United States v. Gibson

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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