## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 10-1992

___________ United States of America, *

* Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Robert Shakir Perry, * * Appellant. *

___________ Submitted: February 18, 2011 Filed: May 20, 2011

___________ Before SMITH, GRUENDER, and BENTON, Circuit Judges.

___________ GRUENDER, Circuit Judge.

Following a jury trial, Robert Perry was convicted of nine felony counts arising out of various drug and firearm offenses. Perry now appeals his sentence, arguing that the district court ran afoul of U.S.S.G. § 1B1.8 when it calculated his advisory sentencing guidelines range using self-inc riminating information disclosed by Perry during a proffer session with the Government. Perry also argues that the district court erred in refusing to reduce his offense level for acceptance of responsibility pursuant to § 3E1.1. We vacate Perry’s sentence and remand for resentencing.1 “A ‘proffer agreement’ is generally understood to be an agreement between a defendant and the government in a crimin al case that sets forth the terms under which the defendant will provide informati on to the government during an interview, commonly referred to as a ‘proffer session. ’ The proffer agreement defines the obligations of the parties and is intended to protect the defendant against the use of his or her statements, particularly in those s ituations in which the defendant has revealed incriminating information and the pro ffer session does not mature into a plea agreement or other form of cooperation agreement.” United States v. Lopez , 219 F.3d 343, 345 n.1 (4th Cir. 2000).

-2- I. BACKGROUND

On August 20, 2008, a federal grand jury returned a supe rseding indictment charging Perry with conspiring to distri bute marijuana, a violation of 21 U.S.C. §§ 841(b)(1)(D), 846 (Count I); distributing marijuana, violations of § 841(a)(1), (b)(1)(D) (Counts II-V); possessing marijuana withthe intent to distribute, a violation of § 841(a)(1), (b)(1)(D) (CountVI); possessing a firearm in furtherance of a drug trafficking offense, a violation of 18 U.S.C. § 924(c)(1)(A) (Count VII); possessing a firearm as a felon, a violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count VIII); illegally possessing body armor, a violati on of 18 U.S.C. §§ 924( a)(1)(D), 931 (Count IX); and a forfeiture count, under 18 U.S.C. § 924(d), 28 U.S.C. § 2461(c).

Prior to trial, and in an apparent atte mpt to determine whether Perry could assist the Government in a pending criminal investig ation, the parties agreed that he would proffer information regardi ng his knowledge of and involve ment in illegal narcotics trafficking and weapons possession. In a letter to Perry’s counsel, the Government set forth the terms of the proffer agreem ent, including the conditions under which the information that Perry provided could be used against him. 1 During the resulting proffer session, Perry provided informati on inculpating a co-conspirator in drug trafficking activity. He also disclosed self-incriminating information previously unknown to the Government, including info rmation regarding the conspiracy’s-3- commencement date and the quantities of drugs involved. Perry ultimately decided to proceed to trial, after which he wa s convicted of all nine felony counts.

The United States Probation Office preparedan initial presentence investigation report (“PSR”), in which it determined that Counts I-VI, VIII, and IX were groupable pursuant to U.S.S.G. § 3D1.2(c). When counts of conviction governed by different guidelines are grouped under § 3D1.2(c), the c ourt is instructed to apply “the highest offense level of the counts in the Group.” § 3D1.3(a). Of the eight grouped offenses, Count VIII—possessing a firearm as a felon— supplied the highest offense level, 20.
See § 2K2.1(a)(4). The initial PSR also calculated a criminal history category of III.

In a supplemental sentencing brief, the Government argued that the PSR improperly measured Perry’s criminal history from January 18, 2008—the date set
forth in the indictment as the “comme ncement of the instant offense.” Because § 4A1.2(e) contains a ten-year limitations pe riod on the attribution of criminal history points for a “prior sentence,” the PSR attributed criminal history points only for sentences imposed after January 18, 1998. The Government pointed out, though, that Perry admitted during his proffer session to embarking on the conspiracy on July 3, 2005. Thus, according to the Government, th is earlier date should be treated as the offense’s commencement date, and Perry’s criminal history calculation should include sentences imposed from July 3, 1995, rath er than from January 1998. The probation office agreed with the Government and in creased Perry’s criminal history category from III to VI to account for the additional prior sentences.

At the sentencing hearing, the Government also urged the district court to consider information disclosed during Perry’s proffer session for purposes of determining his base offens e level. In his proffe r session, Perry admitted to participating in additional drug transactions that were not considered by the probation office in determining the quantity of drugs and, therefore, the base offense level for the drug distribution counts. Including th ese additional drug quantities would result-4- in the drug counts having a higher offense level, 30, see § 2D1.1; id. cmt. n.10(D)(i), than the offense level of 20 for the firearm count, see § 2K2.1(a)(4).

Perry countered that the terms of th e proffer agreement triggered § 1B1.8, which, he maintained, precluded the court from using the contents of his proffer session in determining his guidelines range. The district court disagreed, concluding that § 1B1.8 did not bar considerati on of the information and accepting the Government’s invitation to adopt the higher base offense level of 30. The court then reduced Perry’s offense level by two levels for his minor role, see § 3B1.2(b), but denied him a two-level reducti on for acceptance of responsibility, see § 3E1.1(a). Based on a total offense level of 28 and a criminal history category of VI, Perry’s resulting advisory guidelines range was 140 to 175 months. The district court varied downward to a term of 70 months on Counts I-VI, VIII, and IX, and also imposed the 60-month minimum consecutive sentence mandated by 18 U.S.C. § 924(c) on Count VII, resulting in a term of imprisonment of 130 months.

II. DISCUSSION

Perry first argues that the district court violated § 1B1.8 by considering the selfincriminating information gleaned during his proffer session in determining his advisory guidelines range. We review the district court’s interpretation and application of the guidelines de novo

. United States v. Robinson , --- F.3d ---, 2011 WL 1364460, at *4 (8th Cir. Apr. 12, 2011).

Section 1B1.8 provides:

Where a defendant agrees to c ooperate with the government by providing information concerning unl awful activities of others, and as part of that cooperation agreement the government agrees that self-incriminating information provided pursuant to the agreement will2The Government contends in passing that the proffer agreement was not an “agreement to cooperate” under § 1B1.8, but was, instead, an agreement to determine whether Perry could cooperate. Thus, in the Government’s view, the district court may use self-incriminating information educed by virtue of such an agreement to determine a defendant’s guide lines range regardless of th e assurances made in the agreement. We reject this argument, as Perry’s agreement to provide “ completely truthful” information concerning “potential criminal activity” “which may be of assistance in a criminal investigation,” see Proffer Agreement preamble, ¶¶ 1, 2 (emphasis in original), decidedly constitute s an “agree[ment] to cooperate with the government by providing information con cerning unlawful activities of others,” § 1B1.8; see also United States v. Davila , 964 F.2d 778, 784 n.4 (8th Cir. 1992) (indicating that proffer agreements are subject to § 1B1.8).

-5- not be used against the defendant, then such information shall not be used in determining the applicableguideline range, except to the extent provided in the agreement.

Thus, when applicable, § 1B1.8 carves out a limited exception to the otherwise comprehensive mandate of 18 U.S.C. § 3661 that “[n]o limitation shall be placed on the information concerning the backgr ound, character, and conduct of a person convicted of an offense whic h a court of the United States may . . . consider for the purpose of imposing an appropriate sentence.” See generally United States v. Baird
, 218 F.3d 221, 227 (3d Cir. 2000). By its te rms, § 1B1.8 is triggered when the Government agrees that qualifying self-inc riminating information will not be “used against the defendant.” At that point, the terms of the proffer ag reement, rather than § 3661, control our analysis, and the sentencing court may consider information derived from the proffer sessi on in determining the defendant’s guidelines range only “to the extent provided in the agreement.” 2Hence, resolution of the parties’ dispute in this case entails a twofold inquiry. First, we must ask whether the proffer agreement provides that the self-incriminating information Perry disclosed would not be “used against” him, thus placing the resulting proffer within the coverage of § 1B1.8. Should we answer this first que stion in the affirmative, we next must-6- determine the extent, if any, to which the proffer agreement nonetheless allows for use of Perry’s proffer statement “in dete rmining the applicable guideline range.”

Paragraph 6 of the proffer agreement—entitled “No Direct Use”—provides that “[t]he government agrees that statements or information contained in [Perry’s] proffer may not be used in the government’s case- in-chief against [Perry] should a trial be held.” Perry argues that this provision pl aces the proffer agreement within § 1B1.8’s coverage of agreements “that self-incri minating information . . . will not be used against the defendant.” The Government responds that, because Paragraph 6’s usage limitation is narrow and well-delineated, “[n]othing in the proffer agreement suggested or implied that the government wa s affording Perry’s statements sentencing immunity.” The text of § 1B1.8 sheds little light on what degree of usage limitation triggers its application. That is, wh ile an unqualified promise not to “use” a defendant’s proffer for any purpose unquestionably would place the agreement within § 1B1.8, it is less evident whether, at the other end of the spectrum, a modest promise not to use the information in certain, well- defined circumstances likewise would rouse the full panoply of § 1B1.8 coverage.

We conclude that an absolute and unqualified promise not to “use” the selfincriminating information is not required to bring an agreement within the bounds of § 1B1.8. While the scope of an agreem ent’s usage limitations may well bear on the question whether the agreement allowed fo r use of the defendant’s statements in determining his guidelines range—the sec ond step of our inquiry—it does not affect our threshold inquiry concerning whether § 1B1.8 applie s at all. In United States v.
Cox , 985 F.2d 427 (8th Cir. 1993), for instance, we held § 1B1.8 implicated by a similarly circumscribed promise that “[n] o testimony or other information provided by you . . . will be used against you for the purpose of bringing additional criminal charges,” id. at 431 (second alteration in original); see also United States v. Robinson
, 898 F.2d 1111, 1117 (6th Cir. 1990) (holding that an agreement “not to file additional charges” based on the defendant’s statem ents “seems to be one contemplated by-7- § 1B1.8”); United States v. Shorteeth , 887 F.2d 253, 256 (10th Cir. 1989) (holding § 1B1.8 applicable where the Government agreed that “no separate federal prosecutions will be instituted against [def endant] . . . for c onduct and acts committed by her related to information she provides the Government during . . . debriefings” (alterations in original)); United States v. Cocilova , 584 F. Supp. 2d 885, 893 (W.D. Va. 2008) (holding § 1B1.8 applicable wher e the Government agreed that “it will not introduce in a criminal prosecution of [the defe ndant], in its case-in-chief at trial, any of the statements [made] pursuant to this agreement”). Likewise here, we hold that the usage restriction in Paragr aph 6 triggers § 1B1.8.

Having determined that the proffer agr eement is encompassed within § 1B1.8’s coverage, we now must inqui re whether the agreement nonetheless allows for use of Perry’s proffer statement “in determining th e applicable guideline range.” Perry relies heavily on Shorteeth , in which the Tenth Circuit maintained that “the language and spirit of . . . § 1B1.8 require the agreemen t to specifically mention the court’s ability to consider defendant’s disclosures . . . in calculating the appropriate sentencing range before the court may do so.” 887 F.2d at 257. This circuit has never adopted such a talismanic approach. See Cox , 985 F.2d at 431 (holding that § 1B1.8 allowed for use of a debriefing statement in calculating th e defendant’s guidelines range where the plea agreement simply provided that the defendant’s debriefing statement “may be considered by the court . . . to determin e the length of [his] sentence” (emphasis omitted)). Generally, we interpret contr acts between defendant s and the Government “according to general contractual principles,” see United States v. Yellow , 627 F.3d 706, 708 (8th Cir. 2010) (quoting United States v. Thompson , 403 F.3d 1037, 1039 (8th Cir. 2005)), and we find no basis in the text or the commentary of § 1B1.8 that either requires or permits us to depart fro m those settled principles of interpretation in the present instance. Thus , as in other contexts, we mu st “try to discern the intent of the parties ‘as expressed in the plain language of the agreemen t when viewed as a whole.’” United States v. Taylor , 258 F.3d 815, 819 (8th Cir. 2001) (emphasis omitted) (quoting United States v. Kelly , 18 F.3d 612, 616 (8th Cir. 1994)).-8- In its brief, the Government asserts that Paragraph 10 of Perry’s proffer agreement specifically provides for the use of the information disclosed during the proffer session in determining his guidelines range: “[Perry] understands that if [he] either pleads guilty or is convicted at trial, the government, pursuant to 18 U.S.C. § 3661, must provide to [Perry’s] sentencing judge the contents of the proffer.” This language does not suffice. Paragraph 10 simply states that the Government will provide information derived from the proffer se ssion to the sentencing court, but it says nothing of the court’s ability to consider that information in calculating Perry’s sentencing guidelines range. This distincti on is crucial. While§ 1B1.8 can preclude a sentencing court from considering qualif ying self-incriminating information in determining a defendant’s guidelines range, the provision pointedly “does not authorize the government to withhold inform ation from the court.” § 1B1.8 cmt. n.1. For this reason, Paragraph 10’s reference to “providing” the contents of Perry’s proffer session to the sentencing court doe s not fit the exception in § 1B1.8 for agreements that allow for th e use of self-incriminating in formation in determining a defendant’s guidelines range—a point that th e Government conceded at oral argument before this court.

As discussed above, though, the ab sence of a provision “specifically mention[ing] the court’s ability to consider defendant’s disclosures . . . in calculating the appropriate sentencing range,” see Shorteeth , 887 F.2d at 257, is not necessarily fatal to the Government’s position, so long as the agreement, when viewed as a whole, otherwise conveys the parties’ intent to allow the court to use the information derived from the proffer session for such a purpose. See Cox , 985 F.2d at 431 (“[W]hat’s important is the Defendant unde rstand that what he tells the Government will be used to determine the length of his sentence.” (quoting sentencing hearing transcript)).

The Government contends that Paragr aph 6 communicated the parties’ intent to allow the information disclosed duri ng Perry’s proffer session to be used in calculating his guidelines range. Accordi ng to the Government, because Paragraph3 It is unclear whether the term “an le gal proceeding” is intended to signify “a legal proceeding” or “any legal proceeding. ” Any distinction be tween the two terms would appear to be immaterial in the pr esent case, however, as the unqualified use of either “a” or “any” is br oad enough to encompass all “legal proceedings,” including a sentencing hearing.

-9- 6 prohibits the use of the information only in the Government’s case-in-chief against Perry, by omission the proffer agreement indi cates that the information can be used without limitation in all other proceedings and for all other purposes, including calculating Perry’s sentencing guidelines range. Cf. United States v. Transfiguracion
, 442 F.3d 1222, 1232 (9th Cir. 2006) (applying the expressio unius canon of statutory interpretation to a plea agreement). We ag ree with the Government that, viewed in isolation, this could be a reasonable interp retation of Paragraph 6. Applying the same principle of interpretation to Paragraph 7, however, leads to the opposite result. Paragraph 7 provides:

If [Perry] should testify materially contrary to the substance of the proffer, or otherwise present in an legal proceeding [sic] a position materially inconsistent with the pro ffer, the proffer may be used against [him] as impeachment or rebuttal evidence, or as the basis for a prosecution for perjury or false statement.

The phrase “if [Perry] should testify materially contrary to the substance of the proffer” creates a condition precedent to using the contents of Perry’s proffer session against him in “any legal proceeding.” 3 See Baird , 218 F.3d at 229. That is, the information derived from the proffer session could be used against Perry only if he subsequently contradicted statements madeduring the proffer session—and even then, only as “impeachment or rebuttal evidence, or as the basis for a prosecution for perjury or false statement.” Paragraph 7 is, of course, irreconcilable with the Government’s interpretation of Paragraph 6. On the one hand, Para graph 6 conveys that, with the exception of the Governme nt’s case-in-chief against Perry, the information derived from Perry ’s proffer session may be us ed without limitation. On4Paragraph 9 creates similar problems for the Government’s theory. It provides that “[t]he government may make use of any statements or information provided by [Perry’s] proffer, without limitation, in any prosecution or investigation concerning any crime of violence or any crime that occurs after the date of this letter.” Such a reservation would be largely superfluous if, as the Government now contends, the proffer agreement constrained no more than its direct use of the information in the Government’s case-in-chief at Perry’s trial. See Richard A. Lord, Williston on Contracts § 32:5, at 427 (4th ed. 1999) (“To the extent possible, . . . every word, phrase or term of a contract must be given effect.”).

5 The Government does not argue that the error would be harmless, and its failure to do so “waives any right to such review.” United States v. Williams , 627 F.3d 324, 329 (8th Cir. 2010) (quoting United States v. Cacioppo , 460 F.3d 1012, 1025-26 (8th Cir. 2006)). Even if we were to exercise our discretion to overlook the waiver, see Lufkins v. Leapley , 965 F.2d 1477, 1481 (8th Cir 1992), we would be constrained to conclude that the error was not harmless, as “there is no clear indication on the record that the district court woul d have imposed the same sentence if [the defendant’s] legal argument had prevailed,” United States v. Spikes , 543 F.3d 1021, 1025 (8th Cir. 2008).

-10- the other hand, Paragraph 7 conveys that the same information may not be used in any legal proceeding, such as for purposes of guidelines calculation at a sentencing hearing, unless Perry subsequently pres ents a materially inconsistent position. 4Thus, the proffer agreement, viewed as a whol e, ambiguously delineates the limitations on the use of information derived from Pe rry’s proffer and must, accordingly, be construed against the Government. See United States v. Stobaugh , 420 F.3d 796, 800 (8th Cir. 2005). As a result, we conclude that the proffer agreement did not allow for the use of the information disclosed during Perry’s proffer session in determining his sentencing guidelines range. Hence, th e district court erred by doing so. See Gall v. United States , 552 U.S. 38, 51 (2007) (observing that procedural error includes “failing to calculate (or improperly calculating) the Guidelines range”). 5

Perry next contends that the district c ourt erred when it denied his request for a two-level reduction for accep tance of responsibility. See U.S.S.G. § 3E1.1. “When6Perry’s contention that fear of repris al informed his decision not to cooperate and to proceed to trial does not alter our c onclusion. “[T]he security of not being a squealer . . . [is] not [a decision] the sentencing guidelines recognize as worthy of excusing the need to accept responsibility be fore trial to win a reduced sentence.” United States v. Morgano , 39 F.3d 1358, 1378 (7th Cir. 1994).

-11- reviewing the grant or denial of a reduc tion for acceptance of responsibility, we afford great deference to the determination of th e district court judge, who is in a unique position to evaluate whether a defendant has accepted responsibility for his offense.” United States v. Gonzalez-Rodriguez , 239 F.3d 948, 954 (8th Cir. 2001) (quoting United States v. Field , 110 F.3d 592, 594 (8th Cir. 1997)). Thus, we review for clear

error. Id. In the present case, Perry elected to proceed to trial. The commentary accompanying § 3E1.1 explains that the acceptance of responsibility “adjustment is not intended to apply to a defendant who puts the governme nt to its burden of proof at trial by denying the essential factual elem ents of guilt.” § 3E1.1 cmt. n.2. A defendant who has proceeded to trial may overcome this bar to a reduced sentence in the rare instance when the issues for tr ial did not relate to factual guilt. Id. ; see also United States v. Chapman , 356 F.3d 843, 847-48 (8th Cir. 2004). Perry’s case does not present such an instance; at trial, hecross-examined witn esses and moved for a judgment of acquittal on the ground that the Government failed to prove identity. See United States v. Bell , 411 F.3d 960, 963-64 (8th Cir. 2005). Hence, the district court did not clearly err in refusing to gr ant a two-level reduction for acceptance of responsibility. 6

III. CONCLUSION

For the foregoing reasons, we vacate Perry ’s sentence and remand to the district court for further proceedings not inconsistent with this opinion.

______________________________