                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 10-1992
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Southern District of Iowa.
Robert Shakir Perry,                     *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: February 18, 2011
                                 Filed: May 20, 2011
                                  ___________

Before SMITH, GRUENDER, and BENTON, Circuit Judges.
                           ___________

GRUENDER, Circuit Judge.

       Following a jury trial, Robert Perry was convicted of nine felony counts arising
out of various drug and firearm offenses. Perry now appeals his sentence, arguing that
the district court ran afoul of U.S.S.G. § 1B1.8 when it calculated his advisory
sentencing guidelines range using self-incriminating information disclosed by Perry
during a proffer session with the Government. Perry also argues that the district court
erred in refusing to reduce his offense level for acceptance of responsibility pursuant
to § 3E1.1. We vacate Perry’s sentence and remand for resentencing.
I.    BACKGROUND

       On August 20, 2008, a federal grand jury returned a superseding indictment
charging Perry with conspiring to distribute marijuana, a violation of 21 U.S.C.
§§ 841(b)(1)(D), 846 (Count I); distributing marijuana, violations of § 841(a)(1),
(b)(1)(D) (Counts II-V); possessing marijuana with the intent to distribute, a violation
of § 841(a)(1), (b)(1)(D) (Count VI); possessing a firearm in furtherance of a drug
trafficking offense, a violation of 18 U.S.C. § 924(c)(1)(A) (Count VII); possessing
a firearm as a felon, a violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count VIII);
illegally possessing body armor, a violation of 18 U.S.C. §§ 924(a)(1)(D), 931 (Count
IX); and a forfeiture count, under 18 U.S.C. § 924(d), 28 U.S.C. § 2461(c).

       Prior to trial, and in an apparent attempt to determine whether Perry could assist
the Government in a pending criminal investigation, the parties agreed that he would
proffer information regarding his knowledge of and involvement in illegal narcotics
trafficking and weapons possession. In a letter to Perry’s counsel, the Government
set forth the terms of the proffer agreement, including the conditions under which the
information that Perry provided could be used against him.1 During the resulting
proffer session, Perry provided information inculpating a co-conspirator in drug
trafficking activity. He also disclosed self-incriminating information previously
unknown to the Government, including information regarding the conspiracy’s

      1
         “A ‘proffer agreement’ is generally understood to be an agreement between
a defendant and the government in a criminal case that sets forth the terms under
which the defendant will provide information to the government during an interview,
commonly referred to as a ‘proffer session.’ The proffer agreement defines the
obligations of the parties and is intended to protect the defendant against the use of his
or her statements, particularly in those situations in which the defendant has revealed
incriminating information and the proffer session does not mature into a plea
agreement or other form of cooperation agreement.” United States v. Lopez, 219 F.3d
343, 345 n.1 (4th Cir. 2000).


                                           -2-
commencement date and the quantities of drugs involved. Perry ultimately decided
to proceed to trial, after which he was convicted of all nine felony counts.

       The United States Probation Office prepared an initial presentence investigation
report (“PSR”), in which it determined that Counts I-VI, VIII, and IX were groupable
pursuant to U.S.S.G. § 3D1.2(c). When counts of conviction governed by different
guidelines are grouped under § 3D1.2(c), the court is instructed to apply “the highest
offense level of the counts in the Group.” § 3D1.3(a). Of the eight grouped offenses,
Count VIII—possessing a firearm as a felon—supplied the highest offense level, 20.
See § 2K2.1(a)(4). The initial PSR also calculated a criminal history category of III.

       In a supplemental sentencing brief, the Government argued that the PSR
improperly measured Perry’s criminal history from January 18, 2008—the date set
forth in the indictment as the “commencement of the instant offense.” Because
§ 4A1.2(e) contains a ten-year limitations period on the attribution of criminal history
points for a “prior sentence,” the PSR attributed criminal history points only for
sentences imposed after January 18, 1998. The Government pointed out, though, that
Perry admitted during his proffer session to embarking on the conspiracy on July 3,
2005. Thus, according to the Government, this earlier date should be treated as the
offense’s commencement date, and Perry’s criminal history calculation should include
sentences imposed from July 3, 1995, rather than from January 1998. The probation
office agreed with the Government and increased Perry’s criminal history category
from III to VI to account for the additional prior sentences.

       At the sentencing hearing, the Government also urged the district court to
consider information disclosed during Perry’s proffer session for purposes of
determining his base offense level. In his proffer session, Perry admitted to
participating in additional drug transactions that were not considered by the probation
office in determining the quantity of drugs and, therefore, the base offense level for
the drug distribution counts. Including these additional drug quantities would result

                                          -3-
in the drug counts having a higher offense level, 30, see § 2D1.1; id. cmt. n.10(D)(i),
than the offense level of 20 for the firearm count, see § 2K2.1(a)(4).

       Perry countered that the terms of the proffer agreement triggered § 1B1.8,
which, he maintained, precluded the court from using the contents of his proffer
session in determining his guidelines range. The district court disagreed, concluding
that § 1B1.8 did not bar consideration of the information and accepting the
Government’s invitation to adopt the higher base offense level of 30. The court then
reduced Perry’s offense level by two levels for his minor role, see § 3B1.2(b), but
denied him a two-level reduction for acceptance of responsibility, see § 3E1.1(a).
Based on a total offense level of 28 and a criminal history category of VI, Perry’s
resulting advisory guidelines range was 140 to 175 months. The district court varied
downward to a term of 70 months on Counts I-VI, VIII, and IX, and also imposed the
60-month minimum consecutive sentence mandated by 18 U.S.C. § 924(c) on Count
VII, resulting in a term of imprisonment of 130 months.

II.   DISCUSSION

      Perry first argues that the district court violated § 1B1.8 by considering the self-
incriminating information gleaned during his proffer session in determining his
advisory guidelines range. We review the district court’s interpretation and
application of the guidelines de novo. United States v. Robinson, --- F.3d ---, 2011
WL 1364460, at *4 (8th Cir. Apr. 12, 2011).

      Section 1B1.8 provides:

      Where a defendant agrees to cooperate with the government by
      providing information concerning unlawful activities of others, and as
      part of that cooperation agreement the government agrees that
      self-incriminating information provided pursuant to the agreement will


                                           -4-
      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.

Thus, when applicable, § 1B1.8 carves out a limited exception to the otherwise
comprehensive mandate of 18 U.S.C. § 3661 that “[n]o limitation shall be placed on
the information concerning the background, character, and conduct of a person
convicted of an offense which a court of the United States may . . . consider for the
purpose of imposing an appropriate sentence.” See generally United States v. Baird,
218 F.3d 221, 227 (3d Cir. 2000). By its terms, § 1B1.8 is triggered when the
Government agrees that qualifying self-incriminating information will not be “used
against the defendant.” At that point, the terms of the proffer agreement, rather than
§ 3661, control our analysis, and the sentencing court may consider information
derived from the proffer session in determining the defendant’s guidelines range only
“to the extent provided in the agreement.”2 Hence, resolution of the parties’ dispute
in this case entails a twofold inquiry. First, we must ask whether the proffer
agreement provides that the self-incriminating information Perry disclosed would not
be “used against” him, thus placing the resulting proffer within the coverage of
§ 1B1.8. Should we answer this first question in the affirmative, we next must


      2
        The Government contends in passing that the proffer agreement was not an
“agreement to cooperate” under § 1B1.8, but was, instead, an agreement to determine
whether Perry could cooperate. Thus, in the Government’s view, the district court
may use self-incriminating information educed by virtue of such an agreement to
determine a defendant’s guidelines range regardless of the assurances made in the
agreement. We reject this argument, as Perry’s agreement to provide “completely
truthful” information concerning “potential criminal activity” “which may be of
assistance in a criminal investigation,” see Proffer Agreement preamble, ¶¶ 1, 2
(emphasis in original), decidedly constitutes an “agree[ment] to cooperate with the
government by providing information concerning unlawful activities of others,”
§ 1B1.8; see also United States v. Davila, 964 F.2d 778, 784 n.4 (8th Cir. 1992)
(indicating that proffer agreements are subject to § 1B1.8).

                                         -5-
determine the extent, if any, to which the proffer agreement nonetheless allows for use
of Perry’s proffer statement “in determining the applicable guideline range.”

       Paragraph 6 of the proffer agreement—entitled “No Direct Use”—provides that
“[t]he government agrees that statements or information contained in [Perry’s] proffer
may not be used in the government’s case-in-chief against [Perry] should a trial be
held.” Perry argues that this provision places the proffer agreement within § 1B1.8’s
coverage of agreements “that self-incriminating information . . . will not be used
against the defendant.” The Government responds that, because Paragraph 6’s usage
limitation is narrow and well-delineated, “[n]othing in the proffer agreement
suggested or implied that the government was affording Perry’s statements sentencing
immunity.” The text of § 1B1.8 sheds little light on what degree of usage limitation
triggers its application. That is, while an unqualified promise not to “use” a
defendant’s proffer for any purpose unquestionably would place the agreement within
§ 1B1.8, it is less evident whether, at the other end of the spectrum, a modest promise
not to use the information in certain, well-defined circumstances likewise would rouse
the full panoply of § 1B1.8 coverage.

       We conclude that an absolute and unqualified promise not to “use” the self-
incriminating information is not required to bring an agreement within the bounds of
§ 1B1.8. While the scope of an agreement’s usage limitations may well bear on the
question whether the agreement allowed for use of the defendant’s statements in
determining his guidelines range—the second step of our inquiry—it does not affect
our threshold inquiry concerning whether § 1B1.8 applies at all. In United States v.
Cox, 985 F.2d 427 (8th Cir. 1993), for instance, we held § 1B1.8 implicated by a
similarly circumscribed promise that “[n]o testimony or other information provided
by you . . . will be used against you for the purpose of bringing additional criminal
charges,” id. at 431 (second alteration in original); see also United States v. Robinson,
898 F.2d 1111, 1117 (6th Cir. 1990) (holding that an agreement “not to file additional
charges” based on the defendant’s statements “seems to be one contemplated by

                                          -6-
§ 1B1.8”); United States v. Shorteeth, 887 F.2d 253, 256 (10th Cir. 1989) (holding
§ 1B1.8 applicable where the Government agreed that “no separate federal
prosecutions will be instituted against [defendant] . . . for conduct and acts committed
by her related to information she provides the Government during . . . debriefings”
(alterations in original)); United States v. Cocilova, 584 F. Supp. 2d 885, 893 (W.D.
Va. 2008) (holding § 1B1.8 applicable where the Government agreed that “it will not
introduce in a criminal prosecution of [the defendant], in its case-in-chief at trial, any
of the statements [made] pursuant to this agreement”). Likewise here, we hold that
the usage restriction in Paragraph 6 triggers § 1B1.8.

        Having determined that the proffer agreement is encompassed within § 1B1.8’s
coverage, we now must inquire whether the agreement nonetheless allows for use of
Perry’s proffer statement “in determining the applicable guideline range.” Perry relies
heavily on Shorteeth, in which the Tenth Circuit maintained that “the language and
spirit of . . . § 1B1.8 require the agreement to specifically mention the court’s ability
to consider defendant’s disclosures . . . in calculating the appropriate sentencing range
before the court may do so.” 887 F.2d at 257. This circuit has never adopted such a
talismanic approach. See Cox, 985 F.2d at 431 (holding that § 1B1.8 allowed for use
of a debriefing statement in calculating the defendant’s guidelines range where the
plea agreement simply provided that the defendant’s debriefing statement “may be
considered by the court . . . to determine the length of [his] sentence” (emphasis
omitted)). Generally, we interpret contracts between defendants and the Government
“according to general contractual principles,” see United States v. Yellow, 627 F.3d
706, 708 (8th Cir. 2010) (quoting United States v. Thompson, 403 F.3d 1037, 1039
(8th Cir. 2005)), and we find no basis in the text or the commentary of § 1B1.8 that
either requires or permits us to depart from those settled principles of interpretation
in the present instance. Thus, as in other contexts, we must “try to discern the intent
of the parties ‘as expressed in the plain language of the agreement when viewed as a
whole.’” United States v. Taylor, 258 F.3d 815, 819 (8th Cir. 2001) (emphasis
omitted) (quoting United States v. Kelly, 18 F.3d 612, 616 (8th Cir. 1994)).

                                           -7-
       In its brief, the Government asserts that Paragraph 10 of Perry’s proffer
agreement specifically provides for the use of the information disclosed during the
proffer session in determining his guidelines range: “[Perry] understands that if [he]
either pleads guilty or is convicted at trial, the government, pursuant to 18 U.S.C.
§ 3661, must provide to [Perry’s] sentencing judge the contents of the proffer.” This
language does not suffice. Paragraph 10 simply states that the Government will
provide information derived from the proffer session to the sentencing court, but it
says nothing of the court’s ability to consider that information in calculating Perry’s
sentencing guidelines range. This distinction is crucial. While § 1B1.8 can preclude
a sentencing court from considering qualifying self-incriminating information in
determining a defendant’s guidelines range, the provision pointedly “does not
authorize the government to withhold information from the court.” § 1B1.8 cmt. n.1.
For this reason, Paragraph 10’s reference to “providing” the contents of Perry’s
proffer session to the sentencing court does not fit the exception in § 1B1.8 for
agreements that allow for the use of self-incriminating information in determining a
defendant’s guidelines range—a point that the Government conceded at oral argument
before this court.

        As discussed above, though, the absence of a provision “specifically
mention[ing] the court’s ability to consider defendant’s disclosures . . . in calculating
the appropriate sentencing range,” see Shorteeth, 887 F.2d at 257, is not necessarily
fatal to the Government’s position, so long as the agreement, when viewed as a whole,
otherwise conveys the parties’ intent to allow the court to use the information derived
from the proffer session for such a purpose. See Cox, 985 F.2d at 431 (“[W]hat’s
important is the Defendant understand that what he tells the Government will be used
to determine the length of his sentence.” (quoting sentencing hearing transcript)).

       The Government contends that Paragraph 6 communicated the parties’ intent
to allow the information disclosed during Perry’s proffer session to be used in
calculating his guidelines range. According to the Government, because Paragraph

                                          -8-
6 prohibits the use of the information only in the Government’s case-in-chief against
Perry, by omission the proffer agreement indicates that the information can be used
without limitation in all other proceedings and for all other purposes, including
calculating Perry’s sentencing guidelines range. Cf. United States v. Transfiguracion,
442 F.3d 1222, 1232 (9th Cir. 2006) (applying the expressio unius canon of statutory
interpretation to a plea agreement). We agree with the Government that, viewed in
isolation, this could be a reasonable interpretation of Paragraph 6. Applying the same
principle of interpretation to Paragraph 7, however, leads to the opposite result.
Paragraph 7 provides:

      If [Perry] should testify materially contrary to the substance of the
      proffer, or otherwise present in an legal proceeding [sic] a position
      materially inconsistent with the proffer, the proffer may be used against
      [him] as impeachment or rebuttal evidence, or as the basis for a
      prosecution for perjury or false statement.

The phrase “if [Perry] should testify materially contrary to the substance of the
proffer” creates a condition precedent to using the contents of Perry’s proffer session
against him in “any legal proceeding.”3 See Baird, 218 F.3d at 229. That is, the
information derived from the proffer session could be used against Perry only if he
subsequently contradicted statements made during the proffer session—and even then,
only as “impeachment or rebuttal evidence, or as the basis for a prosecution for
perjury or false statement.” Paragraph 7 is, of course, irreconcilable with the
Government’s interpretation of Paragraph 6. On the one hand, Paragraph 6 conveys
that, with the exception of the Government’s case-in-chief against Perry, the
information derived from Perry’s proffer session may be used without limitation. On

      3
        It is unclear whether the term “an legal proceeding” is intended to signify “a
legal proceeding” or “any legal proceeding.” Any distinction between the two terms
would appear to be immaterial in the present case, however, as the unqualified use of
either “a” or “any” is broad enough to encompass all “legal proceedings,” including
a sentencing hearing.

                                         -9-
the other hand, Paragraph 7 conveys that the same information may not be used in any
legal proceeding, such as for purposes of guidelines calculation at a sentencing
hearing, unless Perry subsequently presents a materially inconsistent position.4 Thus,
the proffer agreement, viewed as a whole, ambiguously delineates the limitations on
the use of information derived from Perry’s proffer and must, accordingly, be
construed against the Government. See United States v. Stobaugh, 420 F.3d 796, 800
(8th Cir. 2005). As a result, we conclude that the proffer agreement did not allow for
the use of the information disclosed during Perry’s proffer session in determining his
sentencing guidelines range. Hence, the district court erred by doing so. See Gall v.
United States, 552 U.S. 38, 51 (2007) (observing that procedural error includes
“failing to calculate (or improperly calculating) the Guidelines range”).5

      Perry next contends that the district court erred when it denied his request for
a two-level reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1. “When

      4
         Paragraph 9 creates similar problems for the Government’s theory. It provides
that “[t]he government may make use of any statements or information provided by
[Perry’s] proffer, without limitation, in any prosecution or investigation concerning
any crime of violence or any crime that occurs after the date of this letter.” Such a
reservation would be largely superfluous if, as the Government now contends, the
proffer agreement constrained no more than its direct use of the information in the
Government’s case-in-chief at Perry’s trial. See Richard A. Lord, Williston on
Contracts § 32:5, at 427 (4th ed. 1999) (“To the extent possible, . . . every word,
phrase or term of a contract must be given effect.”).
      5
         The Government does not argue that the error would be harmless, and its
failure to do so “waives any right to such review.” United States v. Williams, 627
F.3d 324, 329 (8th Cir. 2010) (quoting United States v. Cacioppo, 460 F.3d 1012,
1025-26 (8th Cir. 2006)). Even if we were to exercise our discretion to overlook the
waiver, see Lufkins v. Leapley, 965 F.2d 1477, 1481 (8th Cir 1992), we would be
constrained to conclude that the error was not harmless, as “there is no clear indication
on the record that the district court would have imposed the same sentence if [the
defendant’s] legal argument had prevailed,” United States v. Spikes, 543 F.3d 1021,
1025 (8th Cir. 2008).

                                          -10-
reviewing the grant or denial of a reduction for acceptance of responsibility, we afford
great deference to the determination of the district court judge, who is in a unique
position to evaluate whether a defendant has accepted responsibility for his offense.”
United States v. Gonzalez-Rodriguez, 239 F.3d 948, 954 (8th Cir. 2001) (quoting
United States v. Field, 110 F.3d 592, 594 (8th Cir. 1997)). Thus, we review for clear
error. Id. In the present case, Perry elected to proceed to trial. The commentary
accompanying § 3E1.1 explains that the acceptance of responsibility “adjustment is
not intended to apply to a defendant who puts the government to its burden of proof
at trial by denying the essential factual elements of guilt.” § 3E1.1 cmt. n.2. A
defendant who has proceeded to trial may overcome this bar to a reduced sentence in
the rare instance when the issues for trial did not relate to factual guilt. Id.; see also
United States v. Chapman, 356 F.3d 843, 847-48 (8th Cir. 2004). Perry’s case does
not present such an instance; at trial, he cross-examined witnesses and moved for a
judgment of acquittal on the ground that the Government failed to prove identity. See
United States v. Bell, 411 F.3d 960, 963-64 (8th Cir. 2005). Hence, the district court
did not clearly err in refusing to grant a two-level reduction for acceptance of
responsibility.6

III.   CONCLUSION

       For the foregoing reasons, we vacate Perry’s sentence and remand to the district
court for further proceedings not inconsistent with this opinion.
                        ______________________________




       6
        Perry’s contention that fear of reprisal informed his decision not to cooperate
and to proceed to trial does not alter our conclusion. “[T]he security of not being a
squealer . . . [is] not [a decision] the sentencing guidelines recognize as worthy of
excusing the need to accept responsibility before trial to win a reduced sentence.”
United States v. Morgano, 39 F.3d 1358, 1378 (7th Cir. 1994).

                                          -11-
