United States of America v. D.p.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
D.P.,
Defendant-Appellant.
No. 15-50201
D.C. No.
3:14-cr-02641-LAB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submission Deferred April 4, 2017
Submitted April 14, 2017
Pasadena, California
Before: WARDLAW and CALLAHAN, Circuit Judges, and KENDALL,**
District Judge.
D.P. appeals his judgment and sentence for one count of importation of a
controlled substance in violation of 21 U.S.C. §§ 952 & 960. We have jurisdiction
FILED
JAN 9 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Virginia M. Kendall, United States District Judge for
the Northern District of Illinois, sitting by designation.

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pursuant to 28 U.S.C. § 1291, and we reverse and remand.
1. The district court erred in concluding that the government’s disclosure
of information derived from D.P.’s proffer statements did not breach the parties’
proffer agreement. The government promised pursuant to the agreement not to
offer “in connection with any sentencing proceeding for the purpose of
determining an appropriate sentence” “any statement made by [D.P.] during the
proffer.” Yet when the district court asked the prosecution whether D.P. had
revealed during his debrief sessions the number of times he had previously
imported drugs, the government told the court that based on the proffer statements
the number of prior crossings was “likely . . . more than 20 given the information
provided.” This violated the plain language of the parties’ agreement. See Cal.
Civ. Code § 1638; see also United States v. Chiu, 109 F.3d 624, 625–26 (9th Cir.
1997).
The government’s argument that U.S.S.G. § 1B1.8(b)(5) provides an implied
exception to its nondisclosure promise is not supported by that provision. Section
1B1.8 describes the extent to which protected information may be used by a court,
not the scope of protections that can be afforded by the government as a matter of
contract principles. See U.S.S.G. § 1B1.8. Indeed, subsection (a) acknowledges
that individual proffer agreements will govern the use of protected information and
2

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does not indicate that the provision trumps those agreements. See id. § 1B1.8(a).
Moreover, subsection (b)(5) does not apply to these circumstances. Though a
district court may consider protected information in assessing whether a downward
departure in the applicable Guidelines range is warranted pursuant to a § 5K1.1
motion, subsection (b)(5) does not permit the court to consider protected
information in determining where within that range the defendant’s sentence
should fall, as the court did here. See id. § 1B1.8(b)(5); see also id. § 1B1.8 cmt. 5.
The government’s contention that D.P. was not entitled to nondisclosure
because the substance of his debriefs was not confidential lacks merit, as the
proffer agreement did not require confidentiality but rather specifically precluded
the government from using D.P.’s proffered statements against him at trial or
sentencing. Finally, the district court’s conclusion that the parties could not
contract to keep relevant information from it at sentencing was wrong as a matter
of law. See, e.g., United States v. Whitney, 673 F.3d 965 (9th Cir. 2012).
Proffers are relied on by the government in order to investigate further
criminal activity and are based on the premise that the government does not have
the ability to prosecute a particular defendant due to lack of knowledge or evidence
of the crime. Proffers protect the constitutional right of the criminal defendant
from incriminating himself in a crime of which the government is unaware.
3

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Therefore, strict adherence to the language of the agreement is necessary to both
aid the government in its investigation while protecting the rights of the defendant.
Without such strict adherence to the language that prohibits its use at sentencing, it
has no value to the defendant and therefore any trained defense attorney would not
permit her client to enter into such an agreement.
That the government disclosed the incriminating statements in response to
questioning from the district judge rather than offering the statements into evidence
itself is not relevant to the outcome. The proffer agreement prohibited the
government from “offer[ing] in evidence in its case-in-chief, or in connection with
any sentencing proceeding for the purpose of determining an appropriate sentence,
any statements made by [D.P.] during the proffer . . . .” By giving information to
the district judge, the government breached the agreement, doing exactly what it
said it would not do—give the district court statements made during the proffer
session “in connection with any sentencing proceeding for the purpose of
determining an appropriate sentence.” Although the district judge’s questioning
placed the government in an awkward position, the only permissible course of
conduct was to inform the district judge that the information was not within the
government’s control but for the proffer agreement, and the government was not
permitted to divulge it.
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2. The remedy for the government’s breach is resentencing consistent
with the terms of the proffer agreement before a different district court judge.
Where the district court judge “has seen or heard the offending words that denied
the defendant the benefit of his bargain” such that “further proceedings before him
would necessarily be tainted by the government’s breach,” United States v.
Heredia, 768 F.3d 1220, 1236 (9th Cir. 2014), resentencing by a different district
court judge is required. See, e.g., United States v. Camper, 66 F.3d 229, 233 (9th
Cir. 1995) (citing Santobello v. New York, 404 U.S. 257, 262–63 (1971)).
REVERSED and REMANDED.1
1 The government’s motion (Docket Entry No. 34) to supplement the record,
dated June 28, 2016, is GRANTED with respect to the proffer agreement and
DENIED with respect to the extradition affidavit. The parties’ joint motion
(Docket Entry No. 70) to submit the case for judicial resolution, dated April 14,
2017, is GRANTED. The government’s motion (Docket Entry No. 72) to file a
supplemental brief, dated April 14, 2017, is DENIED. D.P.’s motion (Docket
Entry No. 74) to file an opposition to the government’s supplemental brief, dated
April 18, 2017, is DENIED as moot.
5

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1
United States v. D.P., No. 15-50101
Callahan, J., dissenting:
I respectfully dissent.1 The majority discerns a breach of a proffer
agreement where none exists and reads the sentencing guidelines to preclude
disclosures that they clearly allow.
The government entered into a proffer agreement with D.P. whereby it
agreed not to “offer in evidence in its case-in-chief, or in connection with any
sentencing proceeding … any statements made by [D.P.] during the proffer.” The
majority criticizes the government for disclosing to the district court that the
number of border crossings D.P. made to transport illicit drugs was “likely … more
than 20 given the information provided.” But the government did not “offer”
D.P.’s statements and therefore did not breach the agreement. The commonly
understood meaning of the term “offer” is to “propose” something, “present for
acceptance or rejection,” or to “make available.” Offer, Merriam-Webster Online
Dictionary, https://www.merriam-webster.com/dictionary/offer (last accessed May
11, 2017). Here, the government did not affirmatively “present” or volunteer the
self-incriminating information to the court; it only divulged it after repeated
demands by the district judge.
1 I concur in the majority’s footnote 1.
FILED
JAN 9 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Even if the government had “offer[ed]” the information to the court, it was
within its authority to do so. U.S.S.G. § 1B1.8(a) prevents the government from
using “self-incriminating information provided pursuant to [a cooperation]
agreement … against the defendant.” That includes the “government’s
presentation of information.” Id. cmt. 5. However, that limitation “shall not be
applied to restrict the use of information … in determining whether, or to what
extent, a downward departure from the guidelines is warranted pursuant to a
government motion under § 5K1.1 (Substantial Assistance to Authorities).”
U.S.S.G. § 1B1.8(b)(5).
Here, the government filed a § 5K1.1 motion. Thus, under subsection (b)(5),
the limitation against the use of self-incriminating information—including its
“presentation”—does not apply. Comment 1 to the guidelines makes this point
plain: Not only may the government not “withhold [self-incriminating]
information from the court,” but the court may also use that information for
purposes of “determining whether, and to what extent, a downward departure”
from the guidelines is warranted pursuant to a § 5K1.1 motion. Id. cmt. 1.
The majority insists that subsection (b)(5) is inapplicable because it allows
the district court to consider protected information only in assessing whether a
downward departure “in the applicable Guidelines range is warranted pursuant to a
§ 5K1.1 motion.” The subsection does not, the majority contends, allow the court

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3
to consider such “information in determining where within that range the
defendant’s sentence should fall,” as the court did here.
The plain text of subsection (b)(5) is to the contrary. The court may use self-
incriminating information to determine whether “a downward departure from the
guidelines is warranted,” § 1B1.8(b)(5)—i.e., to settle on a sentence after the
guideline range is established. That is precisely what the district court did here: it
applied a § 5K1.1 5-point reduction, which resulted in a particular guideline range.
It then used the incriminating information to decide whether to depart downward
from that range as D.P. requested.
Our case law does not compel a different outcome. The majority’s reliance
on United States v. Whitney, 673 F.3d 965 (9th Cir. 2012), is misplaced for two
reasons. First, Whitney did not involve a § 5K1.1 motion, meaning the exception
to § 1B1.8’s general prohibition on the use of self-incriminating information did
not apply. See id. at 968–70. Second, the government in Whitney volunteered
information to the court supporting a sentencing enhancement in violation of the
plea agreement. Id. at 969. Here, as discussed, the government only admitted to
the number of border crossings (and a rough approximation at that) after the court
demanded the information.

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4
In short, the government did not breach its proffer agreement with D.P. by
divulging information pursuant to a § 5K1.1 motion at the district court’s request.
I respectfully dissent.

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