UNITED STATES оf America, Appellee, v. Freddie Lee THOMAS, Appellant.
No. 92-2112
United States Court of Appeals, Eighth Circuit.
Decided March 8, 1994.
Rehearing and Suggestion for Rehearing En Banc Denied April 19, 1994.
20 F.3d 817
Submitted August 31, 1993.
Mr. Patterson claims this comment is plain error because it threatens his constitutional right to plead not guilty. He relies on United States v. Norris, 910 F.2d 1246 (5th Cir. 1990). However, Norris is a very different case. In Norris, the prosecution entered evidence during its case-in-chief on Mr. Norris‘s not-guilty plea in an earlier, unrelated case in which Mr. Norris was ultimately convicted. In closing, the prosecution drew a parallel between the prior not-guilty plea and the presumably equally erroneous current plea. The Fifth Circuit determined the evidence was improperly admitted to impeach the defendant and reversed the case because the prosecution had presented insufficient evidence to sustain a conviction. Id. at 1247. In the case at hand, the prosecution sought to undercut defense counsel‘s assertions that because Mr. Patterson admitted to possession of a firearm his guilt was limited to count 4. Mr. Patterson‘s constitutional right was not violated by this closing argument comment.
Second, Mr. Patterson challenges a comment made in the prosecutor‘s rebuttal closing argument. The prosecutor in effect told the jury it can assume defense counsel was admitting it had a very bad case.6
Mr. Patterson claims this comment was egregious and inflammatory. We do not have the same reaction. It is true “[n]o counsel is to throw verbal rocks at opposing counsel.” United States v. Murrah, 888 F.2d 24, 27 (5th Cir. 1989). However, in this particular factual situation, these comments were not rocks. It may have been inappropriate for counsel to refer to the case as a “crush,” but before a reversal can be ordered, the remarks must be extreme enough to have substantially threatened the defendant‘s right to a fair trial.
“[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor‘s comments standing alone.” United States v. Oles, 994 F.2d 1519, 1524 (10th Cir. 1993) (quoting United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985)). Neither of the challenged comments rises to the level of plain error.
VI
Although not given a perfect trial, we find no errors sufficient, even when considered together, to mandate reversal of the conviction. Therefore, Mr. Patterson‘s argument for reversal based on cumulative errors fails.
Accordingly, we AFFIRM.
Joseph M. Landolt, Asst. U.S. Atty., St. Louis, MO, argued, for appellee.
HANSEN, Circuit Judge.
In this case, we are asked to decide whether a district court may consider a constitutionally valid but uncounseled prior misdemeanor conviction when it determines a defendant‘s sentence for a subsequent conviction under the United States Sentencing Guidelines. We hold that a district court may do so consistent with the Sixth Amendment right to counsel.
I.
Freddie Lee Thomas was convicted by a jury of being a felon in possession of a firearm. See
After Thomas‘s conviction, a probation officer prepared a Presentence Report (PSR). In computing Thomas‘s criminal history category, the probation officer scored several prior convictions he had acquired, including a misdemeanor charge for carrying a concealed weapon, a charge to which Thomas had pleaded guilty on August 7, 1985, and for which he had paid a $20 fine. See University City (Mo.) Ord. § 23-36. Thomas objected to that part of the PSR, stating that he was not represented by counsel in connection with thаt misdemeanor conviction. The misdemeanor conviction added one criminal history point to Thomas‘s criminal history score. Based on the information in the PSR, the district court1 determined that Thomas‘s offense level was 12 and that his criminal history score was 12, resulting in a criminal history category of V. Because criminal history category V is reserved for those defendants with a criminal history score of 10, 11, or 12 points, the inclusion of the one point for the misdemeanor conviction did not affect the determination of Thomas‘s Guidelines range. He would have fallen in criminal history category V whether that conviction was scored or not. As a result, Thomas‘s Sentencing Guidelines range was 27-33 months. See U.S.S.G. Ch. 5, Pt. A (sentencing table). The district court sentenced Thomas to a 33-month term of imprisonment, to be followed by a two-year term of supervised release, and ordered him to pay a special assessment in the amount of $50.00. On appeal, Thomas challenges only his sentence.
A three-judgе panel of this court initially affirmed the district court‘s sentence in a two-to-one decision. See United States v. Thomas, No. 92-2112, 1993 WL 105111 (8th Cir. Apr. 7, 1993) (unpublished), vacated, (8th Cir. May 20, 1993) (unpublished order). After Thomas sought rehearing en banc, the court granted rehearing en banc and vacated the panel‘s opinion. Because the panel‘s opinion has not been published in the Federal Reporter, we have appended a copy to this opinion.
Upon rehearing en banc by all active judges, we affirm the sentence imposed by the district court and hold that a district court may consider an otherwise constitutionally valid prior uncounseled misdemeanor conviction when determining a sentence for a defendant for a subsequent conviction under the Sentencing Guidelines.
II.
The government argues that Thomas‘s sentence is not reviewable because the inclusion of the prior uncounseled misdemeanor conviction did not affect Thomas‘s Guidelines range. Our jurisdiction over this appeal is defined by statute:
A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence—
* The Honorable John R. Gibson was an active judge of this court at the time this case was submitted and took senior status on January 1, 1994, before this opinion was filed.
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline range ...; or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
III.
Although Thomas concedes that his prior uncounseled misdemeanor conviction is itself constitutionally valid and does not collaterally attack it, he argues that his present 33-month sentence is invalid because the sentencing court included the constitutionally valid but uncounseled misdemeanor conviction when calculating his criminal history category. Thomas also concedes that even if the sentencing court had not included the valid but uncounseled misdemeanor, his criminal history score would be an 11 and his criminal history category would have remained at V, resulting in the same 27- to 33-month range. The implication is, however, that if the sentencing court had not considered the uncounseled misdemeanor, Thomas may have received a sentence that was not at the top of the 27- to 33-month Guidelines range. The government urges us to affirm the district court.
A.
Before we address Thomas‘s argument, we will pause to consider whether addressing it is necessary. “Prior to rеaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision.” Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2997, 86 L.Ed.2d 664 (1985); see also Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 345-48, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Cf. McCurry v. Tesch, 824 F.2d 638, 640 (8th Cir. 1987) (“statutes and court orders [should be] interpreted, if possible, to avoid constitutional issues“). Thus, we will first ask whether the district court in fact sentenced Thomas in reliance on his uncounseled misdemeanor conviction. We will do so under the assumption that Thomas has a right to a sentence that is not based on that conviction. If the district court did not impose a sentence that violates the right we assume to exist, we need not decide whether the right actually exists.
Thomas argues that the district court violated his Sixth Amendment right to counsel because the district court considered his prior uncounseled misdemeanor conviction when it imposed sentence. See United States v. Norquay, 987 F.2d 475, 482 (8th Cir. 1993).
Thomas‘s prior uncounseled misdemeanor conviction was described in paragraphs 12-14 of the PSR. The district court overruled Thomas‘s objections to these paragraphs on the ground that U.S.S.G. § 4A1.2, comment. (backg‘d.), expressly provides that uncounseled misdemeanor convictions for which no imprisonment was imposed should be included in the criminal history score. (Tr. at 133-34.) Furthermore, in an addendum to the PSR, the probation officer noted that a departure was warranted for the reason that Thomas was only one criminal history point away from the next highest criminal history category. The district judge sustained in
Because Thomas‘s prior uncounseled misdemeanor conviction was before the district court when it imposed sentence, and because we find no indication that the district court did not consider it, we must conclude that Thomas‘s sentence is based in part on his prior uncounseled misdemeanor conviction. If Thomas has a right to a sentence that is not based on his prior uncounseled misdemeanor conviction, then he was sentenced in violation of law.
We will proceed to address Thomas‘s argument that hе has a right to a sentence that is not based on his valid but uncounseled prior misdemeanor conviction.
B.
Thomas‘s argument is based on the Sixth Amendment to the Constitution. “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”
Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.
Id. at 40, 92 S.Ct. at 2014. In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the Supreme Court made clear that a defendant is not entitled to counsel merely because the criminal charge he faces authorizes imprisonment. Rather, the right to counsel applies only when the defendant actually is sentenced to prison. Id. at 373-74, 99 S.Ct. at 1162 (stating that Argersinger “warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel“).
In Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980) (per curiam), the Supreme Court reversed the conviction of a defendant who was convicted of felony theft and sentenced to a prison term of one to three years. Baldasar‘s theft would have been a misdemeanor punishable by not more than one year of imprisonment had it not been his second theft offense. His prior theft conviction was a statutory element of the second offense itself, as opposed to being only a sentencing factor, and it was introduced in evidence for the jury‘s determination as to whether he was guilty of second-offense theft. Baldasar‘s first conviction was uncounseled but was constitutionally valid under Scott because he had not been sentenced to prison for it. The Baldasar Court framed the issue as whether a prior uncounseled misdemeanor conviction that is constitutionally valid “may be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term.” Id. at 222, 100 S.Ct. at 1585. The Court concluded that Baldasar‘s uncounseled misdemeanor theft conviction could not be used to convert his subsequent theft (which would otherwise have been a misdemeanor) into a felony. Id. at 224, 100 S.Ct. at 1586.
Baldasar‘s precise holding is elusive because the five-justice majority did not unite behind a common rationale. The relatively short per curiam opinion simply recites the factual and procedural background of the case and then announces, “For the reasons stаted in the concurring opinions, the judgment is reversed....” Id. at 224, 100 S.Ct. at 1586. The five justices who comprised the
Because of these divergent views, the courts of appeals have struggled to decipher Baldasar‘s rule. For example, the Seventh Circuit has stated that Baldasar “provides little guidance outside of the precise factual context in which it arose.” Schindler v. Clerk of Circuit Court, 715 F.2d 341, 345 (7th Cir. 1983), cert. denied, 465 U.S. 1068, 104 S.Ct. 1419, 79 L.Ed.2d 745 (1984). Likewise, the Eleventh Circuit has stated that “the Supreme Court divided its votes in such a way that no clear rule is apparent.” McCullough v. Singletary, 967 F.2d 530, 533 (11th Cir. 1992), cert. denied, — U.S. — , 113 S.Ct. 1423, 122 L.Ed.2d 792 (1993). In slight contrast, the Tenth Circuit has stated that “the holding in Baldasar is Justice Blackmun‘s rationale that an invalid uncounseled conviction cannot be used to enhance a subsequent conviction.” Santillanes v. United States Parole Comm‘n, 754 F.2d 887, 889 (10th Cir. 1985) (emphasis added).
In the same context as this case, the Fifth Circuit has stated that Baldasar should be “limited to its particular factual scenario: ‘a prior uncounseled misdemeanor conviction may not [be] used under an enhanсed penalty statute to convert a subsequent misdemeanor into a felony with a prison term.‘” United States v. Eckford, 910 F.2d 216, 220 (5th Cir. 1990) (quoting Wilson v. Estelle, 625 F.2d 1158 (5th Cir. Unit A 1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1985, 68 L.Ed.2d 302 (1981)). The Eckford court thus affirmed a sentence imposed after the district court assessed the defendant two criminal history points for two uncounseled misdemeanor convictions. Id. at 217-18, 220.
Most circuit courts that have addressed this issue have followed Eckford. See United States v. Falesbork, 5 F.3d 715, 717-19 (4th Cir. 1993); United States v. Nichols, 979 F.2d 402, 415-18 (6th Cir. 1992), cert. granted, — U.S. — , 114 S.Ct. 39, 125 L.Ed.2d 788 (1993); United States v. Castro-Vega, 945 F.2d 496, 499-500 (2d Cir. 1991), cert. denied, — U.S. — , 113 S.Ct. 1250, 122 L.Ed.2d 649 (1993); see also United States v. Burroughs, 5 F.3d 192, 194 (6th Cir. 1993) (holding that valid prior misdemeanor conviction may be used, consistent with Baldasar, to enhance Guidelines-based sentence because it “does not change the nature of the charge from a misdemeanor to a felony“). The Ninth Circuit, however, has applied Baldasar to prohibit upward departures from a Guidelines range if the departure is based on
While the case before us does not involve a departure from the Guidelines range that everyone concedes was correctly determined with or without consideration of Thomas‘s prior conviction, we now believe that Norquay misconstrued Baldasar. Norquay unjustifiably extended Baldasar to guard against any incremental increase in a defendant‘s sentence based on a prior uncounseled misdemeanor conviction. Although some support for such a rule might be found in Justice Stewart‘s and Justice Marshall‘s concurring opinions, which speak in terms of an “increased term of imprisonment,” see Baldasar, 446 U.S. at 224, 100 S.Ct. at 1586 (Stewart, J., concurring); id. at 226, 100 S.Ct. at 1587 (Marshall, J., concurring), the five-justice majority agreed on much less than that. Justice Blackmun voted to reverse only because he believed that Baldasar‘s prior misdemeanor conviction was invalid and unconstitutional ab initio; he did not join either Justice Stewart‘s or Justice Marshall‘s concurring opinion. Thus, no more than four justices, if any, approved a rule that might be construed to prohibit any inсremental increase in punishment on the basis of a prior uncounseled misdemeanor.4
We believe that Baldasar prevents a constitutionally valid but uncounseled prior misdemeanor conviction from being used in a
subsequent sentencing proceeding to imprison a defendant when he would not otherwise be confined. We further are of the view that Baldasar has no application in a case (as here) where the prior uncounseled conviction played no part in determining the defendant‘s guilt of the subsequent offense, and where (as here) a sentence to imprisonment is already required to be imposed for the subsequent offense without regard to the prior conviction, and where (as here) the court is faced only with determining the length of the imprisonment already authorized by the statute for the subsequent offense. Stated another way, under Baldasar, one cannot be sent to jail because of a prior uncounseled misdemeanor conviction, either upon the initial conviction or beсause of the conviction‘s later use in a subsequent sentencing, but if the subsequent sentence to imprisonment is already required as a consequence of the subsequent crime, the prior conviction may be used as a factor to determine its length. It must be remembered that the “increased term of imprisonment” that the justices were concerned about in Baldasar was the one that resulted from the statutory conversion of the second theft offense from a misdemeanor to a felony with a tripling of the imprisonment because of the very existence of the prior uncounseled misdemeanor. Such is not the case here. Thomas‘s offense was a felony to begin with, and it remained a felony even when the prior conviction was scored for criminal history purposes.
Our present reading of Baldasar is consistent with Baldasar‘s lineage. The four opinions comprising the majority in Baldasar rely exclusively on Gideon v. Wainwright, Argersinger v. Hamlin, and Scott v. Illinois. This line of cases ensures that a defendant will not be convicted and imprisoned without the assistance of counsel. A
Circuit court opinions that have construed Baldasar to prohibit any incremental increases in imprisonment rely on United States v. Tucker, 404 U.S. 443, 447-49, 92 S.Ct. 589, 591-93, 30 L.Ed.2d 592 (1972) (holding that sentence based in part on invalid uncounseled misdemeanor convictions violates Sixth Amendment). See Norquay, 987 F.2d at 482; Brady, 928 F.2d at 854. Although Tucker was decided prior to Baldasar, the various opinions of the Baldasar majority did not cite Tucker at all. This omission is natural when one considers that Baldasar and Tucker addressed different concerns that arose at different phases of those criminal trials and when one considers that Tucker involved a constitutionally invalid prior conviction. The Baldasar Court focussed on the guilt phase to ensure that the defendant was not convicted of an offense that required imprisonment because of his prior uncounseled (but valid) misdemeanor conviction. In contrast, the Tucker Court focussed on the sentencing phase to ensure that the defendant, who already was subject to some imprisonment, was not imprisoned longer because of his invalid prior misdemeanor conviction.5 To link Baldasar and Tucker, as the Ninth Circuit did in Brady and our panel did in Norquay, is to create a new doctrine that contradicts Baldasar‘s per curiam opinion.
We thus join the Fifth, Second, Sixth, and Fourth Circuits, whiсh have construed Baldasar narrowly. We therefore conclude that
Thomas‘s constitutionally valid but uncounseled prior misdemeanor conviction was correctly used to determine his sentence in this case. Accordingly, we affirm the judgment of the district court.
LOKEN, Circuit Judge, concurring.
I believe that the court has correctly applied the fractured Supreme Court opinions in Baldasar v. Illinois to the issues raised in this case, and therefore I concur.
However, if one looks at the constitutional issue outside the four corners of Baldasar, as Judge Morris Arnold does near the end of his dissent, then I think the issue becomes the extent to which the Sixth Amendment limits a legislature‘s power to restrict collateral attacks on prior convictions or sentences. See generally Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 522, 121 L.Ed.2d 391 (1992); United States v. Elliott, 992 F.2d 853 (8th Cir. 1993). Viewed from that perspective, I conclude that the Sentencing Commission did not exceed Congress‘s constitutional authority in promulgating the background commentary to
MORRIS SHEPPARD ARNOLD, Circuit Judge, with whom RICHARD S. ARNOLD, Chief Judge, and McMILLIAN and BEAM, Circuit Judges, join, dissenting.
I respectfully dissent from the judgment of the court.
When this case was originally argued, the government‘s sole argument on appeal was that this court did not have jurisdiction to consider it. I agree entirely with the court
In my opinion, defendant‘s Sixth Amendment argument does indeed have merit. Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), held that an uncounseled misdemeanor conviction cannot be used as a basis for a conviction of a felony that carries a prison term. Because the case did not produce an opinion in which a majority of the Court joined, considerable ingenuity has been employed in avoiding what seems to me its manifest purport, namely, that no incremental deprivation of liberty can be predicated on the fact of an uncounseled misdemeanor conviction. See, e.g., United States v. Nichols, 979 F.2d 402, and United States v. Castro-Vega, 945 F.2d 496, cert. denied, — U.S. — , 113 S.Ct. 1250, 122 L.Ed.2d 649 (1993). I agree with Judge Jones, dissenting in Nichols, 979 F.2d at 408, that it is impossible to discern any “logical or principled basis upon which to distinguish Baldasar” from the present case. It is “a distinction without a constitutional difference” that the increased sentence in Baldasar resulted from “an enhanced penalty statute that converted defendant‘s misdemeanor into a felony, while the instant case arises under the criminal-history provision of the sentencing guidelines.” Id. In United States v. Brady, 928 F.2d 844, 854 (9th Cir. 1991), the court agreed, as I do, with Justice Marshall‘s concurring opinion in Baldasar, “that an ‘uncounseled misdemeanor conviction [may] not be used collaterally to impose an increased term of imprisonment upon a subsequent conviction,‘” quoting Baldasar, 446 U.S. at 226, 100 S.Ct. at 1587. To the same effect, see United States v. Williams, 891 F.2d 212, 214 (9th Cir. 1989), cert. denied, 494 U.S. 1037, 110 S.Ct. 1496, 108 L.Ed.2d 631 (1990).
I respectfully disagree with the court‘s assertion that ”Baldasar‘s precise holding is elusive.” Five of the justices who considered that case agreed that a person may not have a prison term enhanced on the basis of an uncounseled misdemeanor. Justice Stewart (joined by Justices Brennan and Stevens) wrote that the sentence was illegal because petitioner “was sentenced to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense.” Baldasar, 446 U.S. at 224, 100 S.Ct. at 1586. Justice Marshall (also joined by Justices Brennan and Stevens) wrote that the sentence should be reversed because a “prior uncounseled misdemeanor conviction could not be used collaterally to impose an increased term of imprisonment upon a subsequent conviction.” Id. at 226, 100 S.Ct. at 1587. Justice Blackmun concurred on the ground that since petitioner “was not represented by an attorney, that сonviction ... is invalid and may not be used to support an enhancement.” Id. at 230, 100 S.Ct. at 1589. These opinions, taken together, therefore establish that a majority of the Supreme Court has adopted the principle that uncounseled convictions cannot serve as a basis for an incremental deprivation of liberty. The fact that the justices created that principle from different material is of no consequence so far as the principle itself is concerned.
Even if I have not correctly parsed the Baldasar opinions, it does not follow that the court has resolved this case correctly. Baldasar, at a minimum, certainly does not require the result reached here. We are in some danger of forgetting that at the bottom of this case lies the Sixth Amendment and its right to counsel: simply put, the issue is whether a person may be constitutionally deprived of his liberty in this country without having a lawyer. I had thought that the answer to this question was plain enough.
It is true that we have held that a consideration of an erroneous matter in connection with a sentence is harmless if, as is the case here, the error does not affect the guideline range employed by the sentencing court. See, e.g., U.S. v. Manuel, 944 F.2d 414, 417 (8th Cir. 1992). But this line of cases can
Because we cannot tell if this sentence was in violation of lаw unless the district court tells us what it would have done if the uncounseled conviction had not been employed in its calculus, I believe that a remand is necessary. See
APPENDIX
United States Court of Appeals For The Eighth Circuit
No. 92-2112
United States of America, Appellee, v. Freddie Lee Thomas, Appellant.
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: December 18, 1992
Filed: April 7, 1993
Before FAGG, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
HANSEN, Circuit Judge.
Freddie Lee Thomas was convicted of being a felon in possession of a firearm in violation of
I.
Thomas was convicted of being a felon in possession of a firearm. The one-count indictment charged that Thomas knowingly possessed a firearm which had been transported in interstate commerce and that Thomas had previously been convicted, on two sepаrate occasions, of burglary in the second degree. See
Based on the information in the PSR, the district court determined that Thomas‘s offense level was 12 and that his criminal history score was 12 resulting in a criminal history category of V. U.S.S.G. Chapter 5, Part A, Sentencing Table provides that criminal history category V is reserved for those defendants with 10, 11, or 12 criminal history рoints. See U.S.S.G. Ch. 5, Pt. A, comment. (n. 3). As a result, Thomas‘s applicable sentencing guideline range was 27-33 months. Thomas argues that his 33-month sentence is invalid because the sentencing court included the uncounseled misdemeanor conviction
The government takes the position that Thomas‘s sentence is nonreviewable. According to the government, even if the district court erroneously included the uncounseled misdemeanor conviction for sentencing purposes, the decision to impose a sentence at the high end of the applicable range was entirely within the discretion of the sentencing judge. Our first task, therefore, is to determine whether Thomas‘s sentence, which falls within the presumptively correct guideline range that both parties agree is applicable to his offense, is subject to appellate review.
II.
Pursuant to
of an incorrect appliсation of the Guidelines). Thomas asserts that inclusion of an uncounseled misdemeanor conviction in his criminal history score violates his rights under the Sixth Amendment and thus his sentence was imposed in violation of law. As a result, Thomas presents the court with a situation in which we must examine the merits of his claim on appeal before we are able to determine whether we have jurisdiction to review his sentence. See United States v. Garcia, 919 F.2d 1478, 1480 (10th Cir. 1990) (“When a defendant alleges that a sentence within the Guidelines was imposed in violation of law or as a result of an incorrect application of the Guidelines, he has invoked, prima facie, our authority to review the appeal.“).
The government urges us not to proceed even this far in Thomas‘s appeal. The government asserts that, because Thomas would have been assigned the same criminal history category even if the sentencing court had not included the uncounseled misdemeanor in his criminal history category, this court cannot review Thomas‘s sentence even to determine jurisdiction without improperly infringing upon the sentencing court‘s discretion. While a sentencing judge may choose any sentence he or she deems proper within the range, the plain language of § 3742 requires that we review the sentence to ensure that the sentencing judge considered only those factors that neither violate the law nor result in or from a misapplication of the Guidelines. See
One circuit has expressed concern that the phrase “incorrect application of the Guidelines,” if too broadly read, would include challenges to a sentence simply because the defendant considered it “too high” or “too low.” See United States v. Garcia, 919 F.2d 1478 (10th Cir. 1990) (citing United States v. Colon, 884 F.2d 1550 (2d Cir.), cert. denied, 493 U.S. 998 (1989)). We agree that the phrases “incorrect application of the Guidelines” and “in violation of law” themselves must have limited meaning and not simply include “any arguable claim of error in sentencing.” Colon, 884 F.2d at 1553. Otherwise, the Congress‘s attempt to place boundaries on the scope of appellate review by means of § 3742 would be rendered useless. See id. Once a sentencing court has before it only lawful factors, however, no sentence within the applicable guideline range can, by the very nature of the discretion still retained by sentencing judges, be an incorrect application of the Guidelines.
Because the Guidelines expressly provide that “[p]rior sentences, not otherwise excluded, are to be counted in the criminal history score, including uncounseled misdemeanor sentences where imprisonment was not imposed,” U.S.S.G. § 4A1.2, comment. (backg‘d), Thomas has no grounds to argue that his sentence was imposed as a result of a misapplication of the Guidelines. Whether a guideline was correctly applied, however, says nothing about that guideline‘s constitutionality. Having determined that we have the authority to review Thomas‘s claim that his sentence was imposed in violation of the law, we turn to the issue of whether the sentencing court violated Thomas‘s Sixth Amendment rights when imposing sentence.
III.
Thomas does not argue that his conviction for the prior misdemeanor was itself consti-
Thomas nevertheless relies on Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980) (per curiam), in which the United States Supreme Court held that an uncounselеd misdemeanor conviction for which the defendant was not incarcerated may not be “used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term,” id. at 222, 100 S.Ct. at 1585, to support his claim. Due to the lack of consensus for a single concurring rationale, however, Baldasar has offered little guidance on the issue Thomas raises. Baldasar, a per curiam opinion, contained three concurrences and one dissent and resulted in a five-justice agreement in result only. One of the concurrences, written by Justice Marshall and joined by two other justices, suggests that any use of a prior uncounseled misdemeanor to enhance a sentence would be unconstitutional. See United States v. Eckford, 910 F.2d 216, 219 (5th Cir. 1990). Justice Blackmun‘s separate concurrence, which provided the fifth vote for the majority, offered a very different rationale. Relying on his dissent in Scott, Justice Blackmun considered the prior misdemeanor itself unconstitutional because it was punishable by greater than six months and therefore its later use at a subsequent sentеncing was unconstitutional as well. The result has been that “[t]he inconsistency between Justice Blackmun‘s narrow approach and Justice Marshall‘s expansive approach has clouded the scope of the Baldasar decision.” Eckford, 910 F.2d at 219.
Nevertheless, the circuits that have addressed the issue have concluded that consideration of a prior uncounseled misdemeanor at the time of a subsequent sentencing is constitutional. See United States v. Nichols, 979 F.2d 402 (6th Cir. 1992) (uncounseled DUI conviction was constitutionally valid and therefore could be considered to calculate criminal history score); United States v. Castro-Vega, 945 F.2d 496, 500 (2d Cir. 1991) (appellate court declines to apply Baldasar because the uncounseled misdemeanor conviction was used simply “to determine the appropriate criminal history category for a crime that was already a felony“); Eckford, 910 F.2d at 220 (holding that Baldasar “does not preclude the use of uncounseled misdemeanor convictions during sentencing for a subsequent criminal offense“) (footnote omitted); cf. Black v. State of Fla., 935 F.2d 206, 208 (11th Cir. 1991) (per curiam) (Baldasar does not preclude a state from enhancing a defendant‘s conviction “based on a prior, uncounseled misdemeanor conviction for which he served no time in prison.“).
We agree that a sentencing court may consider prior uncounseled misdemeanor convictions, themselves constitutional, when calculating a sentence without violating the defendant‘s rights under the Sixth Amendment. We find an important distinction between the factual scenario in Baldasar and the case currently before us. In Baldasar, use of the uncounseled misdemeanor resulted in the defendant being subjected to a sentence that otherwise would not have been permitted under the law, as his misdemeanor charge of theft would have been turned into a felony offense. In Thomas‘s situation, on the other hand, inclusion of the prior misdemeanor did not change the nature of the offense or the maximum term of imprisonment allowed by law. See Castro-Vega, 945 F.2d at 500 (“In Baldasar, the defendant‘s prior conviction materially altered the substantive offense for which he could be held criminally responsible by converting it from a misdemeanor to a felоny with a prison term—an offense that on its own would trigger a right to counsel.“); Nichols, 979 F.2d at 416 (sentence up to life imprisonment authorized by statute whether the sentencing court considered the prior uncounseled misdemeanor or not) (footnote omitted). Indeed, it did not even change the presumptively correct guideline range of 27-33 months. Under the facts
IV.
We hold that the district court did not violate Thomas‘s Sixth Amendment rights when it included his uncounseled misdemeanor conviction in his criminal history category. As a result, we have no authority to review Thomas‘s sentence further. Accordingly, we affirm the judgment of the district court.
MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.
I respectfully dissent from the judgment of the court.
The government‘s sole argument in this appeal was that this court did not have jurisdiction to consider it. I disagree. The statute provides an appeal for a sentence imposed “in violation of law,”
In my opinion, defendant‘s Sixth Amendment argument does indeed have merit. Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), held that an uncounseled misdemeanor conviction cannot be used as a basis for a conviction of a felony that carries a prison term. Because the case did not produce an opinion in which a majority of the Court joined, considerable ingenuity has been employed in avoiding what seems to me its manifest purport, namely, that no incremental deprivation of liberty can be predicated on the fact of an uncounseled misdemeanor conviction. See, e.g., United States v. Nichols, 979 F.2d 402 (6th Cir.
Even if my analysis of the relevant cases is incorrect, the result that the court reaches today is foreclosed by our decision in United States v. Norquay, 987 F.2d 475, 482 (8th Cir. 1993), which, relying on Baldasar, held that “misdemeanor convictions obtained in the absence of counsel for the defendant may not be used ... for enhancing a sentence of imprisonment.” The fact that the conviction in issue in Norquay was a tribal one is a difference that involves no legal distinction. The court‘s opinion is therefore directly contrary to a panel decision that is not even two months old.
It is truе that we have held that a consideration of an erroneous matter in connection with a sentence is harmless if, as is the case here, the error does not affect the guideline range employed by the sentencing court. See, e.g., U.S. v. Manuel, 944 F.2d 414, 417
(8th Cir. 1991). But this line of cases can claim no continued validity in light of the Supreme Court‘s recent decision in Williams v. United States, — U.S. — , 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). In that case, the Court ruled that if a district court employed both valid and invalid matter in departing from the guidelines, the court of appeals often must remand the case in order to determine whether the district court would have imposed the same sentence absent the offending facts. The opinion contains instructive language relevant to our case. A remand was necessary, the Court said, “unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court‘s selection of the sentence imposed.” Id. at 203, 112 S.Ct. at 1120-21 (emphasis supplied). In my view, Williams has therefore undermined our previously announced version of harmless error in sentencing matters.
Because we cannot tell if this sentence was in violation of law unless the district court tells us what it would have done if the uncounseled conviction had not been employed in its calculus, a remand is necessary. See
Notes
(1) was imposed in violation of the law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicablе guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range ...; or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
Ladies and gentlemen, there is a famous lawyer, most trial lawyers know him. His name is Herb Stern, and he gives lectures on how to try cases. In fact, he calls it trying cases to men.
One thing he says for the defense not to do is don‘t spend too much time on the burden of proof, he said, because when you spend a lot of time about that, what‘s the message you send to the jury? We just lost that case. Now, we are quibbling over how bad we lost, and that‘s what you saw here. It wasn‘t just a lost case. This was a crush, lady and gentlemen. It was an absolute crush.
In saying this is it, sometimes it is offensive. when you come into court and your case is so bad that you try to frame another man.... That‘s offensive. And to say that‘s not exactly what was trying to be done is offensivе.