United States v. Harold G. Miller

III. reasons,

For the above hereby stated judgment

REVERSE the of the district

court and proceedings REMAND for con- opinion.

sistent with the America,

UNITED STATES of

Plaintiff-Appellee, MILLER,

Harold G.

Defendant-Appellant.

No. 89-6067. Appeals,

Sixth Circuit.

Argued April Aug.

Decided conspiracy as relevant period of the dis-

conduct, contends and further guide- his incorrectly enhanced trict court de- upon the erroneous line sentence based a firearm possessed he termination drug a offense. during the commission argu- any of these merit Finding no ments, affirm.

I. Miller investigation of defendant An in three resulted of 1988 March began in hydrochloride cocaine sales of separate informant. undercover to an the defendant a occasion, informant wore On each tape a device, generating thereby recording investigation cul- of each transaction. Miller of defendant in the arrest minated of his the date 24, On 1988. on October defendant, acting in a se pro arrest, rights of his being advised after capacity counsel, arranged right to waiving his and government with plea agreement a right to forgo his to the defendant required conspir- guilty plead and an indictment of cocaine 1.25 ounces ing to distribute 1, 1988, May and March between (argued), Winck, Dake David Michael to furnish consented defendant also Tenn., Knoxville, Attys., Asst. and government testimony for truthful plaintiff-appellee. re- upon informant as an undercover serve Knoxville, (Argued), P. Smith Ronald exchange, In quest.1 defendant-appellant. Tenn., for Miller further prosecute not promised long as so distribution for cocaine MERRITT, Judge; Chief Before agreement.” by the terms th[e] “abide[d] Judges. GUY, Circuit MARTIN ap- On March Judge. GUY, B. RALPH court, signed district peared before form, and entered of counsel Miller, pleaded waiver Defendant, who Harold single-count guilty plea ounc- 1.25 to distribute conspiring guilty conspiring to distribute him charging in violation hydrochloride es of cocaine “be- hydrochloride cocaine 1.25 ounces the 60- appeals 841 and 21 U.S.C. §§ 1, 1988, May 1988[.]” tween March upon him imposed month sentence plea, the accepting Before Specifically, Guidelines. colloquy engaged in judge his waiver argues that de- whether the ascertain defective, the defendant and that counsel right to counsel fendant understood officer he made statements The dis- pro se. proceeding perils to establish used have been should charge, poten- explained judge trict that he distributed. of cocaine amount that the Sentenc- the fact penalties, tial dis- challenges the addition, the defendant range of dictate would ing Guidelines outside drug sales court’s inclusion trict agreement based sought satisfy to rescind accounts, failed By all cooperation. Nevertheless, party the defendant’s lack neithеr obligation. resulting sentence. ly, After the defen- 1,169.5 officer used the expressed dant proceed gram figure, his desire to in his rather than gram the 35.5 defense, (1.25 ounce) own the district court explicitly figure charged in the informa- tion, found “that the knowingly defendant has to establish the base offense level in voluntarily and right presentence waived his to coun- defendant’s report. The impact 1,169.5 The signed gram sel.” waiver of counsel form figure as re- by flected in point pro- presentence the defendant at that report was sub- stantial. ceedings Application 1,169.5 gram memorialized the defendant’s stat- figure ed resulted in a intention. base offense level of 2D1.1(c)(9), see U.S.S.G. yielded § Once the right defendant had waived his sentencing a range months, of 63 to 78 see counsel, proceeded the district court Table), id. Ch. Pt. A (Sentencing whеre- rights advise the defendant of his and take gram figure as the 35.5 produc- would have guilty plea. his personal- Defendant Miller ed a base offense level of see id. ly acknowledged rights the various enu- 2Dl.l(c)(15), sentencing and a range of § court, merated signed district 15 to 21 months. See id. Ch. Pt. A waiving right form have case Table). (Sentencing Upon learning of the grand jury, submitted to the formally probation proposed officer’s adopted government’s explanation of range, the sought defendant and obtained supporting charge. The appointed prepare counsel to for the sen- plea proceeding ended following tencing hearing. comments from the district court: After appointed, counsel was the defen- THE Mr. explain COURT: Winck will dant filed a motion to disallow the use of you you that to and tell you where need probation revealed to the offi- go probation Now, to see the officer. cer in the calculation of the appropriate person very helpful, Mr. Miller. guideline sentence. The district court de- she, be, He or as the ease is an nied the motion as well as the defendant’s officer they’ll get- of this Court and subsequent motion for reconsideration. On ting all the you information from con- 8,1989, August the district court conducted cerning your past, your problem what sentencing hearing. At the outset of the crime, they’ll was with this submit hearing, the through defendant indicated report to me and then I’ll review affirmatively counsel that go he “elected to that, part, that and determining use forward with the under the informa- what imposed. sentence should be So be government tion.” The presented then evi- honest and prоbation candid with the of- engaged dence that defendant Miller had ficer, okay? pistol at least one sale of cocaine with a Yes, A. sir. readily nearby accessible on a table. The THE you COURT: Because will be ownership posses- defendant admitted working person long for a time guns, argued sion of various that no and, say, people help as I those can you. weapon present any when sale of co- Yes, A: sir. court, caine occurred. The district charac- During meeting probation offi- terizing weekly the defendant’s cocaine cer, defendant Miller that he had revealed probation sales revealed to the officer as purchased approximately one ounce of co- conduct,” 1B1.3, “relevant see U.S.S.G. § per caine February week between 1987 аnd set the base offense level at 26. The court October 1988. The defendant further ex- points then added two to the base offense plained typi- to his officer that he possession weapon during level of a cally used half of the cocaine that he offense, commission of see id. bought, support and sold the other half 2D1.1(b)(1), points and deducted two Proceeding disclosure, his habit. from this acceptance responsibili- officer calculated that ty. Arriving See id. 3E1.1. at a sentenc- 1,169.5 grams months, defendant had sold ing range of co- of 63 to 78 the district period. According- court, caine over a 20-month sponte, departed downward to a sua wish who with defendants confronted were there because 60-month counsel, see right their in this waive factors aggravating any real “not 245, 248-49 McDowell, case.” deniеd, Cir.), timely notice filed (1987), and have 478, 98 L.Ed.2d 492 cross-ap- did appeal; powers to iden supervisory our “invoke[d] assign- raises four peal.2 made inquiry to be nature tify the consideration. for our of error ments to be followed procedure and the First, alleges that he to waive seeks an accused where situations of his waiver effective an to obtain failed pro proceed counsel representation Second, contends counsel. adopted Specifically, we Id. at 250. se.” probation offi- to his made statements his in 1 forth Bench inquiry ... set the “model for establish- the basis provide cer cannot Judges District States United Book Third, he as- offense level. ing his base McDowell, 814 F.2d 1986)[,]” (3d ed. 1.02-2 improperly court the district that serts “the model to 250, adherence mandated at provided he the information characterized substan covering the same one inquiry or con- “relevant officer as the to finding on id., required a points,” tive at level setting base offense his in duct” upon self- insistence of informed the record the district argues that Finally, he 26. ato valid preconditions representation fire- he finding that used in court erred id. counsel. See right to waiver committing the of- course in the arm case, district that we find address In this We shall of conviction. fense the model substantially with complied court seriatim. these issues McDowell, F.2d at 814 in adopted inquiry effec- II. therefore 250, that the defendant id. right counsel. tively waived in decision Court's Supreme (“[T]he J., concurring) rule (Engel, 252 at 806, 95 422 U.S. California, v. Faretta powers, supervisory our today, upon based (1975), clearly 562 2525, L.Ed.2d S.Ct. not lit- compliance requires substantial amendment the sixth that established guidelines аdherence eral right personally the to the accused “grants inquiry, which Book.”). The model Bench self-repre through defense” to make his McDowell to the appendix as an is set forth 819, at 2533. Id. at sentation. 251-52, prescribes bat- opinion, see id. however, un must be Self-representation, designed to ascertain tery questions showing an “that upon a only dertaken law, to familiarity with defendant’s intelli counsel offered accused was gravity warn the the offer.” understandingly rejected gently and self-representa- dangers of charges and the 506, Cochran, nley v. Car the defen- whether tion, to determine (1962); 890, L.Ed.2d 70 516, 82 S.Ct. is volun- waive counsel decision dant’s Grosshans, 821 accord searching Here, the district tary. denied, 484 (6th Cir.), of the relevant upon all inquiry touched L.Ed.2d U.S. model by the addressed 835, considerations Faretta, (1987); also see merit Accordingly, find nо quiry.3 recognized haveWe 2541. 95 S.Ct. at did not that contention when courts face district difficulties (1st Aguilar-Pena, 887 F.2d precludes ed appeal government’s failure to cases 1989) permitted those ("Departure is Cir. reviewing court’s decision us from indi idiosyncratic warrant circumstances 63 to 78-month where from the depart downward ("The beyond 3742(b) range. vidualization of § 18 U.S.C. guideline Cf. comparatively close-hewn Government, approval of the personal possible within with General, guidelines.”). may file Attorney parameters Solicitor constructed or General for re appeal in the district a notice of court and the district between The discussion (empha sentence!.]” final otherwise view of an proceeded as follows: the defendant however, that passing, added)). note in We sis understanding of this It’s COURT: THE departure stаted rationale court's the district an proceed without you wish comport the standard appear to does correct, matter; sir? is that attorney 3553(b). e.g., Unit- in 18 U.S.C. set forth effectively right forsake his to counsel be- ments he made to his officer on pleading guilty charge fore set forth grounds. First, two he contends that Sen- single-count in the information. lB1.8(a) Guideline prohibits use of such information purposes assuming

Even arguendo that the establishing applicable guideline defendant did not effectively range. waive his counsel, We plea disagree. According ratification of the to section 1B1.- agreement after he appointed obtained 8(a): supports counsel his conviction under the agrees Where a defendant cooperate agreement’s terms. At government by providing infor- hearing, counsel for express concerning mation unlawful activities of ly my stated that there file is a motion “[i]n others, and the agrees that plea. to withdraw the Mr. Miller has asked self-incriminating provid- information so I motion, not file that but instead ed will not be used the defen- go the court allow ahead with these dant, then such information shall not be

proceedings.” Similarly, United States used in determining applicable guide- Billington, Cir.1988), ‍​​​‌‌​‌‌‌​‌‌‌​​​​‌‌​​​‌‌‌​​‌‌‌​‌​​​‌‌‌​‌‌​​​​​​​‍F.2d 445 range, line except provided to the extent “the defendant not only ratified his initial agreement. plea, guilty unequivocally refused to plea guilty withdraw his [when] lB1.8(a). U.S.S.G. This unques section court allowed him plea.” to reconsider his tionably forbids the government to influ Here, at Id. as in Billington, ence sentencing range by disclosing defendant’s dissatisfaction with the sen by revelations made a defendant in the imposed tence plea agreement under the cooperation course of required by as plea give does rise to a viable claim of agreement. See, e.g., United States v. constitutional dimension. Defendant Mil Shorteeth, (10th 887 F.2d 255-57 Cir. ler’s decision to abide the terms of his comment, 1989); 1B1.8, (n. U.S.S.G. 1). agreement after he obtained counsel probation officer, Statements made to a constitutes a any waiver of sixth amend however, cannot be as ment violation construed informa preceded that have may appointment provided tion “government” counsel. to the within meaning lB1.8(a). of section Unit Cf.

III. Perez-Franco, ed States v. (1st Cir.1989) (Federal Defendant 460-61 challenges Miller the dis Rule of Evi authority trict to consider state- dence “any which excludes statement Yes, Yes, A: sir. your A: Honor. THE you COURT: You understand that you THE COURT: And realize the United right attorney have a represent to have an to States Commission has issued sen- you you financially and that if cannot afford tencing guidelines your will affect that sen- attorney, an appoint the Court will an attor- you plead guilty? tence if ney you you anything? and it cost won’t Yes, your A: Honor. Yes, sir, that, your A: I understand Honor. light penalty THE COURT: In you THE COURT: Do want me to do that? you might you volved plead suffer if No, A: sir. guilty light and in all the difficulties of you represented THE COURT: Have ever representing yourself, your is it still desire to yourself any other matter? represent yourself give up your right and to No, A: sir. represented by lawyer? any THE COURT: In other criminal action? Yes, your A: Honor. No, A: sir. your entirely THE COURT: Is decision vol- realize, sir, you THE COURT: You are untary your part? cocaine, conspiracy to distribute Yes, sir, was, your A: it Honor. single as set out in this count of the Informa- THE COURT: The finds that you the de- you plead tion and guilty realize knowingly charge voluntarily fendant has impose this the Court an assess- will, therefore, you ment of $50.00 and waived his I could sentence to as counsel. many years prison you permit as 20 represent and fine him to himself. dollars; you much as one million do under- stand that? no reason sentencing. We see discretion plea discussions course of in the made Miller Defendant Id. at 576. authority,” so.” to do prosecuting attorney an guideline that, advent proba- made claims “statements not bar does presen- restriction the concomitant sentencing preparation officer tion discretion, Ninth As the judges’ report_”). of district tence under re probation officers Ninth Circuit’s recently explained, supporting rationale on behalf operate system pre- still uniformly to guideline Miranda to extend fusal arm of сourt, prosecutorial not the undercut. has been interviews by section contemplated sentenc guideline disagree. Under We Belgard, lB1.8(a).4 United resolve scheme, court must the district ing Cir.1990). (9th 1092, 1096-97 F.2d so, and, doing remains disputes factual argument and rec disregard second liberty The defendant’s proba presentence made in the concerning statements included ommendations amendment’s the fifth refers officer. officer compiled tion report in self-incrimination protection F.2d at Belgard, e.g., prophylactic formulate logic vites pre-guideline find the therefore We supervi our warnings presumably sentenc guideline relevant Baumann as the authority. Insofar sory Rogers, Accord ing. of his fifth for violation redress seeks Cir.1990). 917, 921-24 de Court’s Supreme rights, the amendment Murphy, in Minnesota cision IV. (1984), 1136, 79 L.Ed.2d 420, 104 S.Ct. requested. has relief

precludes thе challenge principal defendant’s privi the fifth amendment Murphy, Under application court’s district self- is not against self-incrimination lege on focuses guidelines meeting of the context executing in conduct,” “relevant of conceptualization 425, 104 at See id. officer. probation extensively in Sentenc discussed “since Consequently, [defen at 1141. S.Ct. to section Pursuant 1B1.3. ing Guideline § incriminating infor revealed dant Miller] be level “shall lB1.3(a)(2), base offense Fifth asserting his timely of instead mation all of ... such the basis on determined were his disclosures privilege, Amendment part were and omissions acts of Id. compelled incriminations.” not common or conduct course same of reject the likewise 1149. We 104 S.Ct. at convic as the or plan scheme of offense guideline suggestion defendant’s of respect to offenses solely with tion of the creation sentencing scheme warrants re 3D1.2(d) would for which § a character warnings to prophylactic Miranda-type5 multiple See of grouping counts[.]” quire presentence meet prior be administered added). lB1.3(a)(2) (emphasis U.S.S.G. § In Baumann officers. ings with section accompanying commentary (9th Cir. States, F.2d 565 v. United that, drug distribution “in a 1B1.3 states “Mi observed 1982), the Ninth drugs not types of case, quantities to our applied, never been randa has are to count of conviction in the specified inter presentence routine knowledge, to level determining the offense included be a district the benefit conducted views course the same part of they if were substantial of his exercise judge Arizona, v. Miranda "government” the term determination that 4.Our (1966). 1.8(a) does IB employed in section need to obviates probation officers clude 3D1.2(d), effect, any, which deals Sentencing § Guideline consider counts, requires closely-related promised in cooperation grouping of provide the failure to lB1.8(b)(3) deter- level is the offense "if grouping of counts § U.S.S.G. agreement. See plea quantity of (a) of ... the largely the basis shall not ("The subsection mined provisions of a con- Distribution involved[.]” substance information in use of applied to restrict falls within as cocaine such agree- cooperation trolled substance breach of is a event there ment.”). 1.2(d). section 3D purview of part or of a common Attorney conduct scheme or then office or plan as the count of conviction.” U.S.S.G. agents law enforcement involved in the comment, 1B1.3, (backg’d). Relying sentencing process.” short, Id. we upon language, this the district court viewed the uncharged inclusion of aggregated the total amount of cocaine in the total controlled figure substance admittedly sold the defendant over a used to set the base offense level as incon- period 20-month to arrive at a base offense sistent with the terms of the defendant’s level of 26. The defendant asserts that the plea agreement barring “additional rely upon district court was constrained to charges.” gram conspir- the 35.5 and the three-month plea agreement Defendant Miller’s sim- acy figures charged in the count of convic- ilarly guaranteed prosecution, no further tion. government’s promise but the to this effect Sailes, Our decision in United States v. predicated upon the defendant’s com- (6th Cir.1989), that, 872 F.2d 735 illustrates pliance with the terms of pleа agree- pursuant lB1.3(a)(2), to section the entire ment. Because both the defendant and the quantity of cocaine attributable to a distri- government agree that the defendant failed enterprise bution must be used to establish obligations to fulfill his under the conspirator the base offense level agreement, the concern addressed in Sil- undertaking. In- See id. 738-39. implicated Thus, verman is not here. we deed, Smith, in United directly must deal question (6th Cir.1989), we determined that con- uncharged whether conduct related to the charged duct in a count that was dismissed offense of convictioncan form the basis for plea agreement accordance with a should the base offense level. The district court establishing be considered the base of- held Guideline fense level if such conduct related to the 1B1.3(a)(2)requires cоnsideration of un- offense of conviction. id. at 107-08. conduct, agree. relevant and we conclusion, process reaching In the Frederick, e.g., United States observed consideration of “conduct (10th Cir.1990); F.2d 490 for which the defendant was not convicted Mocciola, (1st preguidelines practice.” is consistent with Cir.1989); Id. at 108 n. Allen, 143, 5. United States v. 886 F.2d 145 (8th Cir.1989); see also United States v. impact uncharged We addressed the 155, (7th Vopravil, Cir.1989); 891 F.2d 157 conduct, here, which is at issue in United Restrepo, but see v. United States 883 Silverman, (6th v. F.2d States 889 1531 781, (9th Cir.1989).7 F.2d 786 As the First Cir.1989), but resolved the case without explained, uncharged “whether direct reference to the “relevant conduct” drugs part plan are of a common scheme or provision guidelines. of the at See id. finding only is a factual we will if disturb Instead, we refused to include un- clearly Mocciola, erroneous.” 891 F.2d at сharged conduct in the base offense level case, 16. In this say we cannot calculation because the defendant’s district court’s inclusion cocaine sold agreement prohibited government from ” period over a 20-month as conduct related “fil[ing] charges’ ‘additional clearly to the offense of conviction was defendant. See id. We deduced that Accordingly, justifi- erroneous. we find no findings by effect of the the district “[t]he modifying cation for the defendant’s sen- may been, indirectly, court have at least upon charges,’ tence based district court’s treat- take into account ‘additional brought formally by the United States ment of relevant conduct.8 holding contrary Restrepo 7. The to the has 8. The defendant asserts that the inclusion of e.g., predating been criticized other circuits. Unit relevant effective date of Blanco, 907, (1st guidelines post Cir. violates the ex ed States v. 888 F.2d 910 clause of facto White, 490, Constitution, 1989), contrary and United States v. 888 F.2d but we reached a Ykema, (7th Cir.1989). conclusion in United States v. F.2d 497 887 1328 553, 549 -, V. 93; Cuellar-Flores, see 891 F.2d (1989); assignment of final The defendant’s Fox, 357, v. F.2d 889 States also United enhancement two-level relates

error testi- Cir.1989). Agent Nowinski’s (1st 360 possession court imposed by the the fire- presence of mony regarding of convic offense during the weapon aof by the defendant’s was corroborated arm 2D1.1(b)(1) Sentencing Guideline § tion. house, guns in the kept that admission (in weapon dangerous a provides “[i]f the asser- disputed although the during firearm) possessed was cluding a during any of present gun was tion that offense, by 2 increase of the commission Significantly, informant. the sales to Miller asserts Defendant levels.” 2D1.1 states: section commentary to evidence insufficient presented government possession weapon hearing to establish The enhancement at the danger of violence during any increased reflects the weapon of a presence weapons. possess drug traffickers the defen between when drug three transactions ap- should be adjustment it respect, In this The informant. [two-level] dant and it present, unless weapon plied if the preponderance is clear “[t]he weapon improbable that clearly contested applies standard evidence offense.... sentencing proceedings.” Silver was connected facts government man, “The F.2d at 889 comment, ‍​​​‌‌​‌‌‌​‌‌‌​​​​‌‌​​​‌‌‌​​‌‌‌​‌​​​‌‌‌​‌‌​​​​​​​‍3). (n. 2D1.1, U.S.S.G. § enhancement establish the burden bears en- upheld a two-level has Eighth Circuit Id.; see also factors, contestеd.”9 where 2D1.1(b)(2) based under section hancement F.2d Rodriguez, v. States of a firearm possession only “undenied on Cir.1990). (6th place where in the same and ammunition drug hearsay tes transac- introduced conducted defendant] [the Green, concerning States tions,” see United Nowinski agent timony of Scott Cir.1989), gun (8th and we similar- observation F.2d the informant’s Unit- drug finding. one course of such a during ly have affirmed nearby table McGhee, F.2d the informant. ed sale provides Cir.1989). the district 6A1.3 We review Sentencing Guideline § dispute finding that that, resolving any reasonable factual “[i]n during the sen the commission important firearm concerning possessed a factor only clear determination, of conviction the offense [district] Green, (citing without at 188 see error, information relevant consider also United 3742(e)); the rules see admissibility regard to its U.S.C. § trial, (6th Cir.), provided Perez, 47-48 аpplicable of evidence — denied, U.S.-, indicia has sufficient the (1989), accura find that probable its reliability 576 support L.Ed.2d clear- Moreover, recent was not the Fifth Circuit determination district court’s cy.” as guideline sec noted, commentary to ly ly “the erroneous. permits considera specifically

tion 6A1.3 AFFIRMED. hearings sentencing testimony at tion of trial.” admissible would Jr., Judge, F. MARTIN BOYCE Cuellar-Flores, United States concurring. Thus, Cir.1989). hearsay 92, (5th the 93 opinion upholding Judge Guy’s join I in this case was agent testimony of the defendant, Ha- upon the imposed sentencing hear admitted properly express Sciarrino, separately I write rold Miller. e.g., United ing. — “relevant conduct” denied, my concern cert. Cir.), 95, (3d F.2d 97 — denied, Guidelines[.]" Cir.1989), reduction (6th (1990). Rodriguez, F.2d -, S.Ct. Cir.1990). burden of Conversely, bears the a sentence lead to proving would "facts which by established hope сonsiderations Sentenc- that we shall reconsider our inter- ing guidelines Commission in the are over- pretation of the provi- “relevant conduct” broad. light sions in of the expressed concerns Judge Chief Merritt’s dissent. pointed by Judge

As out Guy, this circuit joined majority has in con- circuits

cluding guidelines allow a district MERRITT, Judge, Chief dissenting. court consider conduct not in an problem before us arises from the purpose indictment for the of determining need to interpret Sentencing Guidelines the base offense level for a defendant’s regarding uncharged relevant Smith, conduct sentence. See United States v. (6th Cir.1989); aggregation of uncharged United States v. offenses in Sailes, (6th Cir.1989). light 872 F.2d 735 We are of the superior legal principles of the bound those decisions unless an en banc enabling legislation authorizing the Guide- panel reading reverses their guide- of the lines and the provisions constitutional re- legitimate usage lines the issue of notice, garding self-incrimination, confron- relevant conduct in sentencing calculations. tation, waiver, process. and due case, In this interpretation circuit’s The one-count information in this case guidelines’ provi- relevant conduct charges that the willfully defendant “did sions in Smith and Sailes binds us to af- conspire, confederate agree firm the district application persons other to distribute approximately provisions. relevant conduct I disagree one-quarter one and ounces grams] of [35.5 Judge with Chief Merritt’s concerns that cocaine”—an calling offense for between provisions the “relevant conduct” raise con- 15 and 21 months incarceration under the difficulties. In stitutional United States v. Sentenсing Attempting Guidelines. to fol- Tucker, 443, 446-47, low the letter of the Sentencing Guidelines (1972), 30 L.Ed.2d 592 up- the Court commentary issued the Sentenc- general proposition held a district ing Commission, our Court affirms a sen- consider conduct including tence more than three additional defendant had not been for the convicted years (60 months) of incarceration imposed purposes determining the defendant’s 1,169.5 (distributing for a crime grams) for Smith, sentence. See 887 F.2d at 108 n. 5 which the defendant has never been con- (so interpreting Tucker). However, I charged. victed or even problem is Judge share Chief Merritt’s concern that sentence, that such guidelines, written, commentary like the adequate- do not ly itself, reflect the intent of the of the Commission Commission misin- regarding the use of “relevant conduct” in terprets enabling legislation authoriz- determining the sentence. thing It one ing the promulgation of the Guidelines. ‍​​​‌‌​‌‌‌​‌‌‌​​​​‌‌​​​‌‌‌​​‌‌‌​‌​​​‌‌‌​‌‌​​​​​​​‍to utilize the in positioning a defen- And, by unindicted, aggregating unconvict- range; dant within a determined quite it is ed crimes the one crime for which the another use the conduct to determine the convicted, sentence also range by setting itself offense base principles violates pro- fundamental of due guidelines While the appear level. to allow addition, cess. judge, in latter, and we have so interpreted them a valiant effort proce- to follow Guideline Smith, in Sailes and I now believe that we dures, process rights Miller’s violated due should re-examine the Commission’s intent by failing adequately to inform him of— regarding expansive this language and the misleading and him grave about—the risks usage of historical “relevant conduct” presentence investigation. he faced in the the relatively period contented in the feder- provision guideline enabling of the al system before the of the enactment net- legislation authorizing penal- guidelines. “incremental” Consequently, I tlesome con- Judge Guy’s analysis plainly requires cur in ties the of- this conviction of of case existing precedent under in this circuit imposed. fense for the sentence is which 1330 — denied, Cir.), (5th F.2d 101 Congress al- 872 994(l) (1988),1

In 28 U.S.C. § 88 -, penalty” U.S. “incremental adding an lows White, F.2d 888 v. States United (1989); is “con- where, a defendant where, only but Mann, v. Cir.1989); States United (7th committed multiple offenses 490 of victed States conduct,” Cir.1989); (8th not where United of F.2d 688 course 877 the same single Cir.1990), of- only of a (9th Restrepo, 648 is convicted 903 F.2d v. defendant he Cir.1989); in which period (9th during a time 781 reh’g 883 F.2d rev’g on fense for other offenses Frederick, 490 have committed v. also States United convicted. Alston, charged and is not v. States Cir.1990); United (10th to ex- read not be should The Guidelines Cir.1990). All of (11th these F.2d 1362 895 enabling granted the authority the ceed the fact overlook cases legislation. con statutory and its exceeded Commission applica writing this authority just that. case did in this stitutional judge trial relying on the note. the defendant tion He sentenced 1,169.5 grams of for Level Offense Base reading of the Guidelines permit To Level Base Offense the than rather cocaine enabling scope of only exceeds not only crime grams, 35.5 a sale of for principles it also violates legislation, only and the against defendant that “no requiring procedure constitutional guilty. pleaded defendant to which crime ... answer shall be held person followed so, District doing or indict- presentment crime, on a unless Base determining what Guidelines liberty ... deprivеd of ... be nor ment of convic- crime for the is Level Offense (Amendment law” process of due without judge 1B1.3 instructs Section tion. “in- be the accused V) requiring and for certain Level Offense the Base increase cause of and the nature formed relevant con- Part conduct.” “relevant trial right of accusation,” be accorded crimes, including defen- for certain duct confrontation rights by jury and part dant’s, any other conduct is VI). (Amendment process compulsory as the crime plan” same “scheme or case waived in this While says 2 note Application of conviction. pro- important constitutional of these some types to offenses lB1.3(a)(2) “applies § him, the lone count as to tections multiple counts convictions for which rights as to those validly waive not he did ...; multiple together groupеd would might for which all crimes required.” Guideline not convictions are govern- him. If the time indict at some comment, circuits, 2). (n. Most 1B1.3, aas imprison ment wants own, capitulated have including our cocaine, must it 1,169.5 grams seller without note application of this language that offense him of charge, try, and convict it behind legal basis looking at the a reasonable beyond proof its establish automatically and defendants allowed have rights validly doubt, him waive or have to be mechanically sentenced To do charge. guilty to plead charged or con- crimes Guidelines of law. process due less violates anything Sailes, F.2d v. States victed. United Winship, In re United States see also Cir.1989); (1970) 1068, 1072, L.Ed.2d Cir.1989); (1st Blanco, F.2d protects Clause (“[T]he Process Guerrero, Due United except upon against conviction Taplette, accusеd Cir.1988); (2d (B) multiple offenses committed Sentencing Com- different authorizes The statute times.... mission to added). 994(1)(1) (1988) (emphasis U.S.C. of- penalty for each impos[e] incremental an enabling incre- act allows language which the No case in in a fense convicted either offenses penalties for unconvicted of— mental in the same (A) multiple committed or “at different offenses of conduct" course “in the same of the exercise result in course times.” one more ancillary jurisdiction over or offenses; and proof beyond every a reasonable doubt of Twining Jersey, 78, 111, v. New 211 U.S. 14, 24, necessary (1908)(citations fact to constitute the crime with 29 S.Ct. 53 L.Ed. 97 omitted) charged.”). (right against which Here the self-incrimination [or she] trial). need not be pleaded guilty defendant has neither available state nor Cardozo, Justice still pre-incorpo- under the been tried for the crime for which he was doctrine, ration wrote that sentenced. by jury trial may be abolished. Indict- problems addition to other with this by grand ments jury may give way to case, the defendant did not receive ade- by informations public officer. The quate notice that his crime distributing privilege against may self-incrimination 1,000 grams over of cocaine or that this be withdrawn and put upon the accused crime imprison- called for 60 months of the stand as a witness for the state. requires ment. The Constitution that de- may What not be away taken is notice of allega- fendants receive fair notice of the charge adequate and an opportunity against tions requirement ap- them. This to be heard in defense of it. once, pears not twice. The Fifth Snyder Massachusetts, 97, 105, 291 U.S. provides by Amendment for fаir notice 330, 332, (1934)(cita- 78 L.Ed. 674 “presentment or indictment.” The Sixth omitted). wrote, tions As Justice Black similarly requires Amendment that a defen- principle No process of due is more clear- dant “be informed of the nature and cause ly established than that notice of the repetition of the accusation.” This specific charge, and a chance to be heard right significance indicates the in a trial of the by issues raised Founders attached to the to receive charge, desired, among are the consti- fair notice of the crime that a defendant rights tutional every accused against. must defend Because the infor- proceeding courts, criminal in all state or adequately mation this case did not in- federal. form the defendant of the “nature and Arkansas, 196, 201, Cole v. cause of the accusatiоn” that would be 514, 517, (1948). Thus, 92 L.Ed. 644 him, against made it violated the funda- light charges of the real for which the requirement guaranteed mental of notice sentenced, defendant was later the infor- by Rights. Bill general mation in this case violated the requirement only The notice stems principles process requiring of due fair no- specific language from the of the Constitu- tice to the defendant of the nature of the tion, but it also forms the cornerstone of crime which he him- must defend process. days due Even before the self. The by defendant was misled Supreme began apply provi- other charge proceedings and the course of the Rights sions of Bill to state court believing into that his crime was of a small-

proceedings, recognized the Court two re- magnitude er than the Guide- quirements that the Fourteenth Amend- lines mandate. imposed ment on the states: that the trial entire spectrum Almost the of Fifth and jurisdiction, court have and that rights granted Sixth Amendment opportunity there shall be notice and reading accused are denied the literal hearing given parties. Subject to and enforcement application note conditions, these two fundamental because, according the Guidelines to its universally prescribed seem to be in all procedure, ‍​​​‌‌​‌‌‌​‌‌‌​​​​‌‌​​​‌‌‌​​‌‌‌​‌​​​‌‌‌​‌‌​​​​​​​‍a defendant never be systems of law established civilized specific charge against him formed of the countries, up this court has to this time probation report until the issues. An in- laws, statutory ju- sustained all state or merely opens game dictment of defin- declared, dicially regulating procedure, crime, ing played which will be out trial, evidence and methods of and held later in the office and the sen- process hearing. them to be consistent due charge The real law. which the defendant will be sentenced will right to waived office, though the defendant probation in the up be drawn the counsel, court—whatever the the trial imposed without will be the sentence contrary— to the may suggest Guidelines right of confrontation hear- the defen- the basis of instruct obligation hearing by the court had still of an indictment he faced Instead hazards say possible information. dant about Instead, offenses of included including lesser proceeding. all rest of the say that Guidelines charged, the crime honest defendant “be court told the trial “great- all include should sentencing court be- probation officer” and candid as well. included offenses” er very helpful,” and person “that cause person for a working with “you will be sentencing system the old comparison, presen- if the Even long at 25. time.” J.A. from mechan- different completely probation officers meetings Although with the Guidelines. approach of istic fall under contemplated by before the Guidelines sentencing defendants judges trial 420, Murphy, receive information could the Guidelines Minnesota (no presented (1984) like that Mi- crimes about 79 L.Ed.2d additional Court, posi- they were not necessary for meet- warnings to the District randa-type by law to send defendant tively probation directed offi- post-imprisonment ing with influ- allow it to They it. could jail Smith, cer), instead of Estelle way, or limited in a judgment ence their (1981) it perhaps because ignore they could warnings (defendant it— Miranda must have mouth, per- own came from by psychi- investigation presentence before hearsay evidence—and it was haps because in this atrist), the uncounseled all. the sentence at it to affect not allow he could no idea that would have case course, days before the Guide- in the Of silent in front right to remain invoke to sentence decide lines, judges could trial officer, no idea probation imprisonment to no like Miller a defendant answering all legal consequences severe hour, one all, or to or to one parole at or questions. trial officer’s contention [amal- week. “The the defen- any notion that disspelled judge is consistent approach ... gamation] invoke the that he could may have had dant is, sentencing practice there- pre-Guideline telling him privilege. Instead 903 F.2d at fore, wrong.” Restrepo, silent, affirma- judge the trial remain could J., dissenting). The Guidelines (Pregerson, speak the defendant commanded tively restricting the range flatly now direct If candidly his soul. freely and bare—to We judgment. sentencing court’s best these not followed had the defendant change to this authorize allow should not structions, not face the Guide- he would prison for an person to additional sending a affirms majority lines sentence that uncharged and 1, 3, 10, years for or 30 today. the Guidelines conduct because unproved obviously pros- authori- invite the government, permit the The Guidelines indict- go outside the offenses ties or less serious to indict for ecutor crimes com- expand to look for other prove ment and and then easy to are charged proved. the one bine note with probation office. I in the them Rather, judges should use however, general concern, Guide- Guidelines, is, to they before did uncharged practice of aggregation lines to sentence how determine prosecutors eventually harm will crimes Base augment the range, not to within the trying follow are who Offense Level. jailing de- policy in favor Commission’s particular than the longer fendants troubling is also because This case First, it will de- permits. crime trying to again follow trial court— incen- willingness and stroy a defendant’s sentencing procedure seriously Guideline — cooperate with guilty and to plead tives making state- into misled the defendant prosecu- If neither the probation officers. which added probation officer ments predict the ex- can Al- tion nor years to his time. three more than of a defendant’s sentence on the basis tent charged,

of the crime more defendants will acquittal on an jury

take a chance subject

rather than themselves to the same (with possible point two reduc- accepting responsibility

tion for for the

crime) Second, guilty plea. after a if Unit- Attorneys pursue

ed States the dual Guide- practices aggregation

lines without no- plus

tice coerced self-incrimination and sen- confrontation, without Supreme begins

Court or the real- multiple

ize the constitutional violations

that the current procedure Guidelines rais-

es, spend then those offices large will defending

share of their time the United corpus habeas suits prosecuting U.S.C. rather than

new for criminals new crimes.

The CLEVELAND ELECTRIC COMPANY,

ILLUMINATING

Petitioner,

The OCCUPATIONAL AND SAFETY COMMISSION;

HEALTH REVIEW Secretary Labor, Elizabeth H. Duvin, (argued), Kenneth B. Stark Cahn Dole; America, Utility Workers Barnard, Cleveland, Ohio, petitioner. & for 270, Respondents. Local Ray Darling, Secretary, Occupational ‍​​​‌‌​‌‌‌​‌‌‌​​​​‌‌​​​‌‌‌​​‌‌‌​‌​​​‌‌‌​‌‌​​​​​​​‍No. 89-3516. Com’n, Safety Washing- Health Review & Appeals, United States Court of ton, D.C., respondent, Occupational Sixth Circuit. Safety & Health Com’n. Review Werthmann, Mick, Barbara J. Pat- Daniel Argued Feb. (argued), rick D. Gilfillan Orlando Pannoc- Aug. Decided hia, Labor, Sol., Dept, of Office of D.C., respondent, Washington, Eliza- Dole, Secretary beth Howard of Labor. Coughlin, Utility Michael J. Workers of America, 270, Cleveland, Ohio, Local America, Utility respondent, Workers of Local 270. MERRITT, Judge;

Before Chief NORRIS, Judges. KEITH and

Case Details

Case Name: United States v. Harold G. Miller

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 12, 1990

Citation: 910 F.2d 1321

Docket Number: 89-6067

Court Abbreviation: 6th Cir.