Invoked or Forfeited: Sixth Circuit Affirms Upward Variance and Permits Sentencing Reliance on Refusal to Disclose Firearms Absent a Fifth Amendment Invocation

Introduction

In this non-precedential decision, the U.S. Court of Appeals for the Sixth Circuit (Chief Judge Sutton and Judges Siler and White, with Judge White writing) affirmed a 70-month sentence imposed on Angelo Antwaun Williams for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Williams challenged the sentence as both procedurally and substantively unreasonable. The appeal required the court to consider two principal issues:

Whether the district court committed procedural error by relying on Williams’s refusal to disclose the location of “lots more” firearms and by misstating that he said they belonged to a friend rather than his deceased brother, and
Whether the district court abused its discretion in imposing an upward variance from the advisory Guidelines range based on recidivism risk and deterrence.

The panel held there was no plain procedural error because Williams failed to invoke the Fifth Amendment privilege against self-incrimination and offered contradictory accounts about additional weapons. The court also held the upward variance was substantively reasonable in light of Williams’s statements suggesting access to more guns and his history of sentences that failed to deter him. The opinion clarifies and reinforces a critical sentencing practice point in the Sixth Circuit: a defendant must explicitly invoke the Fifth Amendment if he wishes to prevent a sentencing court from drawing adverse inferences from his refusal to provide information.

Summary of the Opinion

After officers attempted to arrest Williams on a shooting-related warrant, he fled and dropped a firearm. In a Mirandized interview, he admitted possession and stated he had “lots more” guns, suggested possible locations via search warrants, later denied having other guns, and then said they were “buried far away.” He pled guilty to § 922(g)(1). The district court calculated an advisory Guidelines range of 46–57 months, then stated § 3553(a) factors and varied upward by “two levels” to a “modified” range of 57–71 months, imposing 70 months. The court emphasized public protection and both general and specific deterrence, particularly in light of Williams’s statements about more guns and a lengthy record of undeterred criminal conduct.

On procedural reasonableness, the Sixth Circuit applied plain-error review because defense counsel did not object when asked the Bostic question. The court rejected Williams’s Fifth Amendment challenge on the ground that he never invoked the privilege, and it deemed immaterial the district court’s misstatement that the guns were a friend’s rather than a brother’s. On substantive reasonableness, the court held the upward variance was within the district court’s discretion, noting that criminal history and statements indicating continued access to weapons justified the variance to protect the public and deter crime. The judgment was affirmed.

Analysis

Precedents Cited and Their Role

United States v. Cabrera, 811 F.3d 801 (6th Cir. 2016) — Clarifies the distinction between procedural and substantive reasonableness. The panel used this framework to structure review: process first (calculation, explanation, reliance on accurate facts), then substance (length vs. reasons under § 3553(a)).
Gall v. United States, 552 U.S. 38 (2007) — Supplies the classic list of procedural errors: miscalculating the Guidelines, treating them as mandatory, failing to consider § 3553(a), relying on clearly erroneous facts, and failing to explain the sentence or deviation. The panel measured the district court’s justification for variance and use of facts against Gall’s requirements.
United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc) — Establishes plain-error review when a defendant fails to contemporaneously object to procedural errors at sentencing. Vonner’s four-part plain-error test guided the panel in rejecting Williams’s unpreserved procedural challenge.
United States v. Bostic, 371 F.3d 865 (6th Cir. 2004) — The “Bostic question” obligates the sentencing court to ask for objections after pronouncing sentence. If the defendant remains silent, later procedural challenges are reviewed only for plain error. The panel relied on Bostic to set the standard of review here.
Salinas v. Texas, 570 U.S. 178 (2013) — Holds that a person must expressly invoke the Fifth Amendment to gain its protection; silence alone generally does not suffice. The panel used Salinas to reject Williams’s claim that the district court could not consider his refusal to disclose the location of other firearms.
Roberts v. United States, 445 U.S. 552 (1980) — Emphasizes that if a defendant believes noncooperation is privileged, he must say so; otherwise, a sentencing court may consider lack of cooperation. The panel cited Roberts to reinforce the requirement of explicit invocation at or before sentencing.
United States v. Rayyan, 885 F.3d 436 (6th Cir. 2018) — Defines substantive reasonableness challenges as claims that a sentence is too long or too short; frames the focal point of the substantive review.
United States v. Nunley, 29 F.4th 824 (6th Cir. 2022) — Confirms abuse-of-discretion review for substantive reasonableness. The panel applied this deferential standard to uphold the upward variance.
United States v. Ferguson, 456 F.3d 660 (6th Cir. 2006) — A sentence is substantively unreasonable if selected arbitrarily, rests on impermissible factors, omits pertinent ones, or overweights any factor. This supplied the yardstick for evaluating the district court’s weighing of § 3553(a) factors.
United States v. Milliron, 984 F.3d 1188 (6th Cir. 2021) — Confirms district courts may vary when a case falls outside the Guideline’s “mine-run,” while cautioning that a variance in a mine-run case warrants closer review. The panel considered Williams’s “mine-run” argument through Milliron’s lens and still found the variance justified.
United States v. Dunnican, 961 F.3d 859 (6th Cir. 2020) — Reiterates that a district court may vary upward based on criminal history even when the Guidelines already account for it. The panel relied on Dunnican to reject the contention that the Guidelines’ criminal-history accounting precluded further weight at variance.

Legal Reasoning

1) Procedural Reasonableness: No Plain Error

The court reviewed procedural claims only for plain error because defense counsel did not object when invited to do so under Bostic. Applying Vonner’s test, the panel found no error, much less plain error, in the district court’s consideration of Williams’s post-arrest statements and non-disclosure about the location of additional firearms.

Fifth Amendment non-invocation. The panel emphasized that Williams never invoked the Fifth Amendment when he chose not to reveal where the guns were. Under Salinas and Roberts, a defendant must claim the privilege at the time he relies on it. Without invocation, his refusal can be considered at sentencing. This is especially salient where the refusal bears directly on recidivism risk and public safety under § 3553(a)(2)(B)–(C).
Contradictory accounts and credibility. Williams made inconsistent statements—suggesting search warrants for relatives’ residences, then denying any other guns, then stating the guns were “buried far away.” The district court was entitled to weigh these contradictions and the admission of “lots more” guns in assessing truthfulness, risk of future conduct, and the need to protect the public.
Misstatement immaterial. The judge’s reference to the guns being a “friend’s” rather than his deceased brother’s was immaterial: even if owned by a deceased brother, Williams’s potential access remained relevant to recidivism and public protection. The panel concluded this minor misstatement did not taint a § 3553(a)-based justification.
Gall compliance. The district court articulated the § 3553(a) factors, explained why prior sanctions had not deterred Williams, and tied the variance to public protection and deterrence. That met Gall’s requirement of an adequate explanation for deviating from the Guidelines range.

2) Substantive Reasonableness: Upward Variance Within Discretion

Applying abuse-of-discretion review (Nunley), the panel affirmed the 70-month sentence as substantively reasonable.

Permissible reliance on criminal history and specific conduct. The court reiterated that an upward variance may rest on criminal history even if the Guidelines already account for it (Dunnican). Williams’s past probation and prison terms had not deterred him, and those facts legitimately supported a higher sentence to protect the public and deter future crime.
“Mine-run” not dispositive. Even assuming a § 922(g) case could be “mine-run,” Williams’s own statements about having “lots more” guns and being skilled at acquiring guns without detection moved this case beyond routine possession. Under Milliron, that case-specific risk justified a variance; closer scrutiny did not undermine the district court’s reasoning.
No impermissible factors, arbitrariness, or overweighting. The district court did not rely on forbidden considerations; it weighed classic § 3553(a) factors—recidivism risk, public protection, and both specific and general deterrence—and provided a reasoned basis for the degree of variance selected. Under Ferguson, that suffices.

Impact and Implications

1) Fifth Amendment at Sentencing: Invocation Is Essential

The decision underscores a practical rule: unless a defendant expressly invokes the Fifth Amendment, a sentencing court in the Sixth Circuit may consider his refusal to provide information relevant to sentencing—here, the location of other firearms. This aligns with Salinas and Roberts and has concrete consequences:

Defense counsel should proactively advise clients about asserting the privilege where appropriate, including at sentencing, and state the invocation on the record.
Failure to object after the Bostic question substantially narrows appellate review to plain error, making reversal far less likely.
Post-Miranda statements about other criminal conduct, even when not charged, can be used to assess recidivism risk and public safety if they bear on § 3553(a).

2) Variances in Felon-in-Possession Cases

This opinion reinforces district courts’ latitude to impose upward variances in § 922(g)(1) cases when record evidence indicates ongoing access to firearms or a high likelihood of reoffending. The panel approved reliance on:

Admissions of additional weapons (“lots more” guns),
Inconsistent explanations about those weapons (suggested locations, denial, then “buried far away”), and
Undeterred criminal history, evidenced by multiple prior sentences.

Practically, defendants who make broad, unqualified admissions of additional illegal conduct—and then refuse to clarify—risk an upward variance grounded in public protection and deterrence.

3) Sentencing Practice: Anchoring Variances and Minor Misstatements

Quantifying the variance. Although variances need not be quantified in “levels,” the district court’s articulation of a two-level upward variance and a “modified range” made the degree of deviation transparent and reviewable, aligning with Gall’s emphasis on explanation.
Harmless factual misstatements. The panel’s tolerance of the “friend vs. brother” slip emphasizes substance over minor imprecision where the underlying rationale—access and risk—remains unaffected. Still, sentencing judges should strive for precision to avoid close calls on “clearly erroneous facts.”

Complex Concepts Simplified

Procedural vs. substantive reasonableness. Procedural reasonableness concerns the steps the court took—correct Guidelines calculation, consideration of § 3553(a), and accurate facts with adequate explanation. Substantive reasonableness asks whether, given those reasons, the sentence’s length is reasonable under the statutory factors.
Plain-error review. When a defendant fails to object after sentencing (especially after the judge asks the Bostic question), appellate courts review for plain error. The defendant must show a clear, obvious error that affected substantial rights and seriously undermined the fairness or integrity of the proceedings—an exacting standard.
Bostic question. Sixth Circuit practice requires the judge to ask if there are any objections to the sentence not previously raised. Silence limits appellate arguments to plain error and often determines the outcome of a procedural challenge.
Fifth Amendment invocation. To prevent adverse inferences, a defendant must explicitly assert the privilege against self-incrimination. Merely remaining silent or refusing to answer without invocation typically allows the court to consider that refusal in sentencing.
Variance vs. departure. A “variance” is a sentence outside the Guidelines range based on § 3553(a) factors. A “departure” adjusts the range under specified Guidelines policy statements. Here, the court used an upward variance tied to deterrence and public protection.
“Mine-run” or “heartland.” These terms refer to typical cases contemplated by the Guidelines. Courts may vary in atypical cases; even in typical cases, a well-explained variance can be upheld if justified by case-specific facts.
§ 3553(a) factors. These include the nature of the offense, history and characteristics of the defendant, the need for the sentence to reflect seriousness, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, offer correctional treatment, and avoid unwarranted disparities.

Conclusion

United States v. Williams reaffirms two practical and doctrinal points in Sixth Circuit sentencing law. First, absent an explicit Fifth Amendment invocation, a sentencing court may consider a defendant’s refusal to furnish information relevant to custodial risk and public protection. Williams’s contradictory accounts and admission of “lots more” guns allowed the district judge to infer a heightened risk of recidivism and to impose a higher sentence to deter further crimes. Second, the court’s broad discretion to vary upward remains intact even where criminal history has already been scored under the Guidelines; when prior penalties have failed to deter and the defendant’s own statements suggest ongoing access to weapons, a variance is well within the realm of substantive reasonableness.

While designated “not recommended for publication,” the opinion provides a clear roadmap for practitioners. Defense counsel should be vigilant about asserting the Fifth Amendment at the right time and preserving objections after the Bostic inquiry. Prosecutors and sentencing courts gain confirmation that statements signaling persistent access to firearms—paired with a record of undeterred conduct—can justify a tailored upward variance rooted in deterrence and public-safety objectives. In short, the Sixth Circuit underscores a simple but consequential rule: if you intend to rely on the Fifth, you must say so—especially at sentencing.