526 U.S. 314 (1999)
In 1995 Amanda Mitchell and 22 other defendants were indicted in the Eastern District of Pennsylvania for offenses arising from a conspiracy to distribute cocaine in Allentown from 1989 to 1994.1 Mitchell was charged with one count of conspiring to distribute five or more kilograms of cocaine and three counts of distributing cocaine within 1,000 feet of a school or playground.2
Without a plea agreement she pleaded guilty to all four counts.3 She reserved the right to contest the drug quantity attributable to her under the conspiracy count.4 The District Court advised her that quantity would be determined at sentencing.5
Before accepting the plea the District Court conducted the Rule 11 colloquy.6 It informed Mitchell that the range of punishment was complex because the amount of cocaine had not yet been established.7 She faced a mandatory minimum of ten years if held responsible for at least five kilograms.8
Mitchell stated under oath that she had done "some of it."9 After consulting counsel she reaffirmed her intention to plead guilty to all charges.10 The court accepted the plea.11
In 1996 nine codefendants went to trial.12 Three cooperating codefendants who had pleaded guilty testified at Mitchell's sentencing hearing.13 They adopted their trial testimony. One furnished additional information on the amount of cocaine petitioner sold.14 According to him, petitioner worked two to three times a week, selling one and one-half to two ounces of cocaine a day, from April 1992 to August 1992.15 Then, from August 1992 to December 1993 she worked three to five times a week, and from January 1994 to March 1994 she was one of those in charge of cocaine distribution for Riddick.16
Mitchell offered no evidence and did not testify. Her counsel argued that only the three documented sales to undercover buyer Alvitta Mack totaling two ounces should be credited.17
The District Court ruled that Mitchell had no right to remain silent at sentencing because of her guilty plea.18 It expressly relied on her failure to testify in crediting the codefendants' testimony.19 The court found her responsible for more than five kilograms and imposed the ten-year mandatory minimum sentence together with six years of supervised release and a $200 special assessment.20 The Court of Appeals for the Third Circuit affirmed.21 The Supreme Court granted certiorari.22
Whether, in the federal criminal system, a guilty plea waives the Fifth Amendment privilege against self-incrimination in the sentencing phase of the case, either as a result of the colloquy preceding the plea or by operation of law when the plea is entered?23
A guilty plea does not waive the Fifth Amendment privilege against self-incrimination at sentencing.24 The privilege remains available because sentencing is part of any criminal case under the Fifth Amendment.25 Incrimination is not complete until the sentence has been imposed and the judgment finalized.26 The Rule 11 plea colloquy informs the defendant only of rights surrendered at trial and does not elicit or effect a waiver for subsequent proceedings such as sentencing.27
No. In Mitchell's case the defendant pleaded guilty without any plea agreement while expressly reserving the right to contest drug quantity at sentencing.28 The District Court conducted the required Rule 11 colloquy that advised her of the right to remain silent at trial.29 The colloquy gave no indication that the plea itself surrendered the privilege at sentencing.30 At the sentencing hearing the District Court nevertheless ruled that the guilty plea eliminated any right to remain silent regarding the details of the offense.31
The court then relied on Mitchell's silence when crediting the cooperating codefendants' testimony about the quantity of cocaine she distributed.32 Because the established facts show that the plea colloquy addressed only trial rights and that sentencing remained a distinct stage at which further incrimination was possible, the rule against waiver applies directly and the District Court's ruling cannot stand.
Mitchell's guilty plea did not waive her Fifth Amendment privilege against self-incrimination at sentencing.33
Related opinions on this issue
Joined by The Chief Justice, Justice O'connor, And Justice Thomas
Justice Scalia agreed with the majority that Mitchell retained the Fifth Amendment privilege at sentencing.34 He dissented from the prohibition on adverse inferences from silence. Scalia maintained that the text of the Fifth Amendment prohibits only compulsion.35
The threat of an adverse inference does not constitute governmental compulsion.36 He argued that Griffin v. California rests on an unsound historical and logical foundation that should not be extended into the sentencing phase.37 Scalia pointed out that adverse inferences from silence are natural evidentiary consequences rather than governmental compulsion prohibited by the Fifth Amendment.
In his view the majority's extension of Griffin into sentencing created untenable inconsistencies with the wide discretion traditionally afforded sentencing judges.
Whether, in determining facts about the crime which bear upon the severity of the sentence, a trial court may draw an adverse inference from the defendant's silence?38
A sentencing court may not draw an adverse inference from the defendant's silence when determining facts about the crime that bear upon the severity of the sentence.39 The prohibition on negative inferences from silence that applies at the guilt phase of a criminal trial extends with equal force to the sentencing phase.40 Both stages are part of the same criminal case and the stakes of liberty remain high.41
No. The District Court expressly stated that it held Mitchell's failure to testify against her when it credited the codefendants' testimony.42 The testimony indicated she had sold one and one-half to two ounces of cocaine two to three times a week over an extended period.43 This quantity exceeded the five-kilogram threshold that triggered the ten-year mandatory minimum.44 The established facts confirm that Mitchell offered no evidence and did not testify at sentencing.45
Yet the court treated her silence as one of the factors persuading it to accept the higher quantity.46 Because the rule forbids any such adverse inference when the government bears the burden of proving the facts relevant to punishment, the District Court's reliance on silence violated the Fifth Amendment.47
The trial court may not draw an adverse inference from the defendant's silence in determining the facts of the offense at sentencing.48
Related opinions on this issue
Joined by The Chief Justice, Justice O'connor, And Justice Thomas
Justice Scalia contended that the Fifth Amendment does not bar a sentencer from drawing natural adverse inferences from a defendant's silence at sentencing.49 He emphasized that such inferences are ordinary evidentiary consequences rather than governmental compulsion.50 Scalia maintained that extending Griffin into sentencing would create untenable inconsistencies with the wide discretion traditionally afforded sentencing judges.51
He noted that sentencing has long permitted broad inquiry into character and cooperation.52 In his view the majority's extension of Griffin was a mistake.53
Justice Thomas joined Justice Scalia's dissent in full.54 He argued that Griffin v. California lacks foundation in the Constitution's text, history, or logic.55 Thomas noted that the illogic of the Griffin line is plain and its historical pedigree is equally dubious.56
He contended that Griffin constitutionalizes a mere policy choice rather than a requirement rooted in the Fifth Amendment's text or history.57 Thomas would be willing to reconsider Griffin and Carter in an appropriate case.58 For purposes of this case he agreed that the Fifth Amendment does not prohibit a sentencer from drawing an adverse inference from a defendant's failure to testify at sentencing.59