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Table of Contents

150 – Application Principles, Generally

150 – Application Principles, Generally
  • 160 Definitions (More Than Minimal Planning, Etc.) (§1B1.1)
  • 165 Stipulation to More Serious Offense (see also §795) (§1B1.2)
  • 170 Relevant Conduct, Generally (§1B1.3) (for Drug Relevant Conduct, see §260)
  • 180 Use of Commentary, Policy (§1B1.7)
  • 185 Information Obtained During Cooperation Agreement (§1B1.8)
  • 190 Application to Indians, Assimilated Crimes, Juveniles, Misdemeanors (§1B1.9)
  • 192 Retroactivity of Amended Guideline Range (§1B1.10)
  • 194 Use of Guidelines in Effect on Date of Sentencing, Including “One Book” Rule (§1B1.11)

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§185 Information Obtained During Cooperation Agreement

(U.S.S.G. §1B1.8)

8th Circuit allows reliance on cooperation interview to rebut defendant’s denial of facts in PSR. (185) Defen­dant was involved a scheme to defraud financial insti­tutions by cashing counterfeit checks. He argued that the district court improperly relied on statements he made during his proffer interview, in violation of § 1B1.8(a) and the proffer agreement, to uphold the government’s refusal to move for an acceptance of responsibility reduction. The district court had concluded that, based on the language of the proffer agreement, that defendant’s statements could be used “for the limited purpose of rebutting [his] denial of many of the facts in the [PSR].” The Eighth Circuit agreed. In his objections to the PSR, defendant denied many of the facts he admitted during the proffer interview, The proffer agreement said the government could use his statements at the proffer meet­ing “to rebut any evidence, argument or representations offered by or on behalf of [defendant] … at sentencing.” U.S. v. Gaye, __ F.3d __ (8th Cir. Aug. 29, 2018) No. 17-1327.

11th Circuit finds any breach of plea agreement was harmless. (185)(790) Defendant pled guilty of conspir­ing to possess five kilograms or more of cocaine and 50 or more grams of methamphetamine. The district court applied a base offense level of 38 under § 2D1.1(c)(2), based on a drug quantity of 244 kilograms of cocaine. Defendant argued for the first time on appeal that the government breached his plea agreement by relying on statements in his proffer, which were protected by U.S.S.G. § 1B1.8, and that without these protected statements, there was insufficient evidence to find him responsible for 244 kilograms of cocaine. The Eleventh Circuit found that any error was harmless. Even if the government breached the plea agreement, defendant could not show that the breach affected his substantial rights. There was nothing in the record to indicate that defendant would have received a different sentence had the drug quantity attributable to him been substantially lower. The record showed that the district court would have imposed the same sentence even if defendant was responsible for only five kilograms of cocaine. U.S. v. Puentes-Hurtado, __ F.3d __ (11th Cir. July 22, 2015) No. 13-12770.

5th Circuit holds government breached plea agree­ment by using protected information. (185)(790) Defendant pled guilty to charges stemming from a negotiation to sell drugs in November 2011 and an actual sale in June 2012. In a cooperation agreement, defendant agreed to provide information to the government, in exchange for a guarantee that this information would not “be used to increase [defendant’s] Sentencing Guideline level or used against [defendant] for further prosecution.” At sentencing, the government introduced information about a different, intervening drug transaction, which the government acquired under the protection of defendant’s plea agreement. The government relied on this infor­mation to support its theory that the November and June transactions were separate and that defendant should be accountable for both. The Fifth Circuit held that the government breached the plea agreement by using protected information against defendant. Here, the terms of the supplement to defendant’s plea agreement included the government’s promise that any information provided by defendant, other than that charged in the pending indictment, would not be used to increase his guideline level. The agreement explicitly incorporated §1B1.8. U.S. v. Chavful, __ F.3d __ (5th Cir. Mar. 20, 2015) No. 13-11173.

1st Circuit upholds use of defendant’s bail interview statements in PSR. (185) Defendant pled guilty to firearms charges, and received an enhanced sentence under §2K2.1(a)(6) based on the district court’s finding that he had a history of drug abuse, and was thus a “prohibited person.” During a bail interview, he had disclosed information about his past and present drug use. Defendant argued for the first time on appeal that the information about his substance abuse was obtained upon a promise of confidentiality, and that the inclusion of the information in his PSR, and its use at sentencing, violated his due process rights and Federal Rule of Criminal Procedure 32. The First Circuit ruled that defendant waived the due process argument, since it was not sufficiently developed. As for the Rule 32 claim, defendant could not show any plain error. Defendant did not present any evidence that he was promised confidentiality at the start of his bail interview, or that he made the statements at issue in reliance on that promise. Although there was a confidentiality notice at the top of the Pretrial Services Report, that report was published after defendant made the statements in question. U.S. v. Caparotta, 676 F.3d 213 (1st Cir. 2012).

 

1st Circuit says court may not per se reject § 5K1.1 departures for defendants involved in murders. (185) Defendant’s plea agreement provided that the government would take the position that information he provided as part of his cooperation should not be used to determine whether, or to what extent, a departure was warranted. Nonetheless, the district court refused to grant a § 5K1.1 departure, relying on information defendant provided about his own involvement in several murders. The First Circuit held that the district court did not misinform defendant about how it would use the information he provided in its departure calculus. The court made it clear that it was under no obligation to depart, and it repeatedly advised him that a substantial assistance motion did not guarantee a departure. The government did not breach the plea agreement — it argued vigorously that the court should not use the information discussed in the plea agreement as part of its departure calculus. However, while the court had discretion to consider defendant’s role in the murders as grounds for denying the departure, the court’s comments suggested that it improperly followed a per se rule of denying § 5K1.1 departures to defendants involved in murders. If so, the court violated § 5K1.1’s mandate to conduct an individualized evaluation. The sentence was vacated and remanded for such an evaluation. U.S. v. Mills, 329 F.3d 24 (1st Cir. 2003).

 

1st Circuit says court may not deny downward departure based on information given under cooperation agreement. (185) Defendant argued that the district court erroneously based its decision to deny a down­ward departure and to impose the maximum guideline sentence on self‑incrimin­ating infor­ma­tion he had given under a cooperation agreement. The agreement provided that the information would not be used against him by the government or in calculating his guideline range. The First Circuit held that due process prevented the use of such information since the court broadly stated at the plea hearing that the information would not be used against him. Although the agreement was limited to non‑use “by the government,” the court’s broad statement expanded the agreement to full use immunity. U.S. v. Conway, 81 F.3d 15 (1st Cir. 1996).

 

1st Circuit attributes more drugs to defendant than co-conspirator who received immunity for one sale. (185) Defendant claimed that he should held responsible for the same quantity of cocaine as a cooperating co-conspirator, because they both participated in the same transactions. Defendant was held accountable for an additional transaction involving seven ounces of crack. The First Circuit affirmed, since the witness was immunized from having the crack transaction count towards his sentence. Evidence of the crack transaction first surfaced during the witness’s debriefing by police. The witness obtained a written promise from the government that none of the information he provided would be used against him. Under § 1B1.8(a), this promise immunized the witness from having the crack transaction count toward his sentence. However, defendant was not entitled to the same immunity. U.S. v. Webster, 54 F.3d 1 (1st Cir. 1995).

 

1st Circuit says cooperation agreement’s limited promise did not bar use of other information. (185) Defendant was involved in a conspiracy to manufacture counterfeit currency. In his cooperation agreement, the government conceded that it was not aware of more than $1.5 million in counterfeit currency, and agreed (under § 1B1.8) that if defendant provided information that led to the discovery of more currency, it would not be used against him at sentencing. Through defendant’s cooperation, the government learned that the conspiracy involved at least five participants. The district court relied on this to impose a § 3B1.1(b) enhancement based on supervisorial defendant’s role in an offense involving five or more participants. The Second Circuit held that the agreement’s limited promise not to consider additional currency could not be construed as a general promise not to use information he supplied about the other participants. However, the case was remanded. It was unclear whether the district court adopted defendant’s interpretation of the agreement and erroneously found that there were five or more participants, or whether it read the agreement as written in spite of the government’s acquiescence, which it was free to do. U.S. v. Fontana, 50 F.3d 86 (1st Cir. 1995).

 

1st Circuit finds cooperation agreement’s limit on use of information did not relate to leadership role. (185) Defendant was involved in a conspiracy to manufacture counterfeit currency. In his cooperation agreement, the government conceded that it was not aware of more than $1.5 million dollars in counterfeit currency, and agreed under § 1B1.8 that if defendant provided information that led to the discovery of more currency, it would not be used against him at sentencing. Through defendant’s cooperation, the government learned that the conspiracy involved at least five participants. The district court relied on this in imposing a § 3B1.1(b) enhancement based on defendant’s supervisorial role in an offense involving five or more participants. The Second Circuit held that the cooperation agreement did not bar the district court from considering information provided by defendant about the other participants in the offense. The agreement’s limited promise not to consider additional currency revealed by defendant could not be construed as a general promise not to use any information he supplied. U.S. v. Fontana, 50 F.3d 86 (1st Cir. 1995).

 

2nd Circuit says § 1B1.8 protection not lost by signing new plea agreement. (185) Defendant’s 1995 coop­eration agreement barred the govern­ment from using any self-incriminating informa­tion he provided, so long as he did not breach the agreement. The parties later had a dispute as to whether defendant breached the agreement. They settled the dispute through a second plea agree­ment covering additional charges. The district court then sentenced defen­dant based on his post-plea disclosure that the conspiracy covered by the 1995 agreement involved 1048 pounds of marijuana, rather than 378 pounds as stipulated in the 1995 agreement. The Second Circuit held that the district court violated § 1B1.8 by considering defendant’s post–plea disclosures at sentencing. There was never any judicial determination that defendant had breach­ed the 1995 agreement, and defendant never conceded that he breached it. Defendant’s signing of the 1998 agreement did not waive his claim that he did not breach the 1995 agreement. Section 1B1.8’s protection would be undercut if defendant were to lose it by signing the 1998 agreement when he received inadequate notice that his post-plea admissions could be used against him. U.S. v. Bradbury, 189 F.3d 200 (2d Cir. 1999).

 

2nd Circuit holds proffer agreement was not a cooperation agreement protected by § 1B1.8. (185) Defen­dant pled guilty to drug charges. He later met with the government under a proffer agreement to explore the possibility of entering into a cooperation agreement. The proffer agree­ment said the government would not use any information provided by defendant at the meeting. During the proffer sessions, defendant revealed drug dealing involving 350 grams of crack cocaine that was part of the same course of conduct as the offense of conviction. The government then proposed that to meet the disclosure requirements of the safety valve provision, defendant should waive the non-disclosure provision of the proffer agreement. Defendant argued that § 1B1.8 and note 7 to § 5C1.2 barred the use of the statements he made under the proffer agreement. The Second Circuit held that defendant’s proffer agreement did not qualify as a cooperation agreement protected by § 1B1.8. Section 1B1.8 applies only where a defendant agrees to cooperate with the govern­ment. U.S. v. Cruz, 156 F.3d 366 (2d Cir. 1998).

 

2nd Circuit permits reliance on informa­tion from proffer session. (185) Defendant signed a proffer agreement that provided the government would not use any statements made during proffer meetings. During two sessions that followed, defendant admitted participating in several drug transactions. A month later, defen­dant entered into a written plea agreement stipulating to drug quantity and other matters, but there was no stipulation as to role in the offense. At sentencing, the judge asked the government why defendant was not entitled to a minimal participation reduc­tion. The government replied — based on informa­tion from the proffer ses­sions — that defendant had received drugs on more than one occasion. The Second Circuit held that the govern­ment’s use of this information did not breach the proffer agree­ment because the plea agreement superseded the proffer agreement. The plea agreement plainly stated that there were no promises or understand­ings outside the plea agreement, and that both parties retained the right to present to the court any relevant facts. U.S. v. Fagge, 101 F.3d 232 (2d Cir. 1996).

 

2nd Circuit says court improperly relied on testimony given under cooperation agreement. (185) The district court found that defendant was a § 3B1.1(c) organizer or leader of a robbery conspiracy. The Second Circuit remanded because the court improperly relied on testimony defendant gave under a cooperation agreement. That agreement provided that information provided by defendant could not be considered by the court in determining defendant’s guideline range. Section 1B1.8(a) states that a court may not use such information in determining an applicable guideline range. U.S. v. Amato, 46 F.3d 1255 (2d Cir. 1995).

 

3rd Circuit holds that consideration of statement in violation of cooperation agree­ment was not prejudicial. (185) Defen­dant’s plea agreement provided that the statements he made during his cooperation would not be used against him in any subsequent prosecution or in the determination of his sentence under the guide­lines. In enhancing defendant’s sentence under § 2D1.1(b)(1) for possessing a firearm, the district court relied in part on the fact that “defendant’s own admissions at one time confirmed the fact that the guns were in the house.” Defendant offered this information while cooperating with the government, and therefore the district court’s consideration of it violated defendant’s plea agreement as well as USSG § 1B1.8. However, defendant did not object to the district court’s consideration of his statement. The Third Circuit held that the district court’s consideration of the statement did not present reversible error because defendant failed to present any evidence regard­ing prejudicial effect. The government presented sufficient evidence, independent of defendant’s post-cooperation statements, in support of the increase. One of defendant’s co-conspirators admitted that when he, defendant and others were dealing drugs, they were in possession of a variety of handguns. The district court could consider this information without violating defendant’s plea agreement. U.S. v. Thornton, 306 F.3d 1355 (3d Cir. 2002).

 

3rd Circuit finds government accepted obstruction plea as satisfaction of breach. (185) In December 1994 defendant signed a letter agreement which said that the information he provided could only be used against him if he failed to plead guilty to certain listed charges. Defendant then fabricated evidence to exculpate a co-conspirator. In January 1995, defendant admitted this deception, and aided the government in obtaining evidence incriminating the co-conspirator. Defendant was then indicted on the listed charges and an obstruction of justice count stemming from his attempted cover-up of the co-conspirator. In March 1995, the parties entered into a formal plea agreement. Despite the prosecutor’s § 5K1.1 motion, the district court departed upward based upon matters obtained from defendant’s cooperation, ruling that the cooperation agreement was null. The Third Circuit ruled that although defendant partially breached the plea agreement, the government by its subsequent conduct and its execution of a formal plea agreement, agreed not to use the information defendant provided against himself. The government accepted defendant’s guilty plea to obstruction of justice as a satisfaction of the breach and did not attempt to avoid the December 1994 agreement. The government’s performance in continuing the cooperation arrangement without any warning to defendant that its former promise no longer applied constituted a waiver of the breach. The district court erred in ruling that the cooperation agreement was null. U.S. v. Baird, 218 F.3d 221 (3d Cir. 2000).

 

3rd Circuit holds that government promised not to use incriminating information if defendant pled guilty. (185) Defendant signed a letter drafted by the government which stated that an earlier “off-the-record” agreement no longer applied and that “[f]rom now on,” information furnished was “on the record, and could be admitted against you in the future if you failed to plead guilty” to various charges. Defendant argued that this clause meant that the information garnered from his assistance could only be used against him if he failed to plead guilty to the offenses described in the letter. The government, however, claimed that all informa­tion was “fully on the record,” and that the disputed statement was merely a warning of the consequences of a failure to plead, and not a promise to immunize cooperation evidence upon entry of a guilty plea. The Third Circuit, construing the ambiguity against the govern­ment, concluded that the agreement stated that if defendant did plead guilty, the information would not be used against him in the future in any proceeding, including his own sentencing. U.S. v. Baird, 218 F.3d 221 (3d Cir. 2000).

 

4th Circuit holds that use of information in proffer statement violated agreement. (185) Defendant ad­mitted in his proffer statement to distributing 1200 kilo­grams of marijuana. The PSR estimated that defendant was responsible over 1600 kilograms. When defendant objected, the government produced a DEA agent who testified regarding the substance of defen­dant’s proffer statement. Relying in part on the proffer statement, the district court held defendant accountable for more than 1000 kilograms of marijuana. The Fourth Circuit held that the district court’s consideration of defendant’s proffer statement during sentenc­ing violated the terms of his proffer agreement. The agreement permitted the govern­ment to use defendant’s statement under limited circum­stances: for cross examination if defendant gave testimony at trial “materially different from” the information he gave in his proffer, for prosecuting defendant for perjury, or if defendant breached the proffer agreement. However, defendant never gave any actual or “constructive” testi­mony at trial. He participated in his defense, but did not take the stand as a witness. Defendant’s objection to the PSR was not inconsistent with his admission in the proffer statement to distributing 1200 kilograms of marijuana. The PSR attributed 400 more kilograms than defendant admitted distributing. In sum, no condition precedent to using the proffer statement was satisfied. U.S. v. Lopez, 219 F.3d 343 (4th Cir. 2000).

 

4th Circuit says using defendant’s comments to probation officer violated cooperation agreement. (185) Defend­ant pled guilty to drug charges. The district court denied his request for a minor role reduction, based on conversations he had with his probation officer after he entered his plea agreement with the government. The probation officer testified that defendant admitted that the relevant conduct to which he had stipulated underestimated the amount of drugs he actually distributed. The Fourth Circuit held that the court improperly relied on defendant’s statements to his probation officer because they were immunized under his plea agreement with the government. The plea agreement provided that defendant would be completely truthful with federal officials, and in return, the government agreed that any information obtained from defendant in com­pliance with the cooperation agreement could not be used by the court at sentencing. The court’s reliance on comments defendant made to the probation officer after the execution of the plea agreement constituted a breach of defendant’s agreement, and was forbidden by § 1B1.8. U.S. v. Washington, 146 F.3d 219 (4th Cir. 1998).

 

4th Circuit holds that enhancement based on presen­tence interview violated plea agreement. (185) Defendant, a former state representative, accepted a bribe from an un­dercover informant in re­turn for his support of a bill.  Before indictment, de­fendant filed a campaign disclosure form reporting the bribe as a campaign contribution.  His plea agree­ment provided that information pro­vided in co­operating would not be used against him.  Neverthe­less, his sentence was enhanced for obstruction of justice based on his admission to probation of­ficers that he filed the cam­paign disclo­sure form because a co-conspira­tor ad­vised him that he might be under inves­tigation.  The 4th Circuit held that use of that statement as support for the en­hancement vi­olated the plea agreement and guideline sec­tion 1B1.8 and was plain error.  Application note 5 to sec­tion 1B1.8, effective November 1991, clarifies that section 1B1.8’s protection includes information provided to a pro­bation officer.  U.S. v. Fant, 974 F.2d 559 (4th Cir. 1992).

 

4th Circuit forbids reliance on information from coopera­tion agreement to deny sub­stantial assis­tance departure. (185) Defen­dant’s plea agreement provided that he would cooperate with authorities, and that any evi­dence ob­tained from defendant would not be used against him in any further criminal pro­ceedings.  During defen­dant’s de­briefing, he admitting selling about 400 pounds of mari­juana per year since 1984.  This information was not used to calculate his offense level be­cause it was not known to the government be­fore his cooperation.  The government moved for a downward departure for substantial assis­tance, but the dis­trict court refused to depart because of defendant’s admission of involvement in heavy marijuana traffick­ing.  The 4th Cir­cuit vacated and remanded for re­sentencing.  Al­though guideline section 1B1.8(a) only pro­hibits the use of such in­formation in determining a defen­dant’s guideline range, Ap­plication Note 1 explains that it is the policy of the Sentenc­ing Com­mission that a defendant not receive an in­creased sentence as a result of such in­formation.  Judge Wilkins dis­sented.  U.S. v. Malvito, 946 F.2d 1066 (4th Cir. 1991).

 

5th Circuit finds government violated plea agreement by offering information obtained during debriefing. (185) Police arrested defen­dant as he and two others were unloading a truckload of marijuana. He pled guilty to drug conspiracy charges pursuant to a plea agreement and agreed to cooperate with the government. At sentencing, the court attempted to determine defendant’s role in the offense by determining who was going to pay for the marijuana. The government provided the court with information that defendant had told court during the debriefing. The court relied on that information to find that defendant held an aggravating role in the offense. The Fifth Circuit held that the government violated the plea agreement by offering information it obtained solely during the debriefing. Because the government’s disclosure was used in this case to determine the applicable guideline, whether the government’s disclosure corrected a misstatement made by defense counsel was irrelevant. The government did not use the information in order to clear up a misunderstanding and then inform the court that such information could not be used against defendant. Rather, the government use the information to argue that defendant held a leadership role in the offense. U.S. v. Gonzalez, 309 F.3d 882 (5th Cir. 2002).

 

5th Circuit says government must show information in PSR did not violate “use immunity” agreement. (185) Defendant argued that the information about drug quantities in the presentence report came from him and therefore violated his “use immunity” agreement. The government answered that the information was wholly obtained from outside sources, independent of defendant’s assistance. However, neither side offered evidence to support their claim so the question became one of who had the burden of proof. The Fifth Circuit held that normally the defendant has the burden to show that the information relied on in a PSR is not accurate. But when there is a “use immunity” plea agreement, the burden lies with the government to prove that it did not use the defendant’s statements directly as evidence or indirectly as an investigatory lead. See Kastigar v. U.S., 406 U.S. 441, 460-62 (1972). Because the government did not meet its burden here, the sentence was vacated. U.S. v. Taylor, 277 F.3d 721 (5th Cir. 2001).

 

5th Circuit upholds obstruction increase based on information from plea negotia­tions. (185) The district court enhanced defendant’s sentence for obstruction of justice based on his failure to produce subpoenaed corporate records and his lies to the grand jury that he had produced all relevant records. Defendant argued that this violated § 1B1.8 and Fed. R. Crim. P. 11(e)(6)(D) because it was during plea negotia­tions that the government discovered he had not produced certain records and had lied to the grand jury. The Fifth Circuit affirmed the en­hance­ment. Rule 11(e)(6)(D) does not prohibit state­ments made during plea negotiations from being used during sentencing. At sentencing, the district court may rely upon any evidence of defendant’s credibility that is sufficiently reliable. The district court correctly found defendant’s statements during plea nego­tia­tions were reliable. The false grand jury testimony was sufficiently related to the offense of conviction to apply the enhancement. Section 3C1.1 does not require the obstructive conduct to be directly related to the offense of conviction. U.S. v. Upton, 91 F.3d 677 (5th Cir. 1996).

 

5th Circuit vacates enhancement that may have been based on evidence from cooperation. (185) Defendant argued that in imposing an obstruction of justice enhancement, the district court unlawfully relied on evidence obtained pursuant to his cooperation agreement with the government.  The enhancement was based on the court’s finding that defendant removed a loan file from a lender he defrauded to hinder the government’s investigation.  The 5th Circuit vacated the enhancement because the government could not show that it received the loan file from a co-conspirator, as it contended, rather than from defendant, as he contended.  The government also failed to demonstrate that it knew, prior to executing the plea agreement, that defendant had removed the loan file.  U.S. v. Wilder, 15 F.3d 1292 (5th Cir. 1994).

 

5th Circuit holds it is improper to rely on informa­tion defendant provides to pro­bation officer under 1B1.8. (185) The 5th Circuit held that guideline sec­tion 1B1.8 pro­hibits a court from sen­tencing a de­fendant based upon self-in­criminating information re­vealed to a probation officer in reliance on the gov­ernment’s promise in a plea agreement not to use the information to further prose­cute the defen­dant.  Ap­plication note 5 to sec­tion 1B1.8, added effective November 1, 1991, clarified the prohibi­tion against using such information in sentencing.  U.S. v. Marsh, 963 F.2d 72 (5th Cir. 1992).

 

5th Circuit finds information relied on by dis­trict court was unreliable. (185) Defendant cooperated with au­thori­ties pursuant to his plea agreement, which stipu­lated that he was involved with 9 pounds of am­phetamine.  De­fendant objected to the inclusion of 66 pounds in the cal­culation of his offense level on the grounds that this amount was not reliably known to the government prior to his coop­eration, and that the use of self-incriminating statements he made while cooperating violated guideline § 1B1.8.  The 5th Circuit agreed, and found that without the defen­dant’s incriminating statements, there was insufficient evi­dence to support the additional 66 pounds.  The probation officer testified that prior to defendant’s plea the gov­ernment knew of the 66 pounds, but the source of this information was unclear.  Moreover, the government con­ceded that at the time of defendant’s plea, it knew of the lab, but could only confirm 9 pounds of am­phetamine attributable to de­fendant.  U.S. v. Shacklett, 921 F.2d 580 (5th Cir. 1991).

 

6th Circuit holds that enhancements were not improperly based on proffer statement. (185) Defendant participated in a proffer interview, for which the government agreed, “No statements made or other information provided by your client during such proffer and discussion will be used directly against your client in any criminal case.” The PSR assessed an increase because defendant’s co-conspirator “otherwise used” a firearm during the robbery and an increase for the physical restraint involved in such conduct. When defen­dant argued that the enhancements were imper­missibly based on his proffer-protected statement, the government agreed, and used an FBI agent to establish an independent basis for the increases. The district court then overruled defendant’s objection. The Sixth Circuit held that the district court did not impermissibly use defendant’s proffer-protected state­ments. The co-conspirator’s conduct was reasonably foreseeable to defendant. Further, the government called an FBI agent to testify and provide an independent source for the enhancement. The panel rejected his argument that the FBI agent’s testimony was improper because it never would have been presented, but for his objection to the imper­missible proffer information. U.S. v. Jackson, 635 F.3d 205 (6th Cir. 2011).

 

6th Circuit holds that plea agreement rendered terms of proffer letter no longer binding. (185) During plea negotiations in 2007, defendant met with the government for a proffer session. A proffer letter from the government provided that no statements made by defendant during the proffer discussion would be offered against defendant in the government’s case-in-chief, but the government could use the proffer to rebut any inconsistent evidence offered by defendant. The parties were unable to reach a plea agreement at that time. However, in 2008, defendant pled guilty under a written plea agreement which stated that it superseded all other understandings between the parties. The agreement did not mention the proffer letter. Before sentencing, defen­dant objected to several enhancements recommend­ed by his PSR. The government stated its intent to use his proffer statement to establish the facts underlying the enhancements. The Sixth Circuit held that the defen­dant’s plea agreement rendered the terms of the earlier proffer letter no longer binding on the parties. Because the government made no promises concerning the use of defendant’s proffer in the plea agreement, the govern­ment’s use of the proffer statement did not breach the plea agreement. U.S. v. Quesada, 607 F.3d 1128 (6th Cir. 2010).

 

6th Circuit holds that § 1B1.8 remains binding on courts after Booker. (185) Defendants argued that the district court violated § 1B1.8 in deter­mining the amount of cocaine base attributable to them. Section 1B1.8 prohibits use of the defen­dant’s proffer statements in determining his sentencing range. In U.S. v. Booker, 543 U.S. 220 (2005). The Supreme Court rendered the Sen­tencing Guidelines non-mandatory, but held that they must be considered by the sentencing courts. Booker did not address § 1B1.8. However, the Sixth Circuit declined to interpret Booker to mean that district courts are now permitted to consider at sentencing defendant’s own proffer state­ment, which are explicitly protected under § 1B1.8. Instead, just as before Booker, § 1B1.8 permits a court to consider the proffer statements of co-defendants in deter­mining a defendant’s sentence, but prohibits the court from considered the defendant’s own proffer statements. U.S. v. Milan, 398 F.3d 445 (6th Cir. 2005).

 

6th Circuit finds no breach of agreement where facts were likely in government possession before meeting. (185) Defendant’s plea agreement provided that under USSG § 1B1.8, the government would not use any self-incriminating information provided by defendant at sentencing. Defendant claimed that he met with law enforcement authorities as provided in the plea agreement, and provided them with information that the government then used in arguing for two sentencing enhancements. The Sixth Circuit rejected the claim, since the facts relied on by the government were likely in its possession prior to defendant’s post-plea meeting with law enforcement authorities. As to the § 2T1.1(b)(2) sophisticated means increase, the fact that defendant concealed money from the IRS was clearly available to the government prior to the post-plea meeting. In addition, defendant’s partner’s book­keeper testified to all of the other facts at the sentencing hearing, and he referenced particular pieces of evidence likely to be in his knowledge or possession prior to defendant’s post-plea meeting. With regard to the obstruction of justice increase, the government noted that defendant “repeatedly lied and cast blame upon others.” The facts relied upon in support of this claim (the stipulated facts, the bookkeeper’s testimony, and the experience of IRS agents) also were likely in possession of the government prior to defendant’s post-plea meeting. U.S. v. Butler, 297 F.3d 505 (6th Cir. 2002).

 

6th Circuit holds that subjective interpretation of officer’s comments did not prove § 1B1.8(a) agreement. (185) After police searched defen­dant’s residence and uncovered drugs and cash, defendant was advised of his Miranda rights. A police officer then explained to defendant that it was in his best interest to cooperate, and that the more he cooperated, the more he could help himself, in terms of receiving credit for acceptance of responsibility. The officer did not affirmatively represent that defendant’s statements would not be used against him. Defendant, however, testified that he understood these assurances to mean that his statements would not be used against him, and that but for these assurances he would not have cooperated. The district court found that no § 1B1.8(a) agreement had been formed and admitted evidence of defendant’s statements concerning drug quantity. The Sixth Circuit agreed that no § 1B1.8(a) agreement was established. Defen­dant’s subjective interpretation of the officer’s assurances, even if accepted as genuine, was simply not reasonable in view of the fresh advisement of Miranda rights and was insuf­fi­cient, standing alone, to substantiate the existence of an agreement. Although a purported cooper­ation agreement need not include explicit reference to § 1B1.8(a) to be enforceable, unless the agreement embraces “reason­ably definite immunizing consequences,” the courts will not read them into the agreement. U.S. v. Hopkins, 295 F.3d 549 (6th Cir. 2002).

 

6th Circuit holds information in pre-sentence inter­view is not protected by cooperation agreement. (185) Defendant pled guilty to unlawful possession of a machine gun after police found six guns at his house. The district court found defendant was a “prohibited person” under § 2K2.1(a)(4)(B) because he admitted at his presentence interview that he used marijuana, cocaine, and methamphetamine from 1987 to 1992. Defendant argued the information he provided was protected under § 1B1.8(a) and thus should not have been used by the district court to establish his offense level. The Sixth Circuit held that the information defendant provided as part of his presentence interview was not made in the course of cooperation under the proffer agreement and thus not protected under § 1B1.8(a). The fact that the disclosure was made after the cooperation agreement was signed did not protect it. The proper focus is on the nature of the communication and the context in which it was made rather than on mere chronology. Defendant’s disclosure was com­pletely extraneous to “information concerning the unlawful activities of other persons.” U.S. v. Jarman, 144 F.3d 912 (6th Cir. 1998).

 

6th Circuit reverses district court’s interpreta­tion of envi­ronmental guideline. (180) Defen­dant pled guilty to charges of not reporting the release of hazardous wastes into the environ­ment.  Defendant was sentenced under guide­line § 2Q1.2, which provides for a four level in­crease in of­fense level if the offense in­volves release of a hazardous sub­stance.  The commentary notes that this sub­section assumes a discharge into the environment re­sulting in actual envi­ronmental contamination.  The dis­trict court refused to in­crease defendant’s of­fense level under this sub­section, find­ing that the government had failed to prove ac­tual environ­mental contamination.  The 6th Circuit reversed, finding that the district court misin­terpreted the guidelines.  Although the commen­tary “illuminates the intent of the sec­tion’s drafter,” the express command of a guideline section may not be countermanded by the commentary.  The language of guideline § 2Q1.2 does not differentiate between a re­lease that causes environmental contamina­tion and one that does not.  U.S. v. Bogas, 920 F.2d 363 (6th Cir. 1990).

 

6th Circuit allows district court to consider statements de­fendant made to probation offi­cer. (185) Sentencing guideline 1B1.8(a) pro­vides that where the government agrees that the information pro­vided by the defendant as an informant shall not be used against the de­fendant, then such information shall also not be considered in determining the applicable guideline range.  Defendant, who had agreed to serve as an undercover infor­mant upon re­quest, challenged the district court’s authority to consider incriminating state­ments he made to his proba­tion officer.  The 6th Circuit re­jected defendant’s argu­ment that his state­ments to the pro­bation officer could be con­strued as information provided to the govern­ment within the meaning of § 1B1.8(a).  The 6th Circuit also found that the use of such statements did not violate the 5th Amend­ment’s protection against self-incrimi­nation, rejecting defen­dant’s argument that he should have been given a Miranda-type prophylactic warning prior to his presentence meeting with the probation officer.  Chief Judge Merritt dis­sented, on the grounds that the sentencing judge, who had advised the defen­dant to be candid with the proba­tion officer, had failed to inform defendant adequately of the “grave risks he faced in the presentence report,” and thus vi­olated de­fendant’s due process rights.  U.S. v. Miller, 910 F.2d 1321 (6th Cir. 1990).

 

6th Circuit holds that Commentary for one guideline is not transferable to another. (180) The district court re­jected defendant’s request for a minimal participant re­duction from her drug sentence, relying on the Applica­tion Notes to § 2X3.1 (accessory after the fact) and 2X4.1 (misprision of felony).  Those notes indicate that an adjustment for miti­gating role should not be applied in a plea to a lesser role because an adjustment for the mitigating role is already in­corporated in the base of­fense level.  The 6th Circuit held it was improper to ap­ply these application notes to a telephone count.  The Commentary for one guideline is not transferable to an­other.  U.S. v. Anders, 899 F.2d 570 (6th Cir. 1990).

 

6th Circuit vacates sentence that may have been based on information provided by defen­dant in cooperating. (185)  U.S.S.G. § 1B1.8 states that if a defendant cooperates with the government by providing informa­tion about unlawful activities of others and the govern­ment agrees not to use self-incriminat­ing information against defendant, such infor­mation cannot be used in setting the guideline range. Defendant pled guilty to one count of aiding and abetting a false statement in pur­chasing a firearm and also agreed to provide information concerning the illegal activities of others.  The 6th Cir­cuit reversed a departure from the guideline range be­cause it was un­clear whether the sentencing court con­sidered the cooperating information in sentencing.  On remand, the district court was ordered to state with par­ticularity the extent to which it consid­ered the cooper­ating information and to disre­gard it in resentencing the defendant.  U.S. v. Robinson, 898 F.2d 1111 (6th Cir. 1990).

 

6th Circuit rejects government’s argument that Com­mentary should be ignored when guideline is clear. (180) The gov­ernment ar­gued that the Commentary which requires “partici­ants” for an aggravating role ad­justment was equiv­alent to legislative history and should be ignored when the language of the guideline is clear.  The 6th Circuit rejected the argument, noting that the government’s ar­gument relied on the Commentary to another guideline whose language in­dicated that the Commentary had greater significance than the govern­ment recognized, citing § 1B1.7.  The court found it “disingenuous” for the gov­ernment to cite the Com­mentary as support for its argument that the Commen­tary could be ig­nored.  The court also relied upon the commis­sion’s answer to one of the “Questions Most Fre­quently Asked About the Sentencing Guidelines.”  U.S. v. Carroll, 893 F.2d 1502 (6th Cir. 1990).

 

7th Circuit holds that any error in relying on wrongly-provided information was harmless. (185) In 2006, DEA agents interviewed defendant in connection with a series of transactions involving marijuana, ecstasy, and crack cocaine. The government agreed not to use defendant’s` statements against him, provided that defen­dant promised not to later take a position inconsistent with his interview statements. During this proffer ses­sion, defendant admitted that he had supplied all three drugs to a government informant. In 2010, he pled guilty to drug charges. He argued that the government violated his 2006 proffer agreement during sentencing. The Seventh Circuit found it unnecessary to resolve this issue because even if the government did breach the agree­ment, any error by the district court in relying on the wrongly-provided information was harmless. The gov­ernment presented multiple sources of evidence for the same propositions that defendant argued were supported solely by his proffer interview. Therefore, the district court would have come to the same conclusion and imposed the same sentence, even absent the allegedly im­proper information. U.S. v. Bennett, 708 F.3d 879 (7th Cir. 2013).

 

7th Circuit holds that government breached proffer agreement. (185) Paragraph 5 of defendant’s prof­fer agreement provided that the government would not use any statements or other information provided by defendant against him, but that the government would “be free to provide any such information” to the court if defendant pled guilty or was convicted. Paragraph 6 provided that “[N]o self-incriminating information given by [defendant] will be used to enhance the Offense Level against [defendant] except as provided in [U.S.S.G. §1B1.8].” The probation department recommended in the PSR that 197 kilograms of cocaine be used to increase defendant’s offense level as relevant conduct. Defendant’s proffer was the only evidence of the 197 kilograms. The Seventh Circuit ruled that the government breached the plea agreement by submitting to the district court protected statements made by defendant. By their very nature, paragraphs 5 and 6 were almost irrecon­cil­able. The government could provide defendant’s proffer statements to the court, but it could not per se recom­mend that the court increase defendant’s offense level based on that information. U.S. v. Farmer, 543 F.3d 363 (7th Cir. 2008).

 

7th Circuit says post-arrest statement was not protected by § 1B1.8 but was insufficient to support drug quantity finding. (185) Shortly after his arrest, defendant agreed to “cooperate” with law enforce­ment officers, and gave a statement saying that he was selling $100 to $200 worth of crack “off and on for approximately a year.” Defendant never entered into a formal cooperation agreement, and whatever help he gave was a little value. Defendant argued that his post-arrest statement was protected under U.S.S.G. § 1B1.8 and thus could not be used against him at sentencing. The Seventh Circuit held that the post-arrest statement was not protected by § 1B1.8, but nonetheless found the statement insufficient to support the district court’s finding of 50-100 grams of crack. Other than the 3.37 grams of crack seized from defendant at the time of his arrest, no other evidence of drug dealing was in the record apart from the critical statement in question. Defen­dant’s limiting “off and on” description of his prior dealing was too vague upon which to rest a finding that he sold between 50 and 150 grams. If he was “off” much or most of the time, that range was too high a point to use as the basis for his sentence. U.S. v. Clemons, 349 F.3d 1007 (7th Cir. 2003).

 

7th Circuit holds that defendant violated proffer agree­ment. (185) Defendant, the president of a credit union, helped Binet, the chairman of the board, defraud the credit union in a number of transactions. After the fraud was revealed, defendant signed a proffer agreement which granted him use immunity for any information he provided on the fraud. Defendant testified before the grand jury that he refused to participate in Binet’s scheme to use the credit union’s money to purchase a collateralized mortgage obligation residual (CMOR) for their own profit and had no idea whether Binet ever did so. However, Binet testified that he and defendant made the investment together, and defendant later admitted that he participated in the CMOR’s purchase and shared in its profits. Defendant also failed to mention that he had conspired to alter the minutes of the board meetings, although defendant knew the government was relying on the minutes in its investigation. The Seventh Circuit held that defendant violated the proffer agreement, and thus the district court properly used information about the CMOR investment at sentencing. The proffer emphasized that defendant should not conceal or minimize his own actions in the offenses, and clearly stated that any false statements or omissions could be used against him. The government was within its rights to consider the proffer agreement voided due to defendant’s omissions concerning the CMOR and the alteration of the minutes. U.S. v. Lopez, 222 F.3d 428 (7th Cir. 2000).

 

7th Circuit says court would have applied gun increase even without protected statement. (185) Po­lice found drugs, drug paraphernalia, and a loaded gun in a stolen motor home. At his arrest, defendant admitted that the gun belonged to him. His plea agreement required him to make a “full, complete and truthful statement” regard­ing his offense, and barred the government from using at sentencing the information he provided under the agree­ment. Defendant told his proba­tion officer that Cashman, his drug supplier, had given him the motor home, and that the gun was in the home “at the time.” The Seventh Circuit affirmed a § 2D1.1(b)(1) firearm increase. Given the tight confines of the motor home and defendant’s admission at his arrest, the district court properly found that defendant possessed the weapon while he conspired with Cashman to distribute drugs. It was not clearly improbable that the gun was connected with the conspiracy. Deputies found in the motor home a variety of drug paraphernalia, some of it containing meth­am­phetamine residue. Finally, although the plea agreement prohibited the court from considering defendant’s statement as to the source of the gun, the district court’s consider­ation of that statement was not plain error. Given the independent indicia that defendant possessed the gun during and in connection with the drug conspiracy, the district court still would have applied the § 2D1.1(b)(1) increase even without defendant’s revelation that his drug supplier gave him the gun. U.S. v. Cashman, 216 F.3d 582 (7th Cir. 2000).

 

7th Circuit says defendant not entitled to use immunity. (185) Based on defendant’s admis­sion that he cooked two ounces of cocaine into crack for Collins every week for a year and a half, the district court held him accountable for 1.5 kilograms of crack. Defendant argued that because he made this admission after he signed a plea agreement, the government was prohibited from using his concession against him. The Seventh Circuit held that defendant was not entitled to use immunity under the terms of his plea agreement. Under § 1B1.8, a defendant receives immunity for his self-incriminating statements if the government agrees to grant immunity. Defendant turned down the govern­ment’s offer of use immunity. Further­more, even if the judge were not entitled to consider defendant’s admission, he still would have been able to rely upon statements of other conspirators who connected defendant to 2.25 kilograms of crack. U.S. v. Joiner, 183 F.3d 635 (7th Cir. 1999).

 

7th Circuit uses information in proffer to increase sentence. (185) Defendant was convicted of six counts of cocaine distribution. The Seventh Circuit found no error in the court’s use of his proffer to determine his relevant conduct at sentencing. Because defendant declined to work with the government, the plea agreement was never in effect and thus the proffer was not binding. Also, even if the proffer were in effect, defendant violated its terms by presenting contradictory testimony regarding the amount of cocaine attributed to him. Finally, evidence independent of the proffer existed regarding defendant’s relevant conduct. U.S. v. Coleman, 149 F.3d 674 (7th Cir. 1998).

 

7th Circuit holds court could consider proffer statements in denying safety valve credit. (185) After his arrest, defendant gave two formal proffers to the government admitting only a limited knowledge of drug trafficking. The prof­fer agreement required him to provide a completely truthful statement of his activities. It also provided that statements made during the proffer would not be used against him at trial, but could be used for any purpose at sentencing. The district court found defendant was not eligible for safety valve protection, finding he had not truthfully stated all information he had concerning the offense. The Seventh Circuit held that the district court could properly consider the proffered statements to establish defendant’s ineligibility for safety valve protection. The contract made clear that if he ever presented a position contrary to the proffer, the government could use the statements. The district court determined that defendant knew of his co-conspirator’s drug operation and therefore was less than truthful in his contrary assertion in the proffer statements. U.S. v. Cobblah, 118 F.3d 549 (7th Cir. 1997).

 

7th Circuit relies on evidence independent of proffer to support sentence. (185) Defendant and two co-conspirators gave proffer statements about the drug conspiracy. Defendant conceded his involvement in 2952.4 kilograms of marijuana equivalent, but the district court held him accountable for 3000 kilograms. Defendant claimed that the government violated the agreement regarding the use of his statement. The Seventh Circuit found no error since there was evidence independent of the proffer to support the 3000-kilogram determination. A co-conspirator said he purchased half-gram quantities of crack from defendant 10 to 15 times. This would equal at least 5 grams of crack, which is 100 kilograms of marijuana equivalent. Defendant only disagreed with the number of purchases, conceding he sold crack five times. That concession itself put defendant’s relevant conduct over 3000 kilograms of marijuana equivalent. U.S. v. Sadiq, 116 F.3d 213 (7th Cir. 1997).

 

7th Circuit finds that sentence did not violate defen­dant’s immunity agreement. (185) The government was aware that defendant pos­sessed and distributed at least 12 ounces of co­caine.  He pled guilty to possessing two ounces of co­caine.  Following defendant’s arrest, he re­ceived a grant of immunity and acknowledged to au­thorities his involvement in cocaine deliv­eries substan­tially beyond 12 ounces.  Defen­dant’s original presen­tence report suggested an enhanced sentence on the ba­sis of defendant’s admitted involvement in larger quanti­ties of cocaine.  The probation office caught its error, and amended the presentence report to state that the base offense level should be based upon “provable of­fense behavior, excluding any information provided by the defen­dant with a grant of immunity.”  The district court sen­tenced defendant on the basis of 12 ounces, and then departed downward.  The 7th Circuit, finding there was no evidence that the district court relied on any evi­dence derived from de­fendant’s immunized statements, upheld the district court’s action.  U.S. v. Heilprin, 910 F.2d 471 (7th Cir. 1990).

 

7th Circuit states that guideline on “cooperation” should be interpreted narrowly. (185) U.S.S.G. 1B1.8(a) provides that “where a defendant agrees to cooperate with the govern­ment by providing information concern­ing un­lawful activi­ties of others, and the government agrees that self incrimi­nating information so provided will not be used against the defen­dant, then such infor­mation shall not be used in de­termining the applicable guideline range.”  Defendant ar­gued that his confession to the police was an attempt to co­operate, and therefore his admissions should not have been used against him at sentencing.  The 7th Cir­cuit stated that the language re­quiring govern­ment agreement “should be interpreted nar­rowly.”  The court said that the provision is “addressed to prosecutors rather than to police and it would wreck much havoc with prosecu­torial prerogatives if casual inducements by police officers were treated as enforceable plea agree­ments.”  The defendant’s confes­sion was properly used at sentencing.  U.S. v. Rutledge, 900 F.2d 1127 (7th Cir. 1990).

 

7th Circuit upholds reliance on defendant’s confession to increase his sentence. (185) The defendant’s confes­sion re­vealed that he dealt in a substantially larger quantity of drugs than the government had suspected or had charged him with dealing.  Thus the trial judge in­creased his sen­tence from 18 months to 71 months.  The 7th Circuit af­firmed, ruling that reliance on the confes­sion did not violate any agreement not to use the defen­dant’s cooperation against him.  The court found that the district court’s ruling that the con­fession was voluntary was not clearly erroneous.  Moreover, the district court was not clearly erroneous in concluding that the addi­tional amounts of drugs “were part of the same course of conduct or common scheme or plan” as the sale of which the defen­dant was convicted.  U.S. v. Rutledge, 900 F.2d 1127 (7th Cir. 1990).

 

7th Circuit rejects treatment of Commen­tary to guidelines as “legislative history.” (180) The 7th Circuit held that courts cannot ignore the Commen­tary and Notes when apply­ing the guidelines.  Thus the court held that the “organizer” ad­justment under § 3B1.1 ap­plies only to situations where the of­fender or­ganizes or leads criminally responsible indi­viduals.  U.S. v. DeCicco, 899 F.2d 1531 (7th Cir. 1990).

 

7th Circuit upholds addition of three points to criminal history for escapes from custody. (180) Defendant pled guilty to escape and ar­gued that the addition of three criminal history points under U.S.S.G. § 4A1.1(d) and (e) constitutes double counting and a violation of due process.  The 7th Circuit disagreed.  The plain lan­guage of 4A1.1(d) and (e) and the Commentary “clearly requires the addition of three criminal history points to defendants convicted of escaping from jail.”  It is rational for the guidelines to establish one base for the crime of escape and then enhance that sen­tence if committed by an incarcerated person.  U.S. v. Jiminez, 897 F.2d 286 (7th Cir. 1990).

 

8th Circuit finds use of information provided during proffer session violated § 1B1.8. (185) Defendant argu­ed that the district court violated § 1B1.8 when it calcu­lated his advisory sen­tencing range using self-incrimi­nating informa­tion he disclosed during a proffer session with the government. The Eighth Circuit agreed. First, the proffer agreement was included within § 1B1.8’s coverage. Paragraph 6 of the agreement provided that statements or information obtained in defendant’s proffer could not be used in the government’s case-in-chief. The court rejected the government’s position that the agreement permit­ted defendant’s proffer statement to be used in determining the applicable guideline range. U.S. v. Perry, 640 F.3d 805 (8th Cir. 2011).

 

8th Circuit holds that court could not give defendant benefit of § 1B1.8 where parties did not include such a provision in cooperation agreement. (185) Guideline § 1B1.8 provides that the government may agree, as part of a defendant’s cooperation agreement, that any self-incriminating information disclosed through the defendant’s cooperation “shall not be used in determining the applicable guideline range.” In sentencing, defendant on drug charges, the district court recognized that defendant and the govern­ment had not reached an agreement to exclude incriminating information, but nonethe­less de­cided to give defendant the benefit of the § 1B1.8 protection. The court varied from 262 months to the 240-month mandatory minimum; it then granted a 25 percent downward departure from 240 to 180 months based on defendant’s sub­stantial assistance. The Eighth Circuit held that the district court gave significant weight to an improper factor by attempting to give defendant the benefit of a § 1B1.8 sentencing immunity provision, despite the fact that the parties did not include such a provision in their cooperation agreement. Any sentencing disparities arising from the government’s discretionary use of § 1B1.8 agreements are not unwarranted. U.S. v. Blackford, 469 F.3d 1218 (8th Cir. 2006).

 

8th Circuit says immunity agreement permitted use of information to determine extent of § 5K1.1 departure. (185) At sentenc­ing, the government moved for a substantial assistance departure, arguing that defendant had earned “the lowest possible sentence that the court could feel comfortable with.” The court granted the government’s motion. However, the sentenc­ing judge had presided over defendant’s co-defendants’ trial, during which, as part of his immunity agreement, defendant testified about his own extensive 15-year drug dealing history. The judge commented that had she not known the extent of defendant’s drug dealing history, she likely would have given him a “different sentence.” Defendant argued that the court’s failure to grant him a greater downward departure because of his immunized testimony violated his 5th Amendment right against self-incrimination. The Eighth Circuit disagreed, since the immunity agreement permitted the use of the information he provided in this manner. The agreement clearly limited its terms to the scope of U.S.S.G. § 1B1.8. Under § 1B1.8, the information defendant provided could not be used to determine his applicable guideline range, but could be used to determine whether, and to what extent, he should received a downward departure for providing substantial assistance. The court did just that. U.S. v. McFarlane, 309 F.3d 510 (8th Cir. 2002).

 

8th Circuit rejects departures based on interdistrict disparities in availability of use immunity. (185) The defendant in each of these separate cases pled guilty to at least some of the charges against him. Several entered pleas without cooperating with the government, each making the decision to not cooperate, at least in part, because they were not offered § 1B1.8 use immunity. Without this protection, any informa­tion they gave to authorities about the activities of others could be used against them in calculating their sentences. In this consolidated appeal, the Eighth Circuit held that a district court may not depart downward based on an inter­district sentencing disparity arising from the practice of the U.S. Attorney for the Northern District of Iowa to rarely agree to grant § 1B1.8 use immunity. A general policy or practice of rarely granting § 1B1.8 protection is within the govern­ment’s proper exercise of prosecutorial discretion. The guidelines say nothing about how often § 1B1.8 immunity should be granted. Faced with a disparity in prosecutorial policy between the Northern and Southern Districts of Iowa, court have no way of knowing which prosecutor’s office is reaching an agreement the proper num­ber of times. “[A]ny effort to police this area would improperly infringe upon the discretion of the prosecutor’s office to determine enforcement priorities, resource allocations, and other deci­sions which courts are institutionally unsuitable to make.” U.S. v. Buckendahl, 251 F.3d 753 (8th Cir. 2001).

 

8th Circuit directs government to stop in­cluding immunized information in PSR. (185) The 8th Circuit held that it was error for the presentence report to contain immu­nized information about defendant’s prior in­volvement in drug dealing. Once the govern­ment has agreed to a grant of immunity and the would-be defendant has testified, that tes­timony is useless against the testifier, and may not be used to affect a subsequent sen­tence of the testifier.  While including the immunized facts in the PSR was error, it was not prejudicial, since those facts did not af­fect defendant’s sentence.  The court directed the government to cease the practice of in­cluding immunized information in the PSR.  U.S. v. Abanatha, 999 F.2d 1246 (8th Cir. 1993).

 

8th Circuit permits considering drugs un­covered through defendant’s cooperation. (185) The 8th Circuit found that defendant’s plea agreement did not bar the consideration of drugs which the police would not have dis­covered without defendant’s cooperation.  Al­though §1B1.8(a) provides that certain in­formation supplied pursuant to a cooperation agreement may not be considered at sen­tencing, §1B1.8(b)(1) permits the considera­tion of information known to the government prior to entering the cooperation agreement.  The plea agreement, executed after defen­dant’s arrest, incorporated this exact lan­guage, and therefore clearly contemplated in­clusion of drug quantities disclosed by defen­dant on the night of his arrest.  White v. U.S., 998 F.2d 572 (8th Cir. 1993).

 

8th Circuit says use of debriefing state­ments did not violate section 1B1.8. (185) The 8th Circuit held that it did not violate section 1B1.8 to use de­fendant’s debriefing statements to establish his base offense level, since the plea agreement specifically provided for such use.  The agreement stated that no information provided by defendant under the agree­ment could be used against him for the purposes of bringing additional criminal charges, but such testi­mony could be consid­ered by the court at sentencing to determine the length of defendant’s sentence.  U.S. v. Cox, 985 F.2d 427 (8th Cir. 1993).

 

8th Circuit upholds use of information contained in co-defendant’s cooperation agreement. (185) The 8th Circuit rejected the contention that in sentencing defendant it was improper for the district court to rely upon statements his co-defendant made to the government in the co-defendant’s cooper­ation agreement.  Although defen­dant’s agree­ment with the government provided that the govern­ment could not use defendant’s state­ments against him in certain cir­cumstances, nothing in the agree­ment or the 5th Amend­ment prevented the gov­ernment from using a co-defendant’s statements against him.  Moreover, the consideration of such informa­tion did not change defendant’s offense level and therefore any error was harmless.  U.S. v. Sum­merfield, 961 F.2d 784 (8th Cir. 1992).

 

8th Circuit holds that defendant’s lack of as­sistance may be used in evaluating acceptance of responsibility. (180) At the hearing, defen­dant testified that he did not plan to cooperate with law enforcement officials. The then-ef­fective Com­enary to guideline § 5K1.2 es­tablished that a defendant’s lack of assistance may be used in evaluating the defendant’s sin­cerity in claiming accep­tance of responsibility.  Accordingly,  the 8th Cir­cuit found no er­ror in the district court’s denial of a re­duction for ac­ceptance of responsibility.  U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990), overruled on other grounds by U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992).

 

8th Circuit rules guidelines permit use of post-plea infor­mation ob­tained from defen­dant in criminal history. (185) Defendant contended that it was im­proper to in­clude his prior misdemeanor conviction in his criminal his­tory because the information would not have been obtained but for defendant’s disclosures to the proba­tion officer after the plea agree­ment was executed.  Thus, defendant con­tended that information obtained solely through his cooper­ation was being used against him in viola­tion of the plea agreement.  The 8th Circuit rejected this ar­gument, holding that guideline § 1B1.8 permits a court to use informa­tion obtained, post-plea, from a defen­dant, in the calculation of the criminal history category.  U.S. v. He­witt, 942 F.2d 1270 (8th Cir. 1991).

 

8th Circuit finds no violation of guideline § 1B1.8 in prosecution’s disclosure of de­fendant’s admissions. (185) Defendant entered into a plea agreement which pro­vided that no information which defendant provided would be used against him.  Defendant then breached the plea agreement by using drugs while the agreement was in effect.  The plea agreement was revoked and de­fendant en­tered into a new plea agreement which added a stipulation that a fac­tual basis existed for using 3,000 pounds of mari­juana in de­termining defendant’s base of­fense level.  Defen­dant con­tended that the prosecu­tion’s disclosure of his ad­missions re­garding 3,000 pounds of marijuana for use in cal­culating his offense level violated guideline § 1B1.8.  The 8th Cir­cuit rejected this ar­gument, noting that defendant voluntarily stip­ulated that his sentence should be based on 3,000 pounds of marijuana.  The district court had reviewed with defen­dant the modified plea agreement, and defen­dant stated on the record that he understood and agreed to those terms.  U.S. v. Stevens, 918 F.2d 1383 (8th Cir. 1990).

 

8th Circuit remands to determine whether government al­ready possessed information de­fendant revealed to proba­tion officer. (185) Defendant contended that the gov­ernment vi­olated his plea agreement by using in­criminating information which he gave to the probation officer in his presentencing inter­view.  The 8th Circuit rejected the gov­ernment’s argument that guideline § 1B1.8(a)’s prohi­bition against the use of certain self-incriminating informa­tion does not apply to self-incrimi­nating information admit­ted to a probation officer.  However, the government also argued that defendant’s admissions merely corroborated more general informa­tion it had already obtained from inde­pendent sources.  Since the record was silent regarding what in­formation the government already knew before the sen­tencing hearing, the 8th Circuit re­manded the case to the district court to hear evidence on the issue.  U.S. v. Frondle, 918 F.2d 62 (8th Cir. 1990).

 

8th Circuit disapproves policy refusing to al­low defen­dant to cooperate with the govern­ment. (185) Defen­dant’s coun­sel wrote to the judge asking for permission for his client to cooperate in making controlled pur­chases of co­caine while released on bond.  The district court denied the request.  After sentencing, both the defendant and the gov­ernment ap­pealed.  The 8th Cir­cuit held that the district judge’s pol­icy of refusing to permit defendants to cooperate contra­vened federal policy con­cerning cooperation, as ex­pressed in Rule 35(b) of the Federal Rules of Criminal Pro­cedure.  The court rejected the defendant’s ar­gument that he was eli­gible for a reduced sen­tence for cooperation, noting that U.S.S.G. § 5K1.1 requires a government motion.  Nevertheless the court noted that the sentence had been stayed pending appeal and stated that the defendant should be permitted to cooper­ate with the government on remand. Judge Gibson dissented.  U.S. v. French, 900 F.2d 1300 (8th Cir. 1990).

 

9th Circuit uses information from proffer session to deny safety valve and role. (185) The proffer agreement permitted the government to use information “to rebut any evidence offered by [defendant] in connec­tion with . . . sentencing.” At sentencing, defendant did not introduce new “evidence” but he did rely on his own written statement about the offense of conviction that he provided to the probation officer that was part of the presentence report. The government countered with in­formation that defendant had disclosed¾and what he hadn’t disclosed¾during the proffer session. The Ninth Circuit agreed with the district court that the govern­ment’s response was within the scope of the proffer agreement, because defendant’s statement was “evi­dence” which the government could “rebut” by showing that it was not a full and truthful disclosure of all information had concerning the offenses that were part of the same course of conduct. U.S. v. Miller, 151 F.3d 957 (9th Cir. 1998).

 

9th Circuit, en banc, holds that commentary is less than guideline, but more than legislature history. (180) In a lengthy, en banc opinion, the 9th Circuit held that the com­mentary to the guidelines cannot be treated as equivalent to the guidelines themselves.  It is an interpretive aid for the courts and must be treated as something less than the guide­lines.  At the same time however, it must be treated as “something more than ordinary legislative his­tory, which normally can be ignored if the statute is clear.”  Guideline § 1B1.7 and its commentary assume that guidelines often will need further explanation.  “If the guide­lines were clear the courts were expected sim­ply to follow their plain meaning, the commis­sion would have no reason to state that failure to follow the commentary constitute an incor­rect ap­plication of the guidelines.”  Neverthe­less, if it is not possible to construe the guide­line and commentary consistently, the text of the guideline should be applied.  U.S. v. Williams, 940 F.2d 176 (9th Cir. 1991) (en banc).

 

9th Circuit rules that failure to follow com­mentary may be reversible error. (180) The 9th Circuit ruled that the Com­mentary to § 2N2.1 supported the district court’s ruling that § 2F1.1 was the most applicable guideline in this case.  The court noted that under § 1B1.7, failing to follow com­mentary that explains how a guideline is to be ap­plied “could constitute an in­correct applica­tion of the guide­lines, subjecting the sen­tence to possible reversal on appeal.”  U.S. v. Cam­bra, 933 F.2d 752 (9th Cir. 1991).

 

9th Circuit holds that application notes have the force of legislative history. (180) The 9th Circuit held that al­though it was not bound to follow the application notes to § 4B1.2, “the notes do have the force of legisla­tive his­tory.”  U.S. v. Davis, 932 F.2d 752 (9th Cir. 1991).

 

9th Circuit finds record inadequate on whether defen­dant’s statements were used in violation of plea agree­ment. (185) In a letter confirming defendant’s coopera­tion agreement, defense counsel stated that the parties agreed that defendant’s statements would not be used against him, either as evidence or cross-exami­nation if no plea agreement was reached.  Al­though defendant in­cluded the letter in the ex­cerpts of the record on appeal, it was appar­ently not part of the record in the district court.  The prosecution did not dispute the authentic­ity of the letter, but the 9th Circuit found the record insuffi­cient to entertain defendant’s con­tention that his state­ments were used against him at sen­tencing in violation of the plea agreement.  The court did not know the full terms of the verbal agreement, and had “no way of de­termining what, if any, information that was used at sentencing was derived from information supplied by [defendant] pursuant to the February cooperation agree­ment.”  U.S. v. Nakagawa, 924 F.2d 800 (9th Cir. 1991).

 

9th Circuit upholds “official victim” adjust­ment, based on answer to “Questions Most Frequently Asked.” (180) Defendant was con­victed of assault on a federal officer.  He ar­gued that his sentence should not have been ad­justed upward for “official victim” under § 3A1.2 be­cause the aggravated assault guideline, § 2A2.2, “already incorporates that factor.”  The 9th Circuit re­jected the ar­gument, relying on the Sentencing Commis­sion’s an­swer to “Questions Most Frequently Asked About the Sen­tencing Guidelines.”  Al­though “this in­formal statement of the Com­mission is not binding on this court,” the an­swer “clearly indicated that the Sen­tencing Commission intended the official victim adjust­ment to apply when a defendant is convicted under § 111 and sentenced under guide­lines § 2A2.2.”  U.S. v. Sanchez, 914 F.2d 1355 (9th Cir. 1990).

 

9th Circuit affirms reliance on lab capacity to deter­mine quantity of drugs. (180) When de­fendant’s metham­phetamine laboratory was raided, only a small quan­tity of the drug was found. Defendant admitted producing four pounds of methamphetamine during the period for which he was charged, but the government informed the probation office that the lab was capable of producing twelve pounds.  The sentencing judge cal­culated defendant’s sen­tence using the twelve-pound fig­ure.  The 9th Circuit con­cluded that the amount of drugs seized did not “reflect the scale of the of­fense”; accord­ingly, commentary to the guide­lines specifically autho­rized con­sideration of the ca­pacity of the lab in deter­mining “the amount [of drugs] made . . . [or] the amount that could have been made, had the police not discov­ered the laboratory.”  U.S. v. Putney, 906 F.2d 477 (9th Cir. 1990).

 

10th Circuit says plea agreement permitted use of disclosures made during cooperation. (185) Defen­dant claimed that the district court violated USSG § 1B1.8 and his plea agreement when it considered at sentencing information he had disclosed in the course of cooperating with the government. The Tenth Circuit found that the terms of defendant’s plea agreement clearly permitted the use of such information. The agreement stated that the government “will not use against him any statements he makes pur­suant to this plea agreement in any criminal case… [Defendant] agrees that … [s]tatements he makes and information he provides pursuant to this plea agreement may be used in the plea and sentencing proceedings on the charges [to which he is pleading guilty].” U.S. v. Fortier, 180 F.3d 1217 (10th Cir. 1999).

 

10th Circuit says using defendant’s statements to DEA did not violate Rule 11(e)(6) or § 1B1.8. (185) Defendant agreed to cooperate with DEA agents, and revealed details of prior drug transactions, including his involvement in the purchase and distribution of three kilograms of cocaine during the previous three months. At the U.S. Attorney’s office, he confirmed his earlier statements but refused to provide the government with the names of his courier or local contacts. The government then terminated the interview. The district court held him accountable at sentencing for the three kilograms of cocaine he had admitted to previously distributing. The Tenth Circuit affirmed, concluding that neither Rule 11(e)(b) nor guideline § 1B1.8 barred the use of his statements. Even if his conversation qualified as plea discussions, Rule 11(e)(6) does not apply to sentencing proceedings. Section 1B1.8 applies only where the defendant agrees to cooperate with the government by providing the government with the requisite information, and the government agrees not to use that information against the defendant. Although the DEA might have promised defendant that his cooperation would be helpful to him, they did not promise that incriminating statements he made in the course of cooperation would not be used against him. U.S. v. Roman-Zarate, 115 F.3d 778 (10th Cir. 1997).

 

10th Circuit upholds use of information obtained during defendant’s cooperation. (185) After defen­dant’s arrest, DEA agents asked him to cooperate by identifying his drug source.  In return, the agents agreed to advise prose­cutors of the extent of defen­dant’s cooperation.  Based on this discussion, defen­dant identified his source and revealed that he had received additional quantities of methamphetamine weighing five pounds.  He was sentenced based upon five pounds of methamphetamine.  The 10th Circuit rejected de­fendant’s claim that section 1B1.8 pre­cluded taking into account information that officers received after he began to cooperate.  Section 1B1.8 requires two separate agree­ments: (a) the defendant must agree to coop­erate by providing information concerning the unlawful activities of others, and (b) the govern­ment must agree that self-incriminat­ing information provided pursuant to the agreement will not be used against the defen­dant.  Although defen­dant’s agree­ment might satisfy the first requirement, it did not satisfy the second.  U.S. v. Evans, 985 F.2d 497 (10th Cir. 1993).

 

10th Circuit permits use of information contained in cooperation agreement with state authorities. (185) While on supervised release, defendant was arrested on state drug charges.  He entered a co­operation agreement in which he agreed to serve as an informant for the state.  When the federal govern­ment learned of this, it moved to revoke defen­dant’s supervised release.  The 10th Circuit held that the self-incriminating information provided by defendant pursuant to his agreement to cooperate with state au­thorities could be used by the federal government in a subsequent proceeding to revoke his super­vised re­lease.  The agreement governed only state criminal conduct and did not involve or bind the United States government.  The agreement protected defendant only from state criminal proceedings.  U.S. v. Hall, 984 F.2d 387 (10th Cir. 1993).

 

10th Circuit holds that failure to follow commen­tary can constitute reversible error. (180) The application notes to the November 1990 guidelines made it clear that the ob­struction guideline does not apply to making false state­ments, not un­der oath, to law en­forcement of­ficials, unless the statements sig­nificantly impeded the investigation.  The 10th Circuit ruled that the failure to follow the guidelines commen­taries can constitute re­versible error.  The error here was not harm­less, since the district court did not specifically state that defen­dant’s sentence would have been the same with or with­out the enhance­ment.  U.S. v. Urbanek, 930 F.2d 1512 (10th Cir. 1991).

 

10th Circuit affirms one-point adjustment for robbing a fi­nancial institution. (180) The rob­bery guideline, § 2B3.1(b)(1) directs a sentencing court to treat the loss for a financial institution as at least $5,000, re­gardless of the amount actually taken.  This results in at least a one-point upward adjustment.  The back­ground commentary states that a minimum en­hancement is ap­propriate for robbery of a fi­nancial institu­tion because they generally have more cash available, and whether the defen­dant obtains more or less than $2500 is largely fortuitous.  Defendant contended that the amount he took was not “largely fortuitous” be­cause he purposely lim­ited the amount of money he took.  The 10th Circuit rejected de­fendant’s argument.  The commentary is noth­ing more than a background explanation of the rea­son why robbery of a financial institution is treated more seri­ously than other robberies.  The court gave more weight to application note 2, which confirms the guide­lines’ require­ment that bank rob­bery results in a mini­mum one-level en­hancement.  U.S. v. Fox, 930 F.2d 820 (10th Cir. 1991).

 

10th Circuit rejects claim that government wrongfully used information provided by de­fendant. (185) Defen­dant argued that the dis­trict court departed upward based on in­formation obtained from him under his plea agreement, which provided such information would not be used against him.  The govern­ment insisted that his co-defendants were in­dependent sources for the infor­mation.  The 10th Circuit found defendant’s claim un­founded.  The government pro­vided testimony, based on interviews with his co-defendants, that 50 ounces of co­caine were imported by the conspiracy of which defen­dant was a member.  Defense counsel failed to rebut that testimony, or allege any facts which would rebut the lower’s court implicit finding that defendant was not the source of this information.  Use of the co-defendant’s infor­mation did not violate any of defendant’s rights.  U.S. v. St. Julian, 922 F.2d 563 (10th Cir. 1990).

 

10th Circuit rules that court need not accept stipulated facts in nonbinding plea recom­mendation. (180) Defen­dant pled guilty to dis­tribution of cocaine and stipulated in the plea agreement to a base offense level.  The sen­tencing court added two levels to the base of­fense level based on the presentence report.  Relying on the Com­mentary to the guidelines the 10th Circuit rejected de­fendant’s con­tention that the sentencing count should have sentenced him strictly and solely on the stipu­lated facts in the plea agreement.  The plea agreement con­tained a non-binding guideline recommendation and the district court advised defendant it was not bound by the recommen­dation.  Thus the district court was not bound to accept the stipulated facts and correctly de­clined to do so when it learned the plea agree­ment did not con­tain all relevant conduct.  U.S. v. Rutter,  897 F.2d 1558  (10th Cir. 1990).

 

10th Circuit holds that unless plea agreement so pro­vides, sentencing court may not con­sider information revealed by defendant in co­operating. (185) Resolving “an important issue of first impression under the guide­lines,” the 10th Circuit held that information concerning drug offenses which was dis­closed in the course of coop­eration with the government under a plea bargain could not be used to determine the base offense level for a drug offense.  Here, the defen­dant had pled guilty to possess­ing 55 grams of cocaine for distribution.  As part of the plea agreement, she cooper­ated with the govern­ment and disclosed that she had pre­viously transported 6 ounces of cocaine.  The plea agreement stated that she would not be prosecuted based upon the information she re­vealed, but also stated that no agreements con­cerning sentences existed; sentencing was left to the sole discre­tion of the judge.  Under these cir­cumstances, it was er­roneous for the sentencing court to aggregate the 6 ounces of cocaine with the 55 grams for sentencing pur­poses.  The court held that § 1B1.8 (plea bar­gain) requires the agreement to specifically al­low the court to consider such information, otherwise infor­mants might be reluctant to provide information for fear that it will be used against them.  U.S. v. Shorteeth, 887 F.2d 253 (10th Cir. 1989).

 

11th Circuit holds that drug amounts were not derived from defendant’s debriefing. (185) Defendant argued that the drug quantity attributed to him at sentencing was derived from infor­ma­tion he provided to the government as part of his plea agreement, in violation of U.S.S.G. § 1B1.8. He claimed that § 1B1.8 required that any cor­roboration of his statements given pursuant to a plea agreement must have been before the entry of the agreement and therefore, because the government’s evidence of drug weight was the same as the statements given by defendant, his sentence must be vacated. The Eleventh Circuit held that so long as the information is obtained from independent sources or separately gleaned from co-defendants, it may be used at sentencing without violating § 1B1.8. The government offered a DEA agent’s testimony which showed that, while defendant told author­ities about the drug quantities transferred to North Carolina, that information was not provided in any way to Nguyen, who later corroborated defendant’s state­ment regarding drug quantity in an interview. There was no evidence that the DEA agent induced Nguyen to discuss those drug quantities by using defendant’s statements or that Nguyen would not have told authorities about those drug quantities absent defendant’s coopera­tion and agreement. The district court did not clearly err by finding that the drug quantity was based on statements other than defendant’s. U.S. v. Pham, 463 F.3d 1239 (11th Cir. 2006).

 

11th Circuit says five-year fraud plan with hundreds of transactions involved more than minimal planning. (160) Defendant owned and operated a food store that purchased WIC vouchers from a conspirator, redeemed the vouchers, and then divided the profits with the conspirator. The district court refused to apply a § 2F1.1(b)(2)(A) more than minimal planning increase, finding that each of the over 100 instances in which defendant bought vouchers from the conspirator was purely opportune. The Eleventh Circuit reversed, finding this determin­ation clearly erroneous. The sheer number of transactions alone made it highly unlikely that each transaction was purely opportune. Defendant wrote 184 checks to his conspirator over a five-year period, totaling $434,032. Over this five-year period, defendant had many opportunities to consider the consequences of his actions, yet he did not voluntarily cease his participation in the scheme. The district court clearly erred in finding defendant did not engage in more than minimal planning. U.S. v. Crawford, 407 F.3d 1174 (11th Cir. 2005).

 

11th Circuit says enhancement was not based on information obtained in violation of agreement. (185) The Eleventh Circuit ruled that a § 3B1.1(c) managerial enhancement was not improperly based on information obtained in violation of the government’s promise not to use certain information provided by defendant. The enhancement was based on statements made by two cooperating co-conspirators before defen­dant’s arrest. These statements indicated that both co-conspirators were recruited by and were delivering drugs for defendant. U.S. v. Shazier, 179 F.3d 1317 (11th Cir. 1999).

 

11th Circuit rules that in interpreting the guidelines, courts should consider even sub­sequently-amended com­men­tary. (180) After de­fendant committed his of­fense, the Commis­sion amend­ed the Com­mentary to § 2B1.1(b) to clarify the rule adopted by the guide­line.  The Eleventh Circuit held that “courts should con­sider such clarifying amend­ments to the guidelines’ com­mentary in inter­preting the guidelines, even with re­gard to of­fenders convicted of offenses oc­curring before the effective date of the amendments.”  This is because in most cases, “these amendments do not effect a substan­tive change, but rather are intended only to clar­ify the rule adopted by a par­ticular guideline.”  U.S. v. Scroggins, 880 F.2d 1204 (11th Cir. 1989).

 

Indiana District Court holds that, absent con­trary agree­ment, information provided by de­fendants in coop­erating may be used in sen­tencing. (185) De­fendants ar­gued that their sentences should have been reduced be­cause the court improperly relied on infor­mation they provided to the government in cooperat­ing.  Guideline § 1B1.8 pro­vides that when the defen­dant cooper­ates and the govern­ment agrees that infor­mation so pro­vided will not be used against him, “then such informa­tion shall not be used in de­termining the applicable guidelines range.”  District Judge Miller of the Northern District of Indi­ana found that the govern­ment did not agree that the information would not be used against the defendants, and in any event, the informa­tion was al­ready known to the government.  U.S. v. Hallam, 723 F.Supp. 66 (N.D. Ind. 1989).

 

Commission amends 1B1.8 to authorize use of co­operation in­formation to depart downward. (185) In an amendment effective November 1, 1992, the Com­mission amended U.S.S.G. section 1B1.8 to provide that information obtained during a coopera­tion agreement may be considered in deter­mining whether to depart down­ward from the guidelines pursuant to a government motion for substantial assistance under section 5K1.1.

Browse Contents

  • 100 Pre-Guidelines Sentencing, Generally
  • 110 Guidelines Sentencing, Generally
  • 150 Application Principles, Generally
  • 200 Offense Conduct, Generally
  • 400 Adjustments, Generally
  • 500 Criminal History, Generally
  • 550 Determining the Sentence
  • 700 Departures, Generally
  • 750 Sentencing Hearing, Generally
  • 780 Plea Agreements, Generally
  • 800 Violations of Probation and Supervised Release
  • 840 Sentencing of Organizations
  • 850 Appeal of Sentence (18 U.S.C. §3742)
  • 880 Habeas Corpus / 28 U.S.C. 2255 Motions
  • 900 – Forfeitures, Generally

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