D pleaded to bank robbery. Proffered. Had proffer agreement with gov: statements would not be used against him. Presentence report (PSR), however, included several statements from D’s proffer. These statements were initially used in calculating the guideline range, and dist court relied on them in determining the sentence.
D objected to this increase in his GL range based on the statements. "He argued the conclusion [co-D’s] conduct was a ‘reasonably foreseeable act . . . in furtherance of the jointly undertaken criminal activity,’ USSG § 1B1.3(a)(1)(B), was impermissibly based on his proffer-protected statements." Gov agreed and used an FBI agent to establish an independent source for the GL range increase. Dist court overruled D’s objection, finding the information regarding the increase was obtained by law enforcement before the proffer. Appellate court notes that D "did not object to any of the information relied on by the court in determining his sentence."
D argued "his proffer-protected statements were impermissibly used to increase his guideline sentence range." Court looked at GL section 1B1.8, which provides that proffer "information shall not be used in determining the applicable guideline range, except to the extent provided in the [proffer] agreement."
Appellate court concludes that "Had this information provided the basis for the enhancement that determined [D’s] ultimate guideline range, a violation of USSG § 1B1.8 would have occurred." But court found that the range could "be sustained without the use of the impermissible proffer-protected information." FBI agent provided independent source for info.
D also argued the increase was impermissible because, without the improper information in the PSR, he would not have received a higher advisory range—the increase would never have been an issue. And the FBI agent’s testimony was improper, as it never would have been presented, but for the objection to use of the proffer information. Appellate court notes that D "cites no case holding a later, valid guideline enhancement improper because of an earlier, improper enhancement" and rejects the contention.
D argued he had insufficient notice of the agent’s testimony. The agent’s info was not included in the PSR. Argued it was a violation of Rule 32 to allow presentation of the evidence for the first time at the sentencing hearing. But, court notes, D did not object to agent’s testimony. Nor did D seek a continuance. And Rule 32 was not violated. No requirement that all bases for determining offense level be included in PSR. And no prohibition against gov presenting additional evidence at hearing.
D argued "that not only does USSG § 1B1.8 preclude the use of proffer-protected information in determining the guideline sentence range, but that it also categorically precludes the use of proffer information in the PSR." But, court says, no objection in dist court, so plain-error review applies. Court looks at commentary to 1B1.8 and finds that gov cannot withhold info from a sentencing court.
Court finds that "No Sixth Circuit case has reached a contrary result, while out-of-circuit opinion on this issue is split." Looks at "United States v. Abantha, 999 F.2d 1246, 1248 (8th Cir. 1996) (holding information disclosed to the government under a promise of confidentiality cannot be included in a PSR)," and "United States v. Rourke, 74 F.3d 802, 809 n.6 (7th Cir. 1996) (precluding the government from withholding relevant information from the sentencing court)." Also finds Rule 32(d)(3)(B)’s reference to confidential information unavailing.
The issue remains open: "We only review this issue for plain error, since [D] failed to object at the district court. While we reserve ruling on the question of whether proffer-protected information can be used in determining a defendant’s specific sentence, any error by the district court in this case is certainly not plain."