United States of America v.  Christopher Wood

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4427 
CHRISTOPHER WOOD,
Defendant-Appellant. 
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-01-63)
Argued: May 6, 2004
Decided: August 4, 2004
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Reversed in part, affirmed in part, and remanded by published opin-
ion. Judge Duncan wrote the opinion, in which Judge Wilkinson and
Judge King joined.
COUNSEL
ARGUED: Richard Charles Armstrong, WYATT & ARMSTRONG,
P.L.C., Charlottesville, Virginia, for Appellant. Nancy Spodick Hea-
ley, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON
BRIEF: John L. Brownlee, United States Attorney, Roanoke, Vir-
ginia, for Appellee.

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OPINION
DUNCAN, Circuit Judge:
Defendant Christopher Wood appeals from the district court’s
judgment, entered May 15, 2003, sentencing him to one hundred
thirty-five months’ imprisonment upon a guilty plea to one count of
conspiracy to distribute narcotics in violation of 21 U.S.C. § 846.
Wood sought to contest the drug weight attributed to him at sentenc-
ing, but the district court refused to hear evidence on this point.
According to the court, Wood’s plea agreement precluded him from
doing so. Wood also sought relief under the "safety valve" provision
of 18 U.S.C. § 3553(f). The district court held that such relief was
unavailable as Wood did not satisfy all of the statutory requirements.
We hold that the district court erred by denying Wood the opportunity
to contest the drug weight attributable to him. We also hold that the
district court correctly interpreted the "safety valve" provision.
Accordingly, we reverse the district court in part, affirm in part, and
remand for resentencing.
I.
On April 9, 2002, Wood pled guilty, pursuant to a plea agreement,
to one count of conspiracy to distribute cocaine in violation of 21
U.S.C. § 841. The plea agreement contained a provision limiting
Wood’s ability to contest the drug weight attributed to him:
I agree that the total drug weight for which I should be held
accountable as reasonably foreseeable conduct relevant to
my own actions is at least 500 grams, unless a presentence
investigation finds a lesser amount. I understand that my
attorney will argue that I should [b]e held accountable for
less than 1.5 kilograms but that the United States intends to
argue that I should be held accountable for more than 1.5
kilograms of cocaine base, unless the presentence investiga-
tion reveals a lesser amount.
J.A. 16 ("Drug Weight Clause"). Wood also agreed to waive his right
to appeal any issues relating to his sentence under the sentencing
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guidelines, provided he first receive a "full and fair sentencing hear-
ing." J.A. 17. Wood and his attorney signed this agreement on Febru-
ary 28, 2002. The Government signed it on March 4, 2002.
On April 9, 2002, the district court held a Rule 11 hearing to deter-
mine the appropriateness of Wood’s plea. At that hearing, the district
court repeatedly assured Wood that he would have the opportunity at
sentencing to contest the drug weight attributable to him. First, Chris-
topher Collins, Wood’s defense counsel, explained to the district
court that "our only disagreement is as to total amount [of drugs] and
that will be argued at another time." J.A. 29. The district court
responded, "Right." Id. Second, explaining to Wood that the length of
his incarceration could not be determined until sentencing, the district
court told Wood that his attorney would receive a probation officer’s
presentencing report, and that "[i]f you find something with which
you do not agree, take that up with the probation officer and see if
you can get it resolved. . . . If you cannot, then that will come on, that
disagreement will come on at the time of the sentencing hearing." J.A.
33. Third, the following exchange occurred after the court asked
Wood if he was pleading guilty of his own free will:
THE DEFENDANT: I am guilty, but only to a certain
extent. What’s being charged in the indictment as far as the
total drug weight I don’t feel I’m responsible for, but since
we have the chance to argue, I feel—
THE COURT: That issue will be resolved through the pre-
sentence report and you’ll have the opportunity there to
present everything that you know about it in an effort to get
to the right amount. If you’re not in agreement with what the
probation officer comes up with, you still may be heard here
in this court at the time of the sentencing hearing about
what is the proper weight. So you will have two opportuni-
ties to persuade somebody of what the proper weight is;
first, the opportunity to persuade the probation officer and
if that is not successful, then the opportunity to show to the
Court what the proper weight should be. Does that clarify
it for you?
THE DEFENDANT: Yes.
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J.A. 39-40 (emphasis added).
After explaining Wood’s ability to challenge the presentence
report, the district court asked the Government to summarize its evi-
dence against Wood. The Government called a state narcotics investi-
gator to testify and, after the investigator described Wood’s conduct,
the prosecutor asked, "Understanding, of course, that there will be a
more full hearing at sentencing concerning the drug weight issue,
does your investigation indicate that this defendant was responsible
for, was aware of at least 500 grams of crack cocaine being distrib-
uted amongst or during the course of this conspiracy?" J.A. 42-43
(emphasis added). The investigator answered in the affirmative. The
district court then turned again to Wood:
THE COURT: . . . Including the testimony here from the
agent and everything else that has happened here in court
this morning or this day, do you have any questions of any
sort about anything? Now is the time. Get them out if
you’ve got them.
THE DEFENDANT: None that I can think of at the
moment.
THE COURT: After the moment is going to be a little bit
late.
MR. COLLINS: I think, again, Judge, he’s referring to the
issue of weight. There’s nothing to comment on at this
point.
THE COURT: The weight is certainly reserved for later.
J.A. 43-44 (emphasis added). Neither the court nor the Government
described Wood’s ability to contest a drug weight finding as in any
way limited. The district court thereafter accepted Wood’s plea.
The probation office twice revised the presentence report. The orig-
inal version estimated the drug weight as over 1.5 kilograms. Wood
submitted written objections to this determination, arguing that its
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basis was speculative. The probation officer revised his finding, not-
ing that "[a]ctual weight estimates by some of the co-conspirators
alone totaled more than 285.5 grams of cocaine base." J.A. 108. The
probation officer attributed an additional approximately 1.25 kilo-
grams of crack cocaine to Wood based on co-conspirator statements
that Wood had possessed "a ‘sandwich bag and two or three Kleenex
boxes’" of crack cocaine. Id.
On October 24, 2002, the district court held the first sentencing
hearing in this case. Collins attempted to challenge the drug weight
attributed to Wood in the presentence report, but the district court
refused to consider it due to the Drug Weight Clause:
THE COURT: It’s hard to see how you can [object to the
drug weight estimate in the presentence report] in light of
the plea agreement.
MR. COLLINS: That was part of the plea agreement. We
agreed it would be a particular weight unless the evidence
showed otherwise.
THE COURT: Unless the probation officer found differ-
ently.
MR. COLLINS: The second, actually, second and third
revised editions, while the probation officer says it’s 285
grams, he concluded from the co-defendant, he then says
using his method of estimating—
THE COURT: Are you challenging the language of the plea
agreement which says that it’s 500 or more grams unless the
probation officer finds a different amount? Are you chal-
lenging that language?
MR. COLLINS: I am in that I would like that evidence pre-
sented to the Court.
THE COURT: On what basis? Are you saying it was fraud-
ulent?
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MR. COLLINS: No. I’m saying it is estimated, Judge, and
not something that can be relied on unless the Court hears
the evidence.
THE COURT: There’s nothing about estimated in the plea
agreement. It is the report of the probation officer. There are
two ways of challenging that, as I see it. One is to assert that
the probation officer was fraudulent in his calculations.
MR. COLLINS: I would not do that.
THE COURT: The other is that it is an abuse of discretion.
Now, are you challenging on either of those bases?
MR. COLLINS: Judge, I can’t say in good faith he did
either of those. What I’m saying is it’s merely an estimate
and not something the Court can—
THE COURT: Go back to the plea agreement, Mr. Collins.
MR. COLLINS: I understand. Thank you.
J.A. 67-68. Because the district court believed that there was "sub-
stantial confusion here about exactly where we stand on drug weight,"
it granted the defendant’s motion for a continuance. J.A. 69.
Two months later, Wood wrote a letter to the district court explain-
ing that he was unsatisfied with his lawyer:
Mr. Collins is not representing me and my best interest. He
wants me to take responsibility for something that I’m not
"fully" responsible for. I’ve admitted to selling drugs, but
not the amount of cocaine base that I’m being charged with.
The only way I can prove this is with the help and assistance
of my attorney. I can see that he is not trying to help me
argue my case. He wants me to accept the charge for what
it is.
J.A. 124. He also complained that he had not heard from Collins since
the October court appearance, that he no longer trusted him, and that
he did not want to get a "Raw Deal" from "lack of counsel." Id.
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On April 23, 2003, the Government filed its opposition to Wood’s
request to hold a hearing to determine the drug weight. It argued that
the Drug Weight Clause barred Wood from challenging the presen-
tence report’s drug weight estimate. According to the Government,
because the report estimated the drug weight as more than 500 grams
but less than 1.5 kilograms, Wood’s stipulation in the Drug Weight
Clause eliminated the need for a hearing.
The district court held its second sentencing hearing on May 2,
2003. Collins asserted that he agreed with the Government’s interpre-
tation of the plea agreement, but that his client persisted that "it was
his impression that he could contest the validity of the opinion of the
probation officer." J.A. 77. The district court held that the Drug
Weight Clause was unambiguous and precluded Wood from having
a hearing on this issue.
The court also refused to grant Wood the benefit of the "safety
valve" provision of 18 U.S.C. § 3553(f). In order to qualify for relief
under the "safety valve," Wood had to, inter alia, "truthfully pro-
vide[ ] to the Government all information and evidence the defendant
has concerning" the conspiracy in which Wood engaged. 18 U.S.C.
§ 3553(f)(5). Wood claimed that he satisfied this provision because he
provided truthful information to the probation officer. The district
court held that "the Government," as used in the statute, did not mean
a probation officer, but rather referred to the prosecutor. Wood filed
a timely notice of appeal as to both rulings.
II.
The threshold issue we must address is whether Wood has waived
his right to bring this appeal, a question we review de novo. United
States v. General, 278 F.3d 389, 399 (4th Cir. 2002). We conclude
that he has not.
The Government is correct that the Drug Weight Clause of the plea
agreement as written limited Wood’s opportunity to argue the drug
weight attributable to him at sentencing. However, as explained
below, we find that the terms of the plea agreement were modified by
the district court’s assurances regarding Wood’s opportunity to chal-
lenge drug weight, without limitation, and the Government’s failure
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to clarify, object or respond. Wood reasonably relied on the terms of
the plea agreement as explained to him during the plea colloquy and
as repeated and later acquiesced in by the Government, terms which
were thereafter contradicted at sentencing. On the facts of this case,
Wood’s detrimental reliance on those representations precluded his
receiving the "full and fair sentencing hearing" on which his waiver
was contingent. J.A. 17.
III.
Wood first argues that the district court erred by construing his plea
agreement to deny him the opportunity to contest the probation offi-
cer’s drug weight finding at sentencing.1 The interpretation of a plea
agreement is a question we review de novo. United States v. Bowe,
257 F.3d 336, 342 (4th Cir. 2001). We agree with Wood, although on
slightly different grounds than those asserted by him.
The law governing the interpretation of plea agreements is an
"amalgam of constitutional, supervisory, and private [contract] law con-
cerns."2 United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986).
In most cases, contract principles will be "wholly dispositive" because
1Wood also contends that the Drug Weight Clause is ambiguous with
respect to whether he may contest the probation officer’s estimate that
"the defendant received over 500 [grams], but less than 1.5 kilograms of
‘crack’ cocaine." J.A. 118. According to Wood, the ambiguity arises
because he stipulated in the plea agreement to 500 grams, unless the
"presentence investigation finds a lesser amount." J.A. 16 (emphasis
added). The estimation, Wood argues, is not a finding, and he should
therefore be able to challenge it. This argument fails because, unless the
Government has the drugs it attributes to a defendant in its possession
and weighs them, the probation officer’s "finding" will necessarily be an
estimate. Wood argues a distinction without a difference.
2Because the rights with which a defendant bargains are constitution-
ally based, a plea agreement reflects due process concerns "that differ
fundamentally from and run wider than those of commercial contract
law." Harvey, 791 F.2d at 300. Our supervisory concerns stem from the
judiciary’s responsibility in federal prosecutions to maintain "public con-
fidence in the fair administration of justice, and the effective administra-
tion of justice in a federal scheme of government." Id. (internal
quotations omitted).
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"[n]either side should be able, any more than would be private con-
tracting parties, unilaterally to renege or seek modification simply
because of uninduced mistake or change of mind." Id. "A plea agree-
ment, however, is not simply a contract between two parties. It neces-
sarily implicates the integrity of the criminal justice system and
requires the courts to exercise judicial authority in considering the
plea agreement and in accepting or rejecting the plea." United States
v. McGovern, 822 F.2d 739, 743 (8th Cir. 1987). Consequently, we
hold "the Government to a greater degree of responsibility than the
defendant (or possibly than would be either of the parties to commer-
cial contracts) for imprecisions or ambiguities in plea agreements."
Harvey, 791 F.2d at 300.
The Government’s heightened responsibility extends beyond the
plea negotiation to all matters relating to the plea agreement. For
example, in United States v. Martin, 25 F.3d 211, 217 (4th Cir. 1994),
we held that the Government, through its statement at sentencing,
effectively modified the plea agreement. In the plea agreement, the
Government had retained discretion in determining whether to make
a motion for a downward departure based on Martin’s presentence
substantial assistance under U.S.S.G. § 5K1.1. Id. At sentencing, the
Government committed to making that motion "within the next year."
Id. (internal quotations omitted). We held that this statement consti-
tuted an oral modification of the plea agreement to make a timely
motion, id., despite the general rule against oral modifications of inte-
grated written plea agreements, see United States v. Fentress, 792
F.2d 461, 463-65 (4th Cir. 1986). The Government’s failure to make
the motion at sentencing — the only time at which a substantial assis-
tance motion may be made for presentence assistance, Martin, 25
F.3d at 216 — "resulted in a deprivation of [the defendant’s] due pro-
cess rights." Id. at 217. Thus, Government statements can modify a
plea agreement even after the district court accepts it.
During the plea colloquy, the parties must disclose "all ‘material
terms’ (or material ‘details’ or ‘elements’) of the agreement," United
States v. Moore, 931 F.2d 245, 249 (4th Cir. 1991) (interpreting Fed.
R. Crim. P. 11(e)(2)), and the district court must verify the defen-
dant’s understanding of these terms, see Hartman v. Blankenship, 825
F.2d 26, 28 (4th Cir. 1987) (noting that federal courts "conduct exten-
sive examinations of the pleader on oath and require acknowledge-
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ment of any written plea agreement in open court, after oral
examination of its terms" (emphasis added)). Because the purpose of
the plea colloquy is to establish that the defendant knowingly and vol-
untarily enters his plea, Moore, 931 F.2d at 249 (explaining that the
Rule 11 hearing is intended "to probe the defendant’s understanding
of the consequences of his bargain, and the voluntariness of his enter-
ing it"), he will naturally, and quite reasonably, rely on the district
court’s characterization of the material terms disclosed during the
hearing. See United States v. Buchanan, 59 F.3d 914, 918 (9th Cir.
1995) ("Litigants," and in particular criminal defendants, "need to be
able to trust the oral pronouncements of district court judges."). As a
consequence, where a district court’s mischaracterization of a material
term is sufficiently pervasive to alter a defendant’s understanding of
the terms of his plea, the Government’s affirmative acquiescence in
the court’s explanation can serve to modify the terms of the plea agree-
ment.3 Cf. Buchanan, 59 F.3d at 917-18 (finding Government’s
silence in the face of district court’s misstatements at sentencing hear-
ing altered terms of plea agreement).4
This case presents the somewhat unusual circumstances that make
application of the above rule appropriate. First, the district court did
not adequately explain the Drug Weight Clause. During the plea col-
loquy, the district court repeatedly suggested that Wood would have
the right to challenge the drug weight finding at sentencing. In one
3This rule is similar to the principle of contract law that permits silence
to constitute acceptance "when silence would be deceptive and beguil-
ing." John D. Calamari & Joseph M. Perillo, The Law of Contracts
§ 2.18, at 80-83 & n.5 (4th ed. 1998) (internal quotations omitted). We
need not decide whether the Government’s silence can, standing alone,
constitute acceptance of a modification. As explained below, infra pp.
11-12, the Government’s affirmative conduct contributed to Wood’s
understanding of the terms of his plea.
4Courts have criticized Buchanan for holding that a district court’s
statements at sentencing could alter the terms of a plea agreement that
the defendant understood at the time he entered his plea. See, e.g., United
States v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001); United States v. Flem-
ing, 239 F.3d 761, 763 (6th Cir. 2001). These criticisms do not apply
here because the district court’s misstatements in this case occurred at
the plea colloquy, not during a subsequent hearing, and formed the basis
of the defendant’s understanding.
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instance, the district court explicitly stated that if Wood’s attempt to
convince the probation officer of the proper weight "is not successful,
then [he would have] the opportunity to show to the Court what the
proper weight should be." J.A. 40. It then asked Wood, "Does that
clarify it for you?" Id. Wood responded that it did. The Government
not only failed to clarify or correct these statements, it also appeared
to buttress the court’s interpretation of the agreement. During her
examination of the state narcotics investigator, the Assistant United
States Attorney stated that "there will be a more full hearing at sen-
tencing concerning the drug weight issue." J.A. 42. The district court
thus misstated Wood’s right to challenge the probation officer’s drug
weight finding and the Government actively acquiesced to the mis-
stated right.
Second, Wood clearly relied to his detriment on the explanations
he was given. Wood was given to understand that he would have an
apparently unfettered opportunity at sentencing to dispute the amount
of drugs attributed to him.5 That this mistaken belief constituted a
substantial factor in his decision to plead guilty is demonstrated by (1)
Collins’ explanation to the district court at the colloquy that the "only
disagreement is as to total amount [of drugs]," J.A. 29; (2) Wood’s
subsequent attempts to challenge the drug weight; (3) his surprise at
being precluded from doing so; and (4) his letter to the district court
after the first sentencing hearing complaining that his attorney was
attempting to convince him "to take responsibility for something that
I’m not ‘fully’ responsible for," J.A. 124. The district court’s state-
ments induced this expectation, and the Government’s acquiescence
to them made Wood’s reliance reasonable.
We recognize that "[m]odification of the terms of a plea agreement
is . . . beyond the power of the district court." United States v. Howle,
166 F.3d 1166, 1168-69 (11th Cir. 1999). However, both through its
5The Government argues that the record shows that Collins, Wood’s
counsel, understood the limitations imposed by the Drug Weight Clause,
and that Collins had explained the provision to his client. But Collins’
understanding of the provision is immaterial. "[T]he validity of a bar-
gained guilty plea depends finally upon the voluntariness and intelli-
gence with which the defendant — and not his counsel — enters the
bargained plea." Harvey, 791 F.2d at 301.
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own question and its failure to correct the misimpression created by
the district court, the Government effectively achieved such a modifi-
cation on these facts. Consequently, the Government’s successful
attempt to block Wood from challenging the drug weight finding "re-
sulted in a deprivation of [Wood’s] due process rights." Martin, 25
F.3d at 217. That the Government’s breach of the plea agreement was
inadvertent "does not lessen its impact." Santobello v. New York, 404
U.S. 257, 262 (1971). As a result, Wood is entitled to specific perfor-
mance of the modified plea agreement.6 Martin, 25 F.3d at 217. We
therefore vacate his sentence and remand for resentencing.
IV.
Wood also argues that the district court erred by refusing to sen-
tence him under the "safety valve" provision of 18 U.S.C. § 3553(f).
This section requires a district court to sentence a defendant who
meets the five statutory criteria without regard to any statutory mini-
mum (but consistent with the sentencing guidelines). Id. The Govern-
ment concedes that Wood has met four of the five requirements to
warrant such relief.7 The only dispute involves the fifth requirement
6In most cases in which the Government has breached its agreement
with the defendant, we prefer to leave the fashioning of appropriate relief
"to the sound discretion of the district court." United States v. Jureidini,
846 F.2d 964, 966 (4th Cir. 1988). Wood does not seek to withdraw his
guilty plea, however, "but only asks [for] the lesser relief of ‘specific
performance’ of the [modified] plea bargain." United States v. Brown,
500 F.2d 375, 378 (4th Cir. 1974). There is thus no reason to remand to
the district court for a determination of the appropriate relief. Id.
7These four criteria are that:
(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 . . . [or engaged in a con-
tinuing criminal enterprise.]
18 U.S.C. § 3553(f).
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— whether Wood "truthfully provided to the Government all informa-
tion and evidence the defendant ha[d] concerning the offense or
offenses that were part of the same course of conduct or of a common
scheme or plan." 18 U.S.C. § 3553(f)(5). Wood argues that "the Gov-
ernment," as used in the statute, includes the probation officer to
whom he spoke during the presentence investigation.8 The Govern-
ment responds that the term refers only to the prosecuting authority.
We review de novo questions of statutory construction. Orquera v.
Ashcroft, 357 F.3d 413, 418 (4th Cir. 2003).
The only circuits to have addressed this question agree with the
Government. The First, Fifth, Seventh, and Ninth Circuits have each
held that a probation officer is not the government for purposes of the
safety valve. See Emezuo v. United States, 357 F.3d 703, 706 n.2 (7th
Cir. 2004); United States v. Contreras, 136 F.3d 1245, 1246 (9th Cir.
1998); United States v. Jimenez-Martinez, 83 F.3d 488, 495-96 (1st
Cir. 1996); United States v. Rodriguez, 60 F.3d 193, 195-96 (5th Cir.
1995). Although not directly presented with the question, the Second
Circuit has implicitly agreed. United States v. Smith, 174 F.3d 52, 56
(2d Cir. 1999) (finding that defendant did not meet burden of proving
he satisfied requirements of safety valve where he "conceded that he
did not meet with or speak with anyone from the United States Attor-
ney’s office"). We agree with our sister circuits and hold that a defen-
dant does not meet the requirements of the "safety valve" provision
merely by meeting with a probation officer during the presentence
investigation.
Our analysis begins with the text of the statute. United States v.
Johnson, 325 F.3d 205, 208 (4th Cir. 2003). Other than the clause at
issue here, section 3553(f) twice refers to "the Government." First, the
section provides that the district court may sentence below the statu-
8Ordinarily, the discretionary denial of a downward departure is not
subject to appellate review. United States v. Bayerle, 898 F.2d 28, 30-31
(4th Cir. 1990). Assuming that this rule applies to the denial of relief
from a statutory minimum under § 3553(f), Wood’s argument necessarily
implies that the district court miscomprehended its authority to depart.
We therefore have jurisdiction under 18 U.S.C. § 3742(a)(1) to review
the district court’s refusal to depart. United States v. Ivester, 75 F.3d 182,
183-84 (4th Cir. 1996).
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tory minimum only "after the Government has been afforded the
opportunity to make a recommendation." 18 U.S.C. § 3553(f). Sec-
ond, the statutory minimum can be ignored even though the defendant
"has no relevant or useful other information to provide or [if] the
Government is already aware of the information." Id. § 3553(f)(5).
These references to the government plainly contemplate the prosecut-
ing authority, for only the United States Attorney’s office would
make a recommendation for or against application of the "safety
valve" or be able to make use of the defendant’s knowledge. Con-
trares, 136 F.3d at 1246. As the Ninth Circuit noted, "[i]t would be
strange if a different meaning was intended by ‘the Government’" in
its third use. Id.
In addition, § 3553(e) permits, "[u]pon motion of the Government,"
a departure below the statutory minimum sentence "so as to reflect the
defendant’s substantial assistance in the investigation or prosecution
of another person." 18 U.S.C. § 3553(e) (emphasis added). This use
of the "Government" can only refer to the prosecutor. See Jimenez-
Martinez, 83 F.3d at 495-96 (drawing same conclusion from substan-
tially identical provisions in Sentencing Guidelines §§ 5C1.2 &
5K1.1).
Wood argues that our decision in United States v. Fant, 974 F.2d
559 (4th Cir. 1992), compels an interpretation of "the Government"
that includes a probation officer. In Fant, we held that, under
U.S.S.G. § 1B1.8, a defendant’s self-incriminating statements to a
probation officer could not be used to determine the applicable guide-
line range where those statements were made pursuant to a grant of
use immunity. Id. at 563-64. Section 1B1.8(a) provides:
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 govern-
ment agrees that self-incriminating information provided
pursuant to the agreement will not be used against the defen-
dant, then such information shall not be used in determining
the applicable guideline range, except to the extent provided
in the agreement.
We concluded that this language "offers no suggestion of a limitation
or preclusion of the use of incriminating statements based on whether
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the government official eliciting the statements was a prosecution
official or some other government representative." Fant, 974 F.2d at
563. Wood contends that there is similarly no basis in § 3553(f) to
distinguish between the probation officer and the prosecutor. We dis-
agree.
Section 1B1.8 does not use the term "government" in a way that
would include a probation officer. See Rodriguez, 60 F.3d at 195-96
("Neither § 1B1.8 nor its commentary equate a probation officer with
the Government. Rather, the commentary implies the opposite."). A
defendant "agrees to cooperate with the government" by agreeing to
cooperate with the prosecutor. Moreover, only the prosecutor may
extend use immunity to a defendant. See United States v. Abbas, 74
F.3d 506, 512 (4th Cir. 1996) ("[T]he prosecution is vested with the
sole discretion to grant immunity."). Thus, like § 3553(f), § 1B1.8(a)
uses "the government" in such a manner that it could only refer to the
prosecutor.
Our holding in Fant simply reflects the fact that nothing in the lan-
guage of the guideline limits the defendant’s immunity to statements
made to counsel for the United States. Rather, the guideline precludes
the use of any self-incriminating information "provided pursuant to
the [cooperation] agreement," U.S.S.G. § 1B1.8(a) (emphasis added),
no matter to what government official that information is provided.
The ultimate focus of the inquiry under § 1B1.8 is whether the defen-
dant’s statements were made "as a result of his compliance with the
terms of [the cooperation] agreement" and his accompanying immu-
nity. Fant, 974 F.2d at 564 (internal quotations omitted). Thus, our
decision in Fant does not support Wood’s position.
Because the other uses of the term "the Government" in § 3553(f)
in particular, and § 3553 in general, all plainly refer to the prosecuting
authority, we hold that "the Government" as used in § 3553(f)(5) does
not include the probation officer who prepares the presentence report.
Our sister circuits have additionally asserted other bases for this con-
clusion, e.g., Rodriguez, 60 F.3d at 196 (reading the safety valve in
pari materia with Fed. R. Crim. P. 32), and although we do not neces-
sarily disagree with these rationales, we need not address them.
Where the text of a statute provides an unambiguous answer, we need
look no further. Johnson, 325 F.3d at 208.
15 UNITED STATES v. WOOD

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V.
For the foregoing reasons, we reverse in part and affirm in part the
district court’s judgment, vacate Wood’s sentence, and remand the
case for resentencing consistent with this opinion.
REVERSED IN PART, AFFIRMED
IN PART, AND REMANDED
16 UNITED STATES v. WOOD

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