United States v. Perry, No. 10-1992 (8th Cir. 2011)
Annotate this CaseDefendant was convicted of nine felony counts arising out of various drug and firearm offenses. At issue was whether the district court erred when it calculated defendant's advisory sentencing guidelines range using self-incriminating information disclosed by defendant during a proffer session with the Government. Also at issue was whether the district court erred in refusing to reduce defendant's offense level for acceptance of responsibility pursuant to U.S.S.G. 3E1.1. The court held that an absolute and unqualified promise not to "use" self-incriminating information offered in a proffer was not required to bring an agreement within the bounds of U.S.S.G. 1B1.8 and that the provisions of the proffer agreement at issue brought it within the bounds of section 1B1.8. The court also held that the proffer agreement did not allow for the use of information disclosed during the proffer session to be used in determining defendant's Guidelines range where, viewed as a whole, it ambiguously delineated the limitations placed on the use of information derived from defendant's proffer. The court further held that the district court did not err in refusing to grant defendant a two-level reduction for acceptance of responsibility where defendant went to trial and consistently denied the essential elements of guilt. Accordingly, the court remanded for resentencing.
Court Description: Criminal case - Sentencing. An absolute and unqualified promise not to "use" the self-incriminating information offered in a proffer is not required to bring an agreement within the bounds of Guidelines Sec. 1B1.8; here, the provisions of the proffer agreement brought it within the bounds of Sec. 1B1.8's coverage; the proffer agreement, viewed as a whole ambiguously delineated the limitations place on the use of information derived from defendant's proffer and must, accordingly, be construed against the government; as a result, the proffer agreement did not allow for the use of information disclosed during the proffer session to be used in determining defendant's Guidelines range, and the district court erred in considering the information; district court did not err, however, in refusing to grant defendant a two-level reduction for acceptance of responsibility where defendant went to trial and consistently denied the essential elements of guilt; case remanded for resentencing.
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