U.S. v. Nace, 04-2869.

• Decision Date: 18 August 2005
• Docket Number: No. 04-2869.,04-2869.
• Citation: 418 F.3d 945
• Parties: UNITED STATES of America, Appellee, v. Dominick Daniel NACE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

418 F.3d 945

UNITED STATES of America, Appellee, v. Dominick Daniel NACE, Appellant.

No. 04-2869.

United States Court of Appeals, Eighth Circuit.

Submitted: January 10, 2005.

Filed: August 18, 2005.

Mark C. Meyer, Cedar Rapids, IA, for appellant.

Kandice A. Wilcox, Assistant U.S. Attorney, Cedar Rapids, IA, for appellee.

Before LOKEN, Chief Judge, and MORRIS SHEPPARD ARNOLD and MURPHY, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Dominick Nace appeals from the sentence imposed by the district court¹ following the revocation of his term of supervised release. We affirm.

Mr. Nace first argues that the district court, in violation of his fifth amendment right against self-incrimination, relied on his failure to report his drug use to his probation officer to "depart upward" three months above the guideline range set out in U.S.S.G. § 7B1.4. We note initially that because the guidelines for post-revocation sentences are now and were at the time of Mr. Nace's sentencing advisory only, the sentence imposed (which was below the statutory maximum) was not a "departure" as that term is used in the guidelines. See U.S.S.G. § 7B1.4; United States v. White Face, 383 F.3d 733, 738 (8th Cir.2004). In sentencing Mr. Nace, the district court was required only to consider the suggested guidelines, which it did. See United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005).

Mr. Nace did not raise his fifth amendment argument in the district court, and therefore we review for plain error. Cf. United States v. Franklin, 397 F.3d 604, 607 (8th Cir.2005). Mr. Nace is thus entitled to relief only if there is error that is plain, affected his substantial rights, and "`seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings,'" United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)). "Plain" is synonymous with "obvious," and to be plain an error must at least be "clear under current law." See id. at 734, 113 S.Ct. 1770. We conclude that if a fifth amendment error occurred here, it is not plain.

At the time of this revocation, the district court had previously revoked Mr. Nace's probation and sentenced him to prison. While he was on supervised release following that term of imprisonment Mr. Nace committed the violations that led to the revocation sentence from which he now appeals. Before imposing sentence here, the district court addressed Mr. Nace as follows:

Mr. Nace, you fall into a category of defendant that I see very often; defendant given the opportunity for treatment who thinks he knows more than treatment people. Until you start abiding by what your drug counselors tell you about how to stay clean and sober and decide that that's the life-style you want, you will continue to be a user, and you will continue to violate the law, and you will be in and out of prison the rest of your life. You have not internalized the lessons that you have learned in treatment. We have tried to work with you in the community. When you wouldn't work with us in the community, I sent you back to prison hoping that you would learn your lesson and that when you came out, you'd work to stay clean and sober. I'd feel differently about this if you had gone to your counselor, Ms. Vestle [Mr. Nace's probation officer], and asked for her help, but you continued to use I guess hoping that you wouldn't get caught, and then when she did catch you by virtue of [testing positive for marijuana], then you explained to her that you've been using. If you had gone before the test and said, "You know, Ms. Vestle, I'm really struggling, I need help," I might look at this differently, but this is just a pattern of conduct that has been your pattern since you have been in my court.

The court then added, "So I make the finding that you do need drug treatment; I agree with you." Noting that Mr. Nace had violated his supervised release by not showing up for drug testing and counseling and continuing to use drugs, the court concluded that his treatment would take place in prison because "we cannot work with you in the community." After saying that it had taken "the factors" in 18 U.S.C. § 3553(a) into consideration, the court concluded, "A year sentence is my sentence because I want [Mr. Nace] to get treatment within the institution, and that is going to take a minimum of 12 months."

The fifth amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. Here there is no evidence that Mr. Nace was directly "compelled" to answer any question or that he invoked his fifth amendment privilege. Instead Mr. Nace relies for his claim on the district judge's statement to him that she would "feel differently about this" if he had gone to his probation officer and "asked for her help" before testing positive for drugs. Mr. Nace maintains that the court's comments demonstrate that it sentenced him above the suggested sentencing range because he exercised his right to remain silent rather than incriminating himself to his probation officer.

Mr. Nace has cited us to no case, and we have discovered none, finding a fifth amendment violation based on facts like those presented here. We recognize that an individual does not lose the privilege against self-incrimination by being convicted of a crime, and that he or she may claim the privilege in civil or criminal proceedings, formal or informal, where the answers might be incriminating in future criminal proceedings. See Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136 79 L.Ed.2d 409 (1984). Mr. Nace relies on Murphy, which held that a defendant's confession that was made in response to questions from his probation officer was not "compelled" and was therefore admissible at his criminal trial because he did not assert his fifth amendment right when questioned by the probation officer. Id. at 422, 440, 104 S.Ct. 1136. The Court explained that the defendant should have known that the privilege was available to him because, inter alia, the Court had previously "made clear that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege." Id. at 438, 104 S.Ct. 1136.

Thus Murphy appears to stand for the right of a defendant to refuse to answer a probation officer's potentially incriminating questions (at least where the defendant's assertion of his or her fifth amendment right is "legitimate"). But even assuming that this statement in Murphy lends some support to the proposition that the fifth amendment prohibits a district court from increasing a revocation sentence based on a defendant's failure voluntarily to incriminate himself or herself to a probation officer, it does not establish that such reliance by a district court would be "clear" error "under current law," or, more importantly, that...