Jerry and Jackie Walden, two brothers, were convicted by a jury of violating 21 U.S.C. 846 by conspiring to distribute and to possess with intent to distribute cocaine. The United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge) sentenced Jerry Walden to 480 months in prison, and sentenced Jackie Walden to 348 months in prison. The district court also sentenced each defendant to five years of supervised release and imposed mandatory assessments.

At trial, the government proved that the Waldens had been involved in a major drug organization spearheaded by one Juan Soriano, and that the Waldens had distributed drugs through their apartment at 253-06 Craft Avenue in Rosedale, New York. Soriano testified, pursuant to a cooperation agreement, that he had sold large quantities of narcotics to the Waldens between 1994 and 1996. The government introduced tape recordings and transcripts of conversations obtained from a wiretap of Soriano's cellular telephone, and presented evidence seized at the Craft Avenue apartment, including cocaine, marijuana, three guns, and a cache of "cop-killer" bullets.

The Waldens appealed their convictions and their sentences. We have discussed most of their arguments in a separate order, filed concurrently with this opinion. The order rejects the Waldens' challenges to the wiretaps of Soriano's phone and the search of their apartment, and affirms sentence enhancements for Jackie Walden based on the quantity of cocaine and possession of a firearm. In this opinion, we examine only the Waldens' final argument on appeal. The Waldens contend that the district court violated their Fifth Amendment right against self-incrimination by sentencing them in part based on their lack of cooperation with the government following their convictions.

At the Waldens' sentencing, Judge Kaplan held that "a refusal to assist in the investigation of others is an appropriate factor in determining where within a guideline range a sentence may be imposed," and found that "even after conviction these defendants have not come forward and cooperated with the government." JA 156. Judge Kaplan then plainly stated that Jackie Walden's non-cooperation after his conviction had no impact on his sentence. JA 156-57. Accordingly, Jackie Walden may not challenge his sentence on that basis and we will not consider his claim further.

With respect to Jerry Walden, however, Judge Kaplan stated: "I . . . regard his failure to come forward and to assist the government in its investigations following his conviction in this case as affecting the point within the guideline range to which I am sentencing him. To be very specific about it, of the 480 months, I am attributing in my mind 60 months to his failure to assist the government postconviction." JA 159. Because Judge Kaplan stated on the record that five years of Jerry Walden's sentence were attributable to his failure to cooperate with the government, we proceed to consider Jerry Walden's argument that this violated his Fifth Amendment rights.1

The Fifth Amendment provides a "safeguard against judicially coerced self-disclosure," Mitchell v. United States, 118 S. Ct. 1307, 1312 (1999) (quoting Brown v. United States, 356 U.S. 148, 156 (1958)), and this safeguard extends to the sentencing phase of a criminal proceeding as well, see id. at 1315. Walden argues that the Mitchell case, which held that a district court may not draw adverse inferences from a defendant's silence at sentencing, see id., prohibits a court from imposing a sentence based on a defendant's failure to cooperate.

In this case, however, the district court did not draw a factual inference from Walden's silence; instead, it considered that silence itself, manifested in the form of a refusal to cooperate, to be a factor relevant to its sentencing determination. The Mitchell Court expressly refused to decide "[w]hether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward adjustment provided in [the sentencing guidelines]." Id. at 1316. The extent to which a district court may consider a defendant's silence at sentencing therefore was not determined by Mitchell.

This is not the first time that we have examined the question of the impact on a defendant's sentence of his refusal to cooperate. In United States v. Stratton, 820 F.2d 562 (2d Cir. 1987), the district court imposed a consecutive ten-year sentence on a defendant, instead of making it concurrent to his prior fifteen-year sentence, to "convince [him] that cooperation with the government is in [his] best interest." Id.at 563 (quoting the district court at sentencing). We stated then that although a sentencing court could consider the failure to cooperate, seeRoberts v. United States, 445 U.S. 552, 557-58 (1980), there was an important "distinction between increasing the severity of a sentence for a defendant's failure to cooperate and refusing to grant leniency." 820 F.2d at 564. Examining the district court's remarks at sentencing, we held that the district court in that case had improperly enhanced the defendant's sentence. See id.

As the Stratton court realized, the distinction between withholding leniency and increasing a penalty is "difficult to apply." Id.; cf.United States v. Jones, 997 F.2d 1475, 1478 (D.C. Cir. 1993) (in banc) ("The whole notion of showing leniency to some deserving defendants . . . requires withholding leniency from others who appear less deserving."). Complicating matters further is the fact that Stratton arose before the advent of the United States Sentencing Guidelines, at a time when appellate review was generally limited to ascertaining whether a sentence was within the statutory maximum. Under the present sentencing regime, in which a judge selects a sentence from within a particular range guided principally by offense characteristics and criminal history, the reviewing court is required to determine whether the sentence is in accord with the guidelines, which provide a clear benchmark.

The Seventh Circuit has held that district courts are "free to consider a defendant's lack of cooperation in assigning a sentence within the Guidelines range." United States v. Price, 988 F.2d 712, 722 (7th Cir. 1993) (relying on United States v. Klotz, 943 F.2d 707, 710 (7th Cir. 1991)). In the Klotz case, Judge Easterbrook stated that it was difficult "in the pre-guideline world" to distinguish between a sentencing reward and a sentencing penalty, mostly for lack of a readily available yardstick. 943 F.2d at 710. "Now that the guidelines are in place, however, there is a norm: the presumptive range." Id. Judge Easterbrook refused to select either the mid-point or the bottom of the range as the proper benchmark for a sentence; as long as the sentence fell within the range, it was not properly conceptualized as a "penalty." Id. at 710-11.

In Klotz, the defendant faced a range of 151 to 188 months in prison, and received a prison term of 180 months. See id. at 710. In the Jones case, in which the D.C. Circuit similarly found that the defendant was not penalized for his non-cooperation, the defendant also faced a range of 151 to 188 months, and only received 127. See 997 F.2d at 1478. It is hard to quibble with the Klotz and Jones courts' conclusions that no penalties for non-cooperation were imposed by the sentencing courts. In this case, however, Jerry Walden faced a sentencing range at the top of the chart, from 360 months to life in prison. Within that range, he received 480 months, and the district court explained the reasons for the 120 months above the minimum: Judge Kaplan first noted the defendant's "willingness to go to war with law enforcement," and then explicitly attributed 60 months of his sentence to his failure to cooperate. In Klotz, the court stated that the judge's comments regarding a lack of cooperation could be interpreted to mean only that he found the defendant to be a "callous person, unconcerned about the injuries he inflicted on others." 943 F.2d at 711. No such interpretation is possible in the present case.

The district court quite explicitly imposed an additional five year sentence on Jerry Walden for his refusal to cooperate with the authorities following his conviction. This sentence is impossible to reconcile with our precedents in Stratton, as well as our earlier holdings in DiGiovanni v. United States, 596 F.2d 74, 75 (2d Cir. 1979) (remanding case for resentencing because defendant had been "punished for exercising his right to remain silent," and noting that silence in narcotics cases often stems from "well-founded fears of reprisal to the witness or his family"), and United States v. Ramos, 572 F.2d 360, 362 (2d Cir. 1978) (remanding because defendant's "refusal to testify may have been an important factor in the sentence").

The convictions of both defendants are affirmed, for the reasons stated in our concurrent order. We also affirm Jackie Walden's sentence. As Jerry Walden's sentence was improperly enhanced for his failure to cooperate, we vacate the judgment in his case and remand to the district court for resentencing.