UNITED STATES COURT OF APPEALS

for the Fifth Circuit

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No. 94-60733

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ERNESTO RODRIGUEZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Texas

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(July 21, 1995)

Before DUHÉ, WIENER, and STEWART, Circuit Judges.

DUHÉ, Circuit Judge:

Ernesto Rodriguez appeals the district court's refusal to

apply the "safety valve" provision of 18 U.S.C. § 3553(f) so that

he could escape the ten year mandatory minimum sentence of 21

U.S.C. 841(b)(1)(A). In this appeal, we address whether a

defendant's statement to a probation officer satisfies the fifth

requirement of § 3553(f). Because we answer that question in the

negative, we affirm. 

BACKGROUND

Rodriguez pled guilty to conspiracy to possess with intent to

distribute in excess of five kilograms of cocaine under 21 U.S.C.

§§ 841(a)(1), 846. Under the Sentencing Guidelines, the applicable
2

guideline range for Rodriguez would have been 108 to 135 months.

Conviction for drug conspiracy in excess of five kilograms of

cocaine, however, carries a mandatory minimum sentence of 120

months. Accordingly, the probation officer revised the lower end

of the guideline range to 120 months. See U.S.S.G. § 5G1.1(c)(2).

On September 13, 1994, the Congress enacted 18 U.S.C. §

3553(f), which allows certain defendants convicted of drug crimes

to avoid mandatory minimum sentences. The Sentencing Commission

adopted a new guideline to apply the statute:

In the case of an offense under 21 U.S.C. § 841, 844,

846, 960, or 963, the court shall impose a sentence in

accordance with the applicable guidelines without regard

to any statutory minimum sentence, if the court finds

that the defendant meets the criteria in 18 U.S.C. §

3553(f)(1)-(5) set forth verbatim below:

(1) the defendant does not have more than 1 criminal

history point, as determined under the sentencing

guidelines;

(2) the defendant did not use violence or credible

threats of violence or possess a firearm or other

dangerous weapon (or induce another participant to do so)

in connection with the offense;

(3) the offense did not result in death or serious

bodily injury to any person;

(4) the defendant was not an organizer, leader,

manager, or supervisor of others in the offense, as

determined under the sentencing guidelines and was not

engaged in a continuing criminal enterprise, as defined

in 21 U.S.C. 848; and

(5) not later than the time of the sentencing

hearing, the defendant has truthfully provided to the

Government all information and evidence the defendant has

concerning the offense or offenses that were part of the

same course of conduct or of a common scheme or plan, but

the fact that the defendant has no relevant or useful

other information to provide or that the Government is

already aware of the information shall not preclude a

determination by the court that the defendant has

complied with this requirement.

U.S.S.G. § 5C1.2 (emphasis added); see also 18 U.S.C.A. § 3553(f)

(West Supp. 1995).
1 A sentencing court's refusal to apply § 5C1.2 is a factual

finding, which we review for clear error. Cf. United States v.

Ronning, 47 F.3d 710, 711 (5th Cir. 1995) (applying clear error

standard to a sentencing court's application of § 3B1.1). Because

we must define the scope of "Government," however, our review is de

novo.

3

Rodriguez asked the court to apply § 5C1.2. The Government

responded by arguing that Rodriguez had not spoken to the

Government nor had he been truthful. Although the probation

officer had interviewed Rodriguez in preparation of the Presentence

Report, he had not spoken with the Government's case agent. The

court allowed Rodriguez the opportunity to speak with the

Government's case agent. Rodriguez refused. The court declined to

apply § 5C1.2 and sentenced Rodriguez to 120 months in prison.

DISCUSSION

Rodriguez contends that his discussion with the probation

officer satisfies the requirement to disclose to the Government all

information that he knows about the criminal offense. The issue

Rodriguez raises is whether the probation officer is, for purposes

of § 5C1.2, "the Government." We are the first court of appeals to

address the issue. We review the legal interpretation of the

Sentencing Guidelines de novo. United States v. Gadison, 8 F.3d

186, 193 (5th Cir. 1993).1

Rodriguez contends that a probation officer is part of the

Government. In support, Rodriguez cites our cases that apply §

1B1.8 to statements made to a probation officer. See, e.g., United

States v. Marsh, 963 F.2d 72, 74 (5th Cir. 1992). As a fallback

argument, Rodriguez contends that we should apply the rule of
2 Section 1B1.8(a) provides in full:

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.

U.S.S.G. § 1B1.8(a).

4

lenity because § 5C1.2's plain meaning and legislative history do

not elucidate the scope of "Government."

When the Government provides use immunity to a defendant

pursuant to a plea agreement, Section 1B1.8(a) prohibits the use of

the defendant's statements in calculating his applicable guideline

range.2 A defendant's statements to a probation officer in

reliance on a plea agreement cannot be considered in calculating

the defendant's guideline range. Marsh, 963 F.2d at 74. We based

our decision in Marsh on the commentary:

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 his presentence report, the

use of such information remains protected by this

section).

U.S.S.G. § 1B1.8 commentary n.5. As the commentary explains, §

1B1.8 restricts the use of the defendant's information and is not

limited to its presentation by the Government. For example, just

because a defendant provides a probation officer with the same

incriminating information that the prosecutor possesses does not

allow the defendant's statements to be considered in deciding his
3 "At the sentencing hearing, the court must afford counsel for

the defendant and for the Government an opportunity to comment on

the probation officer's determination and on other matters relating

to the appropriate sentence . . . ." Fed. R. Civ. P. 32(c)(1).

"Before imposing sentence, the court must . . . afford the

attorney for the Government an opportunity equivalent to that of

the defendant's counsel to speak to the court . . . ." Id.

32(c)(3).

4 The cross reference is to Rule 32(a)(1), but Rule 32 does not

have a subsection (a)(1). The Government notes that subsection

(c)(1) used to be (a)(1) before 1987. The Government, however,

does not venture a guess why the new guideline cites an obsolete

version of the rule. 

5

guideline range. Thus, the commentary's example tends to

distinguish probation officers from the Government. Neither §

1B1.8 nor its commentary equate a probation officer with the

Government. Rather, the commentary implies the opposite. 

The Government contends that we should read § 5C1.2 in pari

materia with Federal Rule of Criminal Procedure 32(c), which

addresses sentencing. This tool of statutory construction allows

us to consider all statutes that relate to the same topic;

therefore, if a thing in a subsequent statute comes within the

reason of a former statute, we transpose the former statute's

meaning to the thing in the subsequent statute. United States v.

Freeman, 44 U.S. (3 How.) 556, 564 (1845). In the context of the

sentencing hearing, Rule 32(c) uses "Government" in conjunction

with "attorney" or "counsel."3 By the use of in pari materia, the

Government argues that we should construe "Government" in § 5C1.2

the same way. The Government's position is supported by § 5C1.2's

explicit cross reference to Rule 32. See § 5C1.2 commentary n.8.4
5 Had we concluded otherwise, we would have applied a harmlesserror analysis. See Williams v. United States, 112 S. Ct. 1112,

1120-21 (1992). Because Rodriguez disregarded the district court's

invitation to speak with the Government's case agent, we are quite

confident that the district court on remand would have given

Rodriguez the same sentence.

6

We agree with the Government and the district court that the

probation officer is, for purposes of § 5C1.2, not the Government.

The purpose of the safety valve provision was to allow less

culpable defendants who fully assisted the Government to avoid the

application of the statutory mandatory minimum sentences. See H.R.

Rep. 460, 103d Cong., 2d Sess. (1994). A defendant's statements to

a probation officer do not assist the Government. Accordingly, we

conclude that the district court did not err in treating

Rodriguez's statements to the probation officer as not satisfying

§ 5C1.2.5

CONCLUSION

For the foregoing reasons, the district court's sentence is 

AFFIRMED.