No Fifth Amendment Retaliation at Sentencing Without a Demonstrable Nexus: United States v. Johnathan Crawford (4th Cir. 2025)

Introduction

In this unpublished but instructive decision, the Fourth Circuit in United States v. Johnathan Crawford affirms a 60-month statutory-maximum sentence for escape from custody against a Fifth Amendment challenge. The defendant argued that the district court retaliated against him for invoking his privilege against self-incrimination by maintaining objections to the Presentence Investigation Report (PSR) without elaboration, due to pending state charges stemming from a related shooting. The panel (Judge Berner, joined by Chief Judge Diaz and Judge Niemeyer) rejects that contention, emphasizing that a defendant must show a concrete nexus between the alleged invocation of the privilege and the sentencing decision. The court also addresses, but does not resolve, two procedural questions: whether a valid appellate waiver forecloses such a constitutional sentencing claim, and what standard of review applies when the claim was not raised below.

The case arises from a plea to federal escape, 18 U.S.C. § 751(a), entered while serious state charges loomed. The district court varied upward from the advisory Guidelines range (18–24 months) to impose 60 months. On appeal, Crawford alleged that the court punished him for declining to substantively support his PSR objections—objections he said he maintained to avoid creating admissions usable in state court. The Fourth Circuit affirms, finding the sentencing record shows an individualized assessment under 18 U.S.C. § 3553(a) untethered to any Fifth Amendment invocation.

Summary of the Opinion

The Fourth Circuit affirms the sentence. Assuming without deciding that Crawford’s appeal was not barred by his appellate waiver and reviewing de novo, the court holds there is no evidence that the district judge retaliated for a Fifth Amendment invocation. Instead, the sentencing transcript reflects a robust, individualized assessment of the 18 U.S.C. § 3553(a) factors—emphasizing the violent circumstances surrounding the escape, the defendant’s threats to the victim, and a substantial criminal history. Importantly, the district court did not reference Crawford’s PSR objections when explaining the sentence. While the district court’s remarks about the defendant were harsh, they were not linked to the sentencing rationale and, in any event, Crawford did not contend that they alone required resentencing.

The panel therefore affirms on the ground that no nexus exists between the asserted Fifth Amendment invocation and the sentencing decision.

Factual and Procedural Background

While serving a 77-month sentence for federal drug offenses, Crawford was placed in a halfway house and granted a 52-hour pass to stay at his then-girlfriend C.G.’s residence. After a dispute, he shot C.G., transported her to the hospital on a promise she would not contact police, and fled. Police later found bullet holes in the home and designated him an escapee. While at large for several months, Crawford called C.G. repeatedly in one day and threatened to shoot her and “shoot up” her home if she cooperated with investigators. He was eventually arrested in South Carolina.

After pleading guilty to escape under § 751(a), a draft PSR incorporated statements from C.G. about the shooting and threats and proposed an obstruction-of-justice enhancement and an upward departure. Crawford objected that C.G.’s statements were unreliable and objected to the obstruction enhancement and suggested upward departure, but—citing pending state charges—declined to substantively support his objections and refused to withdraw them. The Probation Office’s final PSR recommended a Guidelines range of 18–24 months and an upward variance in light of the weapon use and injury. The Government recommended 39 months; Crawford conceded an upward variance was appropriate and joined the 39-month recommendation but kept his objections to the PSR language tied to C.G.’s statements.

The district court overruled the objections, describing them as a “waste of time,” while also acknowledging the existence of pending state charges. It then imposed a 60-month sentence, citing the violent conduct, obstruction, threats, injury, and Crawford’s persistent criminality. The court did not mention the PSR objections when explaining its § 3553(a) analysis. Crawford appealed, alleging retaliatory punishment for invoking the Fifth Amendment and challenging the court’s characterizations of him during the hearing.

Analysis

Precedents and Authorities Cited

Garza v. Idaho (2019): Recognizes that appeal waivers are not absolute bars to all appellate claims. The panel invokes Garza to note that certain constitutional challenges may fall outside the scope of appellate waivers, though it again assumes without deciding that Crawford’s Fifth Amendment challenge survives his waiver.
United States v. Carter (4th Cir. 2023): The Fourth Circuit previously assumed, without deciding, that a claim alleging unconstitutional sentencing is not barred by an appellate waiver. Crawford follows the same path, reserving the scope-of-waiver question.
United States v. Lara (4th Cir. 2017): Establishes de novo review for alleged Fifth Amendment violations. The panel cites Lara but ultimately makes outcome determinative that Crawford would lose under any standard and proceeds de novo.
United States v. Perry (4th Cir. 2014): Authorizes resolving appeals without choosing a standard of review if the outcome is the same. Here, the panel states Crawford cannot prevail under either standard and reviews de novo.
Minnesota v. Murphy (1984) and Lefkowitz v. Turley (1973): Affirms that the Fifth Amendment privilege extends beyond courtroom testimony to any official questioning where answers may be self-incriminating. These cases support that defendants may assert the privilege in non-trial contexts such as sentencing.
Gall v. United States (2007) and United States v. Blue (4th Cir. 2017): Require individualized assessment based on § 3553(a), a reasoned explanation of the chosen sentence, and consideration of the Guidelines and policy statements. The panel relies on these to validate the district court’s process and reasoning.
Statutes and Guidelines: 18 U.S.C. § 751(a) (escape) and § 3553(a) (sentencing factors); U.S.S.G. §§ 5K2.6 (weapon use) and 5K2.2 (physical injury), which support upward departures/variances based on weapon use and injury.

Legal Reasoning

The decisive analytical move in the opinion is the court’s insistence on a nexus requirement: a defendant asserting retaliatory sentencing for invoking the Fifth Amendment must identify evidence connecting the invocation to the sentence imposed. On this record, there is none.

First, the panel acknowledges the Fifth Amendment’s breadth, citing Murphy and Lefkowitz to emphasize that the privilege extends to “any other proceeding, civil or criminal, formal or informal,” where answers may incriminate. That backdrop grants conceptual space for Crawford’s claim, as he explained that he maintained his PSR objections to avoid creating admissions in pending state proceedings.

Second, however, the panel scrutinizes the sentencing record to determine whether the district court’s maximum sentence was imposed in retaliation for that stance. The court highlights that:

The district judge’s sentencing explanation focused on the violent nature of the conduct (including weapon use and injury), obstruction and threats to the victim, the fact that the conduct occurred while on a halfway house pass, and Crawford’s extensive history of violence.
The court expressly relied on § 3553(a), cited relevant policy statements (U.S.S.G. §§ 5K2.2 and 5K2.6), and provided an individualized assessment, consistent with Gall and Blue.
Critically, the judge did not reference the PSR objections when justifying the sentence. The absence of any reliance on, or punishment for, Crawford’s refusal to explain his objections forecloses the claimed nexus.

Third, the panel addresses the district court’s harsh characterizations of Crawford. While acknowledging that some comments were severe, the court deems them “untethered” to the sentencing analysis and insufficient to demonstrate retaliatory animus, especially because Crawford did not separately argue that those remarks independently warranted resentencing.

Finally, on procedure, the opinion:

Assumes without deciding that the appellate waiver does not bar a Fifth Amendment sentencing challenge (Garza; Carter).
States Crawford cannot prevail under either de novo or plain-error review and proceeds de novo (Perry; Lara).

In sum, the Fourth Circuit affirms because the district court conducted a lawful, individualized § 3553(a) analysis, and the record contains no evidence that the sentence punished Crawford for asserting his privilege.

Impact

Although unpublished and nonbinding, Crawford provides noteworthy guidance for practitioners and sentencing courts in the Fourth Circuit:

Nexus requirement for retaliation claims: Defendants asserting that a sentence penalized their Fifth Amendment invocation must identify concrete indicia—such as explicit judicial statements tying the sentence to the defendant’s refusal to speak or to maintain objections. Mere judicial frustration at a litigant’s posture will not suffice.
Safe handling of PSR objections amid parallel proceedings: Defense counsel frequently face the dilemma of contesting PSR facts that mirror pending state charges. Crawford suggests that maintaining objections without evidentiary proffer does not, by itself, create adverse inferences if the court grounds its sentence in independently supported § 3553(a) rationales and does not rely on the “silence.”
Sentencing explanations matter: Robust, factor-driven explanations that track § 3553(a) and Guidelines policy statements can inoculate sentences against claims of unconstitutional retaliation. Here, the court’s reliance on weapon use, injury, threats, and criminal history, rather than on the defendant’s litigation posture, proved decisive.
Appellate waiver uncertainty: The panel again declines to resolve whether appellate waivers bar Fifth Amendment sentencing challenges. Litigants should continue to brief both the scope of waivers and the merits; for now, constitutional claims may still receive merits consideration even in the face of waivers, at least where courts are willing to assume arguendo that such claims survive.
Standards of review: Where the outcome is clear, the Fourth Circuit may proceed without resolving disputes over preservation and standard of review; nevertheless, defense counsel should preserve Fifth Amendment objections at sentencing to avoid the constraints of plain-error review in future cases.

Practically, sentencing judges in the Fourth Circuit should remain careful to avoid linking adverse sentencing decisions to a defendant’s choice not to speak about potentially incriminating conduct. Defense counsel should, where appropriate, clearly articulate that limited silence is based on the privilege and request rulings grounded in independent evidence and § 3553(a) considerations.

Complex Concepts Simplified

Fifth Amendment privilege at sentencing: The privilege against self-incrimination applies beyond trials, including at sentencing. A defendant may decline to provide information that could incriminate him in other proceedings. But to show unconstitutional retaliation, the defendant must prove the court punished him for that choice.
Presentence Investigation Report (PSR): A report prepared by Probation that summarizes offense conduct, history, and applies the Sentencing Guidelines. Parties may object. Objecting without factual support risks being overruled, but is not itself a Fifth Amendment invocation unless tied to a privilege claim—and even then, it must be shown the sentence punished the invocation.
Upward variance/departure: A court may impose a sentence above the advisory Guidelines where § 3553(a) factors warrant it. Policy statements like U.S.S.G. §§ 5K2.2 and 5K2.6 recognize higher sentences for causing injury or using a weapon.
Section 3553(a) factors: Statutory considerations include the nature and circumstances of the offense, history and characteristics of the defendant, need for deterrence/protection of the public, Guidelines range and policy statements, and the need to avoid unwarranted disparities.
Appellate waiver: A defendant may waive the right to appeal as part of a plea agreement. Such waivers are not absolute; some constitutional claims may still be considered, but the precise scope remains unsettled in this context.
Standards of review: De novo review means the appellate court affords no deference to the lower court on legal questions (like alleged constitutional violations). Plain error is more deferential and requires showing error, that is plain, affecting substantial rights and the fairness of proceedings. Crawford shows that courts may affirm without resolving which standard applies if the claim fails under either.
Nexus: A causal or evidentiary connection. In retaliation claims, the defendant must point to record evidence linking the invocation of rights to the adverse outcome (here, the sentence).

Conclusion

United States v. Johnathan Crawford clarifies, as a matter of persuasive authority within the Fourth Circuit, that a successful Fifth Amendment retaliation claim at sentencing requires a demonstrable nexus between the defendant’s invocation of the privilege and the sentence imposed. The court’s affirmance rests on a careful review of the record, which showed a thorough, individualized § 3553(a) analysis grounded in violent conduct, injury, threats, and criminal history—not in any adverse view of the defendant’s refusal to support PSR objections because of pending state charges.

The opinion offers practical guidance: district courts should articulate sentencing rationales independent of any privileged silence, and defense counsel should be explicit when maintaining objections to avoid self-incrimination and should build a record if retaliation is feared. While the panel again leaves open whether appellate waivers bar such constitutional challenges, it underscores that where the sentencing court’s reasoning is properly anchored in § 3553(a) and policy statements, claims of retaliatory punishment for invoking the Fifth Amendment will fail absent concrete proof of a nexus.