UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-4702

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES T. GERSKY, a/k/a Hesh,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at
Charleston. Richard M. Gergel, District Judge. (2:15-cr-00799-RMG-7)

Submitted: May 22, 2020 Decided: June 1, 2020

Before AGEE, WYNN, and QUATTLEBAUM, Circuit Judges.

Affirmed in part and dismissed in part by unpublished opinion. Judge Wynn wrote the
opinion, in which Judge Agee and Judge Quattlebaum joined.

Matthew G. Borgula, Rachel L. Frank, SPRINGSTEAD BARTISH BORGULA &

LYNCH, Grand Rapids, Michigan; Christopher W. Adams, ADAMS & BISCHOFF, P.C.,
Charleston, South Carolina, for Appellant. Brian A. Benczkowski, Assistant Attorney
General, Matthew S. Miner, Deputy Assistant Attorney General, Thomas E. Booth, Lauren
E. Britsch, Austin M. Berry, Criminal Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Sherri A. Lydon, United States Attorney, Columbia, South
Carolina, Dean H. Secor, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this Circuit.

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WYNN, Circuit Judge:

Defendant-Appellant James Gersky appeals his 360-month sentence, arguing that

the district court’s conduct at the sentencing hearing violated due process and his Fifth

Amendment right against compelled self-incrimination, and that these constitutional claims

are not subject to his appellate waiver. Finding no constitutional violations, we affirm in

part and dismiss in part.

I.

A.

From November 2014 to April 2015, Gersky, a man in his thirties, participated in

Sekretchat.net, a website that operated as an online platform for members to target and

entice minors to perform sexually explicit conduct on social media websites such as

YouNow, Kik, Instagram, and Snapchat. Sekretchat members posted links to minors’

profiles on these social media sites to a Sekretchat chatroom. Members would then find

and chat with the minors on those sites and encourage them to perform sexually explicit

acts on live streaming video. The members would record footage of those acts, upload them

to a cloud storage site, and post links and thumbnail images of the videos in a “Vault” page

on Sekretchat, where other members could download them.

Gersky, acting under the alias “Hesh,” was a core member of Sekretchat’s

approximately 40 users. Gersky chatted with other members about targeting underage girls,

used videos of two minor girls engaged in sexual activity to impersonate a teenager to his

victims, enticed underage girls to perform sex acts on video, and uploaded recordings of

that activity to the Vault.

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 As relevant to this appeal, Gersky also made a number of statements in the

Sekretchat chatroom regarding his sexual activity with minors, including those under the

age of consent of 16 years in his home state of Michigan: “this 16 y/o I used to f*** last

year”; “the bulk of the younger ones i f*** are 16-17 .. which is perfectly legal here”; “i

ran through a string of 15-17 year olds last year”; “i’m pretty sure i accidentally made a 14

y/o my f*** buddy last year”; “I think I accidentally had sex with a 14-15 year old a few

times last year”; “when i went to meet that ~15 year old for the first time I almost s*** my

pants.” J.A. 104.

Gersky also stated that he avoided getting “Hansened”—a reference to the television

show “To Catch a Predator,” hosted by Chris Hansen—by “never mention[ing] sex while

talking to [young girls].” Id. Gersky likewise claimed to avoid detection by “never, ever

stat[ing] that we’re hanging out to have sex online or in text.” Id.

B.

Gersky and seven co-conspirators were charged with various child pornography

offenses. Gersky pled guilty to conspiracy to produce child pornography, in violation of 18

U.S.C. § 2251(a), and conspiracy to receive and distribute child pornography, in violation

of 18 U.S.C. § 2252(a)(2). His plea included a knowing and intelligent waiver of “the right

to contest either the conviction or the sentence in any direct appeal or other post-conviction

action,” except for “claims of ineffective assistance of counsel, prosecutorial misconduct,

or future changes in the law that affect [his] sentence.” J.A. 44.

The government recommended a Guidelines sentence of 600 months for Gersky in

part because of his chat statements claiming he had sex with underage minors. At the

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sentencing hearing, Gersky argued that the district court should consider the lesser

sentences given to his co-conspirators. Gersky likewise requested the district court consider

sentences imposed in similar cases. The district court repeatedly stated that it would make

an individualized determination as to Gersky.

The district court also noted that Gersky’s chat statements were particularly

troublesome for its analysis of his future dangerousness. Defense counsel claimed that

Gersky’s statements were false boasts to enhance his status with other Sekretchat members.

In response, the district court stated:

I have pulled the logs on each of those comments to see the context of them.
And I’m glad to address that [to] your client frankly, you know, he’s his own
choice whether he wishes to speak, but having you tell me he didn’t have sex,
is inconsistent with his own contemporaneous statements that he did, and he
described how he manipulated so he wouldn’t get caught.

J.A. 156-57 (emphasis added).

Defense counsel reiterated that Gersky’s chat statements were untrue. The district

court stated, “I would prefer to hear it from your client and not you,” J.A. 158 (emphasis

added), and “what I want you to afford your client [is] the opportunity [] to address that,”

J.A. 159 (emphasis added). Defense counsel responded, “I believe Mr. Gersky would like

to address the Court.” J.A. 160 (emphasis added). The district court then noted that Gersky

needed to explain his statements as his sentence would turn largely on whether he was in

the category of a “likely actor” (someone who actually had sex with underage minors) or a

“looker” (someone who only viewed sexually explicit material online). J.A. 161.

Gersky then addressed the district court, stating: “I would be willing to submit to

any line of questioning any way to prove to you whatsoever that I have never in my entire

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life had sexual conduct with anyone under the legal age.” J.A. 162 (emphasis added). The

district court questioned Gersky about his various chat statements and Gersky claimed each

was merely an instance of him bragging and engaging in hyperbole with other members of

Sekretchat. During that line of questioning, Gersky admitted that he claimed to refrain from

discussing sex in online conversations with minors he planned to meet in order to avoid

being “Hansened.” J.A. 164.

The district court then directed the government to provide whatever evidence it had

of Gersky’s actual sexual contact with underage girls. The government stated that it had no

corroborating evidence and suggested one reason for that absence: Gersky admittedly

avoided discussing sex while chatting with his alleged victims online. The government also

noted that Gersky had lied in the past by denying, until his guilty plea, that he was the

person behind the “Hesh” alias on Sekretchat.

The district court then asked Gersky whether he had lied to the police (by claiming

he was not Hesh) and to his victims (by impersonating a teenager). Gersky admitted that

he had. The district court noted that Gersky’s conduct differed from many pedophiles, in

that he actively sought out and engaged children in order to induce them to commit sex

acts. The court continued, “I find most likely he did have sex with girls under 16, under the

age of 16, and that his statements were credible when he stated that he did.” J.A. 183. Based

on those findings, the district court concluded that Gersky posed a significant danger to the

community and imposed a prison term of 360 months.

Gersky timely appealed his sentence, claiming that: (1) the district court compelled

him to speak at the sentencing hearing, in violation of his Fifth Amendment right against

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self-incrimination; (2) as a result of that allegedly compelled testimony, the district court

clearly erred in finding that he actually had sex with underage minors; (3) the district court

violated his due process rights by using information from comparable cases in sentencing

without giving him an opportunity to contest it; and (4) the district court created an

unwarranted sentencing disparity between Gersky and his co-defendants. Gersky also

contends that his claims are exempt from his appellate waiver.

II.

A.

We begin with the waiver. Gersky does not claim his appellate waiver was

unknowing or unintelligent, see United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir.

2012), but instead argues that his claims flow from alleged constitutional violations.

According to Gersky, a criminal defendant may not waive the right to appeal constitutional

deficiencies in sentencing. We do not address this contention because, as discussed below,

we find no constitutional violation.

B.

1.

Gersky’s first constitutional claim is that his testimony at the sentencing hearing—

in which he claimed that his chat statements regarding contact sexual activity with

underage girls were false—violated his Fifth Amendment right against compelled self-

incrimination. Our review is de novo. See United States v. Lara, 850 F.3d 686, 690 (4th

Cir. 2017).

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 The Fifth Amendment’s self-incrimination clause provides that no person “shall be

compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.

This prohibition “not only permits a person to refuse to testify against himself at a criminal

trial in which he is a defendant, but also ‘privileges him not to answer official questions

put to him in any other proceeding, civil or criminal, formal or informal, where the answers

might incriminate him in future criminal proceedings.’” Minnesota v. Murphy, 465 U.S.

420, 426 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). A criminal

defendant retains this right at his sentencing hearing. That is, a sentencing court may not

draw an adverse inference from the defendant’s silence for purposes of determining

conduct related to the underlying offense that is relevant to the sentencing decision. See

Mitchell v. United States, 526 U.S. 314, 329-30 (1999). 1

However, the Fifth Amendment’s guarantee against self-incrimination provides

“only that the witness not be compelled to give self-incriminating testimony.” McKune v.

Lile, 536 U.S. 24, 36 (2002) (quoting United States v. Washington, 431 U.S. 181, 188

(1977)) (second emphasis added). The record shows that Gersky’s statements to the court

were neither compelled nor self-incriminating.

1
Despite finding that the Fifth Amendment privilege applies to factual inquiries that
establish relevant conduct for sentencing, the Supreme Court in Mitchell expressly declined
to address whether the privilege applies to other sentencing factors such as lack of remorse
or acceptance of responsibility. See 526 U.S. at 330. Although the parties dispute whether
Mitchell requires the privilege to be extended to the sentencing factor at issue in this case—
Gersky’s future danger to the community—we do not reach the question because we find
Gersky’s statements neither compelled nor incriminating.
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 As to compulsion, the district court noted that it was Gersky’s “own choice” as to

whether he “wishe[d]” to speak, J.A. 156, stated that it would “prefer” to hear from Gersky

rather than counsel, J.A. 158, and stated that it wished to afford Gersky the “opportunity”

to address the court directly, J.A. 159. At no point did the district court order Gersky to

speak. Nor did Gersky invoke his right against self-incrimination, despite being represented

by counsel. See Murphy, 465 U.S. at 427 (“The answers of . . . a witness to questions put

to him are not compelled within the meaning of the Fifth Amendment unless the witness is

required to answer over his valid claim of the privilege.” (collecting cases)). Indeed,

defense counsel represented that Gersky “would like to address the Court,” J.A. 160, and

Gersky himself stated that he was “willing to submit to any line of questioning” to prove

that he had not had sex with underage minors, J.A. 162.

Gersky nonetheless attempts to characterize the district court as coercive, arguing

that its statement that his testimony would determine whether he was sentenced as a

“looker” or an “actor” left him no choice but to speak. Gersky’s apparent willingness to

testify and failure to assert the Fifth Amendment testimonial privilege contravene this

claim.

As to self-incrimination, Gersky’s willingness to testify is unsurprising because his

statements to the district court were exculpatory rather than incriminating. For a statement

to qualify for the privilege against self-incrimination, it “‘must itself, explicitly or

implicitly, relate a factual assertion or disclose information’ that incriminates.” United

States v. Sweets, 526 F.3d 122, 127 (4th Cir. 2007) (quoting Doe v. United States, 487 U.S.

201, 210 (1988)). Gersky’s statements do not fit this standard because they only countered

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record evidence showing that he engaged in sexual activity with minors under the age of

consent.

Specifically, the district court was faced with chat logs in which Gersky

unambiguously claimed to have had sex with underage minors. The district court likewise

had before it evidence showing that Gersky had been dishonest with law enforcement. Had

the district court not questioned Gersky, it would have only been able to determine

Gersky’s sexual history with minors based on that incriminating evidence. Rather than do

so, the district court gave Gersky an opportunity to exculpate himself. Although it

ultimately found Gersky’s explanation of his chat statements not credible, the district

court’s questioning did not elicit incriminating statements “in any real and substantial

way.” Id. at 128; see also United States v. Doe, 465 U.S. 605, 614 n.13 (1984) (“[A] party

who wishes to claim the Fifth Amendment privilege must be ‘confronted by substantial

and real, and not merely trifling or imaginary, hazards of incrimination.’” (quoting

Marchetti v. United States, 390 U.S. 39, 53 (1968)) (internal quotation marks omitted));

United States v. Thiam, 576 F. App’x 132, 134 (4th Cir. 2014) (per curiam) (evaluating the

district court’s questioning of a criminal defendant and finding no Fifth Amendment

violation because the defendant denied criminal involvement and “therefore did not make

any incriminating statements”). Indeed, Gersky does not specifically explain how his

statements at the sentencing hearing incriminated him.

Accordingly, we find no Fifth Amendment violation because Gersky’s statements

at the sentencing hearing were neither compelled nor incriminating.

2.

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 Gersky next argues that the district court improperly weighed the evidence,

including his testimony elicited via the alleged Fifth Amendment violation, to find that he

actually had sex with underage girls. Because we find no Fifth Amendment violation,

Gersky’s arguments on this point are within the scope of his appellate waiver.

Even if this claim were not waived, the district court did not err. “We review the

district court’s factual findings at sentencing for clear error . . . .” United States v.

Caplinger, 339 F.3d 226, 233 (4th Cir. 2003). “If the district court’s account of the evidence

is plausible in light of the record viewed in its entirety, the court of appeals may not reverse

it even though convinced that had it been sitting as the trier of fact, it would have weighed

the evidence differently.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74

(1985). Moreover, “[t]he district court’s credibility determinations receive ‘great

deference.’” United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009) (quoting United

States v. Feurtado, 191 F.3d 420, 424 n.2 (4th Cir. 1999)). Further, “a sentencing court

may consider uncharged and acquitted conduct in determining a sentence, as long as that

conduct is proven by a preponderance of the evidence.” United States v. Grubbs, 585 F.3d

793, 799 (4th Cir. 2009).

Gersky claims that the chat logs do not rise to a preponderance standard and that the

district court’s credibility determination improperly weighed his allegedly compelled

testimony.

First, the district court did not solely rely on the content of Gersky’s chat statements

to satisfy the preponderance standard. Its finding that those statements were “most probably

true” was of course based in part on their content. J.A. 183. But the district court also noted

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that Gersky had previously lied to law enforcement and his victims and had claimed to

avoid mentioning sexual contact in any traceable manner in order to avoid being

“Hansened.”

Second, the district court explained why it gave less weight to Gersky’s statements

at the sentencing hearing: because, unlike those statements, his chat statements were made

“at a time he didn’t know anyone was watching.” J.A. 182. We see no reason to revisit that

credibility determination under our deferential standard of review. See Layton, 564 F.3d at

334.

Put simply, the district court faced two conflicting but plausible views of the

evidence: either Gersky had sexual contact with minors or he lied about it in the chat logs.

It considered the available record evidence, which was incriminating, and permitted Gersky

to attempt to contravene it. Although the district court found Gersky failed to do so, that

finding does not create clear error or provide grounds for this Court to overturn its

credibility determination. See Anderson, 470 U.S. at 574 (“Where there are two permissible

views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”).

Accordingly, we find that the district court did not clearly err in crediting Gersky’s

chat statements.

C.

Gersky’s other constitutional claim is that the district court violated his due process

rights by using sentencing information from his co-conspirators without notifying him of

the specific information it relied upon. See United States v. Inglesi, 988 F.2d 500, 502 (4th

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Cir. 1993) (“Due process might also be denied by sentencing on information whose

accuracy a defendant has not had a fair opportunity to challenge . . . .”).

Because Gersky did not object to the district court’s alleged consideration of other

evidence at sentencing, this Court reviews for plain error. See United States v. Greene, 704

F.3d 298, 303-04 (4th Cir. 2013). “Under the plain error standard, [Gersky] has the burden

to show that: (1) there was error; (2) the error was plain; and (3) the error affected his

substantial rights.” United States v. Cowden, 882 F.3d 464, 475 (4th Cir. 2018). If Gersky

makes this showing, the Court may exercise its discretion to correct the error only if the

error “seriously affect[s] the fairness, integrity[,] or public reputation of judicial

proceedings.” Id. (quoting United States v. Olano, 507 U.S. 725, 736 (1993)) (alterations

in original).

Gersky’s argument fails because there was no error. The record shows that the

district court made an individualized sentencing assessment without improperly

considering factors from Gersky’s co-defendants’ sentencing determinations. The district

court did note that it had, in response to Gersky’s request in his sentencing memorandum,

attempted to ascertain the facts relevant to sentencing in the co-conspirator cases, as well

as other cases involving similar facts. However, the district court repeatedly and

unequivocally stated that although defense counsel had spent a great deal of effort

comparing Gersky’s case to others, it would assess Gersky individually:

I’m considering [the other cases]. I’ve got to do an individual sentence. . . .

I’ve got [the other cases], I’ve reviewed them. . . . But every one of those
cases, when you dig into [it], . . . you just can’t say, well, they were all
charged with the same crime. Some of them -- and they just had different
features and different concerns of the judges. I’ve got to deal with the ones

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 in front of me . . . . In the end, I am going to sentence Mr. Gersky on Mr.
Gersky’s conduct, not on what I can dimly perceive from other judges . . . .
Every one of these seven defendants I am sentencing presents with their own
unique set of facts. And no two are alike. And I’m trying to drill down on
each one of them, treat them individually, focus on them individually, and
not burden them on the conduct of others . . . . So I’m trying to judge them
on their own conduct and on my own assessment of their future
dangerousness. . . . I don’t want to think that I’m simply -- I’m going to put
this on a chart and I’m going [to] sentence because some other judge or
judges . . . on facts I don’t know, rendered a sentence that somehow [] locks
me in. It does not do that.

J.A. 152-55. Nor does the record otherwise show that the district court improperly arrived

at its sentence by considering information not disclosed to Gersky. As such, we find no

error on this issue.

D.

Finally, Gersky argues that his sentence is inconsistent with those of his co-

conspirators, in violation of 18 U.S.C. § 3553(a)(6). However, Gersky’s argument on this

point is not tied to his allegations of Fifth Amendment or due process violations—the

constitutional grounds by which he claims to avoid his appellate waiver. Accordingly,

Gersky’s inconsistent sentencing arguments are waived.

AFFIRMED IN PART AND DISMISSED IN PART

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