SENTENCE " FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION " AUTHORITY TO ASSERT IT AFTER CONVICTION
Mitchell v. United States, 526 U.S. 314, 329"30, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999) (defendant maintains a right to remain silent at a federal sentencing hearing and a sentencing court may not draw an adverse inference from the defendant's silence in finding facts relating to the circumstances and details of a crime).

Eighth Circuit

POST CON RELIEF " SENTENCE " GROUNDS " VIOLATION OF DUE PROCESS BY CONSIDERATION OF PRESENTENCE REPORT
United States v. Godat, 688 F.3d 399, *401 (8th Cir. Aug. 8, 2012) (the due process clause of the Fifth Amendment "is implicated when a sentencing court considers evidence that the defendant had no meaningful opportunity to rebut, but only when that consideration results in a sentence based on material misinformation. [T]he Confrontation Clause of the Sixth Amendment is implicated when a district court's consideration of evidence the defendant was not given an opportunity to rebut results in the defendant being sentenced on the basis of 'misinformation of constitutional magnitude.'").

Other

POST CON RELIEF " APPEAL " SENTENCE " GROUNDS " DUE PROCESS " FAILURE TO APPLY BEYOND REASONABLE DOUBT STANDARD TO IMPOSE SENTENCE HARSHER THAN GUIDELINES SENTENCE VIOLATES DUE PROCESS
Despite the fact that the U.S. Sentencing Guidelines are no longer mandatory, if the Guidelines are followed by a district court at sentencing, then any facts found that increase the Guideline sentence must be proved by the government beyond a reasonable doubt. United States. v. Booker, 543 U.S. 220 (2005). However, many courts continue to assume that a preponderance of evidence standard is sufficient to impose harsher sentences, which is ill-advised and could result in a remand for resentencing. See e.g., United States v. Fisher, 502 F.3d 293 (3d Cir. 2007); United States v. Villareal-Amarillas, 526 F.3d 892 (8th Cir. 2009). While the courts may view the Sentencing Guidelines as advisory, the Guidelines are still considered important and relevant. But because there remain significant inconsistencies regarding which standards of proof are being applied in a given circumstance, its incumbent on counsel to apply the standard that best serves the client, which in most cases will be the beyond a reasonable doubt standard. To quote Judge Nancy Gertner: Due Process requires procedural safeguards and a heightened standard of proof, namely, proof beyond a reasonable doubt. United States v. Pimental, 367 F. Supp. 2d 143, 154 (D. Mass. 2005). See Alan Ellis & Mark H. Allenbaugh, Standards of Proof at Sentencing, http://www.alanellis.com/CM/Publications/Standards-of-Proof-at-Sentencing.asp (2010).

POST CON RELIEF"EVIDENCE"FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION APPLIES DURING SENTENCE AND DIRECT APPEAL"WHAT ABOUT POST CON PROCEEDINGS?
The Supreme Court has made it clear that a person's Fifth Amendment right to remain silent is preserved at sentencing and on direct appeal. See Mitchell v. United States, 526 U.S. 314, 326, 119 S.Ct. 1307, 1314, 143 L.Ed.2d 424 (1999). The Court tangentially addressed the problems of defining when the privilege against self-incrimination ends. In Mitchell, the Court rejected the claim that the privilege did not exist in the context of sentencing and stated that it only ends when there can be no further incrimination or [i]f no adverse consequences can be visited upon the convicted person by reason of further testimony. Id. at 325-26, 119 S.Ct. at 1313-14. The general rule (with exceptions) is that the Fifth Amendment privilege may not extend to collateral proceedings although it is not absolutely or necessarily foreclosed. For example, the privilege might persist during collateral proceedings to resurrect a direct appeal or where continuing adverse consequences might result. Thanks to Theodore Simon. Counsel can argue that if post-conviction relief is granted, reprosecution might result in criminal consequences in which statements made during post-conviction proceedings might provide a link in the chain of evidence necessary for conviction.