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
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).
2
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
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
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
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
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
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
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.
5
Had we concluded otherwise, we would have applied a harmless-
error 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