# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 12-2913

___________________________ United States of America
lllllllllllllllllllll Plaintiff - Appellee

v.
Nathan Todd Ozmon
lllllllllllllllllllll Defendant - Appellant

____________ Appeal from United States District Court for the Southern District of Iowa - Davenport

____________ Submitted: April 11, 2013 Filed: May 1, 2013

____________ Before MURPHY, BEAM, and BYE, Circuit Judges.

____________ MURPHY, Circuit Judge.
Nathan Ozmon pled guilty to conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 841. At sentencing the district court 1 applied an

1 The Honorable James E. Gritzner, Chief Judge, United States District Court for the Southern District of Iowa.enhancement for possession of a dangerous weapon in connection with the conspiracy and sentenced Ozmon to 209 months, and Ozmon appeals. We affirm.

Ozmon and nine other individuals wereindicted in May 2011 for conspiracy to distribute 1000 kilograms or more of marijuana. They were accused of running a distribution ring in the Davenport, Iowa area which was responsible for importing, repackaging, and selling thousands of kilograms of marijuana. Ozmon was alleged to have been a mid level operative wo rking under the ringleader, Jason Mueller.
After his arrest in July 2011, Ozmon met with police and prosecutors to discuss a potential plea arrangement. The parties inform ally agreed that any self incriminating statements Ozmon made during the proffer interview would not be used against him unless he later took a position that was in consistent with those admissions. The parties later formalized this understandi ng in a written cooperation agreement.
In his proffer interview Ozmon gave a detailed account of his participation in the drug conspiracy. He admitted his involve ment in transporting, repackaging, and distributing marijuana; he also allowed Mu eller to store large quantities of marijuana in the basement of his home. In additi on Ozmon admitted that on one occasion he had allowed Mueller and another coconspirator Eric Thomson to store 40 to 50 stolen firearms at his home. After the proffe r interview, Ozmon and the government signed formal cooperation and plea agreements. The cooperation agreement provided that the government would not use self incr iminating information provided by Ozmon unless he "denie[d] the same or present[ed] evid ence to the contrary" at a later time. It also allowed the government to use "evi dence developed independent [sic] of the defendant's self-criminating [sic] statements."
The parties agreed that Ozmon would besentenced as a career offender due to his prior felony drug convictions, but they disputed whether a sentence enhancement under U.S.S.G. § 2D1.1(b)(1) should apply for possession of a dangerous weapon in

-2-furtherance of the conspiracy. Ozmon' s presentence investigation report (PSR) recommended that the enhancement be app lied because Ozmon ha d "allowed Mueller to store . . . guns at his residence," c iting information provided by Mueller at his proffer interview. Ozmon objected to the stat ement, asserting that he "did not allow guns to be stored at his residence." Th en at the sentencing hearing, the government called a police witness to testify about Ozm on's self incriminating statements at the proffer interview. It also introduced into evidence the officer's su mmary of the proffer interview. Ozmon objected to the officer's testimony, arguing that the government was barred by the cooperation agreement from us ing his self incriminating statements. The district court overruled his obj ection and applied the enhancement.
The district court calculated a guidelin e range of 262 to 327 months. The government moved for a downward departure based on Ozmon's substantial assistance, and Ozmon moved for a downwar d departure based on coercion or duress. Ozmon argued that he had been coerced in to participating in the conspiracy by Mueller who had threatened to harm his stepson. The district court granted the government's motion based on Ozmon's substantial assist ance and departed downward approximately 20% from the bottom of the guideline range. It denied Ozmon's own departure motion based on coercion or duress and sentenced him to 209 months.
On his appeal, Ozmon first argues that the government breached the cooperation agreement by using his self in criminating statements from his proffer interview. This is a question of law wh ich we review de novo. United States v. Lopez , 219 F.3d 343, 346 (4th Cir. 2000). We interpret the cooperation agreement between Ozmon and the government according to general contract principles, United States v. Brown , 801 F.2d 352, 354 (8th Cir. 1986), construing any ambiguous provisions in Ozmon's favor, United States v. Stobaugh , 420 F.3d 796, 800 (8th Cir. 2005).

-3-The cooperation agreement in this cas e is unambiguous. The government was prohibited from using "any self-incriminating information provided by [Ozmon]" at the proffer interview unless he "denie[d] the same or present[ed] evidence to the contrary at any hearing subs equent to the signing of [the cooperation agreement]." Once Ozmon admitted in his proffer interv iew that he had allowed Mueller and Thomson to store guns at his residence, he could not "den[y] the same or present[] evidence to the contrary" without sacrifici ng his protection against the use of his self incriminating statements.
Ozmon stated in an objection to his PSR th at he "did not allow guns to be stored at his residence." This statement directly contradicted what he had previously said at the proffer interview where he had admitte d allowing Mueller and Thomson to store 40 to 50 stolen firearms at his residence. His objection to the PSR therefore triggered the provision in the cooperation agreemen t which allowed the government to use Ozmon's self incriminating statements if he later contradicted them. The government then permissibly presented evidence about those self incriminating statements. We therefore conclude that the government did not breach the cooperation agreement when it used Ozmon's self incriminating statements from his proffer interview.
Ozmon also argues that the sentence imposed by the district court was substantively unreasonable. We review th e substantive reasonableness of a sentence for abuse of discretion. United States v. Feemster , 572 F.3d 455, 461 (8th Cir. 2009) (en banc). The district court imposed a 209 month sentence after departing downward from the bottom of Ozmon's guideline range of 262 to 327 months. Ozmon contends that the 18 U.S.C. § 3553(a) sentencing f actors supported an additional downward variance because he had a difficult childhood and had taken parental responsibility as a stepfather to his wife's children. Although he concedes that he is a career offender, he contends that a 209 month sentence is unreasonably long given that his longest incarceration for a prior offense was 78 days. Under all th e circumstances, we conclude that it was not unreasonable to sentence Ozmon to 209 months.

-4-For these reasons we affirm the judgment of the district court.

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