Sixth Cicuit Finds No Plain Error In Use of Defendants Proffer Statements in PSR

• US v. Jackson

Counsel for Jackson never objected to the presence of the defendant's proffer statements in his presentence report (PSR) at sentencing. While counsel did object to the enhancement under the guidelines that his statements resulted in, he did not object to the presence of the statements themselves in the PSR; and, who would think you have to, if you object to the actual impact of those statements?  At sentencing the government called an FBI agent to testify to an independent source of the same subject matter (bank robberies) that was contained in the statements. From the opinion, it appears that the only reason the FBI agent was called to testify to independent source information is because counsel for Jackson objected to the result that the proffer statements created in the PSR. Since that result based objection was unsuccessful at the district court, on appeal Jackson asserts that USSG § 1B1.8 categorically precludes the use of proffer information in the PSR. His failure to object to the presence of his statements, at the district court level, is only reviewed on appeal under the standard of plain error and the Sixth Circuit found no plain error. Cautionary lesson, if your client proffers then you must object at sentencing to any proffer statements appearing in the PSR.


Jackson's lawyer was promised by the government at the proffer session “No statements made or other information provided by your client during such proffer and discussion will be used directly against your client in any criminal case.” Nonetheless, Jackson's PSR however contained several of his proffer statements. These were initially used in calculating his guideline sentence range, and the court relied on them in determining his specific sentence.


The reason that these statements ended up in the PSR has less to do with malfeasance toward Jackson and more to with the vagaries of the Sentencing Guideline Manual and how it is interpreted across the circuit by different government offices, I suspect.  Guideline Commentary specifically precludes the government from withholding information from the court — something that would be required if Jackson’s proffer information were to be omitted from the PSR. USSG § 1B1.8, note 1 (“This provision does not authorize the government to withhold information from the court.”). Also, Note 5, on which Jackson relies, only speaks to the use of proffer-protected information in

computing the guideline sentence range. USSG § 1B1.8, note 5 (“The guideline operates as a limitation on the use of such incriminating information in determining the applicable guideline range . . . .”).

Here the court held, "We only review this issue for plain error, since Jackson failed to object at the district court."  The PSR contained several of his proffer statements. These were initially used in calculating his guideline sentence range, and the court relied on them in determining his specific sentence. Jackson unsuccessfully challenged both his guideline sentence range and the specific sentence imposed.  The Sixth Circuit affirmed his convictions for bank robbery.


The Sixth Circuit has never reached a contrary result to this case, and it is small comfort that other circuit opinions on this issue are split. (holding information disclosed to the government under a promise of confidentiality cannot be included in a PSR), (7th Cir. 1996) (precluding the government from withholding relevant information from the sentencing court). United States v. Choice, 201 F.3d 837, 840 (6th Cir. 2000). Here, the plain language of USSG § 1B1.8 specifically and unequivocally protects proffer statements from use “in determining the Compare United States v. Abantha, 999 F.2d 1246, 1248 (8th Cir.with United States v. Rourke, 74 F.3d 802).