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 resentencing 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 resentencing 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 resentencing 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 resentencing. 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 resentencing 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 resentencing 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 resentenced.
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 resentencing,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 resentencing 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 resentencing 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.,2002COMMISSION

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 resentencing. 

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. CruzadoLaureano, 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.