Co-Defendant Can Continue to Assert Fifth Amendment at Defendant’s Resentencing

US v. Oliver: In 2008, Oliver and Brown robbed a convenience store (Brown did the robbery, Oliver drove getaway) and were charged with conspiracy, attempt to commit Hobbs Act Robbery, and two counts of using a firearm in connection with a crime of violence. They were convicted on all counts, with Oliver being sentenced to 630 months and Brown 612 months.

In the wake of Johnson and its progeny, Oliver filed a §2255 motion arguing that his firearm convictions were no longer valid because neither count involved a valid predict “crime of violence.” At resentencing, Oliver called Brown to testify, thinking he would recant prior testimony about Oliver’s role in the robbery. Instead, Brown, who still had an appeal of his own pending, invoked his Fifth Amendment right to remain silent. The district court ultimately sentenced Oliver to 480 months in prison.

On appeal, the Fourth Circuit affirmed Oliver’s sentence. Oliver’s primary argument was that the district court had erred by allowing Brown to invoke the Fifth Amendment because Brown’s pending appeal related only to his sentence. The court disagreed, noting Brown’s counsel’s explanation that testimony about roles in the offense could lead to adverse consequences at resentencing. In light of that, the district court did not abuse its discretion by allowing Brown to invoke the Fifth Amendment.