                  UNITED STATES COURT OF APPEALS
                       for the Fifth Circuit

               _____________________________________

                             No. 94-60733
                           Summary Calendar

               _____________________________________

                       UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                  VERSUS

                          ERNESTO RODRIGUEZ,

                                                       Defendant-Appellant.

     ______________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas

     ______________________________________________________
                         (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.

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