UNITED STATES of America, Plaintiff-Appellee v. Nathan Todd OZMON, Defendant-Appellant.
No. 12-2913.
United States Court of Appeals, Eighth Circuit.
Submitted: April 11, 2013. Filed: May 1, 2013.
713 F.3d 474
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
Ozmon and nine other individuals were indicted 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 working 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 informally 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 inconsistent with those admissions. The parties later formalized this understanding in a written cooperation agreement.
In his proffer interview Ozmon gave a detailed account of his participation in the drug conspiracy. He admitted his involvement in transporting, repackaging, and distributing marijuana; he also allowed Mueller to store large quantities of marijuana in the basement of his home. In addition 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 proffer interview, Ozmon and the government signed formal cooperation and plea agreements. The cooperation agreement provided that the government would not use self incriminating information provided by Ozmon unless he “denie[d] the same or present[ed] evidence to the contrary” at a later time. It also allowed the government to use “evidence developed independent [sic] of the defendant‘s self-criminating [sic] statements.”
The parties agreed that Ozmon would be sentenced as a career offender due to his prior felony drug convictions, but they disputed whether a sentence enhancement under
On his appeal, Ozmon first argues that the government breached the cooperation agreement by using his self incriminating statements from his proffer interview. This is a question of law which 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).
The cooperation agreement in this case 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 subsequent to the signing of [the cooperation agreement].” Once Ozmon admitted in his proffer interview 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 sacrificing his protection against the use of his self incriminating statements. Ozmon stated in an objection to his PSR that 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 admitted 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 agreement 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 the 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
For these reasons we affirm the judgment of the district court.