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

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

J AMES A LSANTE , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 15-5343

Appeal from the United St ates 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 DE FENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, fo r Appellant. Brooklyn Sawyers, UNITED STATES ATTORNEY’S OFFICE, Knoxv ille, Tennessee, for Appellee. ON BRIEF: Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Brooklyn Sawyer s, UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.

_________________ OPINION

_________________ SUTTON, Circuit Judge. James Alsante plea ded guilty to failing to register as a sex offender under federal law. At his sentencing hearing, the district court permitted the 

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

government to introduce evidence that Alsant e 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 sent ence, an upward variance from his advisory guidelines range. Is that fair or more to the poi nt constitutional? Did th e 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 ab ility to defend himself in state court. For the reasons that follow, we hold that it did not.
The Sex Offender Registration and Notificatio n 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 offi cer initially calcul ated a 15–21 month advisory guidelines range. In his presentence investigation report, however, the officer noted that Alsante faced pending char ges 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 al leged “sexual[] penetr at[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, urgi ng 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 relate d 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 Alsa nte’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, Al sante sexually abused her on several occasions. The government next called S.W.’s mother, who de scribed several “red fl ags” 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 wi shed to make a statement. He declined.

The district court denied th e government’s motion for an up ward departure but granted its motion for an upward variance. “[I]t is eviden t from Mr. Alsante’s hist ory and the testimony we have heard here today,” the court explained, “tha t 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 cons ider 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 th at the statute and guidelines authorized the district court to admit testimony by S.W. and her mother.
The problem, says Alsante, is that the c ourt’s evidentiary appr oach, 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 cour t trial strategy or elicited damaging information. He thus had to choose between (1) offering a ha lf-hearted mitigation argum ent 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 c onvicted 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 EnglandNo. 15-5343 United States v. Alsante Page 4

practiced a policy under which a se ntencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in de termining 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 th e fullest information possible concerning the defendant’s life and characterist ics” 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 likel y 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-reasona ble-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 th e 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 moth er 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 se ntence. 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 th ese 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 thos e 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-incrimi nation analysis).No. 15-5343 United States v. Alsante Page 5

Notably, at the same time that Alsante challenges the fullness of these pr ocedures, he does not claim that the district court relied on inaccurate or unreliable information in sentencing him.
Self-Incrimination Clause. Alsante’s self-incrimination ar gument 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 total ity of the circumst ances, 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 ma tter incriminate himself, as he did not speak during the sentencing hearing. Ev en so, if the defendant’s exer cise of his self-incrimination rights comes at a significant cost—if he faces co ercive 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 ba n on holding public office, see Lefkowitz v. Cunningham , 431 U.S. 801, 807–08 (1977).
But Alsante did not face this type of compul sion or any other that the Fifth Amendment prohibits. The district court di d 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 co ercion 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 th e sort of illegitimate compulsion or economic sanctions that the Suprem e Court has condemned but from “the force of historical fact[s]” related to the defendant’s con duct 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 comp elled 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 factua lly indistinguishable case. See United States v. Baze , 32 F.3d 569 (6th Cir. 1994) (per curiam) (unpublished tableNo. 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] ca se and risk self-incrimi nation 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 Circui ts 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-inc rimination arguments that put defendants to more difficult choices than the ones Alsante faced. McGautha addressed an Ohio trial procedure that required the jury to “deter mine[] guilt and punishment after a single trial and in a single verdict.” 402 U.S. at 185. The capita l defendant argued that “the desire to address the jury on punishment unduly encour age[d] waiver of [his] privile ge 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 test ify 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 o ffenders “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 crim inal charges related to the same conduct. LynottNo. 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 coul d testify and risk incriminating himself on the state charges. Id. at 230. But we found no Fifth Amendmen t 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 di strict court’s decision to deny an acceptanceof-responsibility reduction to a de fendant who did not admit to certain criminal conduct, even though his silence was based on f ear 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 sentenci ng, 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 th at the exercise of Fifth Amendment rights need not be cost-free. “The crim inal process, like the rest of the legal system, is replete with situations requiring the making of difficult j udgments 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) ma y typically follow “whichever course he chooses, the Constitution does not . . . alwa ys forbid requiring him to choose.” Id. If theConstitution 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 duri ng 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 re sulted in a charge, see United States v. Miller , 910 F.2d 1321, 1326–27 (6th Cir. 1990). Courts, including our own, have cons istently 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.3dNo. 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 we ll become the basis for later st ate charges. And his theory would be particularly anomalous given that our c ourt, along with every other circuit to address the question, has approved the considera tion 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 (7 th 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 prev ent state governments from prosecuting conduct that could give rise to federa l 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: th e proposed remedy. He argues that the Fifth Amendment required the district c ourt (or the prosecutor) to delay his federal sentencing hearing until after the state proceedings. But postponing the federal senten cing 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 hold ing it might pressure him to offer incriminating testimony that could be invoked during his federalsentencing. He could, in other words, have held both the state and federal pr oceedings in limbo, arguing that neither could goNo. 15-5343 United States v. Alsante Page 9

forward until the other had commenced—an argume nt unlikely to find ma ny 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 sent encing hearing after the completion of a state trial on related charges. But if that is the case, the defendant need only fi le 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 “m ust 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” th e 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 be fore; and that he had “a hi story 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 fu ture crimes by Mr. Alsante is to grant the Government’s motion for [an] upward variance.” Id. The court’s 54-monthsentence adequately accounted for these factors, incl uding Alsante’s repeated infrac tions and the evidence of his molestation of S.W.

For these reasons, we affirm.