Raymond Cruz appeals from the judgment of the United States District Court for the Southern District of New York (Denise Cote, Judge) sentencing him, following a guilty plea, to 87 months imprisonment and imposing a special assessment of $50.00 for one count of possession of cocaine base with intent to distribute it in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). In calculating Cruz’s offense level under the Sentencing Guidelines, the district court considered information Cruz had disclosed during proffer sessions with the Government not only for the purpose of granting a reduction under the “safety valve” provision and waiving the mandatory minimum sentence, see U.S.S.G. §§ 5C1.2, 2D1.1(b)(4) 1 ; 18 U.S.C. § 3553(f), but also for the purpose of enhancing Cruz’s base offense level under U.S.S.G. § 1B1.3. Cruz contends that this was error; and that the district court should only have considered the information for the safety valve reduction and not for the base level enhancement. Cruz relies on U.S.S.G. § IB 1.8 and a Fifth Amendment challenge to the safety valve statute. For the following reasons, we affirm the judgment of the district court.
I. BACKGROUND
On August 17, 1995, Cruz was arrested in Penn Station in Manhattan on an “Amtrak” train scheduled to depart for Lancaster, Pennsylvania, after police discovered marijuana in a gray bag that Cruz had been carrying. The bag also contained 67 grams of crack cocaine. In a post-arrest statement, Cruz confessed that he had bought the crack cocaine in Brooklyn and was planning to sell it in Pennsylvania.
Cruz was charged in a one count indictment filed on September 18, 1995, with possession of cocaine base with intent to distribute it, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). Cruz pled guilty *368 to the charge on January 4, 1996. Pursuant to the plea agreement, the parties agreed that the base offense level applicable to Cruz’s offense was 32 under U.S.S.G. § 2Dl.l(c). Given a three-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, the total offense level contemplated by the plea agreement was 29.
At the time of the plea agreement, Cruz had an overall Criminal History Category (“CHC”) of II: one point for a sentence of five years probation imposed on December 21, 1993 by the New York State Supreme Court, County of New York, for a conviction of larceny of an automobile in the 4th degree, see U.S.S.G. § 4Al.l(c); and two points for committing the charged federal narcotics offense while still serving his state probation sentence. See U.S.S.G. § 4Al.l(d). With a total offense level of 29 and a CHC of II, Cruz’s sentencing range would have been 97 to 121 months. See U.S.S.G. § 5A (Sentencing Table). However, pursuant to the federal narcotics offense to which Cruz pled guilty, Cruz was required to serve a statutory minimum sentence of 10 years (120 months) incarceration regardless of the applicable Guidelines range. See 21 U.S.C. § 841(b)(l)(A)(iii); § U.S.S.G. § 5Gl.l(c)(2).
Shortly after his guilty plea, Cruz entered into discussions with the Government about the possibility of cooperating. On February 7 and April 16, 1996, Cruz met with the Government pursuant to a proffer agreement (“Proffer Agreement”) to explore the possibility of entering into a cooperation agreement. The Proffer Agreement provided in relevant part:
(1) Should any prosecutions be brought against [Cruz] by this Office, the Government will not offer in evidence on its casein-chief, or in connection with any sentencing proceeding for the purpose of determining an appropriate sentence, any statements made by [Cruz] at the meeting, except in a prosecution for false statements, obstruction of justice, or perjury with respect to any acts committed or statements made during or after the meeting or testimony given after the meeting.
During the proffer sessions, Cruz revealed drug dealing involving 350 grams of crack cocaine that was part of the same course of conduct as the conduct to which he pleaded. After these sessions, the Government decided not to enter into a cooperation agreement with Cruz.
In September 1996, after the proffer sessions had been conducted, Cruz’s state conviction for grand larceny was expunged in state court proceedings pursuant to New York State’s youthful offender statutes. As a result, Cruz no longer had any criminal history points, see U.S.S.G. § 4A1.2(j), and therefore became eligible for so-called safety valve relief under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, that is, imposition of a sentence without regard to the statutory minimum sentence, as well as for a two-level downward adjustment under U.S.S.G. § 2D1.1(b)(4). 2
*369 The Government did not dispute that, once Cruz’s state conviction was expunged, he met the first four conditions of the safety valve provision. In order to meet the fifth requirement, the Government proposed to defense counsel prior to sentencing that Cruz waive the non-disclosure provision contained in paragraph (1) of the Proffer Agreement and allow the Government to disclose to the district court the substance of Cruz’s statements to the Government. In a telephone conversation with the AUSA on or about December 2, 1996, defense counsel agreed to the use of the proffer sessions as the safety valve interview, but objected to the use of the information in determining the guideline offense level. 3
In a letter to the district court dated December 20, 1996, the Government recommended that Cruz receive the safety valve benefit, but only on the condition that the court take Cruz’s prior drug trafficking into account in calculating Cruz’s offense level. In response, Cruz’s attorney claimed that Cruz was eligible for the safety valve provision but that Application Note 7 to U.S.S.G. § 5C1.2 and U.S.S.G. § 1B1.8 precluded the use of the information in the calculation of the base offense level. 4 Additionally, at the sentencing hearing, Cruz argued that, if he had not participated in the proffer sessions with the Government prior to becoming eligible for the safety valve consideration, he would not have had to disclose the relevant conduct in a safety valve interview because a requirement that a defendant disclose self-incriminating conduct other than that related to the offense for which the defendant is charged would violate his Fifth Amendment' privilege against self-incrimination. Accordingly, Cruz claims, since he could have avoided the base offense level enhancement under U.S.S.G. § 1B1.3 if he were providing the information for the first time in a safety valve interview, he should not now be penalized for having provided that information before he became eligible for the safety valve benefit.
Ruling from the bench, the district court rejected both arguments. The court held that Cruz had not entered into a “cooperation agreement” with the Government and therefore § 1B1.8 did not apply. The court explained that the Proffer Agreement was not a cooperation agreement as it did not possess the additional commitments (e.g., testifying) which are the hallmark of cooperation agreements. Cruz had simply entered into a “limited use session” in which he and the Government explored whether or not there would be a cooperation agreement.
The court rejected Cruz’s argument that the safety valve provision imposed an unconstitutional condition on the defendant on the ground that § 5C1.2 “simply sets out a mechanism by which a defendant, should a defendant want to avail himself of the option, [can] get the benefits of the safety valve.” Accordingly, because there was no dispute that the 350 grams of crack cocaine previously trafficked by Cruz was relevant conduct and would have to be disclosed under § 5C1.2 to obtain the safety valve adjustment, the district court held that the relevant conduct could properly be considered in imposing a sentence.
The district court found, however, that absent a “knowing and intelligent” waiver of paragraph (1) of the Proffer Agreement, the *370 court could not consider the information disclosed in the proffer sessions for any purpose under the Sentencing Guidelines. To ensure that Cruz’s waiver was “knowing and intelligent,” the district court presented Cruz with three options: (1) to impose a sentence without reference to the safety valve; (2) for the defendant to submit to a safety valve interview in order to see if he qualifies under § 5C1.2(5); (3) for the defendant to request that the information already provided to the government be used as the safety valve interview with the understanding that any relevant conduct revealed can be used to enhance his base offense level. Cruz chose the third option. The district judge accordingly determined that Cruz’s base offense level was 34, which corresponded to the 350 grams of cocaine base trafficked by Cruz, and reduced the offense level by three points for acceptance of responsibility and a further two points for the safety valve adjustment provided by U.S.S.G. § 2Dl.l(b)(4). With an offense level of 29 and a CHC of I, Cruz’s sentence range was 87 to 108 months. The offense level proposed by Cruz (which included the safety valve reduction but not the base offense level enhancement) was 27, which carries a sentencing range of 70 to 87 months. The district judge sentenced Cruz to 87 months imprisonment, but noted that if the correct Guidelines range were in fact 27, as Cruz contended, she might sentence the defendant to a lower sentence.
II. DISCUSSION
A. Application of Section 1B1.8 to Cruz’s Proffer Agreement
Cruz argues on appeal, as he did below, that information provided in the proffer sessions should not have been used in determining his base offense level, citing Application Note 7 to § 5C1.2 and § 1B1.8. However, we agree with the district court that § 1B1.8 applies only where a defendant “agrees to cooperate with the government” and Cruz neither obtained the benefits nor the burdens of such a cooperation agreement in this case. The Proffer Agreement did not specify requirements that Cruz needed to meet to qualify for benefits, such as providing or developing information against others, or testifying in court if called upon to do so. Defense counsel clearly understood, at the time of the proffer sessions, that the discussions with the Government were being held with the view to determining whether the parties would enter into a cooperation agreement. Certainly, the Government was under no obligation to enter into a cooperation agreement with Cruz and thereby provide the additional protection afforded by § 1B1.8, and it is clear in this case that the Government simply declined to do so.
Cruz relies on
United States v. Fant,
Alternatively, Cruz argues that § 1B1.8 is not limited to cooperation agreements, citing Application Note 5 to § 1B1.8, which refers to “information furnished by a defendant in the context of a defendant-government agreement.” However, we are not persuaded that the broader description “defendant-government agreement” in Application Note 5 was intended to alter the plain meaning of the word “cooperate” in subsection (a) of § 1B1.8. We hold that § 1B1.8 does not cover proffer agreements of the type negotiated in *371 this case. Accordingly, subject to Cruz’s Fifth Amendment argument, the information disclosed by him in the proffer sessions comes in, if at all, for both sentencing purposes.
B. The Safety Valve and the Fifth Amendment
Cruz argues that the three options given to him by the district court at the sentencing hearing presented him with a “Hobson’s choice.” Cruz claims that if he had declined to waive the immunity of the proffer agreement, and agreed to submit to a safety valve interview with the government, he would have been compelled in this interview to reveal his 350 gram dealings because the government had already received this information from him. Alternatively, if the defendant had refused to waive the immunity in the Proffer Agreement, the information in the proffer sessions could not be used to satisfy the fifth requirement of the safety valve provision and Cruz would have been subject to the statutory minimum sentence of 120 months. Cruz claims that the only course open to him was to consent to the use of the proffer sessions for the safety valve and allow the information to enhance the base offense level.
Cruz’s argument that he was penalized by these choices only has merit if his earlier dealings were not “part of the same course of conduct” as his offense and thus required to be disclosed to obtain the benefit of the safety valve. Cruz’s counsel, however, conceded that the 350 grams were part of the same course of conduct. Thus, absent some constitutional infirmity in the safety valve’s requirement that a defendant provide truthful information regarding the “offense of conviction and all relevant conduct,”
see
U.S.S.G. § 5C1.2, Application Note 3;
see also United States v. Gambino,
Cruz argues, additionally, that he could have refused to answer questions in a safety valve interview regarding criminal conduct that was not related to the offense for which he was charged by asserting his constitutional right not to make self-incriminating statements. Cruz asserts that the position taken by the district court that the defendant is not being penalized for refusing to admit relevant conduct, but is simply being denied a benefit to which he was not entitled in the first place, has been rejected in this Circuit, citing
United States v. Oliveras,
We review a sentencing court’s interpretation of the safety valve provisions de novo.
United States v. Ortiz,
The Court of Appeals remanded for resen-tencing because it was unclear whether the district court refused to grant the acceptance of responsibility credit based on the defendant’s refusal to admit that he possessed the additional eight bags of PCP. The Court construed § 3E1.1 “as granting credit to a defendant who has been found to have accepted full responsibility for conduct included in those counts to which he has plead guilty.”
However, the Court in Oliveras also stated that:
To require a defendant to accept responsibility for crimes other than those to which he has pled guilty or of which he has been found guilty in effect forces defendants to choose between incriminating themselves as to conduct for which they have not been immunized or forfeiting substantial reductions in their sentences to which they would otherwise be entitled to consideration. As the First Circuit concluded ... “[cjlearly, a defendant does not have a ‘free choice to admit, 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. The touchstone of the fifth amendment is compulsion, and the Supreme Court has recognized that imprisonment is one of a wide variety of penalties which can serve to trigger a constitutional violation.”
Id.
at 628 (quoting
United States v. Perez-Franco,
The Supreme Court has held that the government “may not impose substantial penalties because [an individual] elects to exercise his Fifth Amendment right not to give incriminating testimony against himself.”
Lefkowitz v. Cunningham,
We acknowledge that the benefit/penalty distinction is not entirely satisfactory,
cf. Oliveras,
Moreover, in another line of cases, the Supreme Court has rejected the claim that the possibility of a “proper degree of leniency” or offer of a lower sentence in exchange for a guilty plea impermissibly compels a defendant to incriminate himself or herself.
See, e.g., Bordenkircher v. Hayes,
The eases in this Court ... have clearly established that not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right is invalid. Specifically, there is no per se rule against encouraging guilty pleas. We have squarely held that a State may encourage a guilty plea by offering substantial benefits in return for the plea. The plea may obtain for the defendant “the possibility or certainty [not only of] a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty ...,” but also of a lesser penalty than that required to be imposed after a guilty verdict by a jury.
Id.
at 218-20,
In our view, the choice presented to a defendant under § 5C1.2 between a sentence reduction with relief from the mandatory minimum sentence and waiver of his Fifth Amendment privilege is analogous to the choice confronting defendants in plea bargain cases. Contrary to the reasoning in
Oliveras
that a defendant will feel compelled to provide incriminating information to earn a reduction in his or her sentence, we hold that the choice confronting the defendant gives rise to no more compulsion than that present in a typical plea bargain. We do not believe that this choice, unlike the choice in the penalty cases, is “ ‘likely to exert such pressure upon an individual as to disable him from making a free and rational choice.’ ”
Garrity,
*375
Moreover, like plea bargains, the purpose of conditioning the safety valve benefit on truthful disclosure of relevant conduct was not to force defendants to waive their Fifth Amendment privilege but to further another legitimate governmental goal. The legislative history of the Mandatory Minimum Sentencing Reform Act of 1994 (“MMSRA”), which contained the safety valve provision, indicates that the purpose of the statute was twofold: to “increase the effectiveness of existing controlled substance mandatory mínimums by ensuring that those penalties are directly targeted toward relatively more serious conduct;” and to reform the then “current operation of mandatory mínimums [under which] mitigating factors that are recognized in the guidelines and generally are considered in drug cases do not apply to the least culpable offenders except in rare instances.”
See
Mandatory Minimum Sentencing Reform Act of 1994, H.R.Rep. No. 103-460, 103rd Cong., 2d Sess. (1994). As the Seventh Circuit explained in
United States v. Arrington,
Congress enacted the MMSRA in order to remedy an inequity in the old system, which allowed relief from statutory minimum sentences only if the government made a motion to reward the defendant’s substantial assistance. The government generally makes substantial assistance motions only for defendants who provide new or useful information. Thus, under the old system, defendants who had more information to provide fared better, and these were often higher-level dealers whose greater involvement in criminal activity resulted in their having more information. “Mules,” lower-level dealers, or defendants whose co-eonspirators had already talked to the government often had no new or useful information to trade. Even if they told the authorities everything they knew, they did not receive departures under § 3553(e) and often received longer sentences than other, more culpable defendants.
Id. at 147-48. In other words, § 3553(f) “was intended to benefit defendants who wished to cooperate with the government (and in fact did everything they could to cooperate) but simply had no new or useful information to provide.” Id. at 148. 10 Accordingly, in our view, the safety valve provision furthers a legitimate government goal and does not impose an unconstitutional condition on defendants seeking to take advantage of it.
For the foregoing reasons, notwithstanding the reasoning of Oliveras, we find no violation of the Fifth Amendment in the requirement of §§ 3553(f), 5C1.2 and 2Dl.l(b)(4) that the defendant disclose relevant conduct beyond what is included in the offense of conviction in order to obtain the benefit of the safety valve. Our ruling in no way disturbs the holding of Oliveras that § 3E1.1 requires the defendant to “accept responsibility” only for the conduct to which he had pled guilty in order to earn credit for acceptance of responsibility.
III. CONCLUSION
In order to qualify for the benefits of the safety valve provided by 18 U.S.C. § 3553(f) and U.S.S.G. §§ 5C1.2 and 2Dl.l(b)(4), the defendant was required to disclose his drug dealings that were part of a common scheme or plan, or part of the same course of conduct, with his offense of conviction. Accordingly, we affirm the judgment of the district court.
Notes
. The current version of U.S.S.G. § 2D 1.1 (b)(4) can be found at U.S.S.G. § 2D 1.1 (b)(6). Since Cruz was sentenced prior to the effective date U.S.S.G. § 2D1.1(b)(6) (November 1, 1997), we will continue to refer to U.S.S.G. § 2D1.1(b)(4) throughout this opinion.
. Section 3553(0 provides that, in a case where a defendant is convicted of specified narcotics offenses, including 21 U.S.C. § 841:
the court shall impose a sentence pursuant to [the Sentencing Guidelines] without regard to any statutory minimum sentence if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, 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, 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.
18 U.S.C. § 3553(1); U.S.S.G. § 5C1.2 (incorporating the language of 18 U.S.C. § 3553(f)).
. Cruz also provided information about the quantity of cocaine that he had sold (350 grams of cocaine base) in a telephone conversation with the Government on or about December 18, 1996. The Government conceded at sentencing that this information was disclosed subject to the same objection that defense counsel had made with respect to the proffer sessions, namely that the information should not be considered for an increase in the base offense level.
. Application Note 7 to U.S.S.G. § 5C1.2 provides, in relevant part:
Information disclosed by the defendant with respect to subdivision (5) may be considered in determining the applicable guideline range, except where the use of such information is restricted under the provisions of § IB 1.8_
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 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.
. We note that other Circuits have considered a Fifth Amendment challenge to the safety valve provision and have held that the requirement that the defendant disclose relevant conduct is constitutional.
See United States v. Arrington,
. Although we do not regard
Oliveras
as binding us on the instant appeal, we have nevertheless circulated this opinion among all active members of this Court prior to filing, and no judge has objected to its filing.
See Kramer v. Timer Warner, Inc.,
. The only time this can be the case for a defendant considering taking advantage of the safety valve reduction is where the defendant’s prior conduct is so severe, or includes a quantity of drugs so large, that the increase in the base offense level under § IB 1.3 actually exceeds any reduction the defendant might obtain under the safety valve provision. In such cases, the defendant effectively does not have the safety valve option open to him or her, and accordingly no Fifth Amendment issue arises. It should be noted that this is not the case with Cruz, who was eligible for a lower sentence as a result of the information given to the government in the proffer sessions, even with the base offense level enhancement under § IB 1.3. And if that had not been the case, Cruz still would not have been penalized for having previously spoken with the government, because the district court gave him the option of keeping the benefit of the protection in paragraph (1) to the Proffer Agreement by not having the evidence come in at all.
.
But see Mallette v. Scully,
. A non vult is a plea equivalent to nolo conten-dere. The defendant does not wish to contest the charge nor specifically admit it, although it is equivalent to a plea of guilty in a criminal case.
. The fact that defendants who provide information as to others and enter into a cooperation agreement with the government are given the additional benefit under § IB 1.8 of not having their disclosed relevant conduct enhance their base offense level is consistent with the goal of rewarding the defendant who provides additional information and cooperates with the authorities concerning other persons’ criminal conduct.