                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 13-2568
                                      _____________

                            UNITED STATES OF AMERICA

                                              v.

                                  THURMAN H. SMITH,
                                             Appellant
                                    ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW JERSEY
                         (D.C. Crim. No. 10-cr-00546-001)
                  District Judge: Honorable Jerome B. Simandle
                                  ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 17, 2014
                                    ____________

                 Before: RENDELL, ROTH and BARRY, Circuit Judges

                            (Opinion Filed: February 5, 2014 )
                                     ____________

                                         OPINION
                                       ____________

BARRY, Circuit Judge

       Thurman H. Smith appeals the judgment of the District Court sentencing him to 18

months’ imprisonment for violation of his supervised release. Smith contends that the

Court procedurally erred in arriving at this sentence and that the sentence itself is
substantively unreasonable. We find his arguments unavailing, and will affirm.

                                               I.

       On August 11, 2009, Smith entered a plea of guilty in the Middle District of

Pennsylvania to one count of distribution and possession with the intent to distribute

cocaine base within 1,000 feet of a playground, in violation of 21 U.S.C. §§ 841(a)(1)

and 860(a). On December 21, 2009, he was sentenced to time served (26 months and 19

days in prison) and six years of supervised release with various conditions. He began his

term of supervision in the Middle District, but, on August 17, 2010, the District of New

Jersey assumed jurisdiction.

       In October 2010, the Probation Office filed a petition charging that Smith had

violated five conditions of his release: (1) failing to notify his probation officer of a

change of residence; (2) failing to report for drug testing and testing positive for

marijuana use; (3) failing to obtain employment; (4) failing to report for scheduled

meetings with his probation officer; and (5) committing another crime while under

supervision, as he was arrested by local police in New Jersey for obstruction of law

enforcement activities. On October 12, 2010, Smith appeared before the District Court

for the District of New Jersey and pled guilty to the first two violations. The Court

sentenced him to seven months’ imprisonment to be followed by a four-year term of

supervised release, again subject to special conditions, including a requirement that he

refrain from drug use. Smith was released from prison and began serving his new term of

supervised release on April 28, 2011.

                                               2
       Less than a week later, Smith tested positive for and admitted to using the drug

PCP. Based on the recommendation of his probation officer, the District Court did not

find him in violation of the conditions of his release and instead ordered that he submit to

increased drug testing and participation in counseling and drug treatment as necessary.

He thereafter participated in drug treatment without issue and submitted negative urine

samples. He remained unemployed for the duration of his period of supervised release,

however, and, although he began working toward a GED, he did not complete the

program.

       On November 11, 2011, while still under federal supervision, Smith committed

two unrelated acts of aggravated assault in Lindenwold, New Jersey, again violating his

conditions of release. In the first incident, Smith and two others attacked a man who was

walking near an apartment complex, punching him repeatedly in the face and head. The

victim sought treatment for his eye at a New Jersey hospital and was eventually

transferred to the Wills Eye Hospital in Philadelphia due to the severity of his injury.

Also that day, Smith, armed with a pair of scissors, and another male punched and robbed

two individuals outside of a local convenience store. Smith was arrested by local police

shortly thereafter and taken into custody. He pled guilty to two counts of aggravated

assault in Camden County Superior Court on April 16, 2013.

       On May 21, 2013, Smith appeared before the District Court and pled guilty to a

single Grade A violation of his supervised release based on his commission of the two

Lindenwold assaults. At the colloquy, the Court asked Smith whether he had committed

                                              3
two crimes in Lindenwold, New Jersey and whether he had pled guilty to two counts of

aggravated assault in Camden County Superior Court. Smith answered “[y]es” to each

question. (App. at 38-39.)

       The District Court accepted Smith’s guilty plea and turned directly to the matter of

sentencing. Based on the nature of Smith’s supervised release violation and his criminal

history category, he faced a maximum statutory sentence of 36 months’ imprisonment, 18

U.S.C. § 3583(e)(3), and an advisory Guidelines range of 15 to 21 months in prison,

U.S.S.G. § 7B1.4(a).

       Smith, through counsel, acknowledged that “in November of 2011 he made some

very poor choices . . . and got involved in some fights,” but argued that his original

conviction was for a low-level drug offense, more like those prosecuted in state, rather

than federal, court. (App. at 40-41.) Counsel noted that Smith had already served a

significant amount of time for that offense and, accordingly, requested imposition of a

prison sentence at or near the bottom of the Guidelines range. Counsel also asked the

District Court to refrain from requiring an additional term of supervised release. The

government, for its part, requested a sentence near the low end of the Guidelines range, as

well as a term of supervised release. Smith was offered the opportunity to speak on his

own behalf, but declined. When asked what he would like to say, Smith stated,

“[n]othing.” (App. at 46.)

       The District Court ultimately imposed a middle-of-the-Guidelines range sentence

of 18 months to be followed by an additional term of supervised release for two years.

                                             4
The Court observed that this was the second time Smith was before it on a violation of

supervised release, and that the present violation, two aggravated assaults of random

individuals, was “not just some technical violation[].” (App. at 49-51.) Noting that “one

of the reasons for a sentence is to promote respect for the law,” the Court opined that a

second violation within months of release from prison indicates that a releasee is “not

taking federal supervision very seriously” and that the Court’s prior seven-month

sentence obviously had not deterred Smith from breaking the law. (App. at 51.) In the

Court’s estimation, Smith’s violation warranted a punishment “above and beyond

whatever the punishment is for the underlying crime.” (App. at 51.) The Court further

concluded that additional imprisonment was necessary to protect the community and,

along with supervised release, would hopefully impel Smith to find a job, earn his GED,

and become a productive member of society. The Court credited Smith for admitting his

responsibility for the assaults by pleading guilty to them, but found that “Mr. Smith has

nothing to say and hasn’t said that he’s sorry and just seems to be rather unremorseful.”

(App. at 52.) Smith timely appealed.

                                            II.

       The District Court had jurisdiction pursuant to 18 U.S.C. §§ 3231 and 3583(e)(3).

We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291.

       We review a judgment of sentence, including a sentence for violation of

supervised release, first for procedural and then substantive reasonableness. United

States v. Young, 634 F.3d 233, 237 (3d Cir. 2011); United States v. Tomko, 562 F.3d 558,

                                             5
564-67 (3d Cir. 2009) (en banc). Where a defendant raises a claim of procedural error for

the first time on appeal, we review for plain error. United States v. Berger, 689 F.3d 297,

299 (3d Cir. 2012). This is the standard even if the claim is predicated on a constitutional

violation. United States v. Lopez, 650 F.3d 952, 959 (3d Cir. 2011). To satisfy plain

error, a defendant must demonstrate that (1) there is an error; (2) the error is clear or

obvious; (3) the error affected the defendant’s substantial rights; and (4) the error

seriously impacts the “fairness, integrity or public reputation of judicial proceedings.”

United States v. Marcus, 560 U.S. 258, 262 (2010) (quoting Puckett v. United States, 556

U.S. 129, 135 (2009)). Even when that standard is met, we need not correct the error

unless it would be a “miscarriage of justice” not to do so. United States v. Tyson, 653

F.3d 192, 211 (3d Cir. 2011) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

       When assessing the substantive reasonableness of a sentence, we apply the

deferential abuse of discretion standard of review. Tomko, 562 F.3d at 564. “Absent

procedural error, we will affirm the sentencing court ‘unless no reasonable sentencing

court would have imposed the same sentence on that particular defendant for the reasons

the district court provided.’” United States v. Doe, 617 F.3d 766, 770 (3d Cir. 2010)

(quoting Tomko, 562 F.3d at 568).

                                             III.

       Smith objects to his sentence as both procedurally and substantively unreasonable.

First, he contends that the District Court violated his Fifth Amendment right against

compulsory self-incrimination by imposing an 18-month sentence as punishment for his

                                              6
exercise of this constitutional right, through his silence, at the revocation hearing.1

Because he did not raise this claim before the Court, we review for plain error. Berger,

689 F.3d at 299. Second, Smith argues that the sentence imposed was unreasonably

excessive.

       Smith has failed to establish a procedural defect, much less one that is plainly

erroneous. The Fifth Amendment provides that no person “shall be compelled in any

criminal case to be a witness against himself.” U.S. Const. amend. V (emphasis added).

In claiming that the District Court violated this right by considering his silence at

sentencing, Smith relies on Mitchell v. United States, 526 U.S. 314, 326-30 (1999), which

held that a court may not draw any adverse inference from a defendant’s refusal to testify

at sentencing when making factual determinations relating to “the circumstances and

details of the crime” at issue. He cites no authority, however, extending Mitchell’s no-

adverse-inference rule to a hearing on a revocation of supervised release; indeed, there is

reason to doubt that the rule is to be so applied. A revocation hearing “is not a criminal

proceeding,” and a probationer is not entitled to the privilege against compelled self-

incrimination when his testimony would be used solely to determine the propriety of


       1
           Although, in his briefing, Smith asserts that the sentencing procedure “ran afoul
of his Fifth Amendment right against self-incrimination,” he goes on to argue that his
claim somehow does not implicate that right and is instead based on what he perceives to
be a different violation, the deprivation of a “constitutionally-sound revocation process
. . . free of coercion.” Appellant’s Br. at 13. But Smith was not coerced to say or do
anything at his revocation hearing, and the gist of his claim is that the District Court
imposed a harsher than requested sentence because he chose to remain silent at
sentencing. We, therefore, understand Smith to allege that the Court violated his Fifth
Amendment right to remain silent by penalizing him for its invocation.
                                               7
rescinding his release. Minnesota v. Murphy, 465 U.S. 420, 435 n.7 (1984). It, therefore,

was not plain or obvious that Smith’s decision not to speak at his revocation hearing was

protected by the Fifth Amendment, at least where, as here, his testimony “posed no

realistic threat of incrimination in a separate criminal proceeding.” Id.

       That last point is important. It is accepted that, “as a general rule, . . . where there

can be no further incrimination, there is no basis for the assertion of the privilege.”

Mitchell, 526 U.S. at 326. Smith had already pled guilty to the two assaults that formed

the basis of his supervised release violation, and, at the hearing before the District Court,

confirmed that he had committed those assaults and had entered a guilty plea in his New

Jersey criminal proceeding.

       Furthermore, Smith did not inform the District Court that his decision to remain

silent at the revocation hearing was based on an assertion of his rights under the Fifth

Amendment. As the Supreme Court has noted, “[t]he Fifth Amendment privilege against

compelled self-incrimination is not self-executing.” Roberts v. United States, 445 U.S.

552, 559 (1980). Where there is “no substantial reason to believe that the requested

disclosures are likely to be incriminating, the privilege may not be relied upon unless it is

invoked in a timely fashion” and “at a time when the sentencing court could have

determined whether [the privilege] claim was legitimate.” Id. at 559-60. Smith’s

response to the District Court that he had nothing to say on his own behalf was not an

obvious assertion of the privilege and could have been—and, indeed, was—construed as

a lack of remorse. United States v. Keskes, 703 F.3d 1078, 1090-91 (7th Cir. 2013)

                                               8
(assessing an identical Fifth Amendment claim); see also United States v. Martorano,

866 F.2d 62, 70 n.8 (3d Cir. 1989).

       A releasee’s lack of remorse is an appropriate factor for a court to assess when

fashioning a sentence. See 18 U.S.C. § 3661 (“No 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.”); United States v. King, 454 F.3d 187, 195 (3d Cir.

2006) (identifying lack of remorse as an appropriate sentencing consideration). The

Mitchell Court expressed no opinion as to whether a sentencing court may infer a lack of

remorse from a defendant’s silence, 526 U.S. at 330, and Smith cites no binding authority

holding that a sentencing court is barred from doing so where, as here, there is no reason

to believe that unexpressed remorse could be used for an additional incriminatory

purpose.2 Any error in that regard was surely not “plain.”

       In any event, the District Court’s sentence of 18 months in prison was well-

supported. In settling on this sentence, the Court considered the factors relevant to

sentencing under 18 U.S.C. § 3583(e). It acknowledged that Smith’s imprisonment

would cause hardship for his family and that he had accepted responsibility for the


       2
        In United States v. Heubel, 864 F.2d 1104 (3d Cir. 1989), a case that Smith cites,
the defendant invoked his Fifth Amendment right to silence at sentencing to avoid
answering questions that may have left him open to subsequent prosecution for
conspiracy, a crime with which he had not yet been charged. United States v. Mitchell,
122 F.3d 185, 189 (3d Cir. 1997) (discussing Heubel), rev’d on other grounds, 526 U.S.
314. The defendant in Heubel also expressly asserted, through counsel, his Fifth
Amendment right to remain silent. 864 F.2d at 1106, 1111.
                                            9
assaults by pleading guilty. However, the Court also found that a substantial term of

imprisonment, given the violent nature of the assaults and that this was Smith’s second

violation of federal supervision, was necessary to protect the community and to deter him

from future wrongdoing by driving home the point that he needed to take his supervision

seriously. The Court concluded that further confinement and supervised release would

hopefully be the impetus for him to secure employment and a GED. Finally, the Court

found a lack of contrition not only from Smith’s recalcitrance at the hearing but also from

his failure to apologize for his conduct and the fact that he generally seemed

unremorseful. Accordingly, any constitutional error did not seriously impact the

“fairness, integrity or public reputation of [Smith’s] judicial proceedings,” Marcus, 560

U.S. at 262, and no miscarriage of justice would flow from our refusal to vacate the

sentence, Tyson, 653 F.3d at 211.

       It follows that the sentence imposed was not substantively unreasonable. The 18-

month sentence was not so long or burdensome that “no reasonable sentencing court

would have imposed the same sentence on [him] for the reasons . . . provided” by the

District Court. Tomko, 562 F.3d at 568.

                                            IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                            10
