1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 16a0028p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

JAMES ALSANTE, 

Defendant-Appellant. 

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No. 15-5343 

Appeal from the United States District Court 

for the Eastern District of Tennessee at Knoxville. 

No. 3:14-cr-00061—Pamela Lynn Reeves, District Judge. 

Argued: January 27, 2016 

Decided and Filed: February 5, 2016 

Before: GUY, SUTTON, and McKEAGUE, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN 

TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Brooklyn Sawyers, UNITED 

STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Laura E. 

Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, 

Tennessee, for Appellant. Brooklyn Sawyers, UNITED STATES ATTORNEY’S OFFICE, 

Knoxville, Tennessee, for Appellee. 

_________________ 

OPINION 

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 SUTTON, Circuit Judge. James Alsante pleaded guilty to failing to register as a sex 

offender under federal law. At his sentencing hearing, the district court permitted the 

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No. 15-5343 United States v. Alsante Page 2 

government to introduce evidence that Alsante had committed other sexual-misconduct crimes 

with a minor, all of which were the subject of pending state court charges. The district court 

relied on that conduct in imposing a 54-month sentence, an upward variance from his advisory 

guidelines range. Is that fair or more to the point constitutional? Did the court violate Alsante’s 

due process rights or his rights against self-incrimination by permitting the government to 

introduce evidence related to pending state court charges at his federal sentencing hearing? 

Alsante says that it did because any attempt to rebut the government’s evidence at the federal 

sentencing hearing hampered his ability to defend himself in state court. For the reasons that 

follow, we hold that it did not. 

 The Sex Offender Registration and Notification Act requires convicted sex offenders to 

register periodically with state officials, updating their address and other identifying information 

along the way. 42 U.S.C. § 16913. Alsante pleaded guilty to failing to comply with these 

requirements. See 18 U.S.C. § 2250(a). The probation officer initially calculated a 15–21 month 

advisory guidelines range. In his presentence investigation report, however, the officer noted 

that Alsante faced pending charges in Tennessee state court, where he stood accused of three 

counts of statutory rape by an authority figure and one count of being a sex offender living with a 

minor. The charges stemmed from Alsante’s alleged “sexual[] penetrat[ion] [of] a female 

victim” on three occasions in 2011. R. 25 at 9. 

 Due in part to this other conduct, the government sought an upward departure and an 

upward variance from the guidelines range, urging the court to impose a ten-year prison 

sentence, the statutory maximum. See 18 U.S.C. § 2250(a). The government also notified the 

court that it intended to introduce testimony related to Alsante’s pending state law charges at his 

sentencing hearing. 

At the hearing, the court admitted this evidence over Alsante’s objection. The 

government called S.W., the alleged victim of Alsante’s state law offense, to testify. She said 

that Alsante had been in a relationship with her mother and had lived with the family for a period 

of time. When she was fourteen, she added, Alsante sexually abused her on several occasions. 

The government next called S.W.’s mother, who described several “red flags” that had alerted 

her to the possibility of sexual contact between Alsante and S.W. R. 39 at 60. After cross-
No. 15-5343 United States v. Alsante Page 3 

examining both witnesses, defense counsel put on testimony by Alsante’s mother, who discussed 

her relationship with Alsante and his prior run-ins with the law. Before delivering its sentence, 

the district court asked Alsante whether he wished to make a statement. He declined. 

 The district court denied the government’s motion for an upward departure but granted its 

motion for an upward variance. “[I]t is evident from Mr. Alsante’s history and the testimony we 

have heard here today,” the court explained, “that the public needs to be protected from future 

crimes perpetrated by Mr. Alsante.” Id. at 153–54. The court mentioned S.W.’s “very credible” 

testimony and sentenced Alsante to 54 months in prison—well below the government’s request 

but well above the initially calculated guidelines range. Id. at 154. 

Due Process Clause. Alsante’s due process argument begins with a concession. He 

acknowledges that, under a federal statute, “[n]o 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.” 18 U.S.C. § 3661. He acknowledges that the same is true under the sentencing 

guidelines. U.S.S.G. §§ 1B1.4, 6A1.3(a). And he acknowledges that the statute and guidelines 

authorized the district court to admit testimony by S.W. and her mother. 

The problem, says Alsante, is that the court’s evidentiary approach, as applied to his

sentencing proceeding and as applied to this evidence, violated his due process rights 

nonetheless. When the district court admitted evidence related to the pending state charges, it 

unconstitutionally burdened his ability to mount a robust defense in the state court case. Had 

Alsante vigorously cross-examined the witnesses or otherwise attempted to rebut their claims, he 

says that he might have revealed his state court trial strategy or elicited damaging information. 

He thus had to choose between (1) offering a half-hearted mitigation argument with respect to 

his federal sentence or (2) increasing his chances of conviction with respect to the state charges. 

But the Due Process Clause does not offer convicted defendants at sentencing the same 

“constitutional protections afforded defendants at a criminal trial.” United States v. Silverman, 

976 F.2d 1502, 1511 (6th Cir. 1992) (en banc). “[B]oth before and since the American colonies 

became a nation,” Williams v. New York explains, “courts in this country and in England 
No. 15-5343 United States v. Alsante Page 4 

practiced a policy under which a sentencing judge could exercise a wide discretion in the sources 

and types of evidence used to assist him in determining the kind and extent of punishment to be 

imposed within limits fixed by law.” 337 U.S. 241, 246 (1949). That tradition has become more 

settled over time, because “possession of the fullest information possible concerning the 

defendant’s life and characteristics” is “[h]ighly relevant—if not essential—to [the judge’s] 

selection of an appropriate sentence.” Id. at 247. An imperative of “evidentiary 

inclusiveness”—“a frame of reference as likely to facilitate leniency as to impede it,” United 

States v. Graham-Wright, 715 F.3d 598, 601 (6th Cir. 2013)—explains why the Evidence Rules, 

the Confrontation Clause, and the beyond-a-reasonable-doubt standard of proof do not apply at 

sentencing. See United States v. O’Brien, 560 U.S. 218, 224 (2010) (beyond a reasonable 

doubt); Williams v. New York, 337 U.S. at 246–47, 252 (Evidence Rules); United States v. 

Katzopoulos, 437 F.3d 569, 576 (6th Cir. 2006) (Confrontation Clause); see generally United 

States v. Tucker, 404 U.S. 443, 446 (1972). 

 What, then, does the Due Process Clause demand at sentencing? It demands only that the 

hearing be “fundamentally fair” and that the sentence turn on “reliable information.” United 

States v. Gatewood, 230 F.3d 186, 191 (6th Cir. 2000) (en banc). Gauged by this test, the district 

court’s sentencing procedure passes. The district court permitted defense counsel to crossexamine S.W. and her mother, call Alsante’s mother to the stand, raise objections, and make 

“extended arguments” on disputed points. Williams v. New York, 337 U.S. at 252. The court 

then asked Alsante whether he wished to make a statement in allocution and, when he declined, 

offered a detailed explanation for the 54-month sentence. Alsante received what the Constitution 

requires—a “fundamentally fair” sentencing hearing that permitted him to test the reliability of 

the information submitted by the government. Gatewood, 230 F.3d at 191. 

 Even though the district court offered him these options, Alsante responds, he could not 

fully use them without revealing his state court defense. But due process does not relieve the 

defendant of all difficult tactical choices; it requires only that those choices be available to him in 

the course of the proceeding. See McGautha v. California, 402 U.S. 183, 214–17 (1971), 

vacated in part on other grounds, 408 U.S. 941 (1972); see also Ohio Adult Parole Auth. v. 

Woodard, 523 U.S. 272, 287 (1998) (citing McGautha for its self-incrimination analysis). 
No. 15-5343 United States v. Alsante Page 5 

Notably, at the same time that Alsante challenges the fullness of these procedures, he does not 

claim that the district court relied on inaccurate or unreliable information in sentencing him. 

Self-Incrimination Clause. Alsante’s self-incrimination argument fares no better. That 

clause forbids the government from “compell[ing]” anyone “to be a witness against himself” in 

“any criminal case,” U.S. Const. amend. V, a guarantee that requires courts to determine 

“whether, considering the totality of the circumstances, the free will of the witness was 

overborne,” United States v. Washington, 431 U.S. 181, 188 (1977). Alsante in one sense was 

not “compelled” to say anything or for that matter incriminate himself, as he did not speak 

during the sentencing hearing. Even so, if the defendant’s exercise of his self-incrimination 

rights comes at a significant cost—if he faces coercive pressure to speak—that pressure may 

itself amount to the sort of compulsive force that the Fifth Amendment forbids. Defendants have 

been “compelled” to incriminate themselves when they were threatened with the loss of their 

jobs, see Garrity v. New Jersey, 385 U.S. 493, 500 (1967), the suspension of their professional 

licenses, see Spevack v. Klein, 385 U.S. 511, 516 (1967), or a ban on holding public office, see 

Lefkowitz v. Cunningham, 431 U.S. 801, 807–08 (1977). 

But Alsante did not face this type of compulsion or any other that the Fifth Amendment 

prohibits. The district court did not force (or even encourage) him to give up his right against 

self-incrimination. He did not suffer “actual or threatened physical harm” for remaining silent, 

and he did not face “mental coercion overbearing the will.” Brady v. United States, 397 U.S. 

742, 750 (1970). Alsante no doubt felt pressure to rebut the government’s evidence so that he 

could reduce his sentence. That is the same pressure, however, felt by every defendant who must 

decide whether to testify or remain silent. And it comes not from the sort of illegitimate 

compulsion or economic sanctions that the Supreme Court has condemned but from “the force of 

historical fact[s]” related to the defendant’s conduct and “the strength of the State’s case built on 

these facts.” Williams v. Florida, 399 U.S. 78, 84–85 (1970). If this sort of pressure suffices to 

violate the guarantee, every defendant who has ever stood trial was compelled to testify—and the 

stronger the government’s case the worse the violation. That is not how it works. 

Our court previously rejected a similar argument in a factually indistinguishable case. 

See United States v. Baze, 32 F.3d 569 (6th Cir. 1994) (per curiam) (unpublished table 
No. 15-5343 United States v. Alsante Page 6 

disposition). The defendant in Baze claimed that “he was faced with a Solomon’s choice as to 

whether to testify at sentencing in [a federal] case and risk self-incrimination as to . . . pending 

[state] murder charges.” Id. at *1. We made short work of that argument, noting that, 

“[c]ertainly, [the defendant’s] testimony in [the federal] case cannot be said to have been 

‘compelled.’” Id. at *5. The Tenth and Eleventh Circuits have reached the same conclusion. 

Harvey v. Shillinger, 76 F.3d 1528, 1534–36 (10th Cir. 1996); United States v. Gonzalez, 

315 F. App’x 856, 858 (11th Cir. 2009) (per curiam). 

The Supreme Court, it bears adding, has rejected self-incrimination arguments that put 

defendants to more difficult choices than the ones Alsante faced. McGautha addressed an Ohio 

trial procedure that required the jury to “determine[] guilt and punishment after a single trial and 

in a single verdict.” 402 U.S. at 185. The capital defendant argued that “the desire to address 

the jury on punishment unduly encourage[d] waiver of [his] privilege to remain silent on the 

issue of guilt.” Id. at 213. The Court acknowledged that the single-verdict procedure placed 

pressure on capital defendants to take the stand. Id. at 214–15. But the procedure still did not 

violate the guarantee because it did not compel defendants to testify against themselves. Id. at 

217, 220. The same was true in Brady v. United States, 397 U.S. at 750–51, which rejected a 

similar claim when the government, through plea bargaining, encouraged a defendant to plead 

guilty in exchange for a lighter sentence. So also in Baxter v. Palmigiano, 425 U.S. 308, 313, 

317–18 (1976), which held that prisoners were not compelled to testify during a prison 

disciplinary proceeding even when the disciplinary board could hold their silence against them in 

imposing sanctions. Ditto for Ohio Adult Parole Authority v. Woodard, 523 U.S. at 285–88, 

which decided that death-row inmates were not compelled to speak during clemency interviews 

even when the interviewers could draw adverse inferences from an inmate’s silence. And for 

McKune v. Lile, 536 U.S. 24, 30–31, 41–45 (2002) (plurality opinion), which approved a 

procedure that denied incarcerated sex offenders “visitation rights, earnings, work 

opportunities,” and other privileges for failing to participate in a treatment program that required 

them to disclose information about past crimes. 

Our court undertook a comparable analysis when considering an individual who faced 

parole revocation proceedings and state law criminal charges related to the same conduct. Lynott 
No. 15-5343 United States v. Alsante Page 7 

v. Story, 929 F.2d 228, 230–32 (1991). Like Alsante, the parolee could remain silent during the 

federal proceedings and risk revocation, or he could testify and risk incriminating himself on the 

state charges. Id. at 230. But we found no Fifth Amendment violation, holding that the parolee 

was not compelled to testify against himself. Id. at 230–32; see also Ryan v. Montana, 580 F.2d 

988, 990–91 (9th Cir. 1978). We also affirmed a district court’s decision to deny an acceptanceof-responsibility reduction to a defendant who did not admit to certain criminal conduct, even 

though his silence was based on fear of self-incrimination. United States v. Clemons, 999 F.2d 

154, 161 (6th Cir. 1993). And other courts have rejected Fifth Amendment challenges to the 

consideration of uncharged conduct at sentencing, even if the government could prosecute the 

defendant for that conduct in the future. United States v. Fleming, 849 F.2d 568, 569–70 (11th 

Cir. 1988) (per curiam); United States v. Marshall, 719 F.2d 887, 892 (7th Cir. 1982). 

Taken together, these decisions demonstrate that the exercise of Fifth Amendment rights 

need not be cost-free. “The criminal process, like the rest of the legal system, is replete with 

situations requiring the making of difficult judgments as to which course to follow,” McGautha, 

402 U.S. at 213 (quotation omitted), and the number of “difficult judgments” increases rapidly as 

the amount of alleged misconduct rises. But while a defendant faced with multiple charges (or 

with a sentence based on uncharged conduct) may typically follow “whichever course he 

chooses, the Constitution does not . . . always forbid requiring him to choose.” Id. If the 

Constitution tolerates the enormous pressure imposed by the single-verdict procedure on a deathpenalty defendant, see id. at 217, it assuredly tolerates the subtler nudges imposed by reference 

to pending state law charges during a federal sentencing hearing. See McKune, 536 U.S. at 41–

42 (plurality opinion); Jenkins v. Anderson, 447 U.S. 231, 238 (1980).

 Consider, in addition, the implications of Alsante’s argument for federal sentencing 

practices. The guidelines require courts to consider “relevant conduct” in calculating a 

defendant’s base offense level, see U.S.S.G. § 1B1.3(a), and such conduct includes criminal acts 

that have not yet resulted in a charge, see United States v. Miller, 910 F.2d 1321, 1326–27 (6th 

Cir. 1990). Courts, including our own, have consistently approved the consideration of this 

uncharged conduct against a variety of constitutional challenges. See, e.g., Witte v. United 

States, 515 U.S. 389, 403–04 (1995) (double jeopardy claim); United States v. Phillips, 516 F.3d 
No. 15-5343 United States v. Alsante Page 8 

479, 485–86 (6th Cir. 2008) (Sixth Amendment jury trial claim); Marshall, 719 F.2d at 892 (selfincrimination claim). 

In the face of these precedents, Alsante concedes that the government could have 

introduced testimony from S.W. and her mother had no state law charges been pending. But is 

that really an improvement from his (or any defendant’s) perspective? The testimony at the 

federal sentencing hearing could well become the basis for later state charges. And his theory 

would be particularly anomalous given that our court, along with every other circuit to address 

the question, has approved the consideration of conduct for which a defendant was acquitted. 

United States v. White, 551 F.3d 381, 386 (6th Cir. 2008) (en banc); see also United States v. 

Gobbi, 471 F.3d 302, 313–14 (1st Cir. 2006); United States v. Vaughn, 430 F.3d 518, 525–27 

(2d Cir. 2005); United States v. Jimenez, 513 F.3d 62, 88 (3d Cir. 2008); United States v. Perry, 

560 F.3d 246, 258–59 (4th Cir. 2009); United States v. Farias, 469 F.3d 393, 399 (5th Cir. 

2006); United States v. Horne, 474 F.3d 1004, 1006–07 (7th Cir. 2007); United States v. Tyndall, 

521 F.3d 877, 883–84 (8th Cir. 2008); United States v. Mercado, 474 F.3d 654, 656–58 (9th Cir. 

2007); United States v. Magallanez, 408 F.3d 672, 684–85 (10th Cir. 2005); United States v. 

Faust, 456 F.3d 1342, 1347–48 (11th Cir. 2006); United States v. Settles, 530 F.3d 920, 923–24 

(D.C. Cir. 2008); see also United States v. Watts, 519 U.S. 148, 156–57 (1997) (per curiam). For 

the same reasons, Alsante’s argument might prevent state governments from prosecuting conduct 

that could give rise to federal charges (or vice versa), undermining long-established caselaw that 

permits separate sovereigns to prosecute the same acts. See, e.g., Moore v. Illinois, 55 U.S. 

(14 How.) 13, 19–20 (1852). 

 Alsante’s theory has one more problem: the proposed remedy. He argues that the Fifth 

Amendment required the district court (or the prosecutor) to delay his federal sentencing hearing 

until after the state proceedings. But postponing the federal sentencing would not have resolved 

Alsante’s dilemma; it just would have switched the source of it. Alsante could then have 

claimed that the state trial should be delayed, since holding it might pressure him to offer 

incriminating testimony that could be invoked during his federal sentencing. He could, in other 

words, have held both the state and federal proceedings in limbo, arguing that neither could go 
No. 15-5343 United States v. Alsante Page 9 

forward until the other had commenced—an argument unlikely to find many receptive listeners 

this side of the looking glass. Cf. United States v. Jones, 299 F.3d 103, 111 (2d Cir. 2002). 

Future litigants in Alsante’s shoes are not without hope. There may be legitimate reasons 

for holding a federal sentencing hearing after the completion of a state trial on related charges. 

But if that is the case, the defendant need only file a motion for a continuance, which the district 

court may (in its discretion) grant. Because Alsante never asked for such a continuance, 

however, the sentencing judge never considered granting one. 

Substantive reasonableness. Alsante also challenges the substantive reasonableness of 

his sentence. To be reasonable, a sentence “must be proportionate to the seriousness of the 

circumstances of the offense and offender, and sufficient but not greater than necessary[] to 

comply with the purposes of” the federal sentencing statute. United States v. Vowell, 516 F.3d 

503, 512 (6th Cir. 2008) (quotations omitted); see 18 U.S.C. § 3553(a). The district court’s 

sentence satisfies these requirements. The court cited several factors in support of its decision to 

impose an upward variance. It noted that S.W.’s “very credible” testimony demonstrated 

Alsante’s continued lack of “respect for the law”; that he had violated the sex-offender 

registration requirements twice before; and that he had “a history of drug abuse and sexual 

crimes against minors.” R. 39 at 154. Based on these considerations, the court concluded that 

“the only way to protect the public from future crimes by Mr. Alsante is to grant the 

Government’s motion for [an] upward variance.” Id. The court’s 54-month sentence adequately 

accounted for these factors, including Alsante’s repeated infractions and the evidence of his 

molestation of S.W. 

 For these reasons, we affirm.