                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 01-3730
                               ________________

United States of America,                *
                                         *
            Appellee,                    *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Western District of Missouri.
Christopher McFarlane,                   *
                                         *
            Appellant.                   *

                               ________________

                               Submitted: May 14, 2002
                                   Filed: October 30, 2002
                               ________________

Before HANSEN, Chief Judge, MORRIS SHEPPARD ARNOLD, Circuit Judge,
      and PRATT,1 District Judge.
                              ________________

HANSEN, Circuit Judge.

      Christopher McFarlane appeals from the district court's2 judgment sentencing
him to a total of 110 months of imprisonment and five years of supervised release


      1
       The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa, sitting by designation.
      2
      The Honorable Nanette K. Laughery, United States District Judge for the
Western District of Missouri.
after McFarlane pleaded guilty to violations of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 924(c). Mr. McFarlane argues that he should have received a greater downward
departure on his drug sentence. Because we determine that McFarlane's sentence was
not imposed in violation of law, we dismiss the appeal for want of jurisdiction.

                                           I.

        McFarlane was arrested with three codefendants when they attempted to
purchase two kilograms of cocaine from an undercover agent during a "reverse sting"
operation. McFarlane, through counsel, approached the government shortly after his
arrest and expressed his desire to cooperate. The government provided McFarlane
with a Kastigar3 letter outlining the terms under which it would accept his
cooperation, which provided that "'as to [any] debriefings, it is agreed that, pursuant
to U.S.S.G. § 1B1.8, any information to be used in the sentencing of Mr. McFarlane
will not include information provided to the government by Mr. McFarlane during
the course of these debriefings. . . . McFarlane also understands and agrees that he
will truthfully testify at any and all court proceedings, . . . if required . . . .'"
(Appellee’s Br. at 4 (quoting Cooperation Agreement).) McFarlane signed the letter
on March 15, 2000, and began assisting the government in other investigations and
testified as a government witness against his codefendants. McFarlane pleaded guilty
on October 26, 2000, pursuant to a separate plea agreement with the government,
under which he agreed to plead guilty to the two charged offenses, and the
government agreed to make a motion for a downward departure for substantial
assistance.

      At McFarlane's sentencing, the government made its promised downward
departure motion pursuant to U. S. Sentencing Guidelines Manual §5K1.1 (2000) and
18 U.S.C. § 3553(e) and argued that "this defendant [has] earned . . . the lowest


      3
          Kastigar v. United States, 406 U.S. 441 (1972).
                                           2
possible sentence that the court could feel comfortable with." (Sent. Tr. at 11.) The
government asserted that McFarlane's testimony resulted in the conviction of one of
his codefendants and aided substantially in the investigation of the international drug
dealings of the Jamaican Waterhouse Posse, of which McFarlane was a long-time
member. McFarlane faced a sentencing range of 60 to 71 months for the drug count
and a mandatory consecutive 60-month term for the weapon charge. The district
court granted the government's motion to depart downward and sentenced McFarlane
to 50 months on the drug count and 60 months on the weapon count, to be served
consecutively. The sentencing judge had presided over McFarlane's codefendants'
trial, during which McFarlane testified about his own extensive 15-year drug dealing
history. After sentencing McFarlane, the district judge commented that had she not
known the extent of McFarlane's drug dealing history, she likely would have given
him a "different sentence," which we interpret to mean an even greater departure.
(Sent. Tr. at 16.) In what we are sure was a rare move by the government, it filed a
"Motion for Reconsideration of Sentencing," asking the court to resentence
McFarlane without considering the testimony he gave about his own drug dealing
history during his codefendants' trial. The district court denied the motion and
McFarlane appeals.

                                          II.

      This case reaches us in an odd posture: the defendant appeals the denial of the
government's Motion for Reconsideration of Sentencing, and both the defendant and
the government argue that we should remand the case for resentencing, asserting that
the district court should have granted a greater downward departure in light of
McFarlane's substantial assistance. Although we generally lack jurisdiction to review
the extent of a district court's downward departure, see United States v. McCarthy,
97 F.3d 1562, 1577 (8th Cir. 1996), cert. denied, 519 U.S. 1139 (1997) and 520 U.S.
1133 (1997), McFarlane argues that the district court's failure to grant him a greater
downward departure because of his immunized testimony violates his Fifth

                                          3
Amendment right against self-incrimination. A defendant may appeal his sentence
in limited circumstances, including when the sentence "was imposed in violation of
law." 18 U.S.C. § 3742(a)(1). See also United States v. DeBuse, 289 F.3d 1072,
1075 (8th Cir. 2002) (noting that the defendant did not assert a violation of federal
statutory or constitutional law in holding that the court lacked jurisdiction to review
the extent of the district court's downward departure). Although the statute authorizes
McFarlane to appeal, and we have jurisdiction, only if his sentence was in fact
imposed in violation of law, we cannot make that determination without reaching the
merits of his argument. We therefore must necessarily exercise "jurisdiction to
determine [our] own jurisdiction." United States v. Ruiz, 122 S. Ct. 2450, 2454
(2002) (holding that the Ninth Circuit properly exercised jurisdiction to address
defendant's constitutional challenge to the district court's declination to depart
downward, although the challenge was ultimately denied).

        Pursuant to his Cooperation Agreement with the government, McFarlane
testified as a government witness against his codefendants in their November 27,
2000, trial. During his direct examination by the government, McFarlane testified
about his extensive drug dealings and his affiliation with the Jamaican Waterhouse
Posse. During cross-examination, McFarlane admitted to selling 400 to 500
kilograms of cocaine. McFarlane and the government believe that McFarlane's Fifth
Amendment privilege against compelled self-incrimination was violated when the
district court considered this testimony in sentencing McFarlane on September 6,
2001. The district court was aware of the testimony only because the same judge
presided over the trial and later sentenced McFarlane.

       The Fifth Amendment grants to all persons the privilege against compelled
self-incrimination by providing that "[n]o person . . . shall be compelled in any
criminal case to be a witness against himself." U.S. Const. amend. V. The Supreme
Court has limited the Fifth Amendment privilege to prohibiting the use of physical
or moral compulsion; the fact that a criminal defendant faces difficult choices does

                                          4
not necessarily compel the individual's choice so as to implicate the Fifth
Amendment. See South Dakota v. Neville, 459 U.S. 553, 562-63 (1983) (holding that
South Dakota's law requiring a person arrested for drunk driving to submit to a blood
alcohol test or face having his refusal used against him did not violate the Fifth
Amendment). "The 'Amendment speaks of compulsion,' United States v. Monia, 317
U.S. 424, 427 . . . (1943), and the [Supreme] Court has insisted that the 'constitutional
guarantee is only that the witness not be compelled to give self-incriminating
testimony.' United States v. Washington, 431 U.S. 181, 188 . . . (1977)." McKune v.
Lile, 122 S. Ct. 2017, 2026 (2002) (plurality opinion) (holding that prison did not
violate prisoner's Fifth Amendment rights when it changed the prisoner's privilege
status level and moved him to a maximum-security facility when he refused to
participate in a sexual abuse treatment program, during which he would have been
required to admit all prior improper sexual activities without any guaranty of
immunity).

       The Fifth Amendment privilege against self-incrimination is not absolute. By
statute, a witness may not refuse to testify on the basis of the Fifth Amendment if he
or she has been granted immunity by order of the presiding court. See 18 U.S.C.
§ 6002. When a witness refuses to testify in violation of § 6002, the witness is
subject to the court's contempt powers. The Supreme Court upheld § 6002's statutory
grant of immunity against a constitutional challenge by determining that the statutory
immunity was co-extensive with the Fifth Amendment privilege. See Kastigar, 406
U.S. at 458-59. Thus, so long as the immunity granted is coextensive with the Fifth
Amendment privilege, a witness can be compelled to testify against himself.

       Prosecutors often enter into informal immunity agreements with criminal
defendants, promising immunity in exchange for information from the defendant
about other criminal activity, which information may also incriminate the defendant
in the wrongdoing. Absent coercion by the government, which is not here alleged,
the defendant is not compelled to enter the agreement, but is a party to a bargained-

                                           5
for exchange. The government gains information with which to prosecute other
criminals, and the defendant receives the government's promise not to use the
information against the defendant, depending on the specifics of the particular
agreement. In entering the agreement, however, the defendant essentially gives up
his right to later assert his Fifth Amendment privilege not to incriminate himself
within the context of the testimony he agrees to provide, or face the consequences of
breaching the immunity agreement.

       While "[t]he protection given a defendant by an immunity agreement is
coextensive with the protection against self-incrimination afforded by the Fifth
Amendment," United States v. Abanatha, 999 F.2d 1246, 1249 (8th Cir. 1993) (citing
Kastigar, 406 U.S. at 453), cert. denied, 511 U.S. 1035 (1994),4 the immunity
agreement itself governs the scope of the immunity involved. When a defendant
enters an informal immunity agreement with the government rather than asserting his
Fifth Amendment privilege against being compelled to incriminate himself, "the
scope of informal immunity is governed by the terms of the immunity agreement."
United States v. Luloff, 15 F.3d 763, 766 (8th Cir. 1994). This is true because an
immunity agreement is likened to a contract between the government and the
defendant, a concept universally recognized by courts faced with enforcing such
agreements. See id.; United States v. Crawford, 20 F.3d 933, 935 (8th Cir. 1994)
(holding that immunity agreements are analogous to plea agreements and are enforced
under principles of contract law, within the constitutional safeguards of due process);

      4
       Contrary to McFarlane's and the government's positions, Abanatha does not
stand for the broad proposition that any time a defendant enters any type of immunity
agreement, information provided pursuant to the agreement cannot be used in any
circumstance. The scope of the immunity agreement at issue in Abanatha was not
discussed by that court. We are left to surmise that the government's actions violated
the terms as delineated in that agreement. Further, the court in Abanatha explicitly
noted that the case did not involve using immunized information to inform a
downward departure based on substantial assistance, as is specifically allowed by
USSG § 1B1.8. Abanatha, 999 F.2d at 1250.
                                          6
United States v. Conway, 81 F.3d 15, 17 (1st Cir. 1996); United States v. Cantu, 185
F.3d 298, 302 (5th Cir. 1999); United States v. Brown, 979 F.2d 1380, 1381 (9th Cir.
1992); United States v. Nyhuis, 8 F.3d 731, 742 (11th Cir. 1993), cert. denied, 513
U.S. 808 (1994). McFarlane recognizes this concept as well. (See Appellant's Br. at
20.) Thus, the immunity agreement defines the extent of the immunity granted to the
defendant and Fifth Amendment principles define the protection to be afforded the
defendant within the scope of the granted immunity.

         We turn, then, to the agreement McFarlane entered into with the government
to determine the scope of the immunity he received from the government. The letter
agreement provided that "'pursuant to U.S.S.G. § 1B1.8, any information to be used
in the sentencing of Mr. McFarlane will not include information provided to the
government by Mr. McFarlane during the course of these debriefings.'" (Appellee's
Br. at 4 (quoting Cooperation Agreement) (emphasis added).)5 The letter explicitly
referred to USSG § 1B1.8, which provides that "[w]here . . . as part of [a] cooperation
agreement the government 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." USSG § 1B1.8(a). The guideline further
provides that "subsection (a) shall not be applied to restrict the use of information:
. . . (5) in determining whether, or to what extent, a downward departure from the



      5
        The plea agreement entered into on October 26, 2000, clearly informed
McFarlane that any "new" information supplied would be provided to the sentencing
court and could be used to determine if, and to what extent, he would be granted a
downward departure. McFarlane argues that the government learned about his prior
drug dealing during the debriefings, which information they then used to question
him during his codefendants' trial. It is this testimony that McFarlane argues that the
sentencing judge inappropriately considered. We are concerned, therefore, with the
immunity granted in the Kastigar letter rather than the later plea agreement, which
clearly supported the district court's sentence.
                                          7
guidelines is warranted pursuant to a government motion under § 5K1.1 (Substantial
Assistance to Authorities)." USSG § 1B1.8(b).

       The language of the agreement is quite similar to the cooperation agreement
at issue in Conway, which was also entered "pursuant to U.S.S.G. § 1B1.8." 81 F.3d
at 16. The defendant appealed his sentence, arguing that the district court violated
his Fifth Amendment right by considering immunized testimony in denying the
government's motion for a downward departure for providing substantial assistance.
The First Circuit agreed that as written, the cooperation agreement did "not provide
the blanket protection defendant claims he bargained for in exchange for waiver of
his Fifth Amendment right." Id. at 16-17. The First Circuit reversed the sentence,
however, because the district court quoted only part of the plea agreement during the
plea hearing, leaving the impression that the immunized testimony would not be used
against the defendant for any purpose. Thus, the sentence was vacated only because
the extent of the immunity granted to the defendant was made unclear by the district
court. Had it not been for the court's inadvertent misstatement during the plea
hearing, the court would have been free under the agreement to use the information
obtained during debriefing to deny the downward departure. Id. at 17-18 (Selya, J.,
concurring).

       The agreement at issue here clearly limited its terms to the scope of § 1B1.8.
Thus, looking to the agreement in the light of § 1B1.8 to determine the scope of the
immunity granted to McFarlane, information provided by McFarlane during the
debriefings could not be used to determine the applicable guideline range, but could
be used to determine whether, and to what extent, he should receive a downward
departure for providing substantial assistance to the government. The sentencing
court did just that. It did not consider McFarlane's extensive drug dealing history in
setting his guideline range of 60 to 71 months, but did consider that history in
determining whether to grant a downward departure and how much of a departure to
grant. The court granted the government's motion for a downward departure, but

                                          8
limited the extent of the departure based in part on McFarlane's extensive drug
dealing history. Thus, the terms of McFarlane's cooperation agreement, and
correspondingly his constitutional rights, were not violated when he received at least
a ten-month downward departure, based partly on testimony he gave at his
codefendants' trial. See Luloff, 15 F.3d at 766 (holding that an immunity agreement
limited to Title 21 drug offenses was not violated when the defendant was charged
with unlawfully possessing a gun, a nondrug offense, based on testimony provided
pursuant to the immunity agreement); Nyhuis, 8 F.3d at 742 (holding that the
government did not violate an immunity agreement where the agreement limited its
protection to information already disclosed to the government and the information
used against the defendant was provided post-agreement).

      Finally, McFarlane argues that the district court abused its discretion in not
granting him a greater downward departure based on public policy grounds. We
decline to address this argument, however, as the extent of the district court's
downward departure is unreviewable absent allegations that his sentence "was
imposed in violation of law" under§ 3742(a)(1). See McCarthy, 97 F.3d at 1577.

                                         III.

      Because McFarlane's sentence was not "'imposed in violation of law[,]' . . . §
3742(a)(1) does not authorize [McFarlane's] appeal." Ruiz, 122 S. Ct. at 2454. We
therefore dismiss this appeal for lack of jurisdiction.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.



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