UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-40521
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
HAROLD S. GIBSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(March 21, 1995)
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:
This appeal concerns the use of information obtained from co-
defendants in computing the sentence assessed the appellant.
Appellant Harold Gibson claims that such use violated the terms of
a cooperation agreement and should not have been available in
assessing his punishment. Finding no error in the use of
information garnered from Gibson's co-defendants, we AFFIRM.
FACTS AND PROCEDURAL HISTORY
In October 1993 Harold Gibson and co-defendants, Buford
Jefferson and Eddie McGee, were stopped in Beaumont, Texas, by a
highway trooper who discovered a package of fifteen crack cocaine
"cookies" (later determined to contain 278.91 grams of cocaine
base) in the air vent compartment under the hood of their car.
Pursuant to written plea agreements, Gibson, Jefferson, and McGee
pleaded guilty and agreed to provide assistance to the Government.
Each gave post-arrest statements, submitted to Government
debriefings, and participated in presentence interviews by the
probation officer. All of the defendants told the probation
officer that (1) they were recruited by the same individual in
Hattiesburg, Mississippi, to transport cocaine from Houston, Texas
to Mississippi, (2) they were paid $1,000 per trip, (3) they flew
or drove to Houston and waited for the drugs to be delivered to
them, and (4) sometimes Jefferson or McGee would purchase the drugs
for transport to Mississippi. According to the probation officer,
although the dates and the drug amounts transported per trip varied
among the defendants' accounts, Jefferson and McGee reported that
Gibson made at least 15 trips with either or both of them between
January and September 1993, and that at least six ounces of crack
cocaine were transported each trip.
Based on that information, the probation officer determined
that Gibson was accountable for 2.83 kilograms of cocaine base
(278.91 grams seized in the instant arrest plus a total of 2,551.5
grams transported during the 15 earlier trips). From the base
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offense level of 38, the probation officer deducted three levels
for acceptance of responsibility, which resulted in a total offense
level of 35. Applying a criminal history category of I to a total
offense level of 35 yielded a guideline-imprisonment range of 168-
210 months.
In written objections to the PSR and at the sentencing
hearing, Gibson argued that he should not be responsible for any
drugs not seized incident to his arrest because (1) they became
known to the Government as part of Gibson's cooperation agreement,
(2) Jefferson and McGee's agreement to cooperate was the direct
result of Gibson's cooperation, (3) Jefferson and McGee could not
be treated as independent sources because they were merely
corroborating the information that Gibson provided (in his
debriefing on December 3rd), and (4) the use of the information
obtained from Gibson, Jefferson, and McGee violated the terms of
Gibson's cooperation agreement contained in a "proffer letter" he
signed with the Government.1 To Gibson's objections to the PSR,
the probation officer responded that there was no evidence to
support Gibson's argument that he was responsible for Jefferson and
McGee's cooperation, that no drug amounts were discussed at
1
The "proffer letter" from the Government to Gibson's counsel
was dated the same day as Gibson's debriefing, December 3rd, and
provided that "no statement made by or other information discussed
with your client will be used against your client in the
Government's case-in-chief." The plea agreement dated January 24,
1994, is silent respecting the "proffer letter" and the use of
incriminating statements made by Gibson; it does provide, however,
that Gibson and his attorney "acknowledge and confirm that this is
the entire plea agreement which has been negotiated by and between
the parties, that no other promise has been made or implied by or
for either the Defendant or the Government...."
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Gibson's December 3rd debriefing, and that
"[d]ue to the vagueness of the information [Gibson]
provided to law enforcement, this probation officer,
along with the attorneys of each defendant, conducted
separate interviews with their respective clients to
gather the specific facts regarding amounts. In fact,
the defendant's recollection of facts during two of those
meetings was still somewhat ambiguous and extreme, and
the probation officer had to interview him a third time.
His attorney systematically assisted [Gibson] and the
probation officer in determining exact amounts and roles.
In essence, what the defendant ultimately arrived at as
being the facts was merely a confirmation of what this
two codefendants had already provided."
At the sentencing hearing, in response to the district court's
question whether he had used any information from Gibson in the
drug-quantity determination, the probation officer reiterated that
he used information from Jefferson and McGee only to calculate the
drugs attributable to Gibson. The district court overruled
Gibson's objections, adopted the findings in the PSR, and sentenced
Gibson to a term of imprisonment of 168 months. Gibson timely
perfected his appeal.
ARGUMENTS AND ANALYSIS
Gibson contends that the district court committed error in its
determination of the drug quantity attributable to him because it
considered information obtained during Gibson's debriefing in
contravention of Gibson's plea agreement, cooperation agreement,
and U.S.S.G. § 1B1.8. Relying on Kastigar v. U.S., 406 U.S. 441,
453, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), and U.S. v. North,
920 F.2d 940, 942 (D.C. Cir. 1990), cert. denied, 500 U.S. 941
(1991), Gibson further asserts that because Gibson was debriefed
before Jefferson or McGee were interviewed, "it is likely" that the
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probation officer used the latter interviews to confirm the
information Gibson revealed during the earlier debriefing and that
the Government did not prove that the information was "derived from
a legitimate source wholly independent of [the] compelled
testimony" that was "not shaped, directly or indirectly, by [the]
prior immunized testimony of the defendant." He maintains that the
Government's burden cannot be satisfied by a "mere assertion" that
the immunized testimony was not used.
Gibson suggests that the issue "[w]hether the government's
conduct violated the terms of the plea agreement is a question of
law, which on appeal in reviewed de novo." But disputes concerning
the terms of a plea agreement generally, as in this instance,
involve resolution of factual issues by the district court.
Because Gibson raised this issue before the district court, this
Court reviews the district court's factual findings for clear
error. U.S. v. Borders, 992 F.2d 563, 566-67 (5th Cir. 1993). In
U.S. v. St. Julian, 922 F.2d 563-566-67 (10th Cir. 1990), the Tenth
Circuit applied a "clearly erroneous" standard in reviewing a
district court's determination that the use of co-defendants'
statements in sentencing did not violate § 1B1.8 when the defendant
did not adduce any evidence to show that had he refused to
cooperate, his co-defendants would not have offered the allegedly
tainted information. We also believe this is the appropriate
standard to be applied in reviewing Gibson's alleged violation of
his cooperation agreement in the instant case. "A finding is
'clearly erroneous' when although there is evidence to support it,
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the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed."
U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L.
Ed. 746 (1948).
Although Gibson's plea agreement is silent respecting the
Government's use of incriminating statements and the parties agreed
that the plea agreement constituted the entire understanding
between the parties, it is unclear whether the cooperation
agreement contained in the "proffer letter" survived the plea
agreement. We need not determine whether the cooperation agreement
survived the plea agreement, however. Assuming arguendo that the
Government's promise not to use incriminating information has
survived, § 1B1.8 would be applicable. It provides that when a
defendant agrees to provide information concerning unlawful
activities of others, and "as part of that cooperation agreement
the [G]overnment agrees that self-incriminating information
provided pursuant to the agreement will not be used against the
defendant, then such information shall not be used in determining
the applicable guideline range, except to the extent provided in
the agreement."
Gibson argues that Jefferson and McGee merely corroborated
drug-quantity information that he provided during the December 3rd
debriefing, but that the Government possessed none of the
information before the debriefing, and that but for his
cooperation, the others would not have entered into plea
agreements. The probation officer responded that no drug amounts
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were established during the December 3rd meeting during which
Gibson provided an overview of the drug operation, that Jefferson
and McGee provided the information later, that Gibson's
recollection during the debriefing and the presentence interview
"was still somewhat ambiguous and extreme, and the probation
officer had to interview him a third time," that it was Gibson who
subsequently corroborated the information provided by the others,
and that Gibson adduced no evidence to show that he was
instrumental in obtaining Jefferson's and McGee's cooperation. The
district court found that the probation officer was relying on
information independent from that presented by Gibson. Thus,
regardless whether we apply a "clearly erroneous" standard or a de
novo standard, because the probation officer unequivocally
testified that none of the drug-quantity information obtained from
Gibson during the December 3rd debriefing or in the first
presentence interview was used to determine his offense level, and
that it was Gibson who subsequently corroborated his co-defendants'
accounts of the drugs transported during the earlier trips, the
district court's determination that § 1B1.8 was not violated will
not be disturbed.2
The judgement and sentence of the district court is AFFIRMED.
2
Gibson's citations to Kastigar and North in support of his
argument that the Government improperly relied on information
discovered during his debriefing are unavailing. Both cases are
factually inapposite and involve the use of immunized testimony at
trial. See Kastigar v. U.S., 406 U.S. at 460-62; U.S. v. North,
920 F.2d at 941-42.
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