Case: 10-30643 Document: 00511499537 Page: 1 Date Filed: 06/06/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 6, 2011
No. 10-30643
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
RODNEY D. HARPER,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
Defendant Rodney D. Harper pleaded guilty to a drug conspiracy charge
involving “50 grams and more” of cocaine base. Pursuant to a plea agreement,
Harper was debriefed by the Government and gave immunized statements about
the conspiracy. A probation officer later issued a presentence investigation
report (PSR) assigning Harper a guideline sentencing range based on 18
kilograms of cocaine base. Harper objected to the PSR, asserting it was not
based on sufficient, reliable information derived from a legitimate source wholly
independent of his immunized statements. To support the PSR’s guideline
calculation, the Government informed both the district court and the probation
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officer that Harper admitted dealing the drug quantities identified in the PSR
during his immunized debriefing.
The issue on appeal is whether the Government breached Harper’s plea
agreement by using his immunized statements to advocate for the PSR’s
guideline calculation. We find that such use was inconsistent with any
reasonable understanding of Harper’s plea agreement, and that the
Government’s proffered justifications for such use are devoid of merit.
Accordingly, we conclude the Government breached Harper’s plea agreement,
and Harper is entitled to resentencing before a different judge.
I. BACKGROUND
In October 2009, a grand jury indicted defendant Rodney D. Harper on one
count of conspiracy to possess with intent to distribute “50 grams and more” of
cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. Harper ultimately
pleaded guilty and signed a factual basis stipulating, in relevant part:
The defendant, Rodney D. Harper, was intercepted on a call on April
13, 2009, with Shedrick Green in which HARPER negotiated
purchasing over 50 grams of crack cocaine from Green for street
sale.
Shedrick Green is scheduled to plead guilty and has agreed to
cooperate, and he confirms and corroborates the above-described
intercepts. Another informant likewise confirms HARPER’s
involvement in selling crack in the Ruston, LA, area.
In a plea agreement, Harper agreed to cooperate with the Government.
In exchange for his cooperation, the Government granted Harper “use immunity
for all prospective statements to law enforcement agents and testimony, given
as a result of this agreement.” Harper then was debriefed by and gave
immunized statements to two members of a Drug Enforcement Agency (DEA)
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Task Force. According to the Government, Harper revealed that his relevant
offense conduct involved 18 kilograms of cocaine base.
On February 1, 2010, a United States Probation Officer issued an initial
PSR. The PSR purported to rely on Harper’s signed factual basis, but in fact
relied on some other, unsigned factual basis. The PSR stated, in relevant part:
17. The U.S. Attorney has completed a Factual Basis and the
defendant has stipulated to its accuracy. Our investigation
reveals it accurately conveys the total offense conduct. It
reads as follows:
18. . . . The defendant, Rodney D. Harper, was intercepted
on several calls with Shedrick Green between February
and April, 2009, in which Harper negotiated purchasing
crack cocaine from Green for street sale.
19. Shedrick Green is scheduled to plead guilty and has
agreed to cooperate, and he confirms and corroborates
the above-described intercepts.
20. R elated defendant K evin G oldsm ith has pled
guilty . . . and states that he supplied Defendant
Harper with half a kilo of cocaine powder every month
to be cooked into crack between 2006 through April,
2009. Goldsmith further states that he has observed
Harper cooking the powder into crack.
The PSR concluded Harper “was involved in distributing crack cocaine
from on or about April, 2006 through April, 2009 (36 months),” and thus was
“accountable for distributing at least 18,000 grams which is equivalent to 18
kilograms of cocaine base or crack cocaine.” Having determined Harper’s
relevant offense conduct involved 18 kilograms of cocaine base, the PSR assigned
Harper a base offense level of 38. The PSR then credited Harper with a three-
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level reduction for his acceptance of responsibility. Based on a total offense level
of 35 and a criminal history category of IV, the PSR calculated Harper’s
guideline imprisonment range to be 235 to 293 months.
Harper objected to the PSR. Harper asserted the PSR misstated his
signed factual basis and otherwise lacked sufficient, reliable information about
his relevant offense conduct. Harper also asserted it was the Government’s
burden to demonstrate the information in the PSR did not derive from his
immunized statements.
On March 5, 2010, the Government informed Harper that “if we are
required to proceed with a sentencing hearing on these issues, there will be no
5K1 sentencing motion,” and the district court “will hear of Harper’s own
admissions at the sentencing hearing.” The Government asserted the DEA
agents who debriefed Harper would testify “that Harper himself admitted his
drug trafficking and amounts of cocaine with the same co-defendants and
others.” According to the Government, Harper could not “now contest the
amount of drugs to be held against him for sentencing when he admitted the
extent and amounts of his trafficking to the agents himself.”
On March 15, 2010, the Government wrote to the probation officer who
prepared the PSR. The Government acknowledged “that the wording of
Paragraphs 17, 18, 19, and 20 [of the PSR] should be revised.” The Government
asserted “the information set forth in these Paragraphs is correct, but it should
be rewritten so as to characterize it as information provided by the Government
of the investigation of the defendant’s criminal activities, not as set forth in a
stipulated Factual Basis.” The Government emphasized “the substance of these
Paragraphs is correct and should remain the same, but I suggest the derivation
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of the information should be revised so as to show it came from Government’s
investigation and not from a stipulated Factual Basis.”
The Government again wrote to the probation officer on May 27, 2010, this
time copying the district court. The letter was intended “to advise [the probation
officer] and the [district court] that the Government supports the findings
contained in the Presentence Report.” The Government reiterated it would call
the case agents who debriefed Harper to testify that he “admitted the quantities
of cocaine that he dealt with over the course of this conspiracy.”
On June 3, 2010, Harper’s attorney notified the Government that it had
violated Harper’s plea agreement by disclosing Harper’s immunized statements
to the district court. The Government responded the next day. According to the
Government, Harper could not “contest the weights of cocaine used against him
when he himself admitted such weights in his debriefing.” The Government
repeated that Harper “can’t perpetrate a fraud upon the Court by denying what
he himself admitted.”
The probation officer revised the PSR on June 4, 2010. The revised PSR
is substantially the same as the initial PSR, except paragraph 17 was changed
to read:
17. This case was predicated on information provided by the Drug
Enforcement Administration (DEA) which reveals the
following information as it concerns this defendant . . . .
On June 16, 2010, Harper filed a “motion for relief from Government’s
breach of plea agreement.” The motion asserted the Government breached
Harper’s plea agreement by disclosing his immunized statements to the district
court. Harper requested reassignment of his case to another judge for
sentencing.
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In opposition to Harper’s motion, the Government again informed the
district court that it would produce testimony from “the case agents who
interviewed the defendant in the proffer to testify that the defendant himself
admitted to dealing the weights set forth in the PSR.” The Government
emphasized the district court was “being made aware that the defendant himself
admitted to the weights that he now objects to, in order for this [district court]
to rule on counsel’s objections.”
The district court held a sentencing hearing on June 24, 2010. After
taking testimony from the probation officer and two codefendants, Kevin
Goldsmith and Shedrick Green, the district court adopted the factual findings
contained in the PSR, calculated a guideline sentencing range of 235 to 293
months, and sentenced Harper to 240 months imprisonment. There is no
indication the district court in fact relied on Harper’s immunized statements in
arriving at this sentence.
Harper now appeals his sentence. Harper asserts the Government
breached his plea agreement and also failed to prove his offense conduct involved
18 kilograms of cocaine base with sufficient, reliable evidence derived from a
legitimate source wholly independent of his immunized statements. We
conclude the Government breached Harper’s plea agreement, and thus Harper
is entitled to the remedy he requests: resentencing before a different judge.
II. STANDARDS
The Government must strictly adhere to the terms and conditions of its
promises in a plea agreement. United States v. Munoz, 408 F.3d 222, 226 (5th
Cir. 2005). Whether the Government has breached a plea agreement is a
question of law we review de novo. United States v. Saling, 205 F.3d 764, 766
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(5th Cir. 2000). The defendant has the burden of proving the underlying facts
by a preponderance of the evidence. United States v. Gonzalez, 309 F.3d 882,
886 (5th Cir. 2002).
If the Government breaches a plea agreement, the defendant may seek one
of two remedies: specific performance, requiring resentencing before a different
judge; or withdrawal of his guilty plea. Santobello v. New York, 404 U.S. 257,
263 (1971); Gonzalez, 309 F.3d at 886. The defendant is entitled to relief even
if the Government’s breach did not ultimately influence the defendant’s
sentence. Santobello, 404 U.S. at 263; Saling, 205 F.3d at 766-67; United States
v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993); United States v. Grandinetti, 564
F.2d 723, 726 (5th Cir. 1977).
III. DISCUSSION
A plea agreement is interpreted in accordance with general principles of
contract law. United States v. Cantu, 185 F.3d 298, 302 (5th Cir. 1999). In
determining whether the Government has violated a plea agreement, we ask
whether the Government’s conduct was consistent with the parties’ reasonable
understanding of the agreement. Gonzalez, 309 F.3d at 886. Here, Harper’s
plea agreement provides “use immunity for all prospective statements to law
enforcement agents and testimony, given as a result of this agreement.” We
must determine whether the Government’s use of Harper’s immunized
statements to advocate for the PSR’s guideline calculation was consistent with
a reasonable understanding of this use immunity agreement.
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Under a “use immunity” plea agreement, “the government is prohibited
from using information provided by the defendant in any criminal case.” 1 Cantu,
185 F.3d at 301 (citing 18 U.S.C. § 6002 and Kastigar v. United States, 406 U.S.
1
Under the Fifth Amendment, a witness who is compelled to testify must be
granted “[i]mmunity from the use of [that] testimony, as well as evidence derived
directly and indirectly therefrom.” Kastigar v. United States, 406 U.S. 441, 453 (1972);
see also 18 U.S.C. § 6002 (requiring same). When a defendant voluntarily provides
information to the Government, however, the Fifth Amendment is not implicated, and
the Government may negotiate a lesser degree of immunity. See, e.g., United States
v. Ramos, 537 F.3d 439, 453 n.8, 454 (5th Cir. 2008); United States v. Smith, 452 F.3d
323, 337 (4th Cir. 2006). Ordinary principles of contract interpretation apply when
interpreting the scope of negotiated immunity. Ramos, 537 F.3d at 451.
Here, Harper’s plea agreement grants “use immunity” for all prospective
statements given as a result of the agreement. This Court has tended to interpret “use
immunity” as a term of art that covers both direct and derivative use of immunized
statements. See, e.g., United States v. Brown, 298 F.3d 392, 411 n.21 (5th Cir. 2002)
(Dennis, J., concurring in the judgment in part and specially concurring in part) (“Use
immunity – also termed use/derivative-use immunity – is immunity from the use of the
compelled testimony (or any information derived from that testimony) in a future
prosecution against the witness.” (quotation marks omitted)); United States v. Taylor,
277 F.3d 721, 724 (5th Cir. 2001) (finding that “when a ‘use immunity’ plea agreement
is involved,” “the government may not use the defendant’s testimony directly as
evidence or indirectly as an investigatory lead”); compare United States v. Castaneda,
162 F.3d 832, 834 n.1 (5th Cir. 1998) (finding Government “reserved its right to pursue
investigative leads derived from [defendant]’s statements and use this ‘derivative’
evidence against him” under terms of proffer agreement). This interpretation is
consistent with at least two of our sister circuits, which have held that “use immunity”
presumptively includes both direct and derivative use immunity. See United States v.
Kilroy, 27 F.3d 679, 685 (D.C. Cir. 1994); United States v. Plummer, 941 F.2d 799, 805
(9th Cir. 1991); compare Smith, 452 F.3d at 338 n.3 (declining to decide whether “use
immunity” includes derivative use immunity).
We need not decide whether Harper is entitled to derivative use immunity under
his plea agreement. For the reasons stated below, we conclude the Government
violated Harper’s plea agreement by directly using his immunized statements to
advocate a higher guideline sentencing range.
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441, 460 (1972)). According to our case law, information provided pursuant to
a use immunity plea agreement “may not be used in determining the applicable
guideline range under the Sentencing Guidelines.” United States v. Taylor, 277
F.3d 721, 724 (5th Cir. 2001); see also Gonzalez, 309 F.3d at 887; United States
v. Marsh, 963 F.2d 72, 74 (5th Cir. 1992); Shacklett, 921 F.2d at 584. This
conclusion is supported by § 1B1.8 of the Sentencing Guidelines, which expressly
provides that a defendant’s immunized statements “shall not be used in
determining the applicable guideline range, except to the extent provided in the
agreement.” United States Sentencing Guidelines (U.S.S.G.) § 1B1.8(a) (2009).
Notably, the application notes to § 1B1.8 explain:
if a defendant is arrested in possession of a kilogram of cocaine and,
pursuant to an agreement to provide information concerning the
unlawful activities of co-conspirators, admits that he assisted in the
importation of an additional three kilograms of cocaine, a fact not
previously known to the government, this admission would not be
used to increase his applicable guideline range, except to the extent
provided in the agreement.
Id. § 1B1.8 cmt. n.1.
Section 1B1.8 of the Sentencing Guidelines sheds light on the reasonable
understanding of Harper’s plea agreement. At the very least, Harper was
reasonable in understanding that the Government would not use his immunized
statements to advocate a higher guideline sentencing range. After all, the
district court was prohibited from basing its guideline determination on those
statements. Yet this is precisely what the Government did. In response to
Harper’s objection that the PSR’s guideline calculation lacked a sufficient and
reliable basis, the Government offered Harper’s immunized statements to fill the
gap. The Government notified both the probation officer and the district court
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that “Harper himself admitted the quantities of cocaine that he dealt with over
the course of this conspiracy.” The Government later reminded the district court
that “the defendant himself admitted to dealing the weights set forth in the
PSR.” The stated purpose of these disclosures was to “support[] the findings” in
the PSR and help the district court “rule on counsel’s objections.” The
Government’s direct and repeated use of Harper’s immunized statements to
advocate a higher guideline sentencing range was not consistent with any
reasonable understanding of Harper’s use immunity agreement.
It makes no difference whether the district court or the probation officer
was in fact influenced by the Government’s advocacy. See Santobello, 404 U.S.
at 263; Grandinetti, 564 F.2d at 726. Harper entered into a plea agreement with
the Government, not the district court or the probation officer. In entering into
the plea agreement, Harper bargained not for a promise that third parties would
disregard his immunized statements, but for a promise that the Government
would not use those statements against him, including by advocating a harsher
sentence. Because the Government failed to uphold its end of the bargain, we
need not reach the question whether the Government’s improper disclosures
were ultimately successful. Santobello, 404 U.S. at 262.
The Government has proposed several justifications for its use of Harper’s
immunized statements, but none is availing in this case. First, the Government
asserts Harper was perpetrating “a fraud upon the Court by denying what he
himself admitted.” The Government is correct, of course, that Harper may not
make false statements or misrepresentations to the court. As Harper’s plea
agreement recognizes, immunized statements may be used in a prosecution for
perjury or giving a false statement. See, e.g., U.S.S.G. § 1B1.8(B)(3); see also
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Gonzalez, 309 F.3d at 886 (noting immunized statements may be used to
impeach later inconsistent statements). But Harper never misrepresented to the
court that his offense conduct involved less than 18 kilograms of cocaine base.
Harper simply objected to the sufficiency, reliability, and independence of the
evidence presented in the PSR. At least in part, Harper’s objections were well-
founded: without explanation, the PSR quoted at length from an unsigned
factual basis. In short, although Harper may not defraud the court, the
Government still must meet its burden of proof at sentencing with sufficient,
reliable evidence derived from a legitimate source wholly independent of
Harper’s immunized statements. See Kastigar, 406 U.S. at 460 (finding
prosecution has “affirmative duty to prove that the evidence it proposes to use
is derived from a legitimate source wholly independent of the compelled
testimony”); Taylor, 277 F.3d at 725 (applying Kastigar in sentencing context).
It was not a fraud upon the court for Harper to hold the Government to its
burden of proof.
The Government next suggests Harper opened the door to his immunized
statements by requiring the Government to demonstrate a wholly independent
source for the information in the PSR. It is true that in most cases a district
court conducting a taint hearing must have the defendant’s immunized
statements “to decide the issue fairly.” See United States v. Williams, 817 F.2d
1136, 1138 (5th Cir. 1987). This is because the court typically must examine the
immunized statements in order to determine whether they could have led to the
information the Government seeks to use against the defendant. In this case,
however, the Government did not disclose Harper’s immunized statements to
show that the information in the PSR came from an independent source. If
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anything, the Government’s disclosure that Harper “admitted the quantities of
cocaine that he dealt with over the course of this conspiracy” would seem to
undermine the independence of the PSR. In short, this is not a case in which the
Government revealed specific immunized statements to show they could not
have led to the information the Government sought to use. This is a case in
which the Government improperly used Harper’s immunized statements to
advocate a higher guideline sentencing range.
As a final matter, we need not decide whether the mere disclosure of
Harper’s immunized statements to the probation officer and the district court
violated Harper’s plea agreement. Harper’s plea agreement recognizes that “as
part of the presentence investigation the Government will make available to the
Court all evidence developed in the investigation of this case.” Even assuming
this provision applies to Harper’s prospective immunized statements,2 the
provision still does not authorize the Government to use those statements
against Harper. In other words, even if the plea agreement recognizes the
Government would “make available” Harper’s immunized statements to the
district court in some circumstances, this does not mean the Government also
could use those statements to advocate a higher guideline sentencing range. See
2
The Government asserts Harper’s immunized statements constitute “evidence
developed in the investigation of this case.” We do not decide the issue, but we observe
that although Harper’s immunized statements may have helped the Government
investigate and prosecute other cases, the Government’s investigation of this case
would appear to have ended when Harper pleaded guilty and the Government agreed
not to further prosecute him based on its investigation. Cf. Baton Rouge Oil & Chem.
Workers Union v. ExxonMobil Corp., 289 F.3d 373, 377 (5th Cir. 2002) (“It is a
fundamental axiom of contract interpretation that specific provision control general
provisions.”); United States v. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008) (noting plea
agreements are “construed strictly against the Government as the drafter”).
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Munoz, 408 F.3d at 227-28 (finding “Government crossed the line to breach by
affirmatively advocating the application of the enhancement,” even though the
relevant facts already were in the record); Saling, 205 F.3d at 767 (finding
Government breached plea agreement by attempting to “influence” the court to
impose a consecutive sentence, even though the relevant facts already were in
the record). As already discussed, such use was prohibited by the use immunity
clause in Harper’s plea agreement.
Relatedly, we have observed § 1B1.8 of the Sentencing Guidelines “does
not prohibit disclosure of information provided in a plea agreement at
sentencing, but rather, it prohibits this information from being used to
determine the applicable guideline range.” Gonzalez, 309 F.3d at 887; cf.
U.S.S.G. § 1B1.8 cmt. n.1 (“This provision does not authorize the government to
withhold information from the court . . . .”). This observation is consistent with
all that has been said above. There may be some circumstances when it is
appropriate for a district court to consider a defendant’s immunized statements.
For example, as already discussed, a district court may consider immunized
statements at a taint hearing or for purposes of impeachment. See U.S.S.G.
§ 1B1.8(b)(1), (3); Gonzalez, 309 F.3d at 886. A district court also may consider
immunized statements in determining whether a defendant breached a
cooperation agreement. See U.S.S.G. § 1B1.8(b)(4). And a district court may
consider immunized statements “in determining whether, or to what extent, a
downward departure from the guidelines is warranted pursuant to a government
motion under § 5K1.1.”3 See id. § 1B1.8(b)(5); id. § 1B1.8 cmt. n.1. But none of
3
On the other hand, it is the policy of the Sentencing Commission that
immunized statements “shall not be used to depart upward.” U.S.S.G. § 1B1.8 cmt.
n.1.
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this means the Government has blanket authorization to disclose on its own
initiative and without any legitimate purpose a defendant’s immunized
statements to the district court. As the Eighth Circuit has observed, although
a district court generally “should have all the available, relevant information
about a defendant when selecting an appropriate sentence . . . a defendant’s
prior, immunized testimony is, by agreement with the Government, not
available.” United States v. Abanatha, 999 F.2d 1246, 1249 (8th Cir. 1993); see
also Munoz, 408 F.3d at 227 (“Although the Government has a duty to provide
the sentencing court with relevant factual information and to correct
misstatements, it may not hide behind this duty to advocate a position that
contradicts its promises in a plea agreement.”). Here, the Government has failed
to identify any legitimate purpose for disclosing Harper’s immunized statements
to the district court, or for using those statements to advocate a higher guideline
sentencing range.
To summarize, the Government used Harper’s immunized statements to
advocate a higher guideline sentencing range. This use was not consistent with
a reasonable understanding of Harper’s use immunity agreement, nor was it
justified by any other provision in Harper’s plea agreement or the law. Because
the Government breached Harper’s plea agreement, Harper is entitled to his
requested remedy: specific performance and resentencing before a different
judge.
IV. CONCLUSION
For the reasons stated, we VACATE Harper’s sentence and REMAND to
the district court for resentencing before a different judge.
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