by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit found plain error where the U.S. District Court for the Middle District of Tennessee required Nickless Whitson to admit guilt in order to fully consider Whitson’s evidence of rehabilitation.

Whitson was initially convicted of eight felonies, including two counts of conspiracy to commit Hobbs Act robbery; one count each of aiding and abetting the possession of a firearm in connection with a drug-trafficking crime and in connection with a crime of violence; and one count each of brandishing a firearm in connection with a drug-trafficking crime and in connection with a crime of violence. (The four firearms convictions were all in violation of 18 U.S.C. § 924(c).)

He was sentenced to 1,252 months of incarceration. On appeal, two of the firearms convictions were vacated, and he was resentenced to 652 months. Then after the U.S. Supreme Court held in United States v. Davis, 139 S. Ct. 2319 (2019), that conspiracy to commit Hobbs Act robbery does not qualify as a crime of violence, Whitson filed a 28 U.S.C. § 2255 motion to vacate. He challenged his remaining two § 924(c) firearms convictions because the alleged underlying “violent felonies” were his two convictions of conspiracy to commit Hobbs Act robbery. The District Court granted Whitson’s § 2255 motion on this ground.

By the time of Whitson’s resentencing on the § 2255 motion, he had served more than 10 years in prison. He had participated in numerous educational programs “amounting to nearly 300 hours of study.” He maintained employment within the prison and obtained “outstanding” work performance ratings. He had become a “leader of his faith community” in prison, mentored other incarcerated men, and rebuilt his relationship with members of his family. He did not have a single disciplinary infraction in 10 years of incarceration.

Prior to his resentencing, Whitson also submitted a letter to the District Court expressing his remorse, stating “I wait patiencely [sic] daily to be given the chance to right my wrongs from my past. My past irrational decisions has [sic] hurt my family and community.… I have never … had the chance to look those whom I have wronged in the past in the eyes as a man and ask them for their forgiveness” and expressed that he wanted a “chance to right [his] past wrongs” wishing he could change “all of this” and “take a different route.”

Based on this evidence of rehabilitation presented at resentencing, his lawyers requested a downward variance of 240 months from the Guidelines range of 360 to 1,042 months.

The District Court considered Whitson’s rehabilitation as part of the § 3553(a) factors but stated: “[F]rom the beginning, his position was that he was not guilty … and I understand that, that, you know, he’s never had anything but a not guilty plea, so he’s going to avoid saying anything that’s an admission. And an admission is necessarily [sic] to express remorse. It really is.… The remarks about remorse were too general. And Mr. Whitson is entitled, for whatever reason, because he’s taking the position he’s not guilty or, in a sense, he’s still sort of protecting his legal rights in some sense. He can do that. But if he’s doing that, he’s not showing remorse. There wasn’t one ounce of empathy for the people that were brutalized here.”

The District Court imposed a sentence of 360 months. Whitson appealed, arguing that the District Court considered an impermissible factor when imposing his sentence – his failure to admit guilt.

The Court observed “this is best categorized as a procedural error.” United States v. Cabrera, 811 F.3d 801 (6th Cir. 2016). “Judges may consider a defendant’s remorsefulness or lack thereof when determining an appropriate sentence.” In re Cook, 551 F.3d 542 (6th Cir. 2009). “But they may not require a defendant to relinquish their Fifth Amendment right against self-incrimination or punish them for refusing to do so.” Ketchings v. Jackson, 365 F.3d 509 (6th Cir. 2004). “And while courts may consider the presence or absence of remorse at sentencing, they may not ‘cloak an impermissible sentencing factor … in a permissible one’ or ‘punish [defendants] for exercising [their] Fifth Amendment right[s] against self-incrimination.’” Cabrera.

The Court stated: “There is a fine line between consideration of a defendant’s acceptance of responsibility as relevant to § 3553 and penalizing a defendant for maintaining their right to avoid self-incrimination, and in this case the district court fell on the wrong side of that line. In Ketchings, this court acknowledged the Supreme Court’s holding that a defendant’s Fifth Amendment right against self-incrimination continues through the sentencing phase of trial. We granted habeas relief to a Michigan state prisoner who did not admit his offense of conviction, reasoning that the sentencing-court transcript showed that the sentencing court was not ‘merely addressing the factor of remorsefulness in the context of defendant’s rehabilitative potential.’ At sentencing, the trial judge explicitly stated that ‘if you don’t think you did anything wrong to start with and you don’t accept what the jury says … [h]ow can you be rehabilitated? … [Y]ou can’t be rehabilitated if you say you didn’t do anything.’ We held that referring negatively to the defendant’s ‘continued assertion of his belief in his innocence’ and implying that the defendant ‘would be sentenced more leniently if he gave up his Fifth Amendment privilege to refuse … to admit guilt’ violated the Fifth Amendment.… We further held that, because the defendant had given a lengthy statement expressing remorse without admitting to the offense of conviction, the sentencing judge had not ‘concerned himself only with remorsefulness,’ but had partially based the defendant’s sentence on his refusal to admit guilt.”

The Court observed that the present case is remarkably similar to Ketchings. Whitson had expressed remorse in a manner that “would not imperil his pending postconviction petitions,” but the “district court considered Whitson’s failure to admit guilt determinative of whether Whitson was remorseful and thus rehabilitated.” The Court concluded: “It is quite clear that the district court used Whitson’s exercise of his Fifth Amendment right against self-incrimination as a factor in determining his sentence. And we have held that a district court may not consider a defendant’s failure to take the stand as a factor because it ‘effectively punish[es] [the defendant] for exercising [their] Fifth Amendment right against self-incrimination.’” Cabrera. Thus, the Court ruled that the District Court violated Whitson’s Fifth Amendment rights.

Because Whitson’s counsel did not make a contemporaneous objection to the violation of Whitson’s Fifth Amendment rights, the Sixth Circuit reviewed for plain error, i.e., Whitson must show “(1) error (2) that ‘was obvious or clear,’ (3) that ‘affected the defendant’s substantial rights,’ and (4) that ‘affected the fairness, integrity, or public reputation of the judicial proceedings.’” United States v. Vonner, 516 F.3d 382 (6th Cir. 2008).

The Court determined that the error was plain based on the holdings of Ketchings and Cabrera. The error affected Whitson’s substantial rights and the fairness of the proceedings because the error affected the length of the sentence imposed on Whitson. Thus, the Court ruled that the District Court plainly erred by requiring Whitson to admit guilt in order to fully consider his evidence of rehabilitation.

Accordingly, the Court vacated Whitson’s sentence and remanded for resentencing. See: United States v. Whitson, 77 F.4th 452 (6th Cir. 2023).  

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