# Amicus Curiae Brief — Nichols v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 738

## Text

No. 92-8556

IN THE

Suprene Court of the United States

OCTOBER TERM, 1993

>

KENNETH O. NICHOLS,
Petitioner,

UNITED STATES OF AMERICA,
Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL
LIBERTIES UNION IN SUPPORT OF PETITIONER

Susan N. Herman
(Counsel of Record)

250 Joralemon Street

Brooklyn, New York 11201

(718) 780-7945

Steven R. Shapiro

American Civil Liberties
Union Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

BEST AVAILABLE COPY

we

QUESTION PRESENTED

Whether the district court properly considered peti-
tioner’s prior uncounseled misdemeanor conviction in
computing his criminal history score under the Federal
Sentencing Guidelines.

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................

ENTE s OF AMICUS .... cc ccc cee eceeee

STATEMENT OF THE CASE ...............

SUMMARY OF ARGUMENT ...............

DUE ERRUEG ba webeeeeccccccccces

RELIANCE ON PETITIONER’S PRIOR
UNCOUNSELED MISDEMEANOR
CONVICTION IN COMPUTING HIS
CRIMINAL HISTORY UNDER THE
FEDERAL SENTENCING GUIDELINES
VIOLATED PETITIONER’S SIXTH AND
FOURTEENTH AMENDMENT RIGHT
DUPER MebaSoececeecccecscccce.

A. The Sixth Amendment, As Interpreted
In Baldasar v. Illinois, Prohibits The
Automatic Imposition Of Any Period Of
Incarceration On The Basis Of A Prior
Conviction Obtained In The Absence Of
Counsel Or A Valid Waiver Of Counsel... .

1. Baldasar Prohibits Imposition Of A
Period Of Incarceration Directly At-
tributable To A Prior Uncounseled
Misdemeanor Conviction ..........

a. Baldasar Rejects The Argument
That A Sentence Enhancement
Is Attributable Only To The In-
stant Offense, And Not To The
Predicate Offense .............

b. Baldasar Holds That An Un-
counseled Misdemeanor Convic-
tion Is Insufficiently Reliable To
Provide A Predicate For The
Automatic Imposition Of A Pe-
riod Of Imprisonment .......... 9

2. Under The Narrowest Interpretation
Of Baldasar, Petitioner Has Been
Denied His Right To Counsel Be-
cause The Uncounseled Conviction
That Precipitated An Additional Pe-
riod Of Incarceration Was For A
Misdemeanor With A Possible Sen-
tence Of More Than Six Months
Imprisonment ........-- 0000 eee e 14

3. Holding That A Prior Uncounseled
Misdemeanor Conviction Is Invalid
For Purposes Of A Subsequent Im-
position Of Imprisonment Is Com-
pelled By The Rationales Of Scott
And Anpersinger ....-.-00 +0020 eee 15

B. The Federal Sentencing Guidelines
Automatically Authorize An Additional
Period Of Incarceration As A Direct
Result Of Prior Uncounseled Misde-
greemor COMVIGHIOES 2. cc ccccccccccces 18

Il. PETITIONER WAS DEPRIVED OF LIB-
ERTY WITHOUT DUE PROCESS OF
LAW BY THE AUTOMATIC IMPOSI-
TION OF AN ADDITIONAL PERIOD OF
IMPRISONMENT UNDER THE FEDER-
AL SENTENCING GUIDELINES ........ 23

ec ob) + | i Prrrrrrrrrerrrererr rrr. 28

TABLE OF AUTHORITIES

Cases

Argersinger v. Hamlin,
407 U.S. 25 (1972)

Baldasar v. Illinois,
446 U.S. 222 (1980)

Bilbrey v. State,
531 So.2d 27 (Ala.Crim.App. 1987)

Burgett v. Texas,
389 U.S. 109 (1967)

Burns v. United States,
501 U.S. __, 111 S.Ct. 2182 (1991)

Charles v. Foltz,
741 F.2d 834 (6th Cir. 1984),
cert. denied, 469 U.S. 1193 (1985)

City of Lakewood v. Plain Dealer
Publishing Co.,

486 U.S. 750 (1988)

Commonwealth v. Thomas,
S07 A.2d 57 (Pa. 1986)

Furman v. Georgia,
408 U.S. 238 (1972)

Gideon v. Wainwright,
372 U.S. 335 (1963)

Greenholtz v. Inmates of the Neb.

Penal & Correctional Complex,
442 US. 1 (1979)

Gregg v. Georgia,
428 U.S. 153 (1976)

es Fh es ee a

.
in i i he eT eT YS se lull

.
"Veewetee eee 8 Se 6 he @ 2 6:8

Griffin v. Blackburn,

594 F.2d 1044 (Sth Cir. 1979) .......2- 2c eee eee 12
In re Kean, »
§20 A.2d 1271 (R.1. 1987) .. 1... cece eee wees
Johnson v. Zerbst, :
SOG UES, GR CHRD cc cc ccc cccscccvccceseces
Krewson v. State,

S$$2 A.2d 840 (Del. 1980) .... 2... cece eccccees 17
Lovell v. State, ;
678 S.W.28 318 (Ark. 1984)... ccc ccc c cc vcness l
Marks v. United States,

GRD ULE, TR GTRFED cc ccc ccc cccscces 3, 7, 11, 13
Mathews v. Eldridge, _
Se BE SUP CUUTE cccccccvccvc ces sucess es
Meachum v. Fano, i
ey ee CUED 6 :6.0. seb nb #64566 eee eb ode 2
Moore v. Jarvis,

885 F.2d 1565 (11th Cir. 1989) ............ 8, 22, 26

Moore v. State,
352 S.E.2d 821 (Ga.),

cert. denied, 484 U.S. 904 (1987) ........65 55 es 17
Panenen v. State,

711 P.2d 528 (Alaska 1985) ........... 9, 15, 16, 18
Pendleton v. Standerfer, ,
by Ty Te A .) ae 15, 1
People v. Dass,

589 N.E.2d 1065 (Ill.App.Ct.),

cert. denied, 602 N.E.2d 462 (Ill. 1992) ........... 18
People v. Finley, —
568 N.E.2d 412 (Ill. App.Ct. 1991) ........... 15, 1

iV

Page
People v. Olah,
298 N.W.2d 422 (Mich.),
cert. denied, 450 U.S. 957 (1981) ............... 17
People v. Roybal,
618 P.2d 1121 (Colo. 1980) ................ 15, 16
Powell v. Alabama, ia
ST ian nn ca ceccuwuuntsinnn 4
Ratliff v. Commonwealth,
719 S.W.2d 445 (Ct.App.Ky. 1986) .............., 17
Rodnguez v. Rosenblatt,
a ee eens 18
Santillanes v. United States
Parole Commission,
Pee Ce ee SN, TOD ovo. v ovrvcc.ceccednen 14
Sargent v. Commonwealth,
360 S.E.2d 895 (Va.Ct.App. 1987) ........... 15, 17
Schindler v. Clerk of Circuit Court,
715 F.2d 341 (7th Cir. 1983),
cen. denied, 465 U.S. 1068 (1984) ............. 7, 13

Scott v. Illinois,
PP PMO, Sci cebenceevecececsxa passim

Sheffield v. City of Pass Christian,

556 So.2d 1052 (Miss. 1990) .................. 17
State v. Armstrong,

332 S.E.2d 837 (W.Va. 1985) ................ 9,17
State v. Baker,

485 N.W.2d 237 (Wis. 1992) ...............04.. 20
State v. Baldauf,

586 N.E.2d 237 (Ohio Ct.App. 1990) ............ 17

State v. Beach, -
§92 So.2d 237 (Fla. 1992) .....-. 2 eee rere eee

State v. Chance,
405 S.E.2d 375 (S.C. 1991),
cert. denied,

__ US. _, 112 S.Ct. 1241 (1992) 2. eee eee ees 17
State v. Cooper,

343 N.W.2d 485 (lowa 1984) ........055 50s) 15, 17
State v. Dowd,

478 A.2d 671 (Me. 1984)... 6.6.50 ee ees 17, 18, 23
State v. Hoglund,

785 P.2d 1311 (Haw. 1990) .......-5 05 eee es 15, 17
State v. Laurick, -
575 A.2d 1340 (N.J. 1990) 2.0... ee eee ee ees
State v. Nordstrom, —
331 N.W.2d 901 (Minn. 1983) .......556 eee ,
State v. Novak, ”
318 N.W.2d 364 (Wis. 1982) ......-- ee eee eee
State v. O’Brien,

666 S.W.2d 484 (Tenn.Crim.App. 1984) .....-. 17, 20
State v. Oehm,

680 P.2d 309 (Kan.Ct.App. 1984) .......---55: 9, 17
State v. Or,

375 N.W.2d 171 (N.D. 1985) ......---55- 14, 15, 18
State v. Ulibam, “—
632 P.2d 746 (N.M. 1981) ....--- 5 ee eee ees :
State v. Wiggins, ‘i
399 So.2d 206 (La. 1981) 2... 6 ee ee ee

vi

Page
Student Public Interest Research Group
of N.J. v. AT & T Bell Laboratories,
842 F.2d 1436 (3d Cir. 1988) .................. 13
Thompson v. Estelle,
642 F.2d 996 (Sth Cir. 1981) .................. 12
Townsend v. Burke,
II ee 3, 28
Tyler v. Bethlehem Steel Corp.
958 F.2d 1176 (2d Cir.),
cert. denied,
— U.S. _, 113 S.Ct. 82 (1992) ................ 13
United States v. Brady,
928 F.2d 844 (9th Cir. 1991) 22.00. 9
United States v. Castro-Vega,
945 F.2d 496 (2d Cir. 1991),
cert. denied,
— U.S. _, 113 S.Ct. 1250 (1993) .............. 12
United States v. Eckford, ~ -
910 F.2d 216 (Sth Cir. 1990) ............, 11, 12, 21
United States v. Falesbork,
—* oe
1993 WL 331481 (4th Cir. 1993) ............... 14
United States v. Hookano,
Woe Tame FOO Cote Ce. BOTRD gg ccc vc ce cccncn 22

United States v. Martino,

664 F.2d 860 (2d Cir. 1981),

cen. denied sub nom.

Miller v. United States,

458 U.S. 1110 ee oe aig a ae ae bunt Sed wick 13

United States v. Norquay,
987 F.2d 475 (8th Cir. 1993)

Vii

United States v. Peagler, i
847 F.2d 756 (11th Cir. 1988) ....... 6-0 e ee eee

United States v. Robles-Sandoval,
637 F.2d 692 (9th Cir.),

cert. denied, 451 U.S. 941 (1981) .......-455- 11, 13
United States v. Smith, “
844 F.2d 203 (Sth Cir. 1988) ........ 0 eee ee eee
United States v. Tucker, o
OE eS) err ee ee ee

United States v. Williams,
891 F.2d 212 (9th Cir. 1989), ,
cert. denied, 494 U.S. 1037 (1990) ... 2... 6. eee ees

Wilson v. Estelle,
625 F.2d 1158 (Sth Cir. 1980), ”
cert. denied, 451 U.S. 912 (1981)... 6... . 2 eee ees

Statutes and Regulations

LL So ee ee coe ae 22
OT Al a ee ee a ee 2 ee ee oe a l
Ga. Code Ann. §40-6-391 (1983) ..........55. 1, 20
Ga. Code Ann. §40-6-391(c)(1983) ........---- 6, 14
Ga. Code Ann. §40-6-391 (1992) ........-224 06 20
Ill.Rev.Stat., Ch. 38, -
para. 16-1(e)(1)1974) . 2... ee ee eee
Ill.Rev.Stat., Ch. 38, -
|) eee eee erere ree ee
Ill. Rev.Stat., Ch. 38, -
§ 1005-8-1(b)S)M197S) .. 0... cree eee eee eeee
vill

Page

United States Sentencing
gee ah rain a ar ee ed Re Re ge passim
NE ware eure che sak eee 20
EEE SE Ys ir oe BEA, |
kas Mira be orl he 2
RU ee i aed gat dk ae oe oe 22
Wis. Stat. §343.44 (1989-90) .................. 20

Other Authorities

Kimura, Ken, Note, "A Legitimacy

Model for the Interpretation of

Plurality Decisions,"

77 Cornell L. Rev. 1593 (1992) ................ 11

King, D. Brian, "Sentence Enhance-
ment Based on Unconstitutional
Prior Convictions,"

64 N.Y.U.L.Rev. 1373 (1989)

Linda Novak, Note, "The Pre-
cedential Value of Supreme
Court Plurality Decisions,”

80 Colum.L.Rev. 756 (1980)

Podraza, Joseph R., Jr., Note,

"Using Prior Uncounseled Con-

victions to Enhance the

Grading and Sentencing of

Subsequent Offenses Resulting

in Imprisonment: The Penn-

sylvania Supreme Court's

Questionable Reading of

Baldasar v. Illinois,"

ms 17

Rudstein, David S., "The Collateral

Use of Uncounseled Misdemeanor

Convictions After Scott and Baldasar,

36 UU Pin LD Bewv. SIT CIGRE) occ cc ccc ccccvess 14

Thurmon, Mark Alan, Note, "When

the Court Divides: Reconsidering

the Precedential Value of Supreme

Court Plurality Decisions,"

gf ER fi | PPP eeeeeeereErare ie 1]

INTEREST OF AMICUS '

The American Civil Liberties Union (ACLU) is a
nationwide, nonprofit, nonpartisan organization with
nearly 300,000 members, dedicated to the principles of
liberty and equality embodied in the Constitution. In
support of these principles, the ACLU has appeared be-
fore this Court on numerous occasions, both as direct
counsel and as amicus curiae. In particular, the ACLU
has participated in many cases addressing the right to
counsel and the due process of law in criminal proceed-
ings.

STATEMENT OF THE CASE

On April 25, 1983, petitioner Kenneth O. Nichols
was convicted in Georgia of the misdemeanor of driving
while intoxicated. Ga. Code Ann. §40-6-391 (1983). He
pleaded nolo contendere and, on May 2, 1983, was sen-
tenced to a pay fine of $250 and to attend DUI school.’

On April 1, 1991, in the Eastern District of Tennes-
see, petitioner was sentenced on his plea of guilty to the
federal offense of possession with intent to distribute co-
caine hydrochloride, in violation of 21 U.S.C. §846. In
calculating his sentence under the United States Sen-
tencing Guidelines (U.S.S.G.), the district court added
one point to defendant’s criminal history for the Georgia
misdemeanor conviction, as required by the Guidelines,
U.S.S.G. §4A1.2, comment (1990). See PSR at 7. The
base offense level for petitioner’s conviction was calcu-
lated to be Offense Level 34. Adding the one point for
this misdemeanor conviction to three other criminal his-

‘ Letters of consewt to the filing of this brief have been lodged with
the Clerk of the Court pursuant to Rule 37.3.

* Presentence Report (PSR) at 7. The Joint Appendix was not availa-
ble at the time this brief was written. Citations are to documents in
the record below.

tory points (for a previous 30 month sentence for posses-
sion with intent to distribute marijuana) moved petition-
er from Criminal History Category II, where the sentenc-
ing range available would have been 168-210 months, to
Criminal History Category III, where the available range
was 188-235 months. See U.S.S.G. §5A (1990). Petition-
er was sentenced to 235 months, the top of the desig-

nated range.

The district court considered and rejected petition-
er’s argument that use of this prior misdemeanor convic-
tion was unconstitutional because petitioner had been
unrepresented by counsel and did not waive the right to
counsel. See Memorandum Decision at 4-5 (Apr. 29,
1991)! Petitioner appealed this decision to the Sixth
Circuit Court of Appeals, which affirmed the district
court, United States v. Nichols, 979 F.2d 402 (1993), and
this Court granted certioran.

SUMMARY OF ARGUMENT

Because the right to counsel is often necessary to
guarantee the reliability of criminal convictions, this
Court has prohibited the imposition of the severe sanc-
tion of imprisonment on defendants who were uncoun-
seled and did not waive their right to counsel, even in
misdemeanor cases. Gideon v. Wainwright, 372 U.S. 335
(1963); Argersinger v. Hamlin, 407 U.S. 25 (1972); Scott v.
Illinois, 440 U.S. 367 (1979). This principle has already

> According to the presentence report, the Georgia court records did
not reflect whether the defendant was represented by an attorney.
PSR at 7. The probation officer quoted petitioner as stating that he
had consulted an attorney and had been told that he did not need
counsel to plead nolo contendere to this offense. Jd. The district
court found it to be conceded that petitioner had not been represent-
ed by counsel at that proceeding, and further found “on the basis of
the facts before {the court] that petitioner had not waived his right to
counsel. Memorandum Decision at 1-5.

2

been held to render unconstitutional use of an uncoun-
seled misdemeanor conviction to automatically enhance

a sentence of imprisonment imposed upon a subse
conviction. Baldasar v. Illinois, 446 US. 222 (1980).

_ Despite the fact that Baldasar provided no majority
rationale, the plurality opinions in that case may be fair-
ly read together, under the principles of Marks v. United
States, 430 U.S. 188, 193 (1977), as holding either: (1)
that automatically increasing a prison term under an en-
hancement Statute based on a prior uncounseled misde-
meanor conviction is impermissible if that conviction was
for an offense punishable by at least six months’ impris-
onment, or (2) that any automatic imposition of incar-
ceration on the basis of an uncounseled and therefore
presumptively unreliable conviction is impermissible
regardless of the maximum authorized sentence for the
first offense. The latter rule, in our view, is more con-
sistent with both the concern for reliability expressed in
Argersinger and the concern for federalism expressed in
Scott. However, under either interpretation of Baldasar
the decision below is wrong and should be reversed.

Sentencing under the Federal Sentencing Guideli
( U.S.S.G. 1992) amounts to an automatic foodies at
an increased range of imprisonment, within the meaning
of Baldasar, because the decision of how to evaluate a
defendant’s criminal history is not discretionary. See
Burns v. United States, 501 U.S. _, __, 111 S.Ct. 2182
2191-92 (1991) (Souter, J., dissenting). Therefore, in ad-
dition to violating petitioner’s Sixth and Fourteenth
Amendment right to counsel, reliance by the United
States on petitioner’s uncounseled misdemeanor convic-
tion constitutes a denial of due process under the Fifth
olny on because hs Subjected petitioner to a sen-
ce based on unreliable informati
Burke, 334 U.S. 736 (1948). —_— —”

t

ARGUMENT

I. RELIANCE ON PETITIONER’S PRIOR UNCOUN-

ELED MISDEMEANOR CONVICTION IN COM-
PUTING HIS CRIMINAL HISTORY UNDER THE
FEDERAL SENTENCING GUIDELINES VIO-
LATED PETITIONER’S SIXTH AND FOUR-
TEENTH AMENDMENT RIGHT TO COUNSEL

A. The Sixth Amendment, As Interpreted In
Baldasar v. Illinois, Prohibits The Automatic
Imposition Of Any Period Of Incarceration
On The Basis Of A Prior Conviction Ob-
tained In The Absence Of Counsel Or A
Valid Waiver Of Counsel

The right to counsel, as this Court has long recog-
nized, is often essential to guarantee the fairness of
criminal proceedings, regardless of whether those pro-
ceedings concern capital offenses, felonies, or misde-
meanors. For example, in Johnson v. Zerbst, 304 U.S.
458, 462-63 (1938), the Court said:

[The Sixth Amendment] embodies a realistic
recognition of the obvious truth that the av-
erage defendant does not have the profes-
sional skill to protect himself when brought
before a tribunal with power to take his life
or liberty, wherein the prosecution is pre-
sented by experienced and learned counsel.
That which is simple, orderly and necessary
to the lawyer, to the untrained layman may
appear intricate, complex and mysterious.

In the landmark case of Powell v. Alabama, 287 U.S.
45, 68-69 (1932), the Court declared that:

(t]he right to be heard would be, in many
cases, of little avail if it did not comprehend
the right to be heard by counsel... . [A
layman] requires the guiding hand of coun-
sel at every step in the proceedings against

4

him. Without it, though he be not guilty, he
faces the danger of conviction because he
does not know how to establish his inno-
cence.

It is for these reasons that the Court has interpreted
the Sixth Amendment and the Due Process Clause to
provide for a right to counsel where a defendant is tried
for a felony, Gideon v. Wainwright, 372 U.S. 335, or even
for a petty misdemeanor, Argersinger v. Hamlin, 407 U.S.
25. As the Court clarified in Scott v. Illinois, 440 U.S.
367, the chief evil these cases seek to prevent is the in-
carceration of defendants who have not had the benefit
of the guiding hand of counsel. Interpreting the Court’s
assertion in Argersinger that “no imprisonment may be
imposed . . . unless the accused is represented by coun-
sel," 407 U.S. at 40, the Court in Scott explained the
underlying rationale of Argersinger by noting that incar-
ceration is "so severe a sanction that it should not be im-
posed as a result of a criminal trial unless an indigent
defendant has been offered counsel to assist in his de-
fense, regardless of the cost to the States implicit in such
a rule.” 440 U.S. at 372-73.

Under Scott, petitioner Nichols’ uncounseled misde-
meanor conviction for driving while intoxicated could not
constitutionally have been used as the basis for a sen-
tence of imprisonment of even one day. Yet eight years
later, the United States used that uncounseled conviction
as the basis for a twenty-five month enhancement of pe-
titioner’s sentence for a different offense. Scott and
Arersinger have already been interpreted by this Court,

in Baldasar v. Illinois, 446 U.S. 222, to prohibit such a re-
Sult.

Baldasar presented this Court with a set of facts re-
markably similar to petitioner's. In 1975, Thomas Bal-

* This account is derived from the opinion of the Court in Baldasar,
id., and from petitioner Baldasar’s brief in that case.

5

dasar was charged under Illinois law with petty theft, an
offense punishable by up to one year imprisonment. He
pleaded guilty and was sentenced to pay a fine of $159
and to serve one year on probation. He did not have
the benefit of counsel at that proceeding, and the record
showed no affirmative waiver of counsel. Later that
year, Baldasar was again charged with petty theft, con-
victed, and sentenced to one to three years rather than a
maximum of one year, because his prior uncounseled
misdemeanor conviction was considered under a state
enhancement statute.

Like Baldasar, petitioner Nichols was convicted upon
his own plea (nolo contendere) of a misdemeanor (driv-
ing while intoxicated) punishable by up to one year im-
prisonment, see Ga. Code Ann. §40-6-391(c)( 1983), and
was sentenced to pay a fine. He was unrepresented by
counsel in that proceeding and the record reflects no af-
firmative waiver of counsel. When petitioner was con-
victed of the instant federal offense, his uncounseled
misdemeanor conviction was used as the basis for a sen-
tence enhancement under the Federal Sentencing Guide-
lines, of 25 months an even longer period than Baldasar
would have served as a consequence of his prior convic-
tion had the Court not found this use of his prior convic-
tion unconstitutional.

In Baldasar, the Court unequivocally held that later
imposition of incarceration on the basis of Baldasar’s un-
counseled misdemeanor conviction was as impermissible
as a sentence of incarceration immediately following
upon that conviction would have been. However, there
was no opinion of the Court in Baldasar setting forth a
majority rationale; the decision comprises a brief per
curiam opinion with concurring opinions by Justices
Stewart, Marshall and Blackmun. Because these concur-
rences provide more than one explanation for the Balda-
sar holding, a number of state and federal courts have
differed on how broadly to interpret the rationale of that

decision. Petitioner submits, and amicus agrees, that this
case falls squarely within even the narrowest plausible
reading of the holding of Baldasar.’ But because of the
confusion in the lower courts, amicus urges the Court to
go beyond the narrow ruling that would decide petition-

er’s case in order to clarify the scope of the holding of
Baldasar.

1. Baldasar Prohibits Imposition Of A Period
Of Incarceration Directly Attributable To A
Prior Uncounseled Misdemeanor Conviction

_ Under Marks v. United States, 430 U.S. 188, when no
single rationale explaining the result of a decision com-
mands the votes of five Justices, "the holding of the
Court may be viewed as that position taken by those
members a concurred in the judgments on the nar-
rowest grounds.” /d. at 193, citing G v. Georgia, 4
U.S. 153, 169 n.15 (1976); see » 4 City of iota m_
Plain Dealer Publishing Co., 486 U.S. 750, 764 n.9 (1988).
The rule of Marks is sometimes described as requiring
later courts to find the “least common denominator" of a
decision. Schindler v. Clerk of Circuit Court, 715 F.2d
341, 345 n.S (7th Cir. 1983), cert. denied, 465 U.S. 1068
(1984). There are several significant principles on which
the five Justices of the majority in Baldasar agreed.

a. Baldasar Rejects The Argument That A
Sentence Enhancement Is Attributable
Only To The Instant Offense, And Not
To The Predicate Offense

One common denominator for the decision in Balda-
sar is easily located by looking at arguments made by II-
linois as respondent and the United States as amicus
curiae in that case, which were decisively rejected by five
members of the Court. Baldasar argued that without re-

* See Point LA2 infra.

liance on the prior misdemeanor conviction, he could
not have been sentenced to more than one year of incar-
ceration; with the misdemeanor viewed as a predicate
conviction, he was sentenced to one to three years.
Therefore, he argued that the additional two year sen-
tence was attributable to the uncounseled conviction.
Petitioner's Brief at 11-14, 17. Illinois and the United
States both argued that the additional two years were at-
tributable solely to the conviction upon which they were
imposed. Respondent’s brief at 14-15; United States
brief at 8-9. According to this argument, the validity of
the first conviction was not an issue because the entire
period of incarceration was imposed as punishment for
the subsequent offense, not as punishment for the earlier
offense.

The Baldasar dissenters accepted this argument, see
446 U.S. at 233-34, but the five Justices in the majority
all implicitly or explicitly rejected it. Justice Stewart
thought it plain that, but for the first conviction, petition-
er would not have been subjected to the additional in-
carceration after his second conviction. /d. at 224. Jus-
tice Marshall, joined by Justices Brennan and Stevens,
also viewed the enhancement as “solely because" of the
previous conviction, see id. at 227. “That [Baldasar] has
been deprived of his liberty ‘as a result of [the first)
criminal trial’ could not be clearer.” Jd. at 226. Justice
Blackmun, whose opinion was preceded by both of these
concurrences, did not explicitly discuss his view on this
issue, but had he agreed with the dissenters on this
point, there would have been no cause for him to consid-
er under what circumstances Baldasar’s first conviction
should have been deemed valid. See id. at 229-30.

Some of the lower courts to have addressed the
question have correctly found that the Baldasar opinion
has the force of stare decisis at least as to this ruling.
See, e.g., Moore v. Jarvis, 885 F.2d 1565, 1572 (11th Cir.
1989)("The common rationale of the three concurring

opinions constituting the holding was that the period by
which the sentence for the subsequent conviction was in-
creased actually was attributable to the prior, uncoun-
seled conviction"). It is also clear that this conclusion
was required by previous case law. If the reliability or
validity of predicate convictions is not relevant at sen-
tencing, then the status of a predicate conviction should
not matter even if the predicate is an uncounseled felony
conviction. In Burgett v. Texas, 389 U.S. 109 (1967),
however, the Court had held that a prior uncounseled
felony conviction may not be used to enhance a defend-
ant’s punishment under a recidivist statute. Because
Burgett had been denied his right to counsel in the prior
proceeding, the Court found that he "in effect suffers

anew from the deprivation of that Sixth Amendment
right.” /d. at 115.

b. Baldasar Holds That An Uncounseled
Misdemeanor Conviction Is Insufficient-
ly Reliable To Provide A Predicate For
The Automatic Imposition Of A Period
Of Imprisonment

All five Justices in the Baldasar majority also agreed
that an uncounseled conviction that is insufficiently relia-
ble to provide a basis for a sentence of incarceration is
also insufficiently reliable to form a basis for a subse-
quent automatic enhancement of a sentence of imprison-
ment.” Justice Marshall's opinion speaks to this issue

* As some lower courts have said, “[t}he consensus of these [Ba/dasar]
concurrences is that an uncounseled conviction which is invalid for the
purposes of imposing a sentence of imprisonment, though valid in it-
self for imposing a nonprison sentence, is also invalid for enhancing a
sentence of imprisonment.” United States v. Williams, 891 F.2d 212,
214 (%h Cir. 1989), cert. denied, 494 US. 1037 (1990); see also United
States v. Brady, 928 F.2d 844, 854 (%h Cir. 1991); Panenen v. State
711 P.2d $28, 532 (Alaska 1985); State v. Oehm, 680 P.2d 309 (Kan.Ct
App. 1984); State v. Armstrong, 332 S.E.2d 837, 841 (W.Va. 1985).

9

most articulately:

We should not lose sight of the underlying
rationale of Argersinger, that unless an ac-
cused has ‘the guiding hand of counsel at
every step in the proceedings against him,
Powell v. Alabama . . . his conviction is not
sufficiently reliable to support the severe
sanction of imprisonment. Argersinger v.
Hamlin . . . . An uncounseled conviction
does not become more reliable merely be-
cause the accused has been validly convicted
of a subsequent offense.

446 U.S. at 227-28 (citations omitted).

Justice Stewart’s and Justice Blackmun’s concurring
opinions are just as firmly, albeit not as vocally, caged on
Argersinger’s concern that the absence of counsel un er-
mines the reliability of a conviction. Justice Stewart,
who had concurred in both Argersinger and Scott, thought
it so obvious that the use of the uncounseled conviction
in Baldasar violated the rules of those cases that he felt
no need to reiterate the basis for the decision in Arger-
singer: that the assistance of counsel is often a ee
to the very existence of a fair trial." Argersinger, 407 U.S.
at 31; see also id. at 33-37. To show how ineluctable this
conclusion was, he simply noted that the State of Illinois
had itself acknowledged in its brief in Scott that if an un-
counseled conviction could not be used as a basis for a
sentence of imprisonment, it also would be unavailable
for use as a predicate in subsequent proceedings. Balda-
sar, 446 US. at 224 n.*. Justice Blackmun’s concern
about the unreliability of the uncounseled conviction,
tracing back to his dissent in Scott and his “geen ge
in Argersinger, was so great that he would not even have
permitted the misdemeanor convictions at Issue in Scott
or in Baldasar to be used as the basis for imposition of a
fine. Justice Blackmun adhered to his conclusion in
Scott that the Sixth and Fourteenth Amendments require

10

the states to provide counsel to any defendant prose-
cuted for a crime with a possible penalty of six months

or more, regardless of whether the defendant was actual-
ly imprisoned.

It is ironic that some lower courts have interpreted
Justice Blackmun’s opinion, which in some respects is far
broader than the other concurrences, as the "narrowest"
under the Marks analysis.’ It is even more ironic that a
few courts have suggested that Justice Blackmun’s differ-
ent idea about the extent of the states’ obligation to pro-
vide counsel in misdemeanor cases deprived Baldasar of
any common rationale.” The court below, for example,
concluded that because Justice Blackmun had a different
explanation for why petitioner’s misdemeanor conviction
was too unreliable to form a basis for any sentence of

’ Baldasar has posed a real challenge to those courts that try to follow
Marks by secking the “narrowest” and “broadest” opinions because, un-
like the situation in Marks itself or in Gregg v. Georgia, 428 U.S. 153,
it is awkward to characterize the Baldasar opinions by their breadth,
or by the number of cases likely to be affected. It is impossible to
predict how many misdemeanor prosecutions Justice Blackmun’s Scott
rule would affect and whether this number is larger or smaller than
the number of enhancement decisions other opinions would affect.

For such reasons, most commentators have criticized the exclusive
focus on how “narrow” an opinion is and advocated that Marks be in-
terpreted more broadly in order to serve the goals of stare decisis in a
wider range of cases. See, e.g., Ken Kimura, Note, "A Legitimacy
Model for the Interpretation of Plurality Decisions,” 77 Cornell L.
Rev. 1593 (1992); Mark Alan Thurmon, Note, "When the Court Di-
vides: Reconsidering the Precedential Value of Supreme Court Plu-
rality Decisions,” 42 Duke LJ. 419 ( 1992); Linda Novak, Note, "The

Precedential Value of Supreme Court Plurality Decisions,” 80 Colum.
L.Rev. 756, 760-61 (1980). ——

* See United States v. Eckford, 910 F.2d 216, 219 (Sth Cir. 1990). The
Ninth Circuit, which Eckford quoted as having said, in dicta, that "[t}he
court in Baldasar divided in such a way that no rule can be said to
have resulted,” United States v. Robles-Sandoval, 637 F.2d 692, 693 n.1
(%h Cir.), cert. denied, 451 U.S. 941 (1981), discovered much common
ground in Baldasar in later decisions. See supra note 6 .

1]

imprisonment, and because this explanation was ground-
ed in a dissenting view of a Supreme Court precedent,
Justice Blackmun’s conclusion as well as his reasoning
could be ignored. 979 F.2d at 415. This procrustean
reading disregards the result Justice Blackmun reached
in Baldasar -- the automatic sentencing enhancement was
unconstitutional -- as well as his starting point -- concern
about the fairness of uncounseled proceedings -- merely
because he presented a different intermediate step in his
reasoning about how best to accomplish the goals of
Argersinger.

Under well-recognized principles of stare decisis,
Justice Blackmun’s difference of perspective should pro-
vide no justification for the blatant disregard of Baldasar
shown by some lower courts (particularly the Fifth Cir-
cuit)’ or for the decision of the court below to follow the
Baldasar dissent instead of the majority.” In Gregg v.

* The Fifth Circuit continued to follow its own pre-Baldasar case law,
see Griffin v. Blackburn, 594 F.2d 1044 (Sth Cir. 1979), even after Bal-
dasar was decided, sometimes neglecting even to cite Baldasar in rele-
vant cases, see Thompson v. Estelle, 642 F.2d 996 (Sth Cir. 1981);
United States v. Smith, 844 F.2d 203 (Sth Cir. 1988), and sometimes
barely acknowledging the existence of the Court’s decision while dis-
tinguishing it away, see Wilson v. Estelle, 625 F.2d 1158, 1159 n.1 (Sth
Cir. 1980), cert. denied, 451 US. 912 (1981). This attitude became
Fifth Circuit precedent, see Eckford, 910 F.2d at 220, which then influ-
enced some other circuits which had not yet interpreted Baldasar.
Compare United States v. Castro-Vega, 945 F.2d 496, 499-500 (2d Cir.
1991), cert. denied, _ US. __, 113 S.Ct. 1250 (1993)(adopting limiting
Fifth Circuit reading of Baldasar) with United States v. Norquay, 987
F.2d 475, 482 (8th Cir. 1993)(adopting a broader reading of Bal/dasar).

° The court below followed the Fifth Circuit in reasoning that a prior
misdemeanor “valid” for the purposes for which it was used at the
time is “valid” for all other purposes, 979 F.2d at 416; see Eckford, 910
F.2d at 220. This is not a narrow reading of Baldasar, but acceptance
of the dissenting position. See Baldasar, 446 U.S. at 232-34.

Most of the cases in which the lower courts have questioned the
(continued...)

12

Georgia, 428 U.S. at 169 n.iS, where the Court first ap-
plied the plurality opinion theory articulated in Marks,
the Court found a binding holding based on the "narrow-
er" theories of a three-Justice plurality in Furman y.
Georgia, 408 U.S. 238 (1972), despite the fact that the
"broader" and "narrower" opinions in that case were
based on wholly different constitutional theories.

To serve the goals of stare decisis theory -- clarity,
predictability and consistency of decisions -- lower courts,
and even the Supreme Court itself, should look beyond
the surface of plurality opinions to try to locate common
ground. Respect for stare decisis sometimes requires a
court to analyze the conclusions implicit in plurality
opinions by considering which principles or arguments
each Justice accepted or rejected. See, e.g., Tyler v. Beth-
lehem Steel Corp., 958 F.2d 1176, 1182-83 (2d Cir.), cert.
denied, ___ U.S. __, 113 S.Ct. 82 (1992); Student Public
Interest Research Group of NJ. v. AT & T Bell Laborato-
nes, 842 F.2d 1436, 1451-52 (3d Cir. 1988); United States
v. Martino, 664 F.2d 860, 872-73 (2d Cir. 1981), cert.
denied sub nom. Miller v. United States, 458 U.S. 1110
(1982). Had the court below not taken such a cramped
view of stare decisis, it would have been clear that there
is enough common ground in Baldasar to cover petition-
er’s case. The question now confronting the Court is
which approach to select in explaining why petitioner’s
case is within that common ground.

° (...continued)

scope of Baldasar have, in fact, been cases where Baldasar was distin-
guishable and the courts were trying to elicit a rationale in order to
decide questions Baldasar does not answer. One set of cases consid-
ers whether to apply the Baldasar rule to prior adjudications which
were not criminal convictions. See, e.g., Schindler, 715 F.2d 341 (un-
counseled result in civil forfeiture proceeding); Robles-Sandoval, 637
F.2d 692 (deportation order). Another set of cases considers whether
any other collateral use of uncounseled convictions Should be permit-
ted. See, e.g., Charles v. Foltz, 741 F.2d 834 (6th Cir. 1984), cert.
denied, 469 U.S. 1193 ( 1985)(impeachment).

13

2. Under The Narrowest Interpretation Of Bal-
dasar, Petitioner Has Been Denied His Right
To Counsel Because The Uncounseled Con-
viction That Precipitated An Additional Pe-
riod Of Incarceration Was For A Misde-
meanor With A Possible Sentence Of More
Than Six Months Imprisonment

A number of lower courts, taking a result-oriented
approach to stare decisis, have concluded that the least
common denominator of the Baldasar opinions derives
from combining Justice Blackmun’s concurring opinion
with the opinions of the other four Justices in the major-
ity. See, e.g., United States v. Falesbork, __ F.3d __, 1993
WL 331481 at 3 (4th Cir. 1993); Santillanes v. United
States Parole Commission, 745 F.2d 887, 889 (10th Cir.
1985); Bilbrey v. State, 531 So.2d 27, 32 (Ala.Crim.App.
1987); State v. Beach, 592 So.2d 237, 239 (Fila. 1992);
State v. Orr, 375 N.W.2d 171, 176 (N.D. 1985); cf. State v.
Novak, 318 N.W.2d 364, 368 (Wis. 1982). Under this ap-
proach, Baldasar is read to "prohibit an increased prison
term under an enhanced penalty provision when it is
based upon a prior uncounseled misdemeanor conviction
that either resulted in the defendant’s imprisonment or
was obtained for an offense punishable by more than six
months’ imprisonment." David S. Rudstein, "The Collat-
eral Use of Uncounseled Misdemeanor Convictions
After Scott and Baldasar, 34 U.Fla.L.Rev. 517, 535
(1982).

While amicus disagrees that this interpretation is
either the /Jeast common denominator of Baldasar, or the
rule most consistent with the holdings of Scott and Arger-
singer, it is true that the Court need not go beyond this
narrow interpretation of Baldasar’s holding to decide pe-
titioner’s case. Petitioner Nichols’ misdemeanor con-
viction was for an offense punishable under Georgia law
by a period of imprisonment of ten days to one year.
See Ga. Code Ann. §40-6-391(c). All five of the Justices

14

in the majority in Baldasar would have ruled that peti-
tioner’s prior conviction could not be used for a later
sentence enhancement, at least under automatic en-
hancement statutes.

However, this hybrid rule, while simple, does not ad-
dress the broader problem posed here and in Baldasar :
it is unfair, under the rationale of Argersinger, to use an
uncounseled conviction as a basis for incarceration, re-
gardless of how long a defendant might have served
under the misdemeanor statute itself. Petitioner might
have served a year under the Georgia statute prohibiting
driving while intoxicated, but he did not; he is serving
more than twice that amount of time because a convic-
tion that neither he nor the State of Georgia had reason
to believe required the guiding hand of counsel turned
out to be a trap for the unwary.

3. Holding That A Prior Uncounseled Misde-
meanor Conviction Is Invalid For Purposes
Of A Subsequent Imposition Of Imprison-
ment Is Compelled By The Rationales Of

Scott And Argersinger

As most states have found," the explanation for Bal-
dasar provided by Justices Marshall, Brennan and
Stevens is the most compatible with the holdings of
Argersinger and Scott: wuncounseled convictions are too
unreliable to justify the severe sanction of imprison-
ment.” In Baldasar, the State and the United States had

' See, e.g., Panenen v. State, 711 P.2d at 532 Alaska); People v

bal, 618 P.2d 1121, 1126 (Colo. 1980)(en om a Muted, Tes
P.2d 1311, 1312 (Haw. 1990); People v. Finley, 568 NE2d 412. 414
(Ill App.Ct. 1991); State v. Cooper, 343 N.W.2d 485, 486 (lowa 1984);
State v. Orr, 375 N.W.2d at 178 (N.D.); Pendleton v. Standerfer, 688

P.2d 68, 70 n.5 (Or. 1985)(en banc); Sargent v. Commonwealth, 360
S.E.2d 895, 902 (Va.CtApp. 1987).

? As Justice Marshall pointed out, the argument made by the Bai-
(continued...)

15

argued that Baldasar’s prior misdemeanor conviction was
"valid" under Scott because, while Baldasar had been un-
counseled, he was not actually imprisoned upon that con-
viction. See Respondent’s brief at 12-14; United States
brief at 8-9, 11 n.12. Justice Marshall, however, ex-
plained that petitioner’s prior conviction could not accu-
rately be characterized as "valid" because it was only
valid for some, but not other purposes. 446 U.S. at 226.
Under the rule of Scott and Argersinger, he noted, the
conviction was “invalid for the purpose of depriving pe-
titioner of his liberty." /d. It is simply untrue that an
uncounseled misdemeanor conviction is "valid" and
therefore may be used for any purpose. Scott itself de-
clares that at the time of conviction, it is impossible to
know whether the conviction is "valid" without knowing
what sentence will be imposed. Such a conviction may
not be used as the basis for a sentence of incarceration
because, without the presence of counsel, the conviction
is simply too unreliable to justify imposition of even one
day in prison. To state that the prior conviction was
"valid" and therefore could be used as a predicate for a
later sentence enhancement is to beg the very question
posed in Baldasar: is subsequent incarceration one of
the purposes for which the earlier conviction is valid, or
invalid?

The vast majority of states to have considered the
question have accepted the broader reading of Baldasar,
without complaint or reservation.” But, under either

'? (continued)

dasar dissenters that uncounseled misdemeanor convictions are more
reliable than felony convictions had been rejected in Argersinger, see
446 US. at 227 n.2. As described in Baldasar, id., and in Arpersinger,
407 US. at 33-36, 41, 47, there are reasons to believe that uncoun-
scled misdemeanor convictions, often products of assembly-line jus-
tice, may be /ess reliable than uncounseled felony convictions.

'* See, e.g., Panenen v. State, 711 P.2d 528 (Alaska); Lovell v. State, 678
(continued...)

16

reading of Baldasar, the fears that led Justice Powell to
dissent in that case, id. at 230-31, 234-35, have proved to
be unfounded. Once the state courts have performed
the more difficult task of interpreting what the Court
actually said in Baldasar, those courts have shown no
need or desire for any clearer rule.“ The states are not
prevented from making individual decisions about when
to afford counsel and whether to exceed their obligations

'* (...continued)

S.W.2d 318 (Ark. 1984); People v. Roybal, 618 P.2d 1121 (Colo.);
Krewson v. State, 552 A.2d 840, 841 (Del. 1980); State v. Hoglund 785
P.2d 1311 (Haw.); People v. Finley, 568 N.E.2d 412 (IIL); State v.
Cooper, 343 N.W.2d 485 (lowa); State v. Oehm, 680 P.2d 309 (Kan.);
Ratliff v. Commonwealth, 719 S.W.2d 445 (Ky.CLApp. 1986): State ».
Dowd, 478 A.2d 671 (Me. 1984); People v. Olah, 298 N.W2d 422
(Mich.), cert. denied, 450 U.S. 957 (1981); State v. Nordstrom. 331
N.W.2d 901 (Minn. 1983); State v. Wilson, 684 S.W.2d 544. 547 (Mo
CLApp. 1984); State v. Laurick, 575 A.2d 1340, 1347 (NJ. 1990); State
v. Ulibarri, 632 P.2d 746 (N.M. 1981); State v. Baldauf, 586 N.E 2d 237
(Ohio Ct.App. 1990); Pendleton vy. Standerfer, 688 P.2d 68 (Or.); Sar-
gent v. Commonwealth, 360 S.E.2d 895 (Va.); State v. Amnstrong 332
SE 2d 837 (Wa); of. State v. Wiggins, 399 So.2d 206 (La. 1981): In
re Kean, 2d 1271 (R.1. 1987); State v. O’Bri 2d «

(Tenn.Crim.App. 1984). ne ee

Only a few states share the Fifth Circuit’s disdain for Bal
Moore v. State, 352 S.E.2d 821 (Ga.), cert. denied, 484 US. $00 (isan
Sheffield v. City of Pass Christian, 556 So.2d 1052 (Miss. 1990); State v.
Chance, 405 S.E.2d 375, 376 (S.C. 1991), cen. denied, US. 112
S.Ct. 1241 (1992); see also Commonwealth vy. Thomas, 507 A2d 57
(Pa. 1986), criticized in Joseph R. Podraza, Jr., Note, "Using Prior
Uncounseled Convictions to Enhance the Grading and Sentencing of
ee oad ge Resulting in Imprisonment: The Pennsylvania
upreme Court’s Questionable Readin inois,”
Tenet See ema g of Baldasar vy. Illinois,” 60

‘ Under Justice Blackmun’s six-month rule, there is a simple refer-
ent -- what penalty did the misdemeanor statute in question provide?
Focusing on the reliability of the prior conviction also yields a simple
referent -- does the record of conviction reflect that there was counsel
or an explicit waiver of counsel?

17

nder Scott,” or from pursuing their policies to deter
ne Br The decision in Baldasar has already shown
itself to be both sound, workable and consistent with the
goals of our federalist system. By reaffirming the ruling
in Baldasar that uncounseled convictions are too
unreliable to provide a basis for later incarceration, the
Court would not require the states to provide counsel
beyond what their economic or administrative
circumstances allow, but would protect defendants from
unwarranted consequences in those cases where a state
had decided not to make the effort necessary to ensure
the reliability of a conviction for the most severe

sanction.

B. The Federal Sentencing Guidelines Automat-
ically Authorize An Additional Period Of In-
carceration As A Direct Result Of Prior Un-
counseled Misdemeanor Convictions

Although what happened to petitioner herein was
identical to what happened to Baldasar -- he was de-
prived of two years of liberty as a direct consequence of
an earlier uncounseled misdemeanor conviction -- the
court below followed the Fifth Circuit's determination to
confine Baldasar to its facts." The majority in the Sixth
Circuit found a convenient distinction in the Second Cir-
cuit’s observation that, while Baldasar involved an en-

‘* Many states in fact, provide counsel in more cases than Baldasar or
Scott coal require, on the basis of their own statutes, case 9
state Constitutions. For a few examples, see Panenen v. State,
P.2d at 532 (Alaska); People v. Dass. 589 N.E.2d 1065 ao
cent. denied, 602 N.E.2d 462 (Ill. 1992); State v. Dowd, 478 A.2d 6
(Me.); State v. Nordstrom, 331 N.W.2d at 904 (Minn.); py
Rosenblatt, 277 A.2d 216 (NJ. 1971); State v. Orr, 37S N.W.2d at 1

79 (N.D.).

° 979 F.2d at 416-18. This grudging approach derives from the theory
that Baldasar had no common rationale. See supra note 9.

18

hancement statute that converted a subsequent offense
that otherwise would have been a misdemeanor into a
felony, the Federal Sentencing Guidelines only provide
for sentencing enhancements for what was already a fel-
ony. As Judge Jones observed in his opinion below, 979

F.2d at 408, this is truly a distinction without a constitu-
tional difference.

The very purpose of the decision in Argersinger v.
Hamlin was to reject the notion that the right to counsel
can be made to depend on whether a conviction is classi-
fied by a state as a misdemeanor or a felony. 407 U.S.
27-39. According to both Argersinger and Scott, the criti-
cal inquiry is simply whether liberty is forfeited. As the
Court pointed out in Argersinger, except for the unusual
Situation of the right to a jury trial, no Sixth Amendment
guarantee has ever been interpreted to hinge on whether
the offense at issue is defined as a felony or as a misde-
meanor. 407 U.S. at 27-30. Concern for fairness and re-
liability of criminal proceedings cannot be made to de-
pend on such irrelevant formalities as whether a state’s
recidivist laws are found in more than one Statute, or
whether those laws provide for the prior offense to be
introduced at trial rather than at sentencing. Fairness to
the individual does not vary according to these circum-
Stances, and fairness to the states requires that the
states’ different decisions about how to structure their
recidivist laws be respected and not used as an excuse
for the imposition of varying constitutional obligations.

Once again, comparing the reaction to Baldasar in
the state and federal courts is instructive. The State
courts have shown no little or inclination to distinguish
Baldasar based on such formalities as the Structure of
the recidivist or sentencing scheme at issue. The Illinois
legislature provided for the sentence enhancement at is-
sue in Baldasar in one statute, see Ill.Rev.Stat., Ch. 38,
para. 16-1(e)(1)1974)(enhancement from a felony to a
misdemeanor), which then refers to two other Statutes

19

specifying the penalties for a misdemeanor and for a fel-
ony, Ill.Rev.Stat., Ch. 38, §§ 1005-8-3(a)(1) and 1005-8-
1(b)(5)(1975); other state statutes provide automatically
escalating penalties for recidivists within a single statute,
often within the state’s sentencing range for misdemean-
ors." Such topographical distinctions have not seemed
significant to the many state courts to have considered
the constitutionality of using uncounseled convictions in
applying their state’s recidivist statutes."

The United States Sentencing Commission itself con-
cluded that the states’ formal categorizations of their of-
fenses are simply too varied and idiosyncratic to provide
a basis even for later sentencing decisions. Therefore, in
prescribing how prior criminal history is to be evaluated
for the purposes of sentencing, the Commission, like the
Court, decided that the amount of incarceration actually
imposed is the only realistic measure of the seriousness
of an offense, see U.S.S.G. §4A1.1, comment.

The Georgia statute that provided the basis for petitioner’s 1983
conviction is a good example of escalating penalties within what the
state defines as a misdemeanor range. See Ga. Code Ann. § 40-6-391
(1983). Under the current statute, first and second offenses are de-
fined as misdemeanors, and a third offense as a “high and aggravated
misdemeanor,” again with escalating penalties. Ga. Code Ann. § 40-6-
391 (1992).

See also Wis. Stat. §343.44 (1989-90), discussed in State v. Baker,

485 N.W.2d 237, 239 (Wis. 1992), where within one statute the state
provides for progressive minimum and maximum terms of imprison-
ment, all within the same offense level, for repeated instances of driv-
ing while intoxicated.
* See, e.g., State v. Ulibarri, 632 P.2d at 747 ("We read Baldasar to
mean that even if the enhanced offense is a misdemeanor with a light
penalty, an accused may not be sentenced to serve a term of imprison-
ment unless he was afforded the benefit of assistance of counsel in the
prior as well as the predicate offense”); accord State v. O’Brien, 666
S.W.2d at 485.

20

Petitioner’s prior conviction, like Baldasar’s, auto-
matically moved him from one sentencing range to
another. There is no significance to the fact that the
Federal Sentencing Guidelines set up ranges within a
single Statute. The significant feature of the Federal
Sentencing Guidelines is that, like the enhancement Stat-
ute at issue in Baldasar, the sentencing 2"thority’s deci-
sion about how to treat the prior conviction is not discre-
tionary. Consequences flow from the existence of the
conviction, and not from a sentencing court’s discretion-
ary decision about the seriousness of the previous of-
fense, or the conduct underlying that offense. In effect,
the Guidelines act as a recidivist Statute applicable to
all federal crimes."* Whether or not Baldasar would
prohibit use of a prior uncounseled misdemeanor convic-
tion as a factor at the sentencing phase in a context
where sentencing is discretionary, cf. United States y.
Tucker, 404 U.S. 443 (1972), is a question the Court
need not address in this case. In its haste to distinguish
Baldasar, however, the Fifth Circuit never considered the
nature of the calculation of criminal history under the
Federal Sentencing Guidelines, which is far closer to the
automatic decision made under the enhancement Statute
in Baldasar than to a discretionary sentencing decision.”

In the Sentencing Reform Act of 1984, Congress
provided that a court "shall impose a sentence of the
kind, and within the range [set forth in the Guidelines],
unless the court finds that there exists an aggravating or
mitigating circumstance of a kind, or to a degree, not

" D. Brian King, “Sentence Enhancement Based on Unconstitutional
Prior Convictions,” 64 N.Y.U.L.Rev. 1373, 1375 (1989).

* In Eckford the Fifth Circuit summarily rejected the argum

: mt t
us prior case law distinguishi Baldasar, waich had onteen
the Federal Sentencing Guidelines became effective, should be reeval-
uated in this new context. See 910 F.2d at 220 n.9.

21

adequately taken into consideration by the Sentencing
Commission." 18 U.S.C. §3553(b)(emphasis added). As
several members of this Court have already concluded,
this strong prescription that sentencing will presumptively
fall within the applicable range is such a clear limitation
on discretionary decisionmaking as to create a liberty in-
terest within the meaning of the Due Process Clause.
See Burns v. United States, 111 S.Ct. at 2191-92 (Souter,
J., dissenting, joined by White and O’Connor, JJ.).”
Under the Guidelines, a defendant has a protectible ex-
pectation that he will receive a sentence no higher than
the applicable range on the Sentencing Table, an expec-
tation that can be defeated only if the sentencing judge
can justify a departure under U.S.S.G. §5K2.0.

The distinction between discretionary and non-dis-
cretionary decisions, familiar from due process cases like
Greenholtz v. Inmates of the Neb. Penal & Correctional
Complex, 442 U.S. 1, 11-12 (1979), and Meachum v.
Fano, 427 U.S. 215 (1976), provides one clear and logi-
cal description of the scope of Baldasar. In enhance-
ment decisions where an imposition of incarceration is
not due to a discretionary decision, but to an automatic
scheme under which the imposition of a higher sentenc-
ing range is a direct consequence of the prior conviction,
use of an uncounseled conviction is impermissible be-
cause of that conviction’s presumptive unreliability.”

* Justice Rehnquist, who dissented in Burns, did not join this part of
Justice Souter’s opinion. The Justices in the majority did not express
any opinion on this issue, having decided the case on statutory
grounds which precluded the need for any constitutional analysis. See
id.
* Justice Marshall’s opinion in Baldasar stressed that the sentencing
enhancement was a “direct consequence” and “solely because” of the
prior conviction, 446 U.S. at 228. Many courts have identified the
Baldasar rationale as resting upon whether or not the sentence en-
hancement is “automatic” or “direct.” See, eg., United States v.
(continued...)
22

Under these circumstances, there is no meaningful way
to distinguish what Scott disallowed -- the severe sanc-
tion of a substantial period of imprisonment flowing
from the conviction of an individual who might have
been innocent, or who might have regarded the payment
of a modest fine as insufficient reason to contest guilt.

ll. PETITIONER WAS DEPRIVED OF LIBERTY
WITHOUT DUE PROCESS OF LAW BY THE
AUTOMATIC IMPOSITION OF AN ADDITIONAL
PERIOD OF IMPRISONMENT UNDER THE FED-
ERAL SENTENCING GUIDELINES

_ In Baldasar, both the prior and the enhanced convic-
tions had taken place in the same jurisdiction, so the
Court did not need to explain whether the violation of
Baldasar’s rights lay in the Subsequent use of the convic-
tion, or in the failure to afford counsel on the first con-
viction. Because there are two different jurisdictions in-
volved iM petitioner’s case, the Court has an Opportunity
to explain which jurisdiction has actually violated which
of petitioner’s constitutional rights.

_Under the theory of four Justices in the Baldasar
majority, it is arguable whether or not the State of Geor-
gia violated petitioner's constitutional rights in this case.
Georgia made only the limited use of the uncounseled
misdemeanor conviction that Scott and Baldasar allow,
and therefore had no obligation to provide petitioner
Nichols with counsel or to ensure that he knowingly and
intelligently waived his right to counsel.” The United

* (...continued)
Hookano, 957 F.2d 714, 716 (%h Cir. 1992); Moore vy. Jarvis, 885 F.2d

at 1571-73; United States vy. Peagler, 847 F.2d 756, 758 (11th Cir. 1988):
State v. Dowd, 478 A.2d at 678 (“direct” result). . ,

* It could be argued that Georgia violated petitioner's Sixth and Four-
(continued...)
23

ey

States certainly violated petitioner’s rights by impermissi-
bly using this flimsy conviction as the basis for more
than two years’ incarceration.

On the other hand, under Justice Blackmun’s inter-
pretation of the right to counsel, as expressed in Balda-
sar and Scott, it would be clear that Georgia denied peti-
tioner his Sixth and Fourteenth Amendment rights by
failing to afford him counsel or seek a formal waiver of
counsel in a prosecution for a misdemeanor punishable
by more than six months. Under either approach, peti-
tioner was denied his constitutional right not to be incar-
cerated on the basis of an uncounseled conviction. But
if the Court does not wish to reexamine the ruling in
Scott, the Court can take this opportunity to clarify that
it was the United States that violated petitioner’s rights
by using a conviction of only conditional validity for pre-
cisely the same deprivation of liberty that Scott prohibi-
ted. This can be described as either a Sixth Amendment
or a due process violation.”

Scott accommodated federalism concerns and the
states’ economic and administrative interests by offering
the states the option of avoiding the expense of assigning
counsel for every petty offense, so long as the states are

* (continued)
tcenth Amendment right to counsel by supplying a deceptive, unrelia-
ble conviction that was available for use by other jurisdictions.

“The action could be described as a violation of petitioner's Sith
Amendment right on the theory that any improper use of an unrelia-
ble, uncounseled conviction is a new violation of the right to counsel.
Cf. Burgett v., Texas, 389 US. at 115. If the Court agrees that, under
Baldasar and Scott, the later use of an uncounseled conviction is a
denial of the South Amendment right to counsel, the Court need go no
further. If the Court believes that the Soth Amendment is not vio-
lated in this case, or does not wish to reach that issue, the Due Proc-
ess Clause provides an alternate method of analyzing petitioner's
claim.

24

willing to forego imprisoning those defendants who re-
main uncounseled. Baldasar provides that the states may
not then renege on the bargain they have made by using
the same unreliable conviction as a predicate for impris-
onment at a later date. See Moore v. Jarvis, 885 F.2d at
1572. Under Baldasar, if a state wishes to preserve the
opportunity to use a misdemeanor conviction as a predi-
cate, that state must treat the misdemeanor seriously
enough to ensure its reliability -- by affording counsel. It
is the state’s choice whether to guarantee a reliable con-
viction; if the state has chosen to treat the offense as a
petty matter, not requiring even the “guiding hand of
counsel,” it is unfair for another jurisdiction to treat that
conviction as sufficiently weighty to provide a basis for a
two-year loss of liberty.

The price of the accommodation in Scott is the con-
ceptual difficulty that arises from creating a constitution-
al rule under which it is impossible to evaluate the con-
Stitutionality of a state action at the time that action is
taken. Scott suggests that a violation of the right to
counsel under the Sixth and Fourteenth Amendments
springs into being when the state attempts to sentence
an uncounseled defendant to prison. Baldasar confirms
that a renewed violation of the right to counsel occurs if
a jurisdiction later uses that conviction impermissibly. If
the Court wishes to avoid paradox and clarify Baldasar,
one simple method of doing so is to explain the violation
in a case like Baldasar’s or petitioner’s as occurring upon
the use of the conviction, and perhaps as based on a due
process rationale.”

” The Baldasar dissenters complained that the rule in Baldasar is im-
practical because a court trying a misdemeanor cannot predict
whether a conviction will be wanted for use as a predicate at a later
date. 446 U.S. 231. Once it is clear that the state is not being ac-
cused of any unconstitutionality for being unable to make such predic-
tions, the result no longer seems anomalous. The state is not asked

(continued...)

25

As described above, some members of this Court
have already correctly concluded that the Federal Sen-
tencing Guidelines create a liberty interest and therefore
entitle a federal defendant being sentenced to due proc-
ess of law. See Burns, 111 S.Ct. 2182. The Court must
then balance the factors listed in Mathews v. Eldridge,
424 U.S. 319, 335 (1976), in order to decide what
process is due. The factors Mathews lists -- the nature of
the interest petitioner has at stake, the increment to
reliability of the decision if the procedure advocated is
adopted, and the governmental interests, including the
fiscal and administrative burdens the advocated
procedure would entail -- overlap the considerations the
Court has already discussed in its Sixth and Fourteenth
Amendment analysis in Argersinger and Baldasar. The
petitioner has at stake two years of freedom, a potential
deprivation the Constitution treats so seriously that the
entire panoply of rights, including counsel and the right
to a jury trial, are guaranteed any individual who faces
so extensive a period of imprisonment. Reliability is as
critical here as under Sixth Amendment analysis. The
deprivation of petitioner’s freedom is being predicated
on a decision that the state did not take seriously
enough to afford counsel or seek a formal waiver of
counsel. It is not unimaginable that an innocent person
would pay a fine for a charged traffic offense rather than
undergoing the expense and ordeal of a trial. Finally,
the burden on the states, as described above, will not be
increased if the Court adheres to or even expands the
Baldasar rule.” The United States may still sentence

* (continued) ties
to predict, but to decide whether to invest in the future reliability of
its decisions.

* The Baldasar dissenters rejected the majority position because they
focused myopically only on this factor. As the Mathews balancing test
declares, the exigencies of state misdemeanor prosecutions are one

(continued...)

26

petitioner to 210 months, based on his instant conviction
and other criminal history. The United States does not
have any legitimate interest in enhancing a sentence (in

this case, by 25 months) based on prior criminal history
if that history is unreliable.

Under Justice Blackmun’s rule, an added burden
would be imposed on some states which would be re-
quired to extend the right to counsel to certain misde-
meanants, but the United States would then be able to
use those prior misdemeanor convictions to enhance sen-
tences.” If some states decline to shoulder that burden
voluntarily, the United States must respect their deci-
sions and not expect to be exempted from the require-

ment that unreliable convictions not form the basis for
incarceration.

In Townsend v. Burke, 334 U.S. 736, this Court held
that defendants have a right under the Due Process
Clause to be sentenced on the basis of accurate and reli-
able information. Petitioner’s uncounseled nolo con-

tendere plea to the 1983 misdemeanor charge provides
no such assurance in this case.

* (..continued)

factor to be considered, but not to the exclusion of the defendant’s in-

terest in his own liberty, and the propriety of the federal government
action, which actually deprived petitioner of his liberty.

¥ As noted above, see supra note 15, a number of states already pro-
vide counsel in circumstances beyond what Scott requires; convictions
from those jurisdictions are sufficiently reliable to be used by the
United States or other jurisdictions as predicate offenses.

27

CONCLUSION

For the reasons stated above, the judgment below
should be reversed.

Respectfully submitted,

Susan N. Herman

(Counsel of Record)
250 Joralemon Street
Brooklyn, New York 11201
(718) 780-7945

Steven R. Shapiro

American Civil Liberties
Union Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Dated: November 5, 1993

28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0431%3A08. Public record. Not legal advice.