Opinion
D.C. No. CR-99-01147-JMR
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Sept. 11, 2000.
Appeal from the United States District Court for the District of Arizona, John M. Roll, District Judge, Presiding.
Before ALDISERT, GRABER, and FISHER, Circuit Judges.
The Honorable Ruggero J. Aldisert, Senior Circuit Judge, United States Court of Appeals for the Third Circuit, sitting by designation.
[] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9
Brian Botham appeals his sentence on the ground that it was based in part upon the information he furnished in his proffer session, thereby violating his proffer agreement and United States Sentencing Guideline ("U.S.S.G.") § 1B1.8.
A. Waiver
Botham sufficiently raised this issue in the district court through his Rule 35 motion one day after his sentence was entered. Therefore, this issue is not waived.
B. Merits
"We review the district court's factual determinations for clear error, but whether the facts constitute a violation of [a proffer agreement] is a question of law we review de novo." United States v. Chiu, 109 F.3d 624, 625 (9th Cir.1997). The district court's interpretation of the Sentencing Guidelines is also a question of law that is reviewed de novo. United States v. Kakatin, 214 F.3d 1049, 1051 (9th Cir.2000).
To determine whether Botham's sentence was legally imposed, we must look to both the proffer agreement and the applicable Sentencing Guidelines. Ordinarily, we apply general contract principles to the interpretation of proffer agreements. See Chiu, 109 F.3d at 625. "Any ambiguities in the terms of the proffer agreement should be resolved in favor of the criminal defendant." United States v. Pielago, 135 F.3d 703, 710 (11th Cir.1998). Having examined the agreement and record, we interpret the agreement to bar the use of Botham's April 8, 1999 proffer statements in his sentencing, but to allow the admission of evidence independently derived from those statements.
Taking both the proffer agreement and U.S.S.G. § 1B1.8 into consideration, we hold that the district court could not sentence Botham based on the statements he made in his April 8 proffer session or the mere repetition or confirmation of those statements in his session with the probation officer. The district court could, however, sentence Botham based on information independently derived from his April 8 proffer.
From our review of the record, it appears the court relied primarily, if not exclusively, on the Presentence Report as a basis for sentencing Botham. The Presentence Report, however, was based at least in part upon Botham's proffer session and his confirmation of those statements in his interview with the probation officer. In particular, the district court specifically found that Botham's relevant conduct included shipping 3,000 pounds of marijuana. We are unable to find in the record a source other than Botham's proffer or his probation interview to support that finding.
Because the district court based Botham's sentence upon statements protected by the proffer agreement and in violation of U.S.S.G. § 1B1.8, we VACATE Botham's sentence and REMAND for the imposition of a new sentence. Upon remand the district court may consider Botham's relevant conduct and receive additional evidence pertaining to sentencing so long as it makes specific findings of fact and those findings are not based on his proffer statements. See United States v. Palafox-Mazon, 198 F.3d 1182, 1186 (9th Cir.2000) (discussing imposition of sentence based upon relevant conduct); cf. United States v. Kerr, 876 F.2d 1440, 1446 (9th cir.1989) (allowing receipt of additional evidence at sentencing upon remand).
VACATED and REMANDED for resentencing.
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