United States v. Robert Perry
2011 U.S. App. LEXIS 10175
8th Cir.2011Background
- Perry was convicted after a jury trial on nine felony counts involving drug distribution and firearm offenses.
- Before trial, Perry provided information in a proffer session; the government and Perry entered a proffer agreement governing use of self-incriminating information.
- The PSR treated Counts I–VI, VIII, IX as grouped; Count VIII (firearm as a felon) provided the highest offense level.
- The PSR and Government argued that Perry’s proffer information justified an earlier offense start date and higher criminal history using self-disclosed prior sentences.
- At sentencing, the district court used proffer-derived information to raise the base offense level to 30 and denied a two-point acceptance of responsibility adjustment.
- The district court calculated a total offense level of 28 and criminal history VI, then varied downward to 70 months, plus a consecutive 60-month sentence for Count VII, totaling 130 months.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1B1.8 barred using proffer information to determine guidelines. | Perry: information not to be used against him controls. | The Government: usage limitations are ambiguous but may permit use for guidelines. | Yes; § 1B1.8 applied and prohibited use for guidelines. |
| Whether the proffer agreement permits use of disclosures in calculating the guidelines range. | Perry: agreement language prevents such use. | Government: usage limitations are not dispositive absent clear scope; may permit use. | No clear authorization to use for guideline range; ambiguous, construed against Government. |
| Whether denial of a two-level reduction for acceptance of responsibility was error. | Perry should receive § 3E1.1 reduction for accepting responsibility. | Perry elected trial; no automatic acceptance of responsibility; rare exception not present. | District court did not clearly err in denying the reduction. |
Key Cases Cited
- Cox v. United States, 985 F.2d 427 (8th Cir. 1993) (proffer agreement can implicate § 1B1.8 when usage restriction is present)
- United States v. Robinson, 898 F.2d 1111 (6th Cir. 1990) (self-incrimination agreements and § 1B1.8 considerations)
- United States v. Shorteeth, 887 F.2d 253 (10th Cir. 1989) (requirements for § 1B1.8 application to sentencing range use)
- United States v. Taylor, 18 F.3d 612 (8th Cir. 1994) (contract interpretation of cooperation agreements (cited for general principles))
- United States v. Baird, 218 F.3d 221 (3d Cir. 2000) (contractual interpretation and § 1B1.8 application)
- Gall v. United States, 552 U.S. 38 (S. Ct. 2007) (sentencing, procedural error and guidelines calculation)
- United States v. Transfiguracion, 442 F.3d 1222 (9th Cir. 2006) (statutory interpretation aids § 1B1.8 scope)
- United States v. Stobaugh, 420 F.3d 796 (8th Cir. 2005) (ambiguities resolved against government in cooperation agreements)
- United States v. Morgano, 39 F.3d 1358 (7th Cir. 1994) (trial conduct and acceptance of responsibility considerations)
- United States v. Williams, 627 F.3d 324 (8th Cir. 2010) (harmless error and sentencing procedures)