In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-2514 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

LATASHA GAMBLE, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 1:17-cr-00733-1 — Ronald A. Guzmán, Judge. 

____________________ 

ARGUED MAY 27, 2020 — AUGUST 11, 2020 

____________________ 

Before EASTERBROOK, HAMILTON, and BRENNAN, Circuit 

Judges. 

HAMILTON, Circuit Judge. Defendant Latasha Gamble was 

found guilty of armed bank robbery and sentenced to 151 

months in prison. She challenges her sentence on two 

grounds that revolve around whether she used a real firearm 

in the robbery. First, she argues that the district court erred in 

finding that she used a real firearm in the robbery. Second, 
2 No. 19-2514 

she argues that the district judge violated her Fifth Amendment privilege against self-incrimination by considering at 

sentencing his finding that she lied to the FBI about buying 

and using a fake gun in the robbery and that she did not help 

recover the discarded gun. 

We affirm. Ample evidence supported the judge’s finding 

that Gamble used a real firearm in the robbery. Also, Gamble’s Fifth Amendment rights were not violated. She did not 

remain silent but instead chose to tell the FBI where she got 

the gun and how she got rid of it. She thus waived her Fifth 

Amendment privilege on those topics. See Anderson v. Charles, 

447 U.S. 404, 408 (1980). The district judge was entitled to consider her false statements in deciding on her sentence. 

I. Factual and Procedural Background 

On November 9, 2017, defendant Latasha Gamble robbed 

a branch of Chase Bank in Chicago, a branch where she had 

worked until three months earlier. Only two Chase employees were working at the time of the robbery, Kelly Green and 

Lesley Rendon. Gamble entered the bank wearing a disguise 

and waited for a few customers to leave. When they did, Gamble pulled out a gun and pushed Green to the ground as 

Green opened a secured door to leave the lobby. Gamble then 

pointed the gun at Green and ordered her to open the bank’s 

vault. When Green said that both employees were needed to 

open the vault, Gamble grabbed Rendon by the hair, pressed 

the gun against the back of her head, threatened to shoot her, 

and brought her to the vault. At trial, Rendon testified that the 

gun felt cold and made a clicking noise when it was against 

her head. Once Green and Rendon had opened the vault, 

Gamble ordered them to put their heads down and again 
No. 19-2514 3

threatened to shoot them. Gamble took over $126,000 from the 

vault and left the bank. 

Despite Gamble’s attempts at disguise, both Green and 

Rendon had recognized her. FBI agents arrested Gamble several hours later when she showed up for work at another 

Chase branch, oddly enough. Gamble waived her Miranda

rights and agreed to speak with an FBI agent. Several hours 

into the interrogation, Gamble admitted that she had robbed 

the bank earlier that day. 

After she confessed, Gamble was asked questions about 

the gun, the money, and the clothing that she wore during the 

robbery. She said that the gun was a “play gun” that she had 

bought at a Walmart store near her home earlier that week. 

But a later investigation determined that Walmart did not sell 

any fake guns at that location or anywhere else in Illinois. 

Gamble also said that she disposed of the gun on Irving Park 

Road, stashed the money in a trash can at a nearby grocery 

store parking lot, and dumped the clothing in a recycling container near her work. That same day, FBI agents canvassed 

Irving Park Road for the gun and looked for the money and 

clothes, but they found nothing.1

A jury convicted Gamble of armed bank robbery under 18 

U.S.C. § 2113. The district court sentenced Gamble to 151 

months in prison, the bottom of the calculated guideline 

range. In explaining the guideline sentence, the court emphasized Gamble’s careful planning, the vicious nature of the robbery, and Gamble’s lack of remorse. 

1 Gamble also said at one point that she had “lost” the money. As best 

we can tell from the record, the money has not been recovered. 
4 No. 19-2514 

II. Defendant’s Challenges to Her Sentence

On appeal, Gamble asserts two errors in her sentencing. 

First, she argues that the district court erred in finding that 

she used a real firearm in the robbery. This error, we are told, 

led to both a miscalculation of the applicable Guidelines 

range and reliance on misinformation in considering the 18 

U.S.C. § 3553(a) factors and determining the appropriate sentence. Second, Gamble argues that the district court violated 

her Fifth Amendment privilege against self-incrimination by 

considering her statements to the FBI about the firearm and 

faulting her for failing to cooperate with the authorities to recover the firearm. 

A. Accuracy of Information at Sentencing 

The Sentencing Guideline for robbery raises the offense 

level in different degrees based on use of different types of 

weapons. The court here applied the six-level enhancement 

for using a real firearm in the robbery, see U.S.S.G. 

§ 2B3.1(b)(2)(B), rather than a four-level enhancement for a 

using a dangerous weapon, which may include a fake gun, 

§ 2B3.1(b)(2)(D). 

At sentencing, the government argued for the higher enhancement and presented evidence that the firearm was real. 

First, the FBI agent who interrogated Gamble testified based 

on his expertise with firearms that the gun in still photographs taken during the robbery appeared to be “a 1911-style 

pistol ... patterned after the Colt 1911.” This firearm, he testified, would make a clicking noise if the trigger were pulled if 

there were no round in the chamber, consistent with the noise 

described by Rendon at trial. Second, the agent testified about 

Gamble’s story that she used a fake gun that she purchased at 
No. 19-2514 5

Walmart, the discovery that Walmart does not sell fake guns 

in Illinois, and the fact that agents were unable to recover the 

gun where she told them it would be. Third, the government 

highlighted evidence that Gamble had texted someone the 

day before the robbery asking for a “lender.” That person responded that he found someone who would “do it for the 

500” but needed confirmation that “she’ll get it back at 11.”

The judge found that Gamble had used a real gun in the 

robbery and faulted Gamble for failing to admit her culpability in the crime. He concluded that “she lied about the handgun being a toy,” reasoning that “[i]f the handgun had been a 

toy, she would not have lied to the FBI agents about where 

she got the toy.” In imposing the sentence, the district judge 

also reviewed the defendant’s plans for the robbery and the 

evidence of premeditation, noting that the defendant “arranged to rent a gun [for] $500.” 

Gamble frames her argument in terms of due process. A 

defendant has a due process right to be sentenced based on 

reliable information. United States ex rel. Welch v. Lane, 738 F.2d 

863, 864 (7th Cir. 1984), citing United States v. Tucker, 404 U.S. 

443, 447 (1972), and Townsend v. Burke, 334 U.S. 736, 741 (1948). 

A sentence must be vacated if a defendant shows both that 

inaccurate information was before the sentencing court and 

that the court relied, at least over a timely objection, on that 

inaccurate information in choosing a sentence. United States v. 

Oliver, 873 F.3d 601, 608–09 (7th Cir. 2017). In making her argument, Gamble says that the evidence from which the district judge inferred that she rented and used a firearm was 

“inaccurate” and that the judge relied upon that inaccurate 

information in sentencing her. 
6 No. 19-2514 

The premise of Gamble’s due process argument is that the 

judge made a factual error in determining that she used a real 

firearm. She has framed as a due process argument what otherwise looks like a fairly routine sort of fact-based appeal under the Sentencing Guidelines. In this case, however, the 

court’s finding about a real firearm affected not only the 

guideline calculation but also the more general explanation of 

the ultimate sentence. We review the sentencing court’s procedure de novo and the underlying factual findings only for 

clear error. United States v. Pennington, 908 F.3d 234, 238 (7th 

Cir. 2018). Because the finding about using a real firearm affected the judge’s ultimate sentencing decision and not just 

the guideline determination, we could not deem any guideline error here harmless. United States v. Miller, 900 F.3d 509, 

514–15 (7th Cir. 2018). 

The district court did not clearly err in finding—based on 

the evidence summarized above—that the defendant used a 

real firearm in the robbery. First, the gun’s appearance and 

the clicking noise it made were consistent with its being a real 

firearm. Second, the text exchange about renting a “lender” 

for $500 seems likely to have referred to a real firearm. The 

context suggested that Gamble was acquiring something for 

the robbery, and who would rent a toy gun for $500? Third, 

and most important, the government presented compelling 

evidence that Gamble lied to the FBI about where she obtained and how she disposed of what she claimed was a toy 

gun. The judge reasonably inferred from the lies that the firearm was real. Gamble has thus failed to show a clear factual 

error in the guideline calculation or as a foundation for her 

due process argument. Cf. Welch, 738 F.2d at 865 (sentencing 

court relied on a fact that both sides later agreed was false); 

Miller, 900 F.3d at 514–15 (vacating sentence under Welch
No. 19-2514 7

where district judge miscounted and relied upon prior felony 

convictions). To the extent that Gamble argues that the judge 

relied at sentencing on a finding that she rented a gun, this 

finding was not clearly erroneous given the content of the text 

exchange and other evidence that she used a real firearm in 

the robbery. In any event, the difference between owning, 

borrowing, and renting a gun would not have been material 

to the sentence. 

B. Fifth Amendment Privilege 

Because there was insufficient evidence to prove beyond a 

reasonable doubt that Gamble used a real firearm in the 

robbery, she was not charged under 18 U.S.C. § 924(c) with 

using a firearm in a crime of violence. If she had admitted to 

using a real firearm, told authorities how she obtained it, or 

led the authorities to recover the firearm, the government 

would have had the proof it needed to convict her of the 

additional § 924(c) offense with its mandatory minimum 

consecutive sentence. Gamble claims that by considering her 

statements and conduct aimed at avoiding a § 924(c) charge 

and conviction, the district court imposed an unconstitutional 

penalty for invoking her Fifth Amendment privilege against 

self-incrimination. 

The government argues that Gamble forfeited her Fifth 

Amendment argument by failing to raise it in the district 

court. We disagree. The factual foundation for the argument 

was the court’s explanation of her sentence. Federal Rule of 

Criminal Procedure 51(a) provides that a party need not state 

an “exception” to a ruling the court has already made in order 

to preserve her rights on appeal, so the argument was not forfeited. Pennington, 908 F.3d at 238. 
8 No. 19-2514 

On the merits of the argument, the Fifth Amendment protects a person from being “compelled in any criminal case to 

be a witness against himself.” This privilege extends to sentencing. Mitchell v. United States, 526 U.S. 314, 322 (1999) (Fifth 

Amendment provides a “safeguard against judicially coerced 

self-disclosure”), quoting Brown v. United States, 356 U.S. 148, 

156 (1958). A court impermissibly burdens the exercise of this 

privilege by penalizing its invocation. Spevack v. Klein, 385 

U.S. 511, 515 (1967), citing Griffin v. California, 380 U.S. 609, 614 

(1965). Other circuits have held that a court may not penalize 

a defendant at sentencing for failing to cooperate when doing 

so would force the defendant to admit guilt to uncharged 

crimes. See United States v. Rivera, 201 F.3d 99, 102 (2d Cir. 

1999); United States v. Benjamin, 138 F.3d 1069, 1073 n.2 (6th 

Cir. 1998), citing United States v. Barrett, 890 F.2d 855, 866 (6th 

Cir. 1989); United States v. Safirstein, 827 F.2d 1380, 1388 (9th 

Cir. 1987); see also Roberts v. United States, 445 U.S. 552, 559 

(1980) (argument that judge punished defendant with higher 

sentence for exercising Fifth Amendment privilege and not 

cooperating would merit “serious consideration” if properly 

presented). 

At the same time, a defendant’s decision not to cooperate 

with the authorities in a criminal investigation may be a relevant and permissible consideration for a judge deciding on an 

appropriate sentence. Roberts, 445 U.S. at 557–58. A defendant 

who cooperates may be rewarded with a lower sentence, just 

as a defendant who pleads guilty may be rewarded with a 

lower sentence. United States v. Turner, 864 F.2d 1394, 1398 (7th 

Cir. 1989). Our criminal justice system functions by “rewarding” the accused who gives up her constitutional rights. See 

Missouri v. Frye, 566 U.S. 134, 144 (2012) (“[Plea bargaining] is 
No. 19-2514 9

not some adjunct to the criminal justice system; it is the criminal justice system.”), quoting Robert E. Scott & William J. 

Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912 

(1992). 

The problem posed by these two principles is evident. To 

determine whether a sentence impermissibly punished a 

defendant for exercising her privilege against compelled selfincrimination or permissibly denied a reward for failing to 

cooperate, a reviewing court would need to identify a 

baseline sentence against which to compare. We need not 

decide here whether this sentence applied a penalty or denied 

a reward. The more basic problem for Gamble is that she was 

not “silent” on how she obtained and disposed of the firearm. 

The Fifth Amendment privilege can be waived, and the 

scope of the waiver is determined by the subject matter on 

which the defendant breaks her silence. The Supreme Court 

cases on cross-examination of testifying criminal defendants 

illustrate the consequences of breaking one’s silence. A 

defendant who takes the stand at trial may be cross-examined 

and have her testimony impeached, and a refusal to answer 

an appropriate question in cross-examination may be held 

against her. Kansas v. Cheever, 571 U.S. 87, 94 (2013), citing

Fitzpatrick v. United States, 178 U.S. 304, 315 (1900), and Brown, 

356 U.S. at 156; accord, e.g., United States v. Kovic, 684 F.2d 512, 

515–16 (7th Cir. 1982). Similarly, an accused “who voluntarily 

speaks after receiving Miranda warnings” may be crossexamined about prior inconsistent statements: “As to the 

subject matter of his statements, the defendant has not 

remained silent at all.” Anderson, 447 U.S. at 408; see also 

United States v. Agee, 597 F.2d 350, 354–56 (3d Cir. 1979) (en 
10 No. 19-2514 

banc).2 To invoke the privilege against self-incrimination, a 

defendant must have actually maintained her silence. She 

may not protest when her statements themselves are 

scrutinized.3

This threshold rule for invoking the privilege applies with 

full force to statements made by a Mirandized suspect during 

interrogation. Just as a prosecutor may ask about a prior inconsistent statement in cross-examining a defendant at trial, a 

sentencing judge may consider a defendant’s statements—

and draw inferences from those statements—in considering 

the § 3553(a) sentencing factors and imposing an appropriate 

sentence. If the defendant has broken her silence, there is no 

privilege. 

Gamble was free to remain silent on the matter of the firearm, but she did not. Instead, she told the FBI that the firearm 

was a “play gun” that she bought at a Walmart store near her 

home and that she threw the firearm out on Irving Park Road. 

The judge reasonably determined that these statements were 

lies and faulted Gamble for lying to the authorities instead of 

2 Anderson addressed not the Fifth Amendment privilege but a criminal defendant’s due process rights under the Fourteenth Amendment. See 

Doyle v. Ohio, 426 U.S. 610, 618–19 (1976) (holding that the prosecution 

may not use a defendant’s silence against him after he has received government assurances). But the “silence” it contemplated is the privilege 

against self-incrimination provided by the Fifth Amendment and protected by Miranda. 

3 Other circuits have observed that the scope of such a waiver must be 

strictly limited to subject matter of the defendant’s statements. Hendrix v. 

Palmer, 893 F.3d 906, 925 (6th Cir. 2018); United States v. Caruto, 532 F.3d 

822, 830 (9th Cir. 2008). Here, the judge’s consideration of the firearm issue 

was based on the defendant’s statements on exactly that subject. 
No. 19-2514 11

cooperating. The privilege against self-incrimination is a privilege to remain silent, not a privilege to lie without consequence. See Harris v. New York, 401 U.S. 222, 226 (1971). The 

district court did not violate Gamble’s Fifth Amendment 

rights by considering her statements at sentencing. 

The judgment of the district court is 

AFFIRMED.