United States v. Kenneth O. Nichols

district to the remanded range be line mental defendant’s the regarding ' n court. join I committed. offense the time the majority in his Judge Suhrheinrich with the all light of in think I opinion because he result this case of circumstances Sentenc- just under and is fair reaches join in therefore I ing Guidelines. that opinion agreeing majority of whole America, of STATES UNITED the district remanded should the case Plaintiff-Appellee, understand- resentencing court has defendant this record on that there is that proving of his burden met not NICHOLS, Defendant- O. Kenneth mental normal from departure sufficient Appellant. a reduction to warrant capacity 91-5581. No. twenty- twenty-one range of guideline prison. months seven Appeals of Court United , Circuit. Sixth Judge, WELLFORD, Circuit Senior 28, 1992. Argued Jan. part. dissenting and part concurring in 6, 1992. Nov. Decided of part II.B. agreement with I am and would opinion Rehearing En Ban Judge Suhrheinrich’s Rehearing and re- the reversal concur therefore Feb. c Denied the district on resentencing based mand of acceptance belated erroneous court’s un- capacity” mental “diminished claim 5K2.13, p.s. Whether U.S.S.G. § der departing down- action court’s district discre- abuse was an basis on this ward determination an erroneous merely or

tion impor- is by the unsupported agree with I the same. result

tant —the adequate was no there the conclusion de- support diagnosis expert medical capac- mental diminished claim fendant’s time he period extended ity over concealing a com- executing, devising, against scheme fraudulent

plicated responsible as a he served in which bank

officer. part rationale adopt the I would were there If opinion.

II.A. I could agreement, plea ambiguity basis reasonable record not find gov- assume for district oppose “agree[d] not somehow ernment downward for a request the defendant’s parties clear It seems departure.” sen- “receive Johnson agreed that Sentencing range of within tence added). (emphasis Guidelines.” reached then, concur, the result I guide- within

the matter NELSON, Circuit JONES

Before: LIVELY, Circuit Senior Judges; Judge. Judge. JONES, Circuit R.

NATHANIEL Nichols, chal- Defendant, Kenneth the-sen- imposed the sentence lenges plea to guilty upon his tencing guidelines majori- A cocaine. distribute to conspiracy sen- has concluded the court ty of stat- reasons For affirmed. must be tence I following opinion, in Part II ed remand and sentence vacate resentencing. for I law-enforce- Georgia March On from a lead officers, acting on a ment dealer drug suspected wiretap of lawful Sledge sell Nichols Sledge, observed David office post cocaine in ounces three ar- Sledge were and Nichols lot. parking Nichols ensuing search rested, and the of co- ounces two yielded vehicle and his thou- five firearms, almost and caine, four dollars. sand subsequently charged and Nichols Georgia on bond released thereafter, became Nichols Soon courts. trafficking with cocaine further involved occasionally per- Harkins, who Robert Nich- jobs for construction various formed Har- supplied Nichols appears It ols. turn, Harkins, in cocaine, while kins with firearms. Nichols supplied for basis forming the in March genesis had its appeal present Harkins party contacted third when a to sell willing of individuals him and told Unbe- cocaine. quantities kilogram suppli- Harkins, the to knownst Nichols law-enforce- federal undercover ers were word passed Harkins ment officers. Harkins Nichols, asked who toon suppliers (argued Atty. Cook, U.S. Asst. H. Steven learning that Upon cocaine. price the Atty., U.S. briefed), Office , and $20,000 per kilo- asking were suppliers Cunningham, Jerry G. Knoxville, and Tenn. pur- agreed Harkins Nichols and gram, Atty., Chatta- of the U.S. Atty., Office point At some kilograms. five chase Tenn., plaintiff-appellee. for nooga, displayed transaction, Nichols to the assured and of cash full a box briefed), Harkins (argued B. Carter William funds sufficient he had Harkins Chattanooga, Paris, & Carter, Mabee asked transaction. complete the defendant-appellant. Tenn., 10, 1990, suppliers, appar- On to meet with the October Nichols was Harkins another arrest. ently charged that he could avoid in a so three-count indictment. bring Harkins to Nichols also instructed charged Count one Nichols and Harkins h testing to him kilogram one of cocaine conspiracy possess wit with intent to it, paying then return to the before cocaine, charged distribute and count two payment the full if the co- suppliers with attempt possess them with with intent to positive. caine tested cocaine, distribute in violation of 21 U.S.C. (amended 29, 1990) Nov. agents and the undercover met Harkins 21 U.S.C. Count three ..§ negotiate in Tennessee to a motel room charged Nichols and Harkins with travel purchase kilograms. of the five When ing in interstate commerce to facilitate a agents refused to allow Harkins to drug offense, trafficking in violation of 18 testing kilogram leave without 1952(a) (1988) (amended it, Nichols, U.S.C. telephoned Nov. for Harkins paying 1990). 10, 1990, deal. The On December Nichols who told him to call off the completed. pleaded guilty to count one of transaction was never the indict (cid:127)ment. September Nichols and Harkins met in of agreed to contact the undercover 1990 and presentence A filed report, on March agents again eye purchas- with an toward sentencing guideline range set a of agreement, to their cocaine. Pursuant 188 to 235 months. Nichols filed numerous agents negotiat- the Harkins contacted objections report, April to the and on 1 and $65,000 price kilograms for three ed a 29, 1991, April hearings the court held agreed cocaine further that the trans- objections. consider Nichols’ At the con- Cleveland, place fer take Tennes- would hearing, clusion of the second the district time, purchase see. This was to Harkins court announced that it would consider a testing, kilogram, one take it to Nichols for prior uncounseled misdemeanor conviction assuming positive, then it tested return to calculating criminal-history purchase remaining kilograms. two score. The court further indicated that it Meanwhile, Nichols would remain at a illegally consider evidence that would nearby only location to himself and known in the course of Nichols’ arrest seized Harkins. determining drug charges on state purchase September set where, guideline date was within the recommended meeting, 1990. Prior to the when Har- range, timely to sentence Nichols.1 This carry kins he asked Nichols whether should appeal followed. firearm, responded Nichols that Harkins his discretion. Harkins should use When II agreed-upon meeting place, at the arrived I first consider Nichols’ claim that the ensuing he re- was arrested. The search improperly district court considered a that Harkins carried a loaded fire- vealed uncounseled misdemeanor cal- conviction arm. culating criminal-history score under his Harkins, Unknown to Nichols and sur- sentencing guidelines. In Nichols veillance officers had observed them meet- driving pleaded nolo contendere to under ing together prior planned to the transac- (“DUI”), the influence of alcohol a misde- Approximately twenty tion. fifteen to min- meanor, fined for which Nichols was but arrest, utes after Harkins’ officers found repre- not imprisoned. not Nichols was emerging Nichols from a wooded area to- proceedings, in the DUI sented counsel truck, parked nearby. ward his In the court found that Nichols did and the below

.woods, $40,000 agents found cash hidden right knowingly waive his to counsel. stump. a tree A search of Nichols’ two-pronged Nichols advances a attack vehicle revealed a shoulder holster but no arrests, against counting of his conviction. firearm. Soon after the Harkins DUI First, cooperate decided to with the authorities. Nichols contends that the district opinion published F.Supp. 1. district court’s is at 763 277. comment, (backg’d). Id. imposed.” wrong version applied court sen- commentary instructs Thus, the sen- Nichols Because guidelines. prior uncounseled count tencing court court district April on

tenced in calcu- for DUI conviction guidelines, misdemeanor version applied history score. criminal lating a defendant’s November on effective became argues, pro- Nichols guidelines version The 1989 version applied have should court contrast, vides, by be- version as the guidelines, convic- a valid resulting [from] sentence con- criminal only after effective came histo- criminal in the counted to be tion is Because guilty. pleaded he to which duct score_ un- Also, if to count ry application challenges would conviction misdemeanor counseled undisputed to the guidelines sentencing, sentence imposition in the result novo. de is facts, review our circumstances imprisonment 1309, Edgecomb, States Constitu- the United violate Cir.1990). not be shall tion, then such sentence, the imposing a history score. criminal counted apply required normally comment, Thus, 1989). 6) (Nov. (n. Id. of sentenc the date effect guidelines requires guidelines the version of 1989 F.2d Jennings, 945 v. States ing. United misde- prior uncounseled a count court Cir.1991); 18 also see 1 129, 135 n. doing so would unless conviction meanor (1988). Nonethe 3553(a)(4), U.S.C. § If Constitution. States the United violate the at effect less, guidelines the when the offend would conviction the counting greater a for sentencing provide of time re- nothing more Constitution, effect than those imprisonment of term per- would guidelines of the versions cent crime, the of commission of time at the constitutional ignore a court mit thus, arise; problems post facto ex 1989 and Accordingly, under infirmity. excess a sentence impose may not of subsequent versions of the the version under permitted that of misdemeanor uncounseled an guidelines, crimi of the time at the in effect guidelines unless counted to be is for DUI v. States issue. at nal conduct Constitution. violate doing so 1 211, n. 213 947 Nagi, attack, ad Nichols line — second In his U.S. -, -, 112 S.Ct. a constitutional such precisely vances (1992). 230 2309, L.Ed.2d 119 Amend Sixth that the claim, contends and chal- present purposes For prior uncoun- a use of proscribes ment be- any differences that I believe lenge, a conviction, which for misdemeanor seled guidelines, version 1990 tween imposed, was not imprisonment sentence sentenced, and which a for imprisonment term of enhance should argues he version, which the 1989 recog parties Both subsequent conviction. op- The irrelevant. are applied, have been guaranteed to counsel right nize that is sec- guidelines provision erative to state applies Amendment Sixth by the commentary 4A1.2. tion through the Fourteenth felony proceedings provides “[c]on- that section version pro must Amendment, and that or un- intoxicated driving while victions with counsel defendant indigent vide (and offenses similar influence der the and intel competently defendant unless known) count- are they are name whatever Gideon right. See waives ligently Sentencing Commis- ed.” 342, 340, 335, 372 U.S. Wainwright, 4A1.2, com- Manual sion, Guidelines 794, 795, 9 L.Ed.2d 792, S.Ct. 1990) (Nov. 5) [hereinafter (n. ment. 109, 88 S.Ct. Texas, 389 U.S. Burgett In pro- further commentary U.S.S.G.]. held (1967), Court 258, sentences, otherwise “[pjrior vides prohibited also Amendment Sixth criminal counted excluded, to be are con felony uncounseled prior of a the use misde- score, uncounseled including history punish- a defendant’s to enhance viction imprisonment where sentences meanor subsequent ment for a offense under a uncounseled conviction does not [a]n be- state recidivist statute. at come more merely See id. reliable because the 258, 19 L.Ed.2d 319. accused has been validly S.Ct. convicted of a subsequent reason, offense. For this Hamlin, Argersinger 407 U.S. conviction which purposes is invalid for (1972), 32 L.Ed.2d S.Ct. imposing imprisonment sentence of right Court extended the Sixth Amendment for the offense itself remains invalid for prosecutions to counsel to misdemeanor purposes increasing a term of impris- defendant was sentenced to a onment for a subsequent conviction un- prison term. at at Id. repeat-offender der a statute.... [A] Noting that assistance of counsel is “[t]he rule that held a conviction invalid for requisite very often a to the existence of a imposing prison directly, term valid but trial,” fair id. at 92 S.Ct. at imposing prison term collaterally, right Court observed that the to counsel is illogical would be an de- unworkable particularly deprivation crucial where the previous viation from cases. and, person’s liberty at stake accord- 227-29, at (Marshall, Id. ingly, knowing held that “absent a J., concurring). Stewart, Justice also waiver, intelligent person may no be im- joined by Stevens, Brennan and Justices offense, prisoned any classi- whether subjecting held that a defendant to an in misdemeanor, petty, fied as felony, un- imprisonment creased term of solely on the represented by less he was counsel at his basis of a uncounseled misdemeanor trial,” 2012; id. at 92 S.Ct. at see also conviction violated the constitutional rule Illinois, 367, 373, Scott v. of Scott v. Illinois. Id. at 100 S.Ct. at (1979) (limiting right (Stewart, J., concurring). Justice to counsel in misdemeanor cases to those provided Blackmun the critical fifth vote. imprisonment imposed situations where is concurrence, In his separate Justice Black- punishment). as Scott, mun adhered to his dissent in in Illinois, 222, In Baldasar 446 v. U.S. 100 “bright ap which he advocated a line” 1585, (1980) (per S.Ct. 64 L.Ed.2d 169 cu- proach recognize right which would riam), the Court addressed whether an un- counsel punisha whenever the offense was conviction, counseled misdemeanor by imprison ble more than six months of imprisonment which no term of had been ment, regardless punishment of the actual imposed, could be used to enhance a defen- imposed, or whenever the defendant was imprisonment dant’s term of for a subse- actually subjected imprison term of quent 222, conviction. Id. at 100 S.Ct. at 229-30, ment. Id. at 100 S.Ct. at 1589 Although agreed, five Justices in a (Blackmun, J., concurring). curiam, per brief to strike down the use of supporting Given the rationales diverse an uncounseled misdemeanor conviction to result, Baldasar’s numerous courts have subsequent convert a misdemeanor into a questioned expresses the case any whether felony prison term, they with a so did single and, holding accordingly, large have reasoning based on the separate of three ly limited Baldasar to its facts. See Unit concurrences, garnered none of which 496, Castro-Vega, ed States v. 945 F.2d support of all five Justices. See id. at (2d Cir.1991); 499-500 United v. States 100 S.Ct. at 1586. (5th Eckford, 910 F.2d 218-20 & n. 8 Certainly the broadest rationale in Bal- Cir.1990); Schindler v. Clerk Circuit Marshall, dasar was that of Justice a Court, 715 F.2d 344 joined by concurrence Justices Brennan denied, cert. U.S. S.Ct. Noting and Stevens. that the Court in (1984); 79 L.Ed.2d 745 States Argersinger heavily had relied on the Robles-Sandoval, n. premise that an uncounseled conviction is Cir.), denied, sufficiently support depri- reliable to S.Ct. While I liberty, vation of Justice Marshall reasoned appreciate the reluctance of these courts reach, extend I Baldasar’s am nevertheless — U.S. -, (N.J.1990), cert. reading of even narrow convinced (1990); State un- prior of a use proscribes Baldasar 1986); (Kan. 576, 578-79 Priest, P.2d to en- conviction misdemeanor counseled (Me.1984). 671, 678 Dowd, 478 A.2d upon a subse- sentence State a defendant’s hance cannot, consis conviction uncounseled If an under quent conviction Amendment, support a Sixth tent with guidelines. exis initially, the imprisonment term Baldasar between parallels The does subsequent conviction tence cases in both substantial: case are instant imprisonment term an increased make a misde was convicted the defendant constitutionally conviction on that based provided no counsel for which meanor I conclude Accordingly, palatable. more waive did not the defendant for which counting erred court district both counsel; similarly, in right misdemeanor prior uncounseled Nichols’ imprison term defendant’s cases his criminal-histo calculating conviction conviction subsequent upon a ment sentencing guidelines. under ry score uncounseled upon the based enhanced having seen the panel on the colleagues My no I discern can conviction. misdemeanor dissent respectfully I differently, to matter upon which basis principled logical issue as to the judgment this court’s at bar. case from the distinguish Baldasar my opinion. part in this in Balda- discussed enhancement sentence That the penalty an enhanced sar resulted Ill misde defendant’s that converted statute case instant felony, while into a meanor contends, district next criminal-history provisions under the arises ob- considering evidence erred is a distinction sentencing guidelines, drug state arrest his 1988 during tained difference. constitutional without Georgia evidence that charges, Argersinger recognized right counsel product of as suppressed later courts defen that a the realization grounded' is coun- illegal seizure. une counsel, simply dant, unaided jurisdic- have does not this Court ters that defense, thus his or her prepare quipped claim, and that review tion to inher the uncounseled making event, consid- court, any properly lower Argersinger, See ently unreliable. evidence.2 ered “Left 31-32, at 2009-10. U.S. at reviewing the basis begin by We defendant] of counsel [a the aid without that the agree parties The jurisdiction. our proper without put on trial may be contested rely the on did district court ev incompetent upon charge, and convicted level, offense Nichols’ fixing evidence issue the idence, irrelevant or evidence sen the evidence most, weighed but at v. Ala Powell inadmissible.” or otherwise of his upper end at the tencing Nichols bama, months.3 range of guideline unreliability reaches (1932). This L.Ed. a sentence argues that The convic the where magnitude- constitutional is not range guideline applicable within liberty; of deprivation results tion jurisdiction scope of our The appealable. directly imposed is deprivation this whether U.S.C. by 18 governed is in this case irrelevant. analytically collaterally is a defendant 3742(a), provides which 1340, 1347 Laurick, § 575 A.2d See State language, we ambiguity this Despite the Id. refuse suggests that we 2. States also appeal, that the court find, this purposes of chal- ground that the issue on reach this suppressed evidence. upon sentence. affect Nichols’ relied lenged did not evidence of evidence preponderance finding In supported criminal existence court, impos- below, when a district noted 3. As it could conduct, stated district court exceeding range guideline ing with a a sentence really consid- without determination this "make ering months, "the reason twenty-four must J.A. 28. suppressed evidence.” ... point within particular aat imposing a sentence "may added, consider it The court (1988) 3553(c)(1) range.” § U.S.C. add- does lend [suppressed] evidence this conclusions.” factual the Court’s ed ballast Congress imposed under the has directed that may appeal a sentence “[n]o guidelines placed if the sentence limitation shall be on the informa concerning background, character, tion law;

(1) imposed violation person and conduct of a convicted of an (2) incor- imposed as a result of an offense which a court of the United States guide- application sentencing rect may purpose receive and consider for the lines; or imposing appropriate sentence.” 18 speci- than the sentence is greater sentencing U.S.C. § guideline range applicable in the fied guidelines incorporate statutory lan the extent that the sentence includes guage and instrüct the court to consider all imprisonment greater fine or term of ... in sentencing such information a defendant than the maximum established guideline range, within recommended range_ guideline prohibited by “unless otherwise See law.” 3742(a) (1988). 18 U.S.C. § (Nov. 1991)5; 1B1.4 id. § U.S.S.G. cf. 3742(a)(1) conclude that vests this We § 6A1.3(a) court, (permitting resolving § jurisdiction to review Nichols’ Court with disputes, factual to consider relevant infor claim. Nichols contends that the district regard admissibility mation without to its illegally court’s consideration of seized evi- provided under rules of evidence imposing sentence dence his violated sufficiently sup information is reliable to Fourth Amendment. Because Nichols con- port probable accuracy). its conced While sentence, constitutionality his tests the' all-encompassing scope of this stat challenge clearly subject is to review. his utory guideline language, Nichols as Pickett, 941 F.2d See United States serts that the district court’s on reliance (6th Cir.1991) (challenge to constitu- illegally during seized his 1988 tionality drug ratio used exclusionary arrest violates the rule em guidelines may be reviewed under pro in the Fourth Amendment’s bedded 3742(a)(1)); v. Hamil- United States § cf. scription' illegal searches and seizures. (6th Cir.1991) ton, (per agree statutory language We that the does curiam) (while depart refusal to downward claim; not resolve constitutional reviewed, may normally not where re- although Congress has considerable lati legal fusal is based on district court’s inter- determining rights tude in of criminal guidelines, pretation appellate defendants, rights may it not allocate these 3742(a)(1)). Thus, review in a manner offensive to the United States proceed to consider the merits of Nichols’ claim.4 Constitution. basis, Although defen- the United States cites two cases the court refused to review the arguably oppo challenge support dant’s to the district court’s refusal to from this circuit that conclusion, distinguishable. depart imposing downward in his sentence. Id. site both cases are (6th Sawyers, In United States v. F.2d 1217 902 Nichols, in contrast to the defendants in Saw- denied, -, Cir.1990), - U.S. cert. 111 S.Ct. yers Draper, argues and that the district court 2895, (1991), opined 115 L.Ed.2d 1059 the court rights sentencing violated his constitutional that, because the defendant’s sentence was with guideline range. top applicable him at the of the proper guideline range, precluded he was If a district court were to sentence a defendant appealing from his sentence under 18 U.S.C. top guideline range recommended at the Nothing opin Id. at 1221 n. § 3742. race, solely based on the defendant’s it is incon- ion, however, suggests chal that the defendant preclude ceivable that 3742 would this court lenged grounds; sentence on constitutional his considering challenge equal-protection moreover, proceeded the court to review the Likewise, to that sentence. because Nichols "nothing claim and concluded that there illegally contends that consideration of illegal improper or in the action comments evidence violated the Fourth seized ment, Amend- judge.” of the trial Id. at 1221. In United States may properly we are confident that we (6th Cir.1989), Draper, v. 888 F.2d 1100 his claim. review expressly held that a sentence within the citations, guideline range infra, sentencing guide- recommended "and otherwise 5. All to November, appealable valid' under § 3742. Id. at refer to the 1991 version of the lines added). (emphasis guidelines. 1105 On this more narrow

410 v. defendant); United States Jan guaran Amendment ment Fourth The is, 454, 3021, 3032, 433, 49 secure U.S. 96 S.Ct. people to be 428 right of tees “[t]he houses, papers, (1976) (permitting and ef use evi persons, L.Ed.2d 1046 in their by to fects, against illegally unreasonable searches seized state officials dence Const, IV. Ca proceedings); seizures.” U.S. federal civil used amend.. guarantee 351-52, to landra, exclusionary rule seeks at 94 S.Ct. at 6 414 U.S. the Fourth Amend rights under exclusionary secured (refusing apply rule illegally the use of by But v. ment see James proscribing grand jury proceedings). proceedings in criminal evidence obtained Illinois, 307, 319-20, 110 493 U.S. S.Ct. illegal search and against the victim (hold (1990) 655-56, 648, 107 L.Ed.2d 676 Calandra, 414 States v. seizure. prohibits exclusionary rule use of ing that 613, 619, 338, 347, 38 L.Ed.2d S.Ct. 94 U.S. impeach defense illegally seized evidence Ohio, 643, U.S. Mapp v. (1974); 367 see 561 defendant); One 1958 than other witness 1684, 1692, 6 1081 657, L.Ed.2d S.Ct. 81 Pennsylvania, v. Plymouth Sedan 380 States, 232 U.S. (1961); Weeks v. United 701-02, 1246, 1251, 693, 14 85 S.Ct. U.S. 344, 341, 393, 58 L.Ed. 652 34 S.Ct. exclusionary (applying L.Ed.2d 170 (1914). exclusionary per rule is not of an arti proceeding forfeiture rule aggrieved right sonal constitutional El law); of criminal cle used violation rather, device whose it is remedial party; States, 206, 223, v. 364 80 kins United U.S. deter future unlaw primary purpose 1437, 1447, (1960) (pro 4 L.Ed.2d 1669 S.Ct. Calandra, at police ful conduct. use, hibiting proceeding, in federal criminal however, Because, S.Ct. at 613. 94 illegally by state of evidence seized offi principal provides rule exclusionary . cials) guarantees through which means enforced, yet are This circuit has resolved Amendment the Fourth exclusionary exclusionary rule rule bars con inroads whether the “[s]erious matter, mean, serious inroads seized at practical illegally as a sideration of United States sentencing guidelines. fourth amendment.” on the Jewel, Cir.1991) v. F.2d 239 A circuits have confronted the number of (Easterbrook, J., concurring). however, issue, and have held that evidence officers, although inad illegally seized delineating the of the exclusion In reach trial, may nevertheless be con missible rule, ary has “examined Supreme Court determining a of defendant’s sidered will be the rule’s deterrent effect whether Unit See guidelines. fense level under achieved, the likelihood of weighed has 1256, 1261-62 Tejada, ed v. F.2d against the costs with such deterrence Lynch, (2d Cir.1992); United States v. the truth- holding information from reliable cert F.2d 1236-37 Krull, Illinois seeking process.” — denied, -, U.S. 340, 347, 107 U.S. S.Ct. United States (1992); L.Ed.2d general, L.Ed.2d 364 (D.C.Cir.1991), McCrory, cautiously in con has advanced the Court U.S. -, of the rule. sidering claims extension States v. (1992); Lopez-Mendoza, See, e.g., INS Torres, (3rd Cir.1991). 321, 325 3479, 3489, 1032, 1050, 104 urges this Court The United States exclusionary (1984) (refusing extend adopt the broad rule announced these deportation proceedings); rule civil illegally to hold that evidence seized cases Leon, 468 U.S. States v. investigation or arrest of a de during the L.Ed.2d 677 104 S.Ct. may crime of conviction be fendant pursuant (permitting seized use of evidence sentencing. at After careful considered officer acted in where defective warrant consideration, the rule faith); we refuse follow Ha United States good objective courts; instead, vens, 620, 627-28, by these we con endorsed exclusionary rule bars a (1980) (permitting clude that use 64 L.Ed.2d sentencing on ille- impeach- court’s reliance illegally seized evidence during investigation establishing or ar- the existence gaily seized of certain for the crime of convic- criminal conduct. It therefore rest of a defendant follows that excluding illegally determining in the defendant’s sen- seized evidence from tri- tion sentencing guidelines. permitting al its use sentencing tence under the but will corresponding result a decrease part from This conclusion follows exclusionary deterrent effect of the rule on changes sentencing wrought momentous practices. unconstitutional law-enforcement sentencing guidelines. by the federal Un- As Judge stated of the Easterbrook pre-guidelines practice, courts exer- der Appeals United States Court of for the virtually unlimited discretion in sen- cised Circuit, Seventh tencing statutory broad defendants within [bjefore using illegally November 1987 maxima and minima. See United States seized evidence in sentencing could not 446-47, Tucker, have been called a serious inroad on the 591-92, Further- exclusionary Judges rule. based their more, guarantee no that evi- there was on prosecutor sentences the crimes the upon play dence not relied at trial would a proved plus had the character of the significant role the district court’s deter- get steep defendant. To a sentence the defendant’s mination of a sentence. Conse- prosecutor needed to obtain a conviction quently, officials had little law-enforcement very charge multiple on one serious or illegally incentive to seize evidence Excluding less serious ones. the evi-. trial, thereby merely on forfeit its use at griev- dence from the case in chief awas vague hope might the evidence ous, mortal, prosecu- Today often blow. sentencing. influence the court at present only tors often at trial a small sentencing guidelines, have provable fraction of the defendant’s con- changed dramatically the calculus of costs duct. The rest is reserved for sentenc- underlying exclusionary and benefits ing.... Where once courts sentenced rigid determinacy rule. of the Given conduct, the offender and not the now guidelines, predict state officers can often courts sentence for crimes that were the quite accurately a defendant’s sentence re- subject charge of neither nor conviction. gardless precise allegations of the crimes, illegal- proving such additional upon count or counts which the defendant ly may play a central seized evidence Moreover, given disput- is convicted. of role it used to role—the same sort sentencing only ed facts at need estab- supporting play convictions on addi- evidence, by preponderance lished counts. tional 6A1.3, comment.; see U.S.S.G. Jewel, (Easterbrook, J., 239-40 947 F.2d.at Herrera, concurring).6 beyond rather than a reasonable doubt, Notwithstanding objection our to a state officers now have the some- perverse rely sentencing considering incentive to more court’s evidence ille what heavi- investigation ar ly gally during than trial to establish seized overriding importance for the crime of con facts that be of rest of the defendant viction, determining length presents a defendant’s of im- this case a somewhat dif scenario, prisonment example, tips the total amount ferent one that believe —for balance, prosecu drugs slightly, involved in a criminal scheme. As however result, sentencing Nich significant has to a tion’s favor. The evidence to which replaced principal objects, during seized his arrest in 1988 extent trial as forum ols Judge seizing illegally and introduc- Silberman of the United States Court of other evidence Appeals sentencing, nothing for the District of Columbia Circuit has to deter it at there seizing immediately made similar observations: them the evidence warrant, obtaining especially when police prosecution without If the know before- "greater” they get on a crime would lead hand that relatively can a conviction on a to a similar sentence. minor offense has a broad J., (Silberman, statutory sentencing range they McCrory, 930 F.2d at 71 concur- and that can guarantee by ring). a sentence near maximum sentence the defendant within charges, conduct where to drug involved on state range.8 guideline Nichols was for which recommended unrelated to that We base this char- in this case. convicted events fact that on the

acterization IV so 1988 arrest were surrounding Nichols’ challenges next the district sentencing Nichols as not fall within remote to to his offense lev provisions. decision increase conduct court’s guidelines’ relevant firearm, by possession Given discrete el two levels 1B1.3.7 U.S.S.G. See § 2Dl.l(b)(l) and the conduct of the pursuant arrests to section of the two nature based, 201.1(b)(1). we conclude they guidelines. were on which See U.S.S.G. § from sentenc- excluding evidence guilty conspiracy pos to pleaded Nichols subsequent conviction would not distribute, on cocaine intent to sess with purposes of the ex- sufficiently further the guidelines’ punishable under sec offense barring use at clusionary justify its rule to 2D1.4. id. 2D1.4. That section tion See § above, the exclu- stated sentencing. As 2D1.1, incorporates by reference section , comment, police conduct to deter sionary rule seeks (n. 3), provides see id. Amendment. A Fourth that violates the dangerous weapon (including a fire “[i]f illegal- consideration prohibiting the rule levels,” arm) by 2 possessed, increase during sentencing ly evidence seized 2Dl.l(b)(l). This court has consis id. § subsequent phase of a conviction tently possession of a firearm held that arguably provide crime unrelated 2D1.1(b)(1) under section “is attributable only unconstitutional limited deterrence commis co-conspirator present not Application practices. law-enforcement it long offense as constitutes sion as to the facts of this exclusionary rule reasonably foreseeable conduct.” United require necessarily the infer- case would Williams, 208, 211 F.2d States rule, that, police would absent the ence Tisdale, Cir.1990); accord United illegally to seize have an incentive (6th Cir.1992) (citing eyidence that the solely expectation on the States, Pinkerton might the defendant be used (1946)). 1180, 90 L.Ed. 1489 subsequent prophy- crime. Given the for a that his co- .Although Nichols concedes rule, exclusionary as purpose lactic Harkins, possessed a firearm conspirator, Supreme overly restric- Court’s well as the offense, he during the commission rule, we find our- interpretation of the tive carry a Harkins’ decision to insists that conclude that such an obliged to selves drug transaction was not firearm to the support ap- simply too frail to inference is Harkins, reasonably foreseeable. exclusionary rule plication of the testimony he asked undisputed offered Although are troubled that instance. to the deal immediately today may give insuffi- reach result we him, carry gun he should whether rights en- weight cient valuable him to whatev- and that Nichols advised do Amendment, we ne- shrined in the Fourth he The evidence also indicated er wished. that, compelled feel to hold vertheless of fire- purchased a number that Nichols illegally seized relation where evidence preced- in the months arms from Harkins that does fall within the conduct arrest, ing his and that these firearms were provisions of sentenc- relevant conduct drug Nichols’ and Harkins’ traf- linked to district court does ing guidelines, and the ficking activities. While this evidence rely on the evidence deter- not otherwise sentence, to establish actual might be insufficient the court mining the defendant’s knowledge, 2D1.1 does not demand determining section may consider such evidence did Given our conclusion that district 7. We note that the district court also considering challenged ensuing evi- err and the did not dence, consider Nichols' 1988 arrest contention, adjust ad- proceedings we need not address state court his criminal- States, 4A1.3(d) history pursuant that the evidence vanced the United score to U.S.S.G. fact, was, (e). legally seized. testimony drugs specified not in the count of convic was suffi- Harkins’ scienter. finding determining in court’s tion are to be included support cient they part reason- if possession firearm offense level were of the same Harkins’ foreseeable; sentencing guidelines part course of conduct or of a common ably preponder- plan as the demand no more. Because a scheme count of conviction.” comment, 1B1.3, supported (backg’d); the district U.S.S.G. see ance of the evidence § comment, 2D1.1, (n. 12) regard, (“Types affirm findings in this we also id. court’s § pos- quantities drugs specified sentence for of the increase Nichols’ during firearm the commission count of be considered in session of a level.”); determining the offense the offense. of Miller, 910 F.2d States v. 1326-27 — U.S. -, V L.Ed.2d 1065 that the district Nichols also claims provision in operative The this case is sec counting kilograms of court erred five 2D1.4, provides, in part, tion which relevant uncompleted prior, cocaine involved as follows: setting his base offense lev transaction If the defendant is convicted of an of- I, supra, in Part Harkins el. As set out involving negotiation fense to traffic into contact with undercover first came substance, weight controlled under concerning possi agents law-enforcement uncompleted negotiation in an distribu- early 1990. After Har cocaine deal ble applica- tion shall be used to calculate the $20,000 per kilo priced kins cocaine However, amount. ble where court agreed attempt to gram, he and Nichols finds that the defendant did not intend to kilograms agents purchase five reasonably produce capable and was not deal, $100,000. Nichols Prior to amount, producing negotiated of displayed large amount of cash to Har guideline shall exclude from the alleged enough it kins and calculation the amount that it finds the agents refused cover the deal. When produce and defendant did not intend to kilogram Harkins to take one to allow reasonably capable producing. was not of it, testing paying for Nichols for without Nichols, comment, telephoned Harkins who told Har 1). 2D1.4, (n. U.S.S.G. § September In kins to call off the deal. court determined that the earlier district agreed and Harkins to recon Nichols conduct transaction constituted relevant agents. attempt, Their at that tact the Nichols was accountable time, kilograms of purchase three co guidelines. review a district We agents caine from the formed basis is rele- court’s determination that conduct present conviction. for clear to the offense of conviction vant Silverman, error. States v. See United lB1.3(a) guidelines Section (6th Cir.1989). “shall provides the base offense level challenges to the dis- solely on the Nichols raises two be determined basis ... First, argues of a character for trict court’s decision. respect to offenses transaction, occurring ap- 1.2(d) grouping the earlier require 3D which § counts, prior to the proximately omis three multiple all such acts and months conviction, underlying his can- part of the same course of transaction sions that were “part same construed as plan conduct or common scheme or as the common scheme or course of conduct or offense conviction.” U.S.S.G. lB1.3(a), (a)(2); 3D1.2(d) plan” subsequent transaction that also id. as see § arrest. interrupted by his and Harkins’ (requiring grouping of counts the was “[w]hen Miller, disagree. upheld largely on the We offense level is determined quantities of,” alia, drug reliance on quantity “the district court’s basis inter twenty involved”). conspiracy spanning commentary involved in a substance that, setting offense drug “in a dis months section 1B1.3 clarifies defendant’s level, case, despite the fact that the count quantities types tribution extending enough to he conspiracy resentation Harkins that had alleged a only purchase supports 910 F.2d 1327. the cocaine the three months. at cash to over finding capable pro- that the of affirming the court’s that Nichols was conclusion rele uncharged constituted ducing negotiated distributions the funds for conduct, noted that the Accordingly, vant we amount. are satisfied that quantity “the entire guidelines require that that the the district court’s determination a en to distribution of cocaine attributable earlier transaction constituted relevant con- used to establish base terprise must be clearly not duct was Nichols’ erroneous. conspirator in the under offense level objections remaining the relevant con- to Id.; taking.” see also provisions duct are without merit. 766, (6th Cir.) (hold Hodges, 935 must consider all district court ing that VI during the lifetime of drug quantities sold matter, As final Nichols main — U.S. -, denied, conspiracy), cert. in refus tains that district court erred 206, 317, -, 251, S.Ct. grant to him a un two-level reduction case, disput (1991). In the instant guidelines der section 3E1.1 of the for ac parties same ed transaction involved the ceptance A responsibility. of reduction un (Harkins Nichols), the and same substance proper der 3E1.1 is the defen section “[i]f (the (cocaine), objectives pur and same clearly recognition dant demonstrates a cocaine) as kilogram quantities of of chase acceptance personal and affirmative of re for Nichols was con transaction sponsibility for his criminal conduct.” facts, the On these district court’s victed. 3El.l(a). respon Acceptance of U.S.S.G. § the earlier transaction was conclusion that sibility a left to is factual determination of part course conduct as of same court, sound discretion of the district clearly er subsequent transaction was not the court’s on this issue is determination roneous. clearly errone not be disturbed unless contends that earlier Nichols also Williams, ous. 940 F.2d United States not be counted because transaction should — denied, (6th Cir.1991), cert. he the deal its decided to call off -, 116 L.Ed.2d commentary to section consummation. 1.4, an 2D makes clear sentencing hearing, At the Nichols de- in an earlier transaction amount involved attempt nied involvement Harkins’ unless “the defendant should counted purchase kilograms the five of cocaine in produce and was did intend Spring despite persuasive reasonably negoti evi- capable producing comment, basis, 2D1.4, contrary. dence to On that ated amount.” U.S.S.G. § (n. 1) added); that Nichols’ (emphasis also district court concluded ad- see Gonzales, guilt complete.” 929 F.2d mission of was “less than States v. “ 2D1.4, Cir.1991) (under review, Upon nothing ‘the we find section J.A. drug being negotiated, even suggest amount in the record to that the district distribution, uncompleted clearly shall be court's determination was errone- the total amount in order used to calculate ous. ”) (quoting determine base level’ Perez, United States v. VII Cir.), cert. 492 U.S. imposed the district sentence (1989)). ar court is AFFIRMED. purchase,

ranged with Harkins kilo clearly purchase," intended to five NELSON, Judge, A.. Circuit DAVID grams of the undercover cocaine from concurring judgment. agents. only goal His frustrated n Judge opinion, In Part II his Jones agents when the refused to allow Harkins cogent explanation of kilogram testing presents very to leave one his with Moreover, paying rep- thinking it. out reasons for that our sister circuits course, problem, of v. The that Justice Mar- failing to read Baldasar have erred reasoning sup- shall’s did not command the Illinois, use, port majority of the court—and the (1980), proscribing the L.Ed.2d 169 as precedent has “reach” that Baldasar as pri- Sentencing purposes, Guidelines “uncounseled”, reasoning obviously depends on the misdemeanor convictions majority of the led each member to vote to resulting in incarceration. It seems not judgment of the reverse court. lower me, however, quar- real Judge that Jones’ circuits for mis- the other rel is not with Blaekmun, provided Justice who the criti- Baldasar, Justice Black- reading but with reversal, voté in cal fifth favor of made it joining Brennan and mun for not Justices very why clear he as he did: voted adher- concurring Mar- with Justice Stevens expressed ing to the view in his dissent shall. Illinois, 367, 389-90, 440 U.S. 99 Scott v. 1158, 1170, (1979), S.Ct. separate of the Because the rationale Justice Blaekmun felt that because Mr. by Marshall was not opinion filed Justice prior punisha- Baldasar’s misdemeanor was justices, I majority of the by endorsed by imprison- than six ble more months’ reading other which the believe that ment, repre- Baldasar because given the appeals have Baldasar courts of attorney by sented at the time of his I am decision is correct. authorized conviction, simply “in- the conviction was I Judge Lively agrees, and Part (cid:127) invalid, in Black- Being valid.” Justice following opinion represents thus of the view, “may not mun’s the conviction be the court on this issue. opinion Baldasar, enhancement.” support used to 230, (separate I 446 100 S.Ct. at 1589 U.S. J.) Blaekmun, concurrence of This is Jus- presented to precise question only reason for con- tice Blackmun’s stated was wheth Supreme Court Baldasar curring in the Court’s decision to reverse. an of misdemeanor conviction of er the Court, Supreme of the lawyer and who Unlike Justices fender who did not have are not free to the members of this court “may be used under was not incarcerated among Supreme pre- pick and Court penalty to convert a choose an enhanced statute cedents, following they like and re- those subsequent felony into a misdemeanor Supreme 222, they do not like. jecting 100 those prison term.” 446 U.S. at with a binding precedent on this supplied). (emphasis Court S.Ct. at 1585 defendant requires that we treat Supreme Four of the Court members constitutionally DUI conviction as Nichols’ may that such a conviction be concluded Illinois, 367, 99 v. 440 U.S. valid. Scott subsequent misdemeanor used to convert a (1979). L.Ed.2d 383 And S.Ct. 59 felony, into a while five members valid, it conviction was because the DUI may not be so used. Court concluded that it legitimate purpose— any can be used majority had If all five members far as including sentence enhancement—as reasoning by set forth concurred in the opinion is logic of Blackmun’s Justice separate opinion, Marshall his Justice concerned. might require logic of us Baldasar indeed, court, held that hold, bar, has that defendant Our own in the case at “evidence, prior uncounselled misde- “uncounseled” DUI conviction1 imprisonment determining for which the sen- meanor convictions could not be used may im- imposed used for felony cocaine conviction. was not be tence for his [] fact, validly may may he have point is unclear as to whether 1. In Mr. Nichols well have counsel," right district court right proceed- his to counsel in the DUI waived determined, waived his it, before ing; probation prepared on basis of the facts officer he told who report waiver. United States v. presentence “that he had con- that there was no valid Nichols, here (E.D.Tenn.1991). attorney F.Supp. tacted an and had been informed question propriety determi- attorney repre- of this that he did not need to be I do not matter, legal hearing, plead- but note that it be as a sented at the since he would nation Stating proof may be incorrect as a factual matter. nolo contendere.” that "[t]he Illinois, v. Foltz, imprisoned. Scott v. Charles purposes.” peachment 373-74, 1162- de Cir.1984), cert. U.S. (6th 834, 837 383, 388-389 L.Ed.2d nied, Estelle, Furthermore, this court (1985), citing Wilson L.Ed.2d 973 Griffin Cir.1979) Blackburn, F.2d 1044 1158, 1159 prior uneounseled that evidence held im- (1981). If defendant for which convictions misdemeanor jury used go imposed before was not prisonment had chosen therefore, Charles opened charges, felony drug purposes and impeachment con could have jury Foltz shows uses of such door for other in deter DUI his sidered as well: guilty or Mr. Nichols mining whether is valid Logically, if a conviction so, as being it strikes me That innocent. pains and imposing its own purposes the, least, judge a anomalous, that say case —it is valid ‘worst’ penalties —the prior to consider not be allowed should purposes. all sen determining what in conviction DUI (“But at 1046. F.2d [Footnote 594 cf. guilt has been estab impose once tence to Illinois_”) We v. Baldasar omitted.] lished. placing a reason compelling no see focus, sharper into anomaly comes on the introduction special exclusion that the statute observe perhaps, when stage of punishment evidence at such makes it manda- at case bar governing the Estelle, 625 F.2d at v. Wilson a trial.” impose “a sentencing court tory that 1159. may not be imprisonment which term of the Fifth Circuit employed by logic than not more years and than less in by this court v. Estelle Wilson in 841(b)(1)(B)(emphasis U.S.C. § life....” compel the Foltz seem to v. Charles would Baldasar, Mar- as Justice In supplied). misde prior a uncounseled that conclusion out, sen- point “[t]he was careful shall in result that did not conviction meanor actually received tence Baldasar] [Mr. calculating a in used imprisonment by statute been authorized have category un history criminal defendant’s U.S. conviction.” 446 previous but for the that is And Guidelines. Sentencing der present In the at 1587. 100 S.Ct. at Fifth by the reached exactly the conclusion up life contrast, case, a sentence by Eckford, v. in United States Circuit been authorized would have imprisonment Cir.1990). Recognizing F.2d 216 a or not there was whether statute precedent,” by prior Circuit Nich- in defendant it “bound previous DUI a sen there affirmed id. record.2 ols’ range deter guideline top of at the tence (the Fifth Circuit Estelle v. In Wilson prior uncoun- to two by reference mined in by our court followed decision that had not convictions that misdemeanor seled Foltz) ex- Fifth Circuit v. Charles Wil Following imprisonment. resulted as follows: pressed itself Estelle, Balda notwithstanding son v. the admission error in no “We find sar, court made these observa the Eckford prior as Wilson’s [un- the evidence tions: conviction.... misdemeanor counseled] ' Justice inconsistency between “The im- was not conviction Wilson' Fot this approach and Justice narrow Blackmun’s the Sixth It is well settled prisoned. has cloud- approach expansive Marshall’s re- do not Amendments and Fourteenth Baldasar decision. scope ed the to an counsel to afford quire questioned whether Many courts have mis- those defendant indigent criminal any persuasive au- expresses Baldasar the offender cases demeanor true, “departure” under Guidelines, support a ings sufficient Sentencing it is Under 3553(b). the record imposed U.S.C. Examination § a sen- have court could not might departure months, suggests such a case range absent of 168-210 tence outside conviction, been well have warranted. find- the court made unless the DUI during sentencing collateral use of uncoun- convictions thority on the misdemeanor See, Id. subsequent for a criminal offense.” convictions. seled misdemeanor (footnote omitted). Circuit e.g., Schindler v. Clerk of Cir.1983) Court, Castro-Vega, United States v. In (‘the provides little decision [Baldosar] (2d Cir.1991), petition cert. F.2d 496 precise factual guidance outside (Jan.1992), similarly, Ap the Court of filed denied, arose.’), cert. context in which it peals appar for the Second Circuit —which prior ently precedents comparable had no v. (1984); United States Robles-San Wilson Estelle Charles v. or our own doval, (9th Cir.) 693 n. 1 held, Foltz carefully rea decision — court in Baldosar divided (‘The such opinion, soned that it is not unconstitution to have way that no rule can be said count al to uncounseled misdemeanor resulted.’), convictions with no incarceration calcu (1981).” 2025, 68 L.Ed.2d 330 lating history a defendant’s criminal cate Eckford, United States 910 F.2d at gory Sentencing Guidelines. The (footnotes omitted). Sentencing noted that Second Circuit Commission, Background in its Comment Estelle, the Fifth Circuit Wilson (1990 ed.), 4A1.2 on Guideline had stated Baldosar explained, “essentially had [been] sentences, explicitly “[p]rior not other particular limited ... to its factual scenar- excluded, wise are to be counted in the con- prior io: ‘a uncounseled misdemeanor including score, uncoun- history criminal en- may not under an viction used [be] seled misdemeanor sentences where im penalty statute to convert a subse- hanced prisonment imposed.” was not F.2d 945 quent felony misdemeanor into a with a ” (emphasis by at 499 added the Second Circ 220, Eckford, prison term.’ 910 F.2d at Analyzing Baldosar uit).3 the same Estelle, v. at 1159 Wilson quoting 625 F.2d way the Fifth Circuit and others had done court on to ob- n. 1. went Eckford earlier, the Second Circuit found that “no subsequent opinions had rein- serve that upon all of common denominator ... which forced Wilson: in the Baldosar majority Justices Estelle, Thompson v. “In 642 F.2d 996 agreed” applicable in could be considered 1981), again A conclud Cir. Unit the case before it. 945 F.2d at 499-500. prior of a uncounselled ed that ‘evidence no im misdemeanor conviction holding explanation In further of its prisonment imposed may properly be was prior misdemeanor convictions uncounseled punishment phase introduced in the by used the manner directed Id. United States trial.’ at 998. In Guidelines, Sentencing the Second Circuit Smith, (5th Cir.1988), we 844 F.2d 203 this: said consid held that a court could problem posed “The in this case—cal prior defendant’s numerous un- er the history culating a defendant’s criminal convictions, counseled none of which re prior by relying part on a uncounseled imprisonment.” Eckford, sulted in different misdemeanor conviction —is at 220. from the situation in Baldasar. Bal dasar, prior en the defendant’s conviction the absence of reconsideration “[I]n banc,” concluded, materially altered the substantive of “this Court Eckford criminal empowered prior rea fense for which he could be held to disturb our by converting it from a Baldasar v. Illinois ly responsible soned decisions felony prison with a preclude the use of uncounseled misdemeanor to a does 5718, (1980).” Fed.Reg. originally proposed by Sentencing As Com mission, explic (Feb. 1990). would have the Comment stated The reference Baldosar itly Commission does not believe "[t]he dropped in the final version of the Com resulting inclusion of sentences from constitu ment, obviously could not have but that version valid, tionally misdemeanor con uncounseled adopted adherence to the view been without history victions in the criminal score is foreclos Register expressed in the Federal notice. Illinois, by ed Baldasar v. 100 S.Ct. U.S. clearly does not decades, the Court four its own that on offense term —an being “embedded” rule as view its In the instant counsel. right to trigger a of unrea- proscription Amendment’s mis- Fourth uncounseled case, used an court See, e.g., seizures. ap- searches and sonable to determine demeanor Calandra, 414 U.S. for a history category criminal propriate 613, 620, L.Ed.2d id. See felony. 94 S.Ct. already crime that ****** creat- judicially (the exclusionary rule “is safeguard Fourth designed to remedy ed any clear direction In the absence through its generally rights Amendment Court, given Supreme personal effect, than a rather deterrent holding, we of the Baldasar narrowness ag- party right of constitutional case.” extend Baldasar decline to Janis, grieved”); United States at 500. 3021, 3034, L.Ed.2d reached the conclusion Agreeing with States, (1976); Elkins v. United log- that is conclusion circuits —a sister our 1443-44, 216-17, it, own by our as I compelled, see ically reasons, (1960). For these v. Foltz —I would holding in Charles III of others, in Part I do not concur among the district judgment of affirm the in Parts opinion. I do concur Judge Jones’ of defendant the use insofar as I, IV, V, and VI. is con- DUI conviction “uncounseled” cerned.

II the conclusion agree with Although I AKRAWI, Petitioner- Eswood John did district court my colleagues Appellant, considering evidence which err in in defendant found officers police the state person— on his truck and pickup JABE, Warden, Respondent- John cocaine, consisting of loaded evidence Appellee. $2,800 cans, and weapons, oil false-bottom No. 91-1726. join not to some of prefer in cash —I court’s announce- accompany the

dicta Appeals, Court States United disposition of conclusion. Our ment of this Circuit. Sixth say, unnecessary it appeal makes this Sept. 1992. Argued agree disagree example, whether we Nov. Decided other Courts rule” that with the “broad respect adopted Appeals have Rehearing Banc Rehearing En inadmissible sentencing of evidence at use 16, 1992. Dec. Denied our individual trial.4 And whatever at “inter- on the merits views exclusionary rule that

pretation” of past over the has fashioned

Supreme Court apply exclusionary should rule required this have been decide 4. Courts that unconstitutionally usually proceedings not to address to evidence been careful issue have the case before sen solely the defendant’s raised facts issues not seized enhance Lynch, States, F.2d Verdugo them. In tence. See — U.S. -, denied, Cir.1991), cert. 610-13 (1992), exam L.Ed.2d 788 Powell, consisting panel of Justice ple, where situation, may exclusion be that the it Judge "de Judge Tjoflat Kravitch Chief only by ary can be rule’s rationale served exclusionary sen rule to extend the cline[d] to illegally excluding seized Judge Tjoflat’s opin tencing proceedings,” Chief sentencing." Lynch, at consideration this note: ion added 1237 n. 15. facts "We not address—because do do not raise issue—whether case

Case Details

Case Name: United States v. Kenneth O. Nichols

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 16, 1993

Citation: 979 F.2d 402

Docket Number: 91-5581

Court Abbreviation: 6th Cir.