U.S.S.G. § 1B1.8
Use of Certain Information
(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).Historical Note: Effective June 15, 1988 (amendment 5). Amended effective November 1, 1990 (amendment 308); November 1, 1991 (amendment 390); November 1, 1992 (amendment 441); November 1, 2004 (amendment 674); November 1, 2009 (amendment 736); November 1, 2010 (amendment 746); November 1, 2013 (amendment 778); November 1, 2025 (amendment 836).
Notes of Decisions
Cited in 199
cases (8 in the last 5 years), 1990–2025 · leading case: United States v. James Sylvester Milan, Jr. (02-6245) & Sharn Raynard Milan (02-6302), 398 F.3d 445 (6th Cir. 2005).
United States v. James Sylvester Milan, Jr. (02-6245) & Sharn Raynard Milan (02-6302), 398 F.3d 445 (6th Cir. 2005). “1; and, third, that the offense level was improperly increased for a leadership or organizer role, pursuant to U.”
United States v. Mike Linh Pham, 463 F.3d 1239 (11th Cir. 2006). “On appeal he argues that (1) the drug quantity attributed to him at sentencing was derived from information he provided to the government as part of his plea agreement in violation of U.S.S.G. § 1B1.8, and (2) the district court erred by applying a two-level enhancement for…”
Berthoff v. United States, 140 F. Supp. 2d 50 (D. Mass. 2001). “The plea agreement for Villafane lacked any mention of U.S.S.G. § 1B1.8. Second, the First Circuit's characterization of the government's drug attribution as "charg[ing] each of [the pleading defendants] only with the amount of drugs they had personally handled, rather than the…”
United States v. Leyva-Matos, 618 F.3d 1213 (10th Cir. 2010). “See U.S.S.G. § 1B1.8 (providing that "[w]here 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…”
United States v. Iraelio Charon, 442 F.3d 881 (5th Cir. 2006). “2005) (noting that contrary to the defendant’s argument that his statements are protected by the cooperation and plea agreement and U.S.S.G. § 1B1.8 and therefore could not be considered at sentencing, “the record is replete with information on which the court could have reached…”
United States v. Ennis Maurice Fant, 974 F.2d 559 (4th Cir. 1992). “Review of the language of the plea agreement, and of U.S.S.G. § 1B1.8, upon which it and similar agreements are based, indicates that the government’s proposed distinction between statements made to probation officers, and those made to the “Government,” pursuant to a bargained…”
United States v. Jackson, 635 F.3d 205 (6th Cir. 2011). “” Had this information provided the basis for the enhancement that determined Jackson’s ultimate guideline range, a violation of USSG § 1B1.8 would have occurred. However, Jackson’s guideline range can be sustained without the use of the impermissible proffer-protected…”
United States v. Harper, 643 F.3d 135 (5th Cir. 2011). “U.S.S.G. § 1B1.8 cmt. n.1 (“This provision does not authorize the government to withhold information from the court.”
United States v. Christopher McFarlane, 309 F.3d 510 (8th Cir. 2002). “The government provided McFarlane with a Kastigar 3 letter outlining the terms under which it would accept his cooperation, which provided that “ ‘as to [any] debriefings, it is agreed that, pursuant to U.S.S.G. § 1B1.8, any information to be used in the sentencing of Mr.”
United States v. John Baird, 218 F.3d 221 (3rd Cir. 2000). “In this section 2255 case, defendant contends that his trial counsel erred in failing to object at sentencing to the use of incriminating admissions made as part of a cooperation agreement with the government and immunized by U.S.S.G. § 1B1.8. We conclude that the government had…”
United States v. Sienemah Gaye, 902 F.3d 780 (8th Cir. 2018). “He contends that the court's use of the information was contrary to USSG § 1B1.8(a) and the proffer agreement.”
United States v. Preacely, 628 F.3d 72 (2d Cir. 2010). “…candid account of defendant's criminal conduct both in and beyond the crimes of conviction. See 18 U.S.C. § 3661 ; U.S.S.G. § 1B1.8(b)(5).”
— U.S.S.G. §1B1.8(B)(3) — 1 case
United States v. Harper, 643 F.3d 135 (5th Cir. 2011). “U.S.S.G. § 1B1.8 cmt. n.1 (“This provision does not authorize the government to withhold information from the court.”
— U.S.S.G. §1B1.8(B)(5) — 1 case
United States v. McFarlane, 174 F. Supp. 2d 987 (W.D. Mo. 2001).
— U.S.S.G. §1B1.8(a) — 37 cases
Berthoff v. United States, 140 F. Supp. 2d 50 (D. Mass. 2001). “The plea agreement for Villafane lacked any mention of U.S.S.G. § 1B1.8. Second, the First Circuit's characterization of the government's drug attribution as "charg[ing] each of [the pleading defendants] only with the amount of drugs they had personally handled, rather than the…”
United States v. Iraelio Charon, 442 F.3d 881 (5th Cir. 2006). “2005) (noting that contrary to the defendant’s argument that his statements are protected by the cooperation and plea agreement and U.S.S.G. § 1B1.8 and therefore could not be considered at sentencing, “the record is replete with information on which the court could have reached…”
United States v. Sienemah Gaye, 902 F.3d 780 (8th Cir. 2018). “He contends that the court's use of the information was contrary to USSG § 1B1.8(a) and the proffer agreement.”
United States v. Shannon Taylor, Also Known as Shandoe, 277 F.3d 721 (5th Cir. 2001).
United States v. Bradford Lee Butler, 297 F.3d 505 (6th Cir. 2002).
— U.S.S.G. §1B1.8(b) — 3 cases
United States v. Gonzalez (5th Cir. 2002).
United States v. Chris. McFarlane (8th Cir. 2002).
United States v. Wilder (5th Cir. 1994).
— U.S.S.G. §1B1.8(b)(1) — 9 cases
United States v. Harper, 643 F.3d 135 (5th Cir. 2011). “U.S.S.G. § 1B1.8 cmt. n.1 (“This provision does not authorize the government to withhold information from the court.”
United States v. Eric Marsh, 963 F.2d 72 (5th Cir. 1992).
United States v. Briesemeister, 273 F. App'x 534 (7th Cir. 2008).
Duane Charles White v. United States, 998 F.2d 572 (8th Cir. 1993).
United States v. Jacob Paul Toole (11th Cir. 2018).
— U.S.S.G. §1B1.8(b)(2) — 1 case
United States v. Farmer, Douglas (7th Cir. 2008).
— U.S.S.G. §1B1.8(b)(4) — 2 cases
United States v. Harper, 643 F.3d 135 (5th Cir. 2011). “U.S.S.G. § 1B1.8 cmt. n.1 (“This provision does not authorize the government to withhold information from the court.”
United States v. Cantu-Cox, 56 F.4th 385 (5th Cir. 2022).
— U.S.S.G. §1B1.8(b)(5) — 8 cases
United States v. Leyva-Matos, 618 F.3d 1213 (10th Cir. 2010). “See U.S.S.G. § 1B1.8 (providing that "[w]here 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…”
United States v. Preacely, 628 F.3d 72 (2d Cir. 2010). “…candid account of defendant's criminal conduct both in and beyond the crimes of conviction. See 18 U.S.C. § 3661 ; U.S.S.G. § 1B1.8(b)(5).”
United States v. Edward K. Mills, A/K/A Kwame Mills, 329 F.3d 24 (1st Cir. 2003).
United States v. Conway, 81 F.3d 15 (1st Cir. 1996).
United States v. Dionne Ackerley, 911 F.3d 519 (8th Cir. 2018).
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