* Senior Circuit Judge of the Eleventh Circuit, sitting by

designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 91-1459

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ERIC MARSH,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________________________________________________

(June 4, 1992)

Before HILL,* KING, and DAVIS, Circuit Judges.

PER CURIAM:

After making a plea agreement with the Government, Eric

Marsh pled guilty to money laundering and conspiracy charges. He

appeals the sentence imposed by the district court and the

Government agrees that Marsh should be resentenced. We vacate

and remand for resentencing. 

I.

From May 1988 until May 1990, Marsh was actively involved in

the sale and distribution of 3,4 Methylenedioxymethamphetamine, a

controlled substance commonly known as "Ecstasy." When Marsh
 

1 See U.S.S.G. § 2S1.1(b)(2)(E).

 

2 See U.S.S.G. § 3B1.1(b).

2

became aware that he was the subject of a criminal investigation,

he sought counsel. Through counsel, Marsh engaged in a series of

discussions with the Internal Revenue Service and the Assistant

United States Attorney charged with the investigation which

culminated in a cooperation agreement. 

On January 17, 1991, Marsh was charged with money laundering

and conspiracy to conduct financial transactions affecting

interstate commerce with proceeds from the sale of a controlled

substance, in violation of 18 U.S.C. §§ 371 and 1956(a)(1)(B)(i). 

On January 25, 1991, Marsh entered a written plea agreement with

the Government. Marsh agreed to plead guilty to these charges

and fully cooperate with the Government. In exchange, the

Government agreed that Marsh would "not be prosecuted further for

activities that occurred or arose out of [his] participation in

the crimes charged in the Information that are known to the

government at this time." The Government also agreed to apprise

the court at sentencing of the extent and nature of Marsh's

cooperation. 

The district court sentenced Marsh to eighty-seven months

imprisonment and a three-year term of supervised release. The

district court arrived at this sentence by enhancing Marsh's base

offense level by four levels for laundering money in an amount

greater than $600,000,1 and an additional three levels for acting

as a manager or supervisor of criminal activity.2 Marsh
 

3 Section 1B1.8 states:

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; or

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

agreement by the defendant.

3

objected, arguing that § 1B1.8 of the United States Sentencing

Guidelines ("U.S.S.G." or "guidelines")3 prevented the court from

using the information that he provided to the probation office in

reliance on the plea agreement as a basis for these enhancements. 

The district court rejected Marsh's argument. It determined that

it was not bound by the Government's agreement not to use selfincriminating evidence proffered by Marsh during his cooperation

and found nothing in the plea agreement attempted to limit the

sentence that the court could impose. 
4

II.

The sole issue on appeal concerns whether U.S.S.G. § 1B1.8

permits a district court to calculate the applicable offense

level based on self-incriminating information revealed by a

defendant to a probation officer in reliance on the Government's

agreement not to use such information to further prosecute the

defendant. We review de novo legal issues arising out of the

application of the guidelines. See 18 U.S.C. § 3742(e); United

States v. Soliman, 954 F.2d 1012, 1013-14 (5th Cir. 1992). 

The district court appears to have adopted the position of

the AUSA during sentencing that § 1B1.8 of the guidelines

exempted from its prohibition information that a defendant

reveals to the probation office during its presentence

investigation and report which § 1B1.8 would otherwise protect. 

On appeal, the Government retreats from this position and now

agrees with Marsh that any self-incriminating information which

he revealed to the probation office in reliance on § 1B1.8(a) and

the plea agreement should not have been used in determining the

guideline range. We agree with both Marsh and the Government

that § 1B1.8 prohibits the sentencing court from taking such

information into account in calculating the applicable guideline

range. See United States v. Shacklett, 921 F.2d 580, 584 (5th

Cir. 1991); United States v. Kinsey, 917 F.2d 181, 183-84 (5th

Cir. 1990) (agreement "to refrain from further prosecuting Kinsey

for other violations" in exchange for defendant's cooperation). 

The fact that a defendant provides the protected information to
 

4 See also United States v. Kinsey, 917 F.2d 181, 184 (5th

Cir. 1990) (expressing doubt that the drafters of the guidelines

intended to make an indiscernible distinction between prosecutors

and investigators on one hand and probation officers on the

other). 

 

5 The district court sentenced Marsh on April 22, 1991.

5

the probation office does not alter our conclusion. Application

Note 5 under the Commentary to § 1B1.8 explains that:

[t]his 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, repeats such information to the

probation officer preparing the presentence report, the use

of such information remains protected by this section). 

(effective Nov. 27, 1991) (emphasis added).4 Application Note 5

was added in the 1991 amendments to the commentary to guideline §

1B1.8, and as such was not in effect at the time of Marsh's

sentencing.5 The addition of Note 5, however, was intended only

to clarify the operation of the guideline. United States

Sentencing Comm'n, United States Sentencing Commission Guidelines

Manual - Appendix C [Amendments to the Sentencing Guidelines

Manual], amend. 390, at 220 (observing that "[t]his Amendment

clarifies the operation of this guideline"). Therefore, we

consider it to be valid and persuasive guidance. See United

States v. Fitzhugh, 954 F.2d 253, 254 (5th Cir. 1992) (citing

United States v. Nissen, 928 F.2d 690, 694-95 (5th Cir. 1991)). 

In light of the now-clear policy underlying § 1B1.8 we conclude
6

that, in calculating Marsh's guideline range, the district court

improperly considered information that Marsh provided to the

probation officer in reliance on the plea agreement.

Finally, while generally supporting Marsh's contention on

appeal, the Government specifically disagrees with Marsh that the

findings supporting enhancement under § 3B1.1 for Marsh's role in

the offense necessarily came solely from the information he

provided following the plea agreement. On remand, the district

court should make an express finding as to whether the

information supporting any § 3B1.1 enhancement was known to the

Government before Marsh entered the plea agreement. See U.S.S.G.

§ 1B1.8(b)(1); Shacklett, 921 F.2d at 584. If so, the district

court should ensure that the previously known information,

standing alone, has a sufficient indicia of reliability before

using it to calculate Marsh's total offense level. See U.S.S.G.

§ 6A1.3(a); Shacklett, 921 F.2d at 584. 

III.

For the foregoing reasons, we VACATE the sentence imposed by

the district court and REMAND for resentencing in accordance with

this opinion.