when I am perplexed, I resolve all doubt against the accused.
It's simple. You don't have to do anything." (Resp.Ex. D, Tr. at
Justice Figueroa, in commenting that he would take into account
any "understanding of the situation" petitioner could provide,
did not compel petitioner to incriminate himself. "The whole
notion of showing leniency to some deserving defendants — that
is, of treating them more mildly than others — requires
withholding leniency from others who appear less deserving."
United States v. Jones, 997 F.2d 1475, 1478 (D.C.Cir. 1993) (in
banc). Furthermore, a defendant's manifestation of remorse and
his acceptance of responsibility for his conduct are
well-recognized as factors that may be considered in sentencing.
See, e.g., United States v. Jacobson, 15 F.3d 19, 23 (2d Cir.
1994) (finding a defendant's lack of remorse to be an individual,
distinctive factor that may support sentencing disparity);
Geraci v. Senkowski, 23 F. Supp.2d 246, 247-48 (E.D.N.Y. 1998)
("A sentencing judge may properly consider a defendant's remorse,
or lack thereof, in determining a sentence. Doing so does not
infringe a defendant's Fifth Amendment rights."), aff'd,
211 F.3d 6 (2d Cir. 2000). A contrite defendant is considered to be
more likely to benefit from rehabilitation and is, therefore,
more deserving of leniency in sentencing.
Although "`[a]ny effort by the State to compel [the defendant]
to testify against his will at the sentencing hearing clearly
would contravene the Fifth Amendment,'" Mitchell, 526 U.S. at
326, 119 S.Ct. 1307 (quoting Estelle v. Smith, 451 U.S. 454,
463, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981)), Justice Figueroa
made no effort to compel petitioner to testify. The judge did not
threaten petitioner with additional punishment if he refused to
cooperate. Justice Figueroa merely clarified that absent any
explanation for his behavior, petitioner would not be granted
leniency in sentencing. Cf. Mallette v. Scully, 752 F.2d 26, 31
(noting that judge's comment that it would be "very easy to be
reasonable and lenient if defendant were to cooperate", did not
express motivation to improperly enhance sentence).
The Second Circuit has previously emphasized the "distinction
between increasing the severity of a sentence for a defendant's
failure to cooperate and refusing to grant leniency." United
States v. Stratton, 820 F.2d 562, 564 (2d Cir. 1987) (finding
impermissible a sentencing enhancement based on the defendant's
failure to cooperate with the government by naming other
individuals who had been involved with the crime); cf.
Mallette, 752 F.2d at 30 (2d Cir. 1984) (commenting on the
"somewhat illusory" nature of the distinction). While recognizing
that "the distinction between withholding leniency and increasing
a penalty is `difficult to apply,'" Rivera, 201 F.3d at 101
(quoting Stratton, 820 F.2d at 564), I conclude that the
judge's remarks taken in their totality demonstrate that any
"cost" to petitioner was the refusal of leniency rather than a
penalty for failure to explain conduct. Justice Figueroa appears
to have been looking for a showing of remorse or some acceptance
of responsibility on the petitioner's part. Although a defendant
has a right to remain silent, a defendant's refusal to
acknowledge any responsibility or to show any remorse in the face
of clear evidence of wrongdoing is surely an appropriate factor
for a sentencing judge to consider when choosing an appropriate
sentence from within a range of s tatutorily-permissible
For the foregoing reasons, petitioner's application for a writ
of habeas corpus is denied. The petition is dismissed and a
certificate of appealability will not issue, except as to the
issue of whether petitioner's constitutional right against
self-incrimination was violated during the sentencing phase of
the case. See 28 U.S.C. § 2253(c), as amended by AEDPA. This
Court certifies that, to that extent only, petitioner has made a
insufficient, showing of the denial of a constitutional right.
This Court further certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this order, other than with respect to that
one issue, would not be taken in good faith. See Coppedge v.
United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
The Clerk of the Court is directed to enter judgment accordingly.