U.S. v. Douglas Farmer, James Ellis, Josiah Compton, and Gerald Howliet, Nos. 07-2505, 07-2506, 07-2507 and 07-3313.  This is a consolidated appeal from the convictions of four out of fourteen defendants for various offenses stemming from a drug distribution ring in the East St. Louis, Illinois area.

Compton was convicted of possession with intent to distribute cocaine and crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and (b)(1)(C), and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Compton's PSR determined that he had an offense level of forty and a criminal history category of VI, resulting in an advisory Guidelines range of 360 months to life imprisonment. The PSR counted uncharged drug amounts in determining Compton's relevant conduct to reach the offense level of forty.

To support the inclusion of the uncharged drug amounts as relevant conduct, the Probation Department relied on statements from three individuals and a confidential source, all of whom had purchased drugs from Compton, as well as statements from Compton's own proffer to the government.

So we turn to Compton's second argument on appeal-that the district court improperly relied upon information obtained from Compton's proffer to increase his base offense level. Compton complains that the government violated the terms of the proffer agreement by including 197 kilograms of cocaine in his relevant conduct calculation recommended by the PSR.

Because the facts pertaining to the alleged breach are undisputed, we review the question of whether the government breached the proffer agreement de novo. See United States v. Schilling, 142 F.3d 388, 394 (7th Cir. 1998). We also review the district court's application of the Sentencing Guidelines de novo since Compton preserved the argument below. United States v. Samuels, 521 F.3d 804, 815 (7th Cir. 2008).

A proffer agreement is a binding contract, enforced according to its terms. See United States v. Cobblah, 118 F.3d 549, 551 (7th Cir. 1997). However, proffer agreements that are a part of ongoing criminal proceedings are " 'unique contracts and the ordinary contract principles are supplemented with a concern that the bargaining process not violate the defendant's rights to fundamental fairness under the Due Process Clause.' " United States v. $87,118.00 in United States Currency, 95 F.3d 511, 516-17 (7th Cir. 1999). We hold the government to "the literal terms" of the agreement, as well as the "most meticulous standards of both promise and performance" to insure the integrity of the bargaining process involved in proffers. See Schilling, 142 F.3d at 395 (internal quotations and citations omitted).

The Probation Department, a division of the government bound by the terms of the proffer agreement, see United States v. Lezine, 166 F.3d 895, 904 (7th Cir. 1999) (noting that probation officers are an extension of the government and officers of the court), recommended in the PSR that 197 kilograms of cocaine be used to increase his offense level as relevant conduct. The 197 kilograms of cocaine was evidenced solely by Compton's proffer, and the district court adopted the PSR's recommendation.

Under the proffer agreement, the government could provide Compton's proffer statements to the district court, but it could not per se recommend that the court increase Compton's offense level based on that information. To do so constituted a "use" prohibited by paragraph six. By their very nature, paragraphs five and six of the agreement are almost irreconcilable.

Be that as it may, under the circumstances of this case, the government violated the terms of the proffer agreement by submitting to the district court protected statements made by Compton.

Had the district court not considered the 197 kilograms of cocaine as relevant conduct, the Guidelines range would have been 324-405 months. Although the Guidelines are advisory, a district court must accurately calculate and consult the defendant's Guidelines range. United States v. Thomas, 520 F.3d 729, 736 (7th Cir. 2008). A sentencing based on an incorrect Guidelines range constitutes plain error and warrants a remand for resentencing, unless we have reason to believe that the error in no way affected the district court's selection of a particular sentence. United States v. Garrett, 528 F.3d 525, 527 (7th Cir. 2008).

We have no reason to believe that the district court would not have selected an even lower sentence if given the opportunity to do so, thus, we must remand. United States v. Wallace, 32 F.3d 1171, 1174 (7th Cir. 1994). 

Accordingly, Compton is entitled to be resentenced.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com.

 

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