### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-2514
U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v.

L ATASHA G AMBLE , Defendant-Appellant

.

____________________ Appeal from the United States District Court for the Northern District of Il linois, Eastern Division. No. 1:17-cr-00733-1 — Ronald A. Guzmán
, Judge

.

____________________

A RGUED M AY 27, 2020

— A UGUST 11, 2020

____________________

Before E ASTERBROOK , H AMILTON , and B RENNAN , Circuit Judges

. H AMILTON , Circuit Judge . Defendant Latasha Gamble was found guilty of armed bank ro bbery and sentenced to 151 months in prison. She challenges her sentence on two grounds that revolve around whether she used a real fi rearm in the robbery. First, she argues th at the district court erred in fi nding that she used a real fi rearm in the robbery. Second,2 No. 19-2514

she argues that the district ju dge violated her Fifth Amendment privilege against self-incrimination by considering at sentencing his fi nding 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 a ffi rm. Ample evidence supported the judge’s fi nding that Gamble used a real fi rearm 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 e arlier. 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 or dered her to open the bank’s vault. When Green said that bo th employees were needed to open the vault, Gamble grabbe d 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 testi fi ed 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 againNo. 19-2514 3

threatened to shoot them. Gamb le took over $126,000 from the vault and left the bank. Despite Gamble’s a tt empts at disguise, both Green and Rendon had recognized her. FB I agents arrested Gamble several hours later when she show ed 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 admi tt ed 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 determin ed 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 th e 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 bo tt om of the calculated guideline range. In explaining the guide line 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 fi nding that she used a real fi rearm in the robbery. This error, we are told, led to both a miscalculation of the applicable Guidelines range and reliance on misinfor mation in considering the 18 U.S.C. § 3553(a) factors and de termining 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 fi rearm andfaulting her for failing to cooperate with the authorities to recover the fi rearm. A . Accuracy of Information at Sentencing The Sentencing Guideline for robbery raises the o ff ense level in di ff erent degrees based on use of di ff erent types of weapons. The court here applied the six-level enhancement for using a real fi rearm 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 fi rearm was real. First, the FBI agent who interrogated Gamble testi fi ed based on his expertise with fi rearms that the gun in still photographs taken during the robbery appeared to be “a 1911-style pistol ... pa tt erned after the Colt 1911.” This fi rearm, he testifi ed, 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 testi fi ed about Gamble’s story that she used a fake gun that she purchased atNo. 19-2514 5

Walmart, the discovery that Walmart does not sell fake guns in Illinois, and the fact that ag ents were unable to recover the gun where she told them it wo uld be. Third, the government highlighted evidence that Gamble had texted someone theday before the robbery asking for a “lender.” That person responded that he found someon e who would “do it for the 500” but needed con fi rmation that “she’ll get it back at 11.” The judge found that Gamble had used a real gun in therobbery 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 th e sentence, the district judge also reviewed the defendant’s plans for the robbery and theevidence 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 befo re 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 Ci r. 2017). In making her argument, Gamble says that the evidence from which the district judge inferred that she rented and used a fi rearm was “inaccurate” and that the judg e 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 fi rearm. 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 fi nding about a real fi rearm a ff ected not only the guideline calculation but also the more general explanation ofthe ultimate sentence. We review the sentencing court’s procedure de novo and the underlying factual fi ndings only for clear error. United States v. Pennington , 908 F.3d 234, 238 (7th Cir. 2018). Because the fi nding about using a real fi rearm affected the judge’s ultimate sent encing 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 fi nding—based on the evidence summarized abov e—that the defendant used a real fi rearm in the robbery. First, the gun’s appearance and the clicking noise it made were consistent with its being a real fi rearm. Second, the text exchan ge about renting a “lender” for $500 seems likely to have referred to a real fi rearm. 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 compellingevidence 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 fi rearm 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 WelchNo. 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 fi nding that she rented a gun, this fi nding was not clearly erroneous given the content of the text exchange and other evidence that she used a real fi rearm in the robbery. In any event, the di ff erence between owning, borrowing, and renting a gun would not have been material to the sentence.

B . Fifth Amendment Privilege

Because there was insu ffi cient evidence to prove beyond a reasonable doubt that Gamble used a real fi rearm in the robbery, she was not charged un der 18 U.S.C. § 924(c) with using a fi rearm in a crime of violence. If she had admi tt ed to using a real fi rearm, told authorities how she obtained it, or led the authorities to recover the fi rearm, the government would have had the proof it n eeded to convict her of the additional § 924(c) o ff ense with its mandatory minimum consecutive sentence. Gamble cl aims that by considering her statements and conduct aimed at avoiding a § 924(c) charge and conviction, the district cour t 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 factua l 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 appe al, 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 “compe lled in any criminal case tobe 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 Gri ffi n 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. Barre tt , 890 F.2d 855, 866 (6th Cir. 1989); United States v. Sa fi rstein , 827 F.2d 1380, 1388 (9th Cir. 1987); see also Roberts v. United States , 445 U.S. 552, 559 (1980) (argument that judge puni shed 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 crimin al investigation may be a relevant and permissible consideratio n 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] isNo. 19-2514 9

not some adjunct to the criminal justice system; it is the criminal justice system.”), quoting Robert E. Sco tt & William J. Stun tz , 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 pr ivilege 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 fi rearm. The Fifth Amendment privilege can be waived, and the scope of the waiver is determined by the subject ma tt er on which the defendant breaks he r 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 Fi tz patrick 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 ma tt er 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) (en10 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 st atements 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 prosecut or 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 th ose statements—in considering the § 3553(a) sentencing factors and imposing an appropriate sentence. If the defendant has br oken her silence, there is no privilege.

Gamble was free to remain silent on the ma tt er of the fi rearm, but she did not. Instead, she told the FBI that the fi rearm was a “play gun” that she bought at a Walmart store near her home and that she threw the fi rearm 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 un der 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 agai nst him after he has received government assurances). But the “silence” it cont emplated is the privilegeagainst 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 statem ents 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.