concurring.
The district court committed harmless error by using Guarin’s failure to reveal his New York drug sources as a basis for denying Guarin a two-point reduction in his offense level for acceptance of responsibility. It is clear from the record that Guarin offered no evidence of acceptance of responsibility other than his plea of guilty; as such, the district court’s impermissible insistence that Guarin reveal his drug sources as evidence of acceptance of responsibility does not change the outcome of this case. Although harmless in the instant case, the error’s insidiousness warrants more guidance for district courts than the majority’s opinion provides. Specifically, this court should admonish sentencing judges that constitutional considerations and the express language of the Sentencing Guidelines counsel against consideration of a defendant’s revelation of his drug sources when determining whether to award a two-point reduction for acceptance of responsibility.
The district court in the instant case erred in two respects by considering Gua-rin’s failure to reveal his New York drug sources. First, and most importantly, the district court violated Guarin’s Fifth Amendment privilege against self-incrimination by imposing on Guarin the Hobson’s choice of confessing his New York drug contacts or foregoing a two-point reduction in his offense level. In United States v. Perez-Franco, 873 F.2d 455, 464 (1st Cir.1989), the First Circuit held that a sentencing court could not penalize a defendant by refusing to reduce his sentence for acceptance of responsibility where the denial of the reduction was premised on the defendant’s refusal to make statements which could incriminate him on charges to which he had not pled guilty. The defendant in Perez-Franco was indicted on five counts and entered a plea agreement with the government under which he would plead guilty to Count IV in exchange for the government’s dismissal of Counts I, II, and III. Count Y had been dismissed prior to the plea agreement. Id. at 456. The plea agreement was conditional and at the time of Perez-Franco’s interview with the probation officer who authored his presen-tence report, the counts to be dismissed under the plea agreement were technically still pending. Id. at 457-59. Accordingly, Perez-Franco accepted responsibility only for the charge to which he pled guilty and refused to make statements which might incriminate him on the remaining counts. Id. at 457. The district court, however, denied Perez-Franco a two-point reduction for acceptance of responsibility because the *1124defendant refused to comment on charges which were still pending. Id. at 457-58.
In remanding the case for resentencing, the First Circuit noted that plea bargains are sometimes breached by the parties and can be rejected by the district court. Hence, statements made by the defendant to a probation officer1 regarding charges other than those to which the defendant pled guilty could incriminate him with respect to the pending charges. The incrimination would be compelled because “a defendant does not have ‘a free choice to admit, to deny, or to refuse to answer’ if he knows he will be incarcerated for a longer period of time if he does not make the incriminating statements.” Id. at 463 (quoting Garner v. United States, 424 U.S. 648, 657, 661, 96 S.Ct. 1178, 1183, 1186, 47 L.Ed.2d 370 (1976)). Thus, the district court erred in making Perez-Franco’s receipt of a two-point reduction for acceptance of responsibility contingent upon admissions relating to charges to which he had not pled guilty.
Turning to the instant case, at the time Guarin was interviewed by the probation officer who authored his presentencing report, Count I of the indictment, conspiracy to possess with intent to distribute cocaine, was “expected to be dismissed.” J.App. at 55. Thus, the charge was technically still pending and statements made by Guarin relevant to the conspiracy count could have incriminated him on that charge. It is not unreasonable to assume that Guarin’s revelation of cocaine sources in New York would implicate him in a conspiracy to distribute cocaine with co-defendants Montoya, Warnier, Perry and Sowell. Under the reasoning of Perez-Franco, the district court violated Guarin’s Fifth Amendment privilege against self-incrimination by making the offense level reduction for acceptance of responsibility contingent upon Gua-rin’s revelation of his New York cocaine sources.2 Thus, although I agree with the majority that Guarin could properly have been denied the two-point reduction for acceptance of responsibility even “absent the district court’s allegedly illegitimate expectation,” I believe that the foregoing amplification of Guarin’s constitutional argument is in order so that no other district court commits the same error.
In addition to infringing on Guarin’s Fifth Amendment privilege against self-incrimination, the district court’s insistence that Guarin reveal his New York drug sources as part of his acceptance of responsibility violated the explicit language of the Sentencing Guidelines. Section 3E1.1 of the Guidelines is the exclusive provision dealing with offense range reductions for acceptance of responsibility. Section 5K1.1 of the Guidelines is an entirely independent provision authorizing a downward departure where a defendant renders substantial assistance in the prosecution or investigation of other persons. The commentary to § 5K1.1 instructs that “[t]he sentencing reduction for assistance to authorities shall be considered independently of any reduction for acceptance of responsibility. Substantial assistance is directed to the investigation and prosecution of criminal activities by persons other than the defendant, while acceptance of responsibility is directed to the defendant’s affirmative recognition of responsibility for his own conduct.”
In light of the dangers posed to Guarin’s Fifth Amendment rights and the explicit *1125language of the Commentary to § 5K1.1, I believe it was inappropriate to consider Guarin’s inculpation of others in determining whether to award him a two-point reduction for acceptance of responsibility. This case compels such a holding, but the majority declines to announce it. I therefore concur only in the result of Part II of the majority’s opinion. However, I fully concur in the remainder of the court’s opinion.
. Fed.R.Evid. 410, "Inadmissibility of Pleas, Plea Discussions, and Related Statements,” only precludes the use of statements made in the course of plea discussions if they were "made to a prosecuting attorney." Perez-Franco, 873 F.2d at 460-61 (quoting Fed.R.Evid. 410).
. At oral argument, the government suggested that this court’s decision in United States v. Silverman, 889 F.2d 1531 (6th Cir.1989), is contrary to Perez-Franco. Specifically, the government read Silverman as giving a court authority to require a defendant to accept responsibility for charges to which he had not pled guilty. No such holding, however, can be gleaned from Silverman, which did not even involve an acceptance of responsibility question. The issue in Silverman — " ‘If the defendant is indicted on a drug conspiracy charge and multiple substantive counts of drug distribution and pleads to only one substantive count, are the amounts of drugs from the conspiracy and other substantive counts added to the drugs in the count of conviction for purposes of calculation?”’ — is not even remotely raised by the current appeal. Id. at 1538 (citation omitted).