Whether a sentencing court's focus on a defendant's silence during sentencing deliberations violates the constitutional right against self-incrimination

Questions Presented For Review 1. In United States v. Mitchell, 526 U.S. 314, 330 (1999), this Court held that a sentencing court may not draw adverse factual inferences from silence. Here, during sentencing deliberations, the court pointedly expressed surprise that it had not heard Robertson contradict, under oath, the testimony that he assaulted a police officer. A Tenth Circuit panel split on the comment’s significance: a majority held it was ambiguous the court never said it considered his silence unfavorably. The dissent argued that making and twice repeating the comment meant the court not only considered Robertson’s silence but found it compelling. When a court focuses on a defendant’s silence during its sentencing deliberations, does it transgress the constitutional right against selfincrimination? 2. When a sentencing court’s fact-finding establishes an uncharged offense that exponentially increases the calculated guideline sentencing range for the actual offense of conviction, should a clear and convincing, rather than a preponderance, standard apply to such a fact determination in deference to the constitutional rights to due process and a jury trial? i