In United States v. Davis, --- F.4th ---. No. 24-1099 (9th Cir. 2025), the Court affirmed Davis's sentence for making a false statement during a firearms transaction, making a false statement in an application for a passport, and aggravated identity theft.
After pleading guilty to various crimes, Alexandre Zdenek Davis asked the district court to order a psychological evaluation under 18 U.S.C. § 4241 to determine his mental competency before sentencing. He also requested that his evaluation be filed with the court, as required under the statute. But when unfavorable information from the evaluation ended up in his presentencing report, Davis apparently had a change of heart and objected to the court considering that information at sentencing.On appeal, Davis contends that the district court’s use of his psychological evaluation violated his Fifth Amendment right against self-incrimination. But the Supreme Court case that Davis invokes to support his claim, Estelle v. Smith, 451 U.S. 454 (1981), does not extend the right against self-incrimination so far. We thus hold that the district court did not err by considering Davis’ voluntary psychological evaluation during sentencing. Davis also challenges two other aspects of his sentence, but those claims are barred by the waiver of appeal in his plea agreement. We affirm the sentence.Before reaching the merits of Davis’ Fifth Amendment claim, we must determine whether he waived his right to appeal it. Under his plea agreement, Davis may not appeal “any aspect of the sentence, including conditions of probation or supervised release.”When a defendant knowingly and voluntarily waives his right to appeal his sentence, this court generally will not review the merits of an appeal. Wells, 29 F.4th at 583–84. But under the Bibler exception, we will hear an appeal despite a waiver when a sentence is “illegal.” United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). “A sentence is illegal if it . . . violates the Constitution.” Id. (citation omitted). Specifically, a defendant may escape an appeal waiver under the Bibler exception “if (1) the defendant raises a challenge that the sentence violates the Constitution; (2) the constitutional claim directly challenges the sentence itself; and (3) the constitutional challenge is not based on any underlying constitutional right that was expressly and specifically waived . . . .” Wells, 29 F.4th at 587.Even if the Bibler exception to an appellate waiver applies here, Davis’ Fifth Amendment claim ultimately fails on the merits.Davis argues that by considering his psychological evaluation at sentencing, the district court forced him to incriminate himself in violation of the Fifth Amendment. Davis did not receive a Miranda warning before his evaluation, although he consented to the evaluation after the examiner reminded him that the results would be provided to the court. Because Davis did not object to the use of the evaluation on Fifth Amendment grounds during sentencing, we review his claim for plain error. See Wells, 29 F.4th at 592. We conclude that the district court did not err by considering Davis’ evaluation.[W]e find that the Court’s holding in Estelle does not extend beyond the “distinct circumstances” of that case to Davis’ psychological evaluation here. See 451 U.S. at 466. The Estelle court made clear that its decision did not necessarily apply to “all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination,” id. at 469 n.13, and we hold that Estelle does not apply to the examination in this case. The district court did not violate Davis’ right against self-incrimination by considering the results of his voluntary examination when determining his sentence.
