U.S.S.G. §1B1.8

(a) 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 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.

(b) The provisions of subsection (a) shall not be applied to restrict the use of

information:

(1) known to the government prior to entering into the cooperation agreement;

(2) concerning the existence of prior convictions and sentences in determining §4A1.1 (Criminal History Category) and §4B1.1 (Career Offender);

(3) in a prosecution for perjury or giving a false statement;

(4) in the event there is a breach of the cooperation agreement by the

defendant; or

(5) in determining whether, or to what extent, to impose a sentence that

is below the otherwise applicable guideline range pursuant to a government motion under §5K1.1 (Substantial Assistance to Authorities).

Commentary

Application Notes:

1. This provision does not authorize the government to withhold information from the court but

provides that self-incriminating information obtained under a cooperation agreement is not to be

used to determine the defendant’s guideline range. Under this provision, for example, if a defendant is arrested in possession of a kilogram of cocaine and, pursuant to an agreement to provide information concerning the unlawful activities of co-conspirators, admits that he assisted in

the importation of an additional three kilograms of cocaine, a fact not previously known to the

government, this admission would not be used to increase his applicable guideline range, except

to the extent provided in the agreement. In contrast, subsection (b)(5) provides that consideration

of such information is appropriate in determining whether, or to what extent, to impose a sentence that is below the otherwise applicable guideline range pursuant to a government motion

under §5K1.1 (Substantial Assistance to Authorities). For example, a court may refuse to impose

a sentence that is below the otherwise applicable guideline range on the basis of such information.

2. Subsection (b)(2) prohibits any cooperation agreement from restricting the use of information as

to the existence of prior convictions and sentences in determining adjustments under §4A1.1

(Criminal History Category) and §4B1.1 (Career Offender). The probation office generally will

secure information relevant to the defendant’s criminal history independent of information the

defendant provides as part of his cooperation agreement.

3. On occasion the defendant will provide incriminating information to the government during plea

negotiation sessions before a cooperation agreement has been reached. In the event no agreement

is reached, use of such information in a sentencing proceeding is restricted by Rule 11(f) (Admissibility or Inadmissibility of a Plea, Plea Discussions, and Related Statements) of the Federal

Rules of Criminal Procedure and Rule 410 (Pleas, Plea Discussions, and Related Statements) of

the Rules of Evidence.

4. As with the statutory provisions governing use immunity, 18 U.S.C. § 6002, this guideline does

not apply to information used against the defendant in a prosecution for perjury, giving a false

statement, or in the event the defendant otherwise fails to comply with the cooperation agreement.

5. This guideline limits the use of certain incriminating information furnished by a defendant in

the context of a defendant-government agreement for the defendant to provide information concerning the unlawful activities of other persons. The guideline operates as a limitation on the

use of such incriminating information in determining the applicable guideline range, and not

merely as a restriction of the government’s presentation of such information (e.g., where the defendant, subsequent to having entered into a cooperation agreement, provides such information

to the probation officer preparing the presentence report, the use of such information remains

protected by this section).

6. Unless the cooperation agreement relates to the provision of information concerning the unlawful

activities of others, this guideline does not apply (i.e., an agreement by the defendant simply to

detail the extent of his own unlawful activities, not involving an agreement to provide information concerning the unlawful activity of another person, is not covered by this guideline).