sentencing proceeding and as applied to this evidence, violated his due process rights nonetheless. When the district court admitted evidence related to the pending state charges, it unconstitutionally burdened his ability to mount a robust defense in the state court case. Had Alsante vigorously cross-examined the witnesses or otherwise attempted to rebut their claims, he says that he might have revealed his state court trial strategy or elicited damaging information. He thus had to choose between (1) offering a half-hearted mitigation argument with respect to his federal sentence or (2) increasing his chances of conviction with respect to the state charges.

But the Due Process Clause does not offer convicted defendants at sentencing the same "constitutional protections afforded defendants at a criminal trial." United States v. Silverman, 976 F.2d 1502, 1511 (6th Cir.1992) (en banc). "[B]oth before and since the American colonies became a nation," Williams v. New York explains, "courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law." 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). That tradition has become more settled over time, because "possession of the fullest information possible concerning the defendant's life and characteristics" is "[h]ighly relevant—if not essential—to [the judge's] selection of an appropriate sentence." Id. at 247, 69 S.Ct. 1079. An imperative of "evidentiary inclusiveness"—"a frame of reference as likely to facilitate leniency as to impede it," United States v. Graham–Wright, 715 F.3d 598, 601 (6th Cir.2013) —explains why the Evidence Rules, the Confrontation Clause, and the beyond-a-reasonable-doubt standard of proof do not apply at sentencing. See United States v. O'Brien, 560 U.S. 218, 224, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010) (beyond a reasonable doubt); Williams v. New York, 337 U.S. at 246–47, 252, 69 S.Ct. 1079 (Evidence Rules) ; United States v. Katzopoulos, 437 F.3d 569, 576 (6th Cir.2006) (Confrontation Clause); see generally United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

What, then, does the Due Process Clause demand at sentencing? It demands

812 F.3d 548

only that the hearing be "fundamentally fair" and that the sentence turn on "reliable information." United States v. Gatewood, 230 F.3d 186, 191 (6th Cir.2000) (en banc). Gauged by this test, the district court's sentencing procedure passes. The district court permitted defense counsel to cross-examine S.W. and her mother, call Alsante's mother to the stand, raise objections, and make "extended arguments" on disputed points. Williams v. New York, 337 U.S. at 252, 69 S.Ct. 1079. The court then asked Alsante whether he wished to make a statement in allocution and, when he declined, offered a detailed explanation for the 54–month sentence. Alsante received what the Constitution requires—a "fundamentally fair" sentencing hearing that permitted him to test the reliability of the information submitted by the government. Gatewood, 230 F.3d at 191.

Even though the district court offered him these options, Alsante responds, he could not fully use them without revealing his state court defense. But due process does not relieve the defendant of all difficult tactical choices; it requires only that those choices be available to him in the course of the proceeding. See McGautha v. California, 402 U.S. 183, 214–17, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), vacated in part on other grounds, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972) ; see also Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 287, 118 S.Ct. 1244...