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
* Senior Circuit Judge of the Eleventh Circuit, sitting by designation. 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
1 See U.S.S.G. § 2S1.1(b)(2)(E). 2 See U.S.S.G. § 3B1.1(b).
2 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 self-
incriminating evidence proffered by Marsh during his cooperation
and found nothing in the plea agreement attempted to limit the
sentence that the court could impose.
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 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 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
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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
* Senior Circuit Judge of the Eleventh Circuit, sitting by designation. 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
1 See U.S.S.G. § 2S1.1(b)(2)(E). 2 See U.S.S.G. § 3B1.1(b).
2 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 self-
incriminating evidence proffered by Marsh during his cooperation
and found nothing in the plea agreement attempted to limit the
sentence that the court could impose.
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 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 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
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 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.