United States v. Cole , 87 F. App'x 876 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4507
OZZIE ANTHONY COLE, a/k/a
Jamaican T, a/k/a T,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-01-25)
Submitted: October 3, 2003
Decided: February 17, 2004
Before NIEMEYER, TRAXLER, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
John M. Sutton, SUTTON & JANELLE, P.L.L.C., Martinsburg, West
Virginia, for Appellant. Thomas E. Johnston, United States Attorney,
Thomas O. Mucklow, Assistant United States Attorney, Martinsburg,
West Virginia, for Appellee.
2 UNITED STATES v. COLE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Ozzie Anthony Cole pled guilty to distributing 2.12 grams of crack
on February 9, 2001 (Count Eleven of a nineteen-count indictment),
and was sentenced to a term of 188 months imprisonment. Cole con-
tends on appeal that the district court erred in using protected infor-
mation that he provided pursuant to a cooperation agreement to
determine that he had a supervisory role in the distribution of drugs.
See U.S. Sentencing Guidelines Manual §§ 1B1.1, 3B1.1(c) (2001).
He also claims that the government breached the plea agreement
when it refused to recommend an adjustment for acceptance of
responsibility. USSG § 3E1.1. We find no merit in the latter argument
and affirm the sentence in that respect. However, we vacate the sen-
tence and remand for further proceedings concerning whether infor-
mation obtained from Cole under the cooperation agreement was
improperly used to determine the applicable guideline range.1
Cole’s plea agreement provided that he would cooperate fully and
that, pursuant to Guideline Section 1B1.8, any information he sup-
plied could not be used to determine his guideline range. The agree-
ment further provided that, if the government deemed that Cole had
accepted responsibility, and the probation officer recommended an
adjustment for acceptance of responsibility, the government would
concur in a three-level adjustment under § 3E1.1. Finally, the agree-
ment provided that, if the government deemed that Cole had either
failed to cooperate or engaged in obstructive conduct as defined in
USSG § 3C1.1, the government would not be bound to recommend
an adjustment for acceptance of responsibility.
1
Cole also waived his right to appeal his sentence. Because the issue
he raises here concerns a possible breach of the plea agreement, the
waiver does not foreclose this appeal.
UNITED STATES v. COLE 3
When Cole was interviewed by investigative agents, he revealed
that he had fronted crack to Howard (Happy) Peterson with the expec-
tation that Peterson would sell the crack and return some of the pro-
ceeds to him. The probation officer used this information to
recommend a two-level adjustment pursuant to § 3B1.1(c). When
Cole objected, the probation officer responded that the government
had several independent sources for the information. At Cole’s first
sentencing hearing, the government named Mark and Susan Hardy
and Happy Peterson as the sources of the information.2 At a later
hearing, the government produced Happy Peterson and his girlfriend,
Michelle Frye, as witnesses. They both testified that they had sold
crack for Cole. The district court then made the adjustment.
Cole argues on appeal that the district court clearly erred in consid-
ering immunized information he provided during his debriefing to
enhance his base offense level by two levels under § 3B1.1(c). The
underlying issue is whether the government breached the plea agree-
ment by providing the information to the probation officer and the
district court.
Guideline section 1B1.8 provides that information provided by a
defendant pursuant to a cooperation agreement may not be used in
determining the applicable guideline range (except to the extent pro-
vided in the agreement) unless the information was known to the gov-
ernment before the defendant entered into the agreement. See United
States v. Abanatha, 999 F.2d 1246, 1249 (8th Cir. 1993) (use of
immunized information violates Fifth Amendment as well as
§ 1B1.8); United States v. Marsh, 963 F.2d 72, 74-75 (5th Cir. 1992);
see generally United States v. Lee, 867 F.2d 206, 207 (4th Cir. 1989).
Application Note 5 further explains that, even if the defendant person-
ally provides the protected information to the probation officer who
prepares the presentence report, the information remains protected.
United States v. Washington, 146 F.3d 219, 221-22 (4th Cir. 1998).
Although the district court decided that it could respect the agree-
ment while considering the evidence given by Peterson and Frye
because their testimony constituted an independent source of informa-
2
Mark Hardy’s debriefing report states only that he bought crack from
"Happy Pierce;" apparently this was Peterson.
4 UNITED STATES v. COLE
tion establishing Cole’s supervisory role, the court did not determine
whether the government learned of Cole’s supervisory role from them
or someone else before Cole entered into the plea agreement. If the
government acquired this information after Cole made his statement,
the information may not be used against Cole for sentencing pur-
poses, under § 1B1.8 and, therefore, under the terms of the plea agree-
ment. Because this question cannot be resolved without further fact
finding, we vacate the sentence and remand the case so that the dis-
trict court may determine whether, when Cole revealed that he had
fronted crack to Peterson, the arrangement was "a fact not previously
known to the government. . . ." USSG § 1B1.8, comment. (n.1).
Cole also claims that the government breached the plea agreement
by failing to recommend a three-level adjustment for acceptance of
responsibility. Cole did not raise this issue in the district court; there-
fore, the standard of review is plain error. United States v. Olano, 507
U.S. 725, 732 (1993); United States v. Hastings, 134 F.3d 235, 240
(4th Cir. 1998).
Before Cole’s final sentencing hearing, he wrote two letters to
Michelle Frye in an attempt to influence Happy Peterson’s testimony.
This conduct was an attempt to obstruct justice as defined in Applica-
tion Note 4(a) to § 3C1.1. Under the terms of the plea agreement,
therefore, the government was not bound to recommend an adjust-
ment for acceptance of responsibility even if the adjustment was rec-
ommended by the probation officer. Cole has accordingly failed to
establish that the district court plainly erred in not finding that the
government breached the plea agreement in this respect.
We therefore affirm the sentence in part, but vacate the sentence
and remand for further proceedings in accord with this opinion. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED