United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-1992

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Robert Shakir Perry, *

* 

Appellant. * 

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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-incriminating 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 criminal case that sets forth the terms under

which the defendant will provide information 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 situations in which the defendant has revealed

incriminating information and the proffer 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 superseding indictment

charging Perry with conspiring to distribute 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 with the intent to distribute, a violation

of § 841(a)(1), (b)(1)(D) (Count VI); 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 violation 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 attempt to determine whether Perry could assist

the Government in a pending criminal investigation, the parties agreed that he would

proffer information regarding his knowledge of and involvement in illegal narcotics

trafficking and weapons possession. In a letter to Perry’s counsel, the Government

set forth the terms of the proffer agreement, including the conditions under which the

information that Perry provided could be used against him.1

 During the resulting

proffer session, Perry provided information inculpating a co-conspirator in drug

trafficking activity. He also disclosed self-incriminating information previously

unknown to the Government, including information regarding the conspiracy’s
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commencement date and the quantities of drugs involved. Perry ultimately decided

to proceed to trial, after which he was convicted of all nine felony counts. 

The United States Probation Office prepared an 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 court 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 “commencement of the instant offense.” Because

§ 4A1.2(e) contains a ten-year limitations period 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, this 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, rather than from January 1998. The probation

office agreed with the Government and increased 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 offense level. In his proffer 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 these additional drug quantities would result
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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 the 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 consideration 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 reduction 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 cooperate with the government by

providing information concerning unlawful activities of others, and as

part of that cooperation agreement the government agrees that

self-incriminating information provided pursuant to the agreement will
2

 The 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 guidelines range regardless of the 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 constitutes an “agree[ment] to cooperate with the

government by providing information concerning 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).

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not be used against the defendant, then such information shall not be

used in determining the applicable guideline 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 background, character, and conduct of a person

convicted of an offense which 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 terms, § 1B1.8 is triggered when the

Government agrees that qualifying self-incriminating information will not be “used

against the defendant.” At that point, the terms of the proffer agreement, rather than

§ 3661, control our analysis, and the sentencing court may consider information

derived from the proffer session in determining the defendant’s guidelines range only

“to the extent provided in the agreement.”2

 Hence, 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 question in the affirmative, we next must
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determine the extent, if any, to which the proffer agreement nonetheless allows for use

of Perry’s proffer statement “in determining 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 places the proffer agreement within § 1B1.8’s

coverage of agreements “that self-incriminating 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 was 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, while 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 agreement’s usage limitations may well bear on the

question whether the agreement allowed for use of the defendant’s statements in

determining his guidelines range—the second step of our inquiry—it does not affect

our threshold inquiry concerning whether § 1B1.8 applies 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 statements “seems to be one contemplated by
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§ 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 [defendant] . . . for conduct 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 where the Government agreed that “it will not

introduce in a criminal prosecution of [the defendant], 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 Paragraph 6 triggers § 1B1.8. 

Having determined that the proffer agreement is encompassed within § 1B1.8’s

coverage, we now must inquire whether the agreement nonetheless allows for use of

Perry’s proffer statement “in determining the applicable guideline range.” Perry relies

heavily on Shorteeth, in which the Tenth Circuit maintained that “the language and

spirit of . . . § 1B1.8 require the agreement 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 the defendant’s guidelines range where the

plea agreement simply provided that the defendant’s debriefing statement “may be

considered by the court . . . to determine the length of [his] sentence” (emphasis

omitted)). Generally, we interpret contracts between defendants 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 from those settled principles of interpretation

in the present instance. Thus, as in other contexts, we must “try to discern the intent

of the parties ‘as expressed in the plain language of the agreement 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)).
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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 session 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 distinction is crucial. While § 1B1.8 can preclude

a sentencing court from considering qualifying self-incriminating information in

determining a defendant’s guidelines range, the provision pointedly “does not

authorize the government to withhold information 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 does not fit the exception in § 1B1.8 for

agreements that allow for the use of self-incriminating information in determining a

defendant’s guidelines range—a point that the Government conceded at oral argument

before this court.

As discussed above, though, the absence 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 understand that what he tells the Government will be used

to determine the length of his sentence.” (quoting sentencing hearing transcript)). 

The Government contends that Paragraph 6 communicated the parties’ intent

to allow the information disclosed during Perry’s proffer session to be used in

calculating his guidelines range. According to the Government, because Paragraph
3

 It is unclear whether the term “an legal proceeding” is intended to signify “a

legal proceeding” or “any legal proceeding.” Any distinction between the two terms

would appear to be immaterial in the present case, however, as the unqualified use of

either “a” or “any” is broad enough to encompass all “legal proceedings,” including

a sentencing hearing.

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6 prohibits the use of the information only in the Government’s case-in-chief against

Perry, by omission the proffer agreement indicates 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 agree with the Government that, viewed in

isolation, this could be a reasonable interpretation 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 proffer, 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 made during 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, Paragraph 6 conveys

that, with the exception of the Government’s case-in-chief against Perry, the

information derived from Perry’s proffer session may be used without limitation. On
4

 Paragraph 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 would 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).

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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 presents a materially inconsistent position.4

 Thus,

the proffer agreement, viewed as a whole, ambiguously delineates the limitations on

the use of information derived from Perry’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, the 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 court erred when it denied his request for

a two-level reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1. “When
6

 Perry’s contention that fear of reprisal informed his decision not to cooperate

and to proceed to trial does not alter our conclusion. “[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 before trial to win a reduced sentence.”

United States v. Morgano, 39 F.3d 1358, 1378 (7th Cir. 1994).

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reviewing the grant or denial of a reduction for acceptance of responsibility, we afford

great deference to the determination of the 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 government to its burden of proof

at trial by denying the essential factual elements 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 trial 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, he cross-examined witnesses 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 grant 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.

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