185 Information Obtained During Cooperation Agreement (§1B1.8)

150 – Application Principles, Generally

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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.

Query	Gets the documents with
stock market	‘stock’ or ‘market’ or both
“stock market”	the phrase ‘stock market’
+stock +market	‘stock’ and ‘market’
+stock -market	‘stock’ but not ‘market’
+president -“United States”	‘president’ but not ‘United States’
(stock OR market) AND NOT president	‘stock’ or ‘market’, and without ‘president’