FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DECEMBER 21, 2001

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 00-13779

 

D. C. Docket No. 00-00061-CR-KMM

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

ADRIANA MARIA BURGOS, 

 Defendant-Appellant.

 

Appeal from the United States District Court

for the Southern District of Florida

 

(December 21, 2001)

Before TJOFLAT and DUBINA, Circuit Judges, and SHAPIRO*, District Judge.

____________________________________________

*Honorable Norma L. Shapiro, U.S. District Judge for the Eastern District of Pennsylvania,

sitting by designation.
1

 If we were to answer this question in the affirmative, we would have to decide whether

the Fifth Amendment Due Process Clause or Self-Incrimination Clause precluded the sentencer

from considering the defendant’s refusal to cooperate.

2

TJOFLAT, Circuit Judge:

In this criminal case, the question presented is whether the sentencing

guidelines authorize a sentencer to penalize the defendant for refusing to cooperate

with the government in a criminal investigation unrelated to the offense for which

the defendant is to be sentenced. The answer is no.1

 We therefore vacate the

defendant’s sentence and remand the case for resentencing. 

I.

In June 1999, the United States Customs Service Outbound Currency Task

Force at the Miami International Airport conducted an enforcement examination of

the passengers on an Aces Airlines flight destined for Medellin, Colombia. 

Adriana Maria Burgos was randomly selected for an outbound examination for

undeclared currency. She was given the Spanish version of Customs Form CP-503

to read and complete. Burgos completed the form and declared that she had $623. 

A search of her carry-on bag revealed $33,727 stashed away in the pockets of two

pairs of jeans. 

On February 1, 2000, a Southern District of Florida grand jury indicted

Burgos on two counts. Count One alleged that she violated 31 U.S.C. §§
3

5316(a)(1)(A) and 5322(a), which, together, require the filing of currency

transaction reports, such as the form CP-503 Burgos had filled out; Count Two

alleged that she violated 18 U.S.C. § 1001(a)(2), which prohibits making a

materially false statement on a U.S. Customs form. 

On April 18, 2000, pursuant to a plea agreement, Burgos pled guilty to the

first count. The agreement provided that the prosecution could refuse to

recommend a two-level reduction of Burgos’ base offense level, pursuant to

Sentencing Guidelines § 3E1.1, for acceptance of responsibility, if she “fail[ed] or

refuse[d] to make full, accurate and complete disclosure to the probation office of

the circumstances surrounding the relevant offense conduct.” The plea agreement

made no mention of Burgos’ cooperation with the government in other pending

cases. 

The Presentence Investigation Report (“PSI”), prepared after the court

accepted Burgos’ plea, cataloged Burgos’ extensive cooperation in her own case. 

For example, following the return of her indictment and subsequent arrest, Burgos

consented to a search of her (and her husband’s) residence. Then, after pleading

guilty, during an interview with the court’s probation officer, she accepted full

responsibility for her criminal conduct, gave details of her life, explained her

financial history, listed her present assets, and agreed to meet the probation officer
2

 The penalty prescribed by 31 U.S.C. § 5322(a), the provision to which Burgos pled

guilty, is zero to five years imprisonment and a maximum fine of $250,000. 

4

at her home. As a result, the probation officer, in calculating Burgos’ base offense

level, reduced the level by two pursuant to U.S.S.G. § 3E1.1(a). Given Burgos’

criminal history category of I, the PSI prescribed a guidelines sentence range of

zero to six months imprisonment, and a fine ranging from $1,000 to $10,000.2

Burgos was eligible for a sentence of probation for a term of one to five years. 18

U.S.C. § 3561(c)(1). 

The PSI noted that, on May 25, 2000, her husband had been indicted in the

Southern District of Florida for money laundering. Burgos objected to the inclusion

of this information in the PSI on the ground that her husband’s indictment was

irrelevant, that it should have no bearing on the sentence she should receive. The

probation officer’s response to Burgos’ objection, set out in the Addendum to the

PSI, was this:

The PS[I] does not report that the defendant’s criminal

conduct in the instant case is related to her husband’s

pending case. Part of the presentence investigation

process involves interviewing and reporting personal,

social background information about the defendant and

her family. The defendant has been married to her

husband since 1986. Her husband’s indictment in a

pending federal case represents a significant event in the

defendant’s social background that the court should be

made aware of. The issue is unresolved.
5

At the sentencing hearing, convened on July 5, 2000, Burgos’ counsel argued

for a non-incarcerative sentence, one at the low end of the guidelines range,

asserting that Burgos had readily pled guilty and that she is the mother of two

children. The prosecutor, in response, contended that Burgos should be sentenced

to the high end of the range because of the indictment recently filed against her

husband. Admitting that he was “not in a position” to show that her husband’s case

was related to hers, the prosecutor nonetheless implied that it was and therefore

requested “some term of incarceration” for Burgos. The district court seized upon

this implication and inquired whether Burgos had cooperated with the government

in the investigation against her husband. First noting the willing cooperation

Burgos had provided in her own case, Burgos’ counsel responded that the

prosecutor had never asked Burgos to cooperate in the case against her husband. 

The district court, commenting that her cooperation in her husband’s case “would

be relevant in terms of where, within the guideline range, she ought to be

sentenced,” called the hearing “premature,” and issued an ultimatum:

If [Burgos] is willing to cooperate, if she does cooperate, if she can be

forthright and demonstrate that she’s done everything she can do to be

cooperative, then I think she earns the bottom end of the guidelines. If, on

the other hand, she’s unwilling or she refuses or she’s uncooperative in

another pending law enforcement investigation, then it seems to me she

doesn’t earn it. And I wouldn’t want to reward her or penalize her today with

that as a question mark.
6

The court then continued the sentencing hearing to afford the government an

opportunity to ask Burgos to cooperate in the case against her husband.

The court reconvened Burgos’ sentencing hearing fifteen days later on July

20. The hearing began with Burgos’ counsel’s announcement that no agreement

had been reached between Burgos and the prosecutor in her husband’s case because

Burgos had asserted her Fifth Amendment and spousal privileges. The court

responded,

I think we gave you an opportunity to kind of work this out. It apparently

hasn’t worked out. I don’t know what Fifth Amendment privilege you think

[Burgos] has. Now that she’s been convicted, she’s lost that privilege. . . . If

she wants to continue to refuse, you know, she has to accept the

consequences. . . . it is the judgment of the court that the defendant, Adriana

Maria Burgos, is hereby . . . imprisoned for a term of six months.

Citing Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981), and

its holding that the Fifth Amendment privilege applies at sentencing, defense

counsel urged the court to reconsider its sentence. The court refused to do so. This

appeal followed.

II. 

We review a district court’s application of the sentencing guidelines de novo. 

See United States v. Jamieson, 202 F.3d 1293, 1295 (11th Cir. 2000) (“This court
3

 Title 18 U.S.C. § 3661 (2000) states, “No 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.”

4

 U.S.S.G. § 1B1.4 states, “In determining the sentence to impose within the guideline

range, or whether a departure from the guidelines is warranted, the court may consider, without

limitation, any information concerning the background, character and conduct of the defendant,

unless otherwise prohibited by law. See 18 U.S.C. § 3661.”

7

reviews the district court’s findings of fact for clear error and its application of the

sentencing guidelines to those facts de novo.”).

III.

It is obvious that, in arriving at the sentence in this case, the district court

penalized Burgos for refusing to cooperate in the case against her husband. 

Because, as we explain below, federal sentencing law barred the district court from

taking the refusal to cooperate into account in fashioning Burgos’ sentence, we

must vacate the sentence and remand the case for resentencing.

Burgos does not contend – nor could she – that the district court erred in

calculating the guideline range in which she should be sentenced. Instead, she

argues that the district court erred when it used her refusal to cooperate in the case

against her husband in sentencing her to the high end of the prescribed range. The

prosecutor, in response, cites to 18 U.S.C. § 36613

 and U.S.S.G. § 1B1.44 and

maintains that the district court, in choosing the sentence within the guideline range,

was authorized to consider, “without limitation, any information concerning the
5

 The prosecutor alternatively argues that the district court did not actually penalize

Burgos for failing to cooperate; instead, the prosecutor asserts, the court “simply [did] not

reward[] [her] for cooperation she never gave.” This argument deserves little discussion

because, as described in part I, supra, the district court explicitly stated that Burgos’ six-month

sentence was a “consequence” of her failure to cooperate with the government, and therefore, it

would have to “penalize” her for her refusal. To accept the reasoning the prosecutor urges upon

us would require us to ignore the record.

8

background, character, and conduct of the defendant.” 5 It is true, as the prosecutor

points out, that sections 3661 and 1B1.4 appear to give the district court wide

discretion in sentencing a defendant. Nevertheless, the prosecutor’s argument fails

to persuade us. As we will establish, the court’s sentencing discretion under

sections 3661 and 1B1.4 is limited in two significant ways. First, in enacting 18

U.S.C. § 3553(a)(2) (2000), Congress codified four sentencing objectives courts

must take into account in fashioning a sentence: punishment, general deterrence,

specific deterrence, and rehabilitation. If a district court gives weight to a factor

irrelevant to these purposes, then the imposed sentence necessarily exceeds the

court’s sentencing discretion. Second, Congress set specific and definite perimeters

to constrain the Sentencing Commission in establishing the guidelines and,

necessarily, any district court imposing a sentence under the guidelines. 

The starting point in our analysis is the sentencing guidelines, and, in

particular, section 1B1.4, which states that the district court, in choosing the

sentence within the guideline range, “may consider, without limitation, any
9

information concerning the background, character and conduct of the defendant,

unless otherwise prohibited by law.” U.S.S.G. § 1B1.4. The commentary to section

1B1.4 acknowledges that the section is based on 18 U.S.C. § 3661, a statute

recodified by Congress in 1984 with an effective date of 1987, and submits that “it

[is] clear that Congress intended that no limitation [] be placed on the information

that a court may consider in imposing an appropriate sentence under the future

guideline sentencing system.” U.S.S.G. § 1B1.4, comment (backg’d). 

Despite this broad language, however, section 1B1.4 is subject to the

constraints of other federal law, namely, 18 U.S.C. § 3553. Indeed, section 1B1.4

itself sets forth a significant exception not included in section 3661: a district court

may not consider any factor that is “otherwise prohibited by law.” U.S.S.G. §

1B1.4 (emphasis added). Moreover, in the sentencing guidelines’ enabling statute,

28 U.S.C. §§ 991-998, Congress mandated that the guidelines be “consistent with

all pertinent provisions of . . . title 18, United States Code.” 28 U.S.C. § 994(a),

(b)(1) (1993). This includes, of course, section 3661, which appears to give

unfettered discretion to a sentencing court, and section 3553, which governs what

exactly a court may consider in imposing a sentence. Although these two sections

appear inconsistent, we believe that they operate in harmony, and information of the

type considered by section 3661 is subject to the limitations of section 3553. See
10

United States v. Fairman, 947 F.2d 1479, 1482 (11th Cir. 1991) (finding an

apparent inconsistency between section 3661 and 28 U.S.C. § 994, a statute which

also constrains judicial discretion, and “mak[ing] sense of the inconsistencies” by

reading each statute in the context of other applicable statutes to discern Congress’

intention); United States v. Baird, 218 F.3d 221, 227 (3rd Cir. 2000) (finding that

any information considered by section 3661 is “subject to the limitations of section

3553(b)”). 

Congress, in enacting section 3553, encapsulated the essence of

contemporary sentencing, setting forth the perimeters in which the Sentencing

Commission, in establishing the guidelines, and district courts, in sentencing, may

operate. Section 3553(a) provides:

The court, in determining the particular sentence to be imposed, shall

consider – 

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant; 

(2) the need for the sentence imposed – 

(A) to reflect the seriousness of the offense, to promote respect

for the law, and to provide just punishment . . . ;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant;

and

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional treatment

in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established [by the

sentencing guidelines] . . . ;
6

 Obviously, a judge may give one goal more weight than others in a particular case. For

example, a judge may consider punishment the primary goal for a defendant convicted of

homicide; whereas, specific deterrence may be the goal heavily weighted in fashioning a

sentence for a recidivist. For a judge sentencing a defendant convicted of tax evasion, the chief

concern may be general deterrence, and, if sentencing a defendant who is a one-time offender, a

judge may avoid incarceration and focus on rehabilitative programs. Further, we have explained

elsewhere that, “[f]or purposes of determining the need for incarceration, Congress specified

that only the first three goals, punishment, general deterrence, and specific deterrence, could be

considered.” See, e.g., United States v. Roman, 989 F.2d 1117, 1122 n.9 (11th Cir. 1993)

(Tjoflat, C.J., specially concurring) (emphasis added); see also United States v. Scroggins, 880

F.2d 1204, 1208 (11th Cir. 1989). While Congress prohibited incarcerating an offender for

purposes of rehabilitation, see United States v. Dunnigan, 507 U.S. 87, 97, 113 S. Ct. 1111,

1118, 122 L. Ed. 2d 445 (1993), an offender’s need for rehabilitation may be considered in

prescribing the conditions of probation or supervised release. Scroggins, 880 F.2d at 1208 n.10

(citing 18 U.S.C.A. § 3563(b)).

11

(5) any pertinent policy statement issued by the Sentencing

Commission pursuant to 28 U.S.C. 994(a)(2) . . . ;

(6) the need to avoid unwarranted sentence disparities among

defendants with similar records . . . [and] conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a). Most notably, section 3553(a)(2) identifies four penological

goals courts must consider in fashioning a sentence.6

 Any sentence imposed in

order to accomplish some other purpose would violate section 3553(a) and would

be unlawful. If a court, therefore, takes into account information about a defendant

in order to impose a sentence for an illegitimate purpose, then that court has

exceeded its sentencing discretion. 

Turning to the case at hand, we cannot perceive any legitimate purpose to

justify a district court, in fashioning Burgos’ sentence within the guideline range, to

take into account whether or not she cooperated with the government in the case
12

against her husband. Indeed, neither the district court nor the prosecution has

pointed to any such purpose. Punishing Burgos for refusing to inform the

government of her husband’s unrelated criminal conduct in no way “reflects the

seriousness” of her own offense, nor does it “promote respect for the law,” or

“provide just punishment for the offense” to which she pled guilty. See 18 U.S.C. §

3553(a)(2)(A). Likewise, increasing Burgos’ sentence based on her refusal to

cooperate does not deter her from any further illegal activity, does not “protect the

public from further crimes” she might commit, and does not “provide [her] with

needed educational or vocational training, medical care, or other correctional

treatment.” See 18 U.S.C. § 3553(a)(2)(B)-(D). Penalizing Burgos for refusing to

cooperate in the case against her husband simply does not achieve any of the goals

set forth in section 3553(a)(2), and, consequently, exceeds the district court’s

sentencing discretion. 

Besides 18 U.S.C.§ 3553(a), there is ample other federal law which

circumscribes sentencing judges’ discretion. For example, the sentencing

guidelines’ enabling statutes, 28 U.S.C. §§ 991-998, constrain and limit the

discretion of the Sentencing Commission and, necessarily, the discretion of

sentencing judges. Congress, in delegating to the Commission the power to

establish the guidelines, set out “specific and detailed” instructions, a component
7

 Section 994(n) does submit that the Commission “shall assure that the guidelines reflect

the general appropriateness of imposing a lower sentence than would otherwise be imposed . . .

to take into account a defendant’s substantial assistance in the investigation or prosecution of

another person who has committed an offense.” 28 U.S.C. § 994(n). 18 U.S.C. § 3553(e)

likewise reflects Congress’ desire for the Commission to allow district courts to impose a lower

sentence based on a defendant’s “substantial assistance in the in the investigation or prosecution

of another person.” 18 U.S.C. § 3553(e). Notably, neither of these sections allows a sentence to

be increased based on a defendant’s failure to assist. Moreover, we believe these two sections

reward assistance of investigations or prosecutions that are in some way related to the offense for

which the defendant was charged.

13

the Supreme Court considered constitutionally required. Mistretta v. United States,

488 U.S. 361, 371-79, 109 S. Ct. 647, 654-59, 102 L. Ed. 2d 714 (1989). Congress

directed the Commission to establish categories of offenses and categories of

defendants. See 28 U.S.C. § 994(c), (d). Nowhere, in the list of factors that

Congress directs the Commission to consider in setting up these categories, is there

mention of the defendant’s cooperation with the government in an unrelated case

against another person. See id.7

 In fact, both sections require any consideration of

offense or defendant characteristics to bear some “relevance to the nature, extent,

place of service, or other incidents (sic) of an appropriate sentence.” Id.; see also

United States v. Lynch, 934 F.2d 1226, 1236 (11th Cir. 1991) (noting that the

Commission allows sentencing courts to make “broad inquiries into relevant

factors, as defined by the Guidelines, when sentencing a defendant”) (emphasis

added). We cannot imagine how Burgos’ cooperation with the government in the

case against her husband could possibly bear on the length of her incarceration. As
8

 The sentencing guidelines incorporated this prohibition on considering a defendant’s

characteristics into §§ 5H1.1-5H1.12. These sections, however, are irrelevant to this case

because they apply only to the determination of whether the court may sentence the defendant

outside the applicable guideline range. The Introductory Commentary to Chapter Five, Part H,

states: “The Commission has determined that certain factors are not ordinarily relevant to the

determination of whether a sentence should be outside the applicable guideline range.” Id. The

Commentary, however, explicitly states that “this does not mean that the Commission views

such factors as necessarily inappropriate to the determination of the sentence within the

applicable guideline range . . . .” Id.

Moreover, contrary to Burgos’ assertion, section 5K1.2 is likewise not applicable here. 

Section 5K1.2 states that “[a] defendant’s refusal to assist authorities in the investigation of other

persons may not be considered as an aggravating sentencing factor.” U.S.S.G. § 5K1.2. This

section, however, appears to apply only to departures from the guideline range; that is, the

section is irrelevant to the imposition of a sentence within the proper guideline range. We agree

with the Seventh Circuit that both the title of Part K of the guidelines, “Departures,” as well as

the placement of section 5K1.2 with 5K1.1, which authorizes downward departures for

assistance rendered, imply that section 5K1.2 applies only to sentence departures. See United

States v. Klotz, 943 F.2d 707, 710 (7th Cir. 1991). 

14

the probation officer maintained in the PSI, there is no indication that Burgos’

“criminal conduct in the instant case is related to her husband’s pending case.” 

Therefore, we find that the Commission, in establishing section 1B1.4, did not

intend that such a factor could be taken into account by a sentencing judge in

fashioning a sentence within the guideline range.

Congress further circumscribed sentencing judges’ discretion by prohibiting

them from considering certain information that could be relevant to achieving

legitimate penological goals but which, according to Congress, should nevertheless

be ignored. 28 U.S.C.§ 994(d) states, “The Commission shall assure that the

guidelines and policy statements are entirely neutral as to the race, sex, national

origin, creed, and socioeconomic status of offenders.”8

 Thus, we have held that it is
15

improper for a district court to consider such factors as “ownership of a business . . .

a home or of a car” as indicators of socioeconomic status. United States v. Mogel,

956 F.2d 1555, 1564 (11th Cir. 1992). Such facts are completely “irrelevant for

sentencing purposes.” Id.; see also United States v. Hatchett, 923 F.2d 369, 373-74

& n.4 (5th Cir. 1991) (holding that considering the characteristics set forth in

section 994(d) is “otherwise prohibited by law” according to section 1B1.4); United

States v. Burch, 873 F.2d 765, 769 (5th Cir. 1989) (holding that a “defendant’s

socio-economic status is never relevant to sentencing” and his education “is

relevant only if the defendant misused special training in perpetrating his crime”). 

Accordingly, we find that district courts’ sentencing discretion is not absolute

and unlimited under sections 3661 or 1B1.4. We therefore hold that because the

district court took into account Burgos’ refusal to cooperate in the case against her

husband when sentencing her to the high end of the guideline range, the sentence

was unlawful. We thus REVERSE the sentence and REMAND the case for

resentencing.

SO ORDERED.