OCTOBER TERM, 1993
Syllabus
NICHOLS v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 92-8556. Argued January 10, 1994-Decided June 6, 1994
After petitioner Nichols pleaded guilty to federal felony drug
charges, he was assessed criminal history points under the United
States Sentencing Guidelines, including one point for a state
misdemeanor conviction for driving while under the influence (DUI),
for which he was fined but not incarcerated. That point increased
the maximum sentence of imprisonment from 210 to 235 months.
Petitioner objected to the inclusion of his DUI conviction, arguing
that because he had not been represented by counsel in that
proceeding, considering it in establishing his sentence would
violate the Sixth Amendment as construed in Baldasar v. Illinois,
446 U. S. 222.
However, the District Court reasoned that Baldasar lacked a
majority opinion and thus stood only for the proposition that a
prior uncounseled misdemeanor conviction may not be used to create
a felony with a prison term. Since petitioner's offense was already
defined as a felony, the court ruled that Baldasar was inapplicable
and sentenced petitioner to a term of imprisonment 25 months longer
than it could have been had the DUI conviction not been considered.
The Court of Appeals affirmed.
Held: Consistent with the Sixth and Fourteenth Amendments, a
sentencing court may consider a defendant's previous uncounseled
misdemeanor conviction in sentencing him for a subsequent offense
so long as the previous uncounseled misdemeanor conviction did not
result in a sentence of imprisonment. Pp. 743-749.
(a) A year after this Court decided that a defendant charged
with a misdemeanor has no constitutional right to counsel where no
sentence of imprisonment is imposed, Scott v. Illinois,
440 U. S. 367, a majority
of the Court held in Baldasar that a prior uncounseled misdemeanor
conviction, constitutional under Scott, could not be collaterally
used to convert a second misdemeanor conviction into a felony under
the applicable Illinois sentencing enhancement statute. However,
that per curiam opinion provided no rationale for its result,
referring instead to three different concurring opinions to support
the judgment. This splintered decision has created great confusion
in the lower courts. pp. 743-746.
(b) Five Members of the Baldasar Court expressed continued
adherence to Scott. This Court adheres to that holding today, but
agrees
739
with the dissent in Baldasar that a logical consequence of the
holding is that an uncounseled conviction valid under Scott may be
relied upon to enhance the sentence for a subsequent offense, even
though that sentence entails imprisonment. Enhancement statutes do
not change the penalty imposed for the earlier conviction. Reliance
on the earlier conviction is also consistent with the traditional
understanding of the sentencing process, which is less exacting
than the process of establishing guilt. It is constitutional to
consider a defendant's past criminal conduct when sentencing, even
if no conviction resulted from that behavior, and the state need
prove such conduct only by a preponderance of the evidence.
McMillan v. Pennsylvania,
477 U. S. 79, 91. Thus, it
must be constitutionally permissible to consider a prior
misdemeanor conviction based on the same conduct where that conduct
is subject to proof beyond a reasonable doubt. Petitioner's due
process contention that a misdemeanor defendant must be warned that
his conviction might be used in the future for enhancement purposes
is rejected. Such convictions often take place in police or justice
courts, which are not courts of record, and thus there may be no
way to memorialize any such warning; and it is unclear how
expansive the warning would have to be. Pp. 746-749.
979 F.2d
402, affirmed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. SOUTER, J.,
filed an opinion concurring in the judgment, post, p. 749.
BLACKMUN, J., filed a dissenting opinion, in which STEVENS and
GINSBURG, JJ., joined, post, p. 754. GINSBURG, J., filed a
dissenting opinion, post, p. 765.
William B. Mitchell Carter, by appointment of the Court, 510 U.
S. 942, argued the cause for petitioner. With him on the briefs was
Mary Julia Foreman.
Deputy Solicitor General Bryson argued the cause for the United
States. With him on the brief were Solicitor General Days,
Assistant Attorney General Harris, Michael R. Dreeben, and Thomas
E. Booth.
*
* Susan N. Herman and Steven R. Shapiro filed a brief for
the American Civil Liberties Union as amicus curiae urging
reversal.
Kent S. Scheidegger and Charles L. Hobson filed a brief for the
Criminal Justice Legal Foundation as amicus curiae urging
affirmance.
740
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
In this case, we return to the issue that splintered the Court
in Baldasar v. Illinois,
446 U. S. 222 (1980):
Whether the Constitution prohibits a sentencing court from
considering a defendant's previous uncounseled misdemeanor
conviction in sentencing him for a subsequent offense.
In 1990, petitioner Nichols pleaded guilty to conspiracy to
possess cocaine with intent to distribute, in violation of 21 U. S.
C. § 846. Pursuant to the United States Sentencing Commission's
Guidelines (Sentencing Guidelines), petitioner was assessed three
criminal history points for a 1983 federal felony drug conviction.
An additional criminal history point was assessed for petitioner's
1983 state misdemeanor conviction for driving under the influence
(DUI), for which petitioner was fined $250 but was not
incarcerated.1 This additional criminal history point increased
petitioner's Criminal History Category from Category II to Category
lIP As a result, petitioner's sentencing range under the Sentencing
Guidelines increased from 168-210 months (under Criminal History
Category II) to 188-235 months (under Category III).3
1 At the time of his conviction, petitioner faced a maximum
punishment of one year imprisonment and a $1,000 fine. Georgia law
provided that a person convicted of driving under the influence of
alcohol "shall be guilty of a misdemeanor and, upon conviction
thereof, shall be punished by imprisonment for not less than ten
days nor more than one year, or by a fine of not less than $100.00
nor more than $1,000.00, or by both such fine and imprisonment."
Ga. Code Ann. § 40.6-391(c) (1982).
2 There are six criminal history categories under the Sentencing
Guidelines. United States Sentencing Commission, Guidelines Manual
(USSG) ch. 5, pt. A (Nov. 1993) (Sentencing Table). A defendant's
criminal history category is determined by the number of his
criminal history points, which in turn is based on his prior
criminal record. Id., ch. 4, p. A.
3 The Sentencing Table provides a matrix of sentencing ranges.
On the vertical axis of the matrix is the defendant's offense level
representing the seriousness of the crime; on the horizontal axis
is the defendant's criminal history category. The sentencing range
is determined by identifying the
741
Petitioner objected to the inclusion of his DUI misdemeanor
conviction in his criminal history score because he was not
represented by counsel at that proceeding. He maintained that
consideration of that uncounseled misdemeanor conviction in
establishing his sentence would violate the Sixth Amendment as
construed in Baldasar, supra. The United States District Court for
the Eastern District of Tennessee found that petitioner's
misdemeanor conviction was uncounseled and that, based on the
record before it, petitioner had not waived his right to counse1.4
763 F. Supp. 277 (1991). But the District Court rejected
petitioner's Baldasar argument, explaining that in the absence of a
majority opinion, Baldasar "stands only for the proposition that a
prior uncounseled misdemeanor conviction may not be used to create
a felony with a prison term." 763 F. Supp., at 279. Because
petitioner's offense was already defined as a felony, the District
Court ruled that Baldasar was inapplicable to the facts of this
case; thus, petitioner's constitutional rights were not violated by
using his 1983 DUI conviction to enhance his sentence.5 It
sentenced petitioner to the maximum term allowed by the Sentencing
Guidelines under its interpretation of Baldasar, a term 25 months
longer than if the misdemeanor conviction had not been considered
in calculating petitioner's criminal history score.
intersection of the defendant's offense level and his criminal
history category. Id., ch. 5, pt. A (Sentencing Table).
4 The Government contends that, even if Baldasar v. Illinois,
446 U. S. 222
(1980), prohibits using the prior uncounseled misdemeanor
conviction to enhance petitioner's sentence, the District Court
applied the wrong legal standard in finding no valid waiver of the
right to counsel. Based on Johnson v. Zerbst,
304 U. S. 458, 467-469
(1938), and Parke v. Raley,
506 U. S. 20, 28-29
(1992), the Government argues that petitioner failed to carry his
burden to establish the absence of a valid waiver of counsel. We
need not address this contention due to our resolution of the
Baldasar issue.
5 Petitioner's instant felony conviction was punishable under
statute by not less than 10 years' imprisonment and not more than
life imprisonment. See 21 U. S. C. §841(b)(1)(B);
979 F.2d
402, 413-414, 417-418
(CA6 1992).
742
A divided panel of the Court of Appeals for the Sixth Circuit
affirmed.
979 F.2d
402 (1992). After reviewing the fractured decision in Baldasar
and the opinions from other Courts of Appeals that had considered
the issue, the court held that Baldasar limits the collateral use
at sentencing of a prior uncounseled misdemeanor conviction only
when the effect of such consideration is to convert a misdemeanor
into a felony.6 The dissent, while recognizing that "numerous
courts have questioned whether [Baldasar] expresses any single
holding, and, accordingly, have largely limited Baldasar to its
facts," nevertheless concluded that Baldasar proscribed the use of
petitioner's prior uncounseled DUI conviction to enhance his
sentence under the Sentencing Guidelines. 979 F. 2d, at 407-408
(citations omitted).
We granted certiorari, 509 U. S. 953 (1993), to address this
important question of Sixth Amendment law, and to thereby resolve a
conflict among state courts 7 as well as Federal Courts of
Appeals.8 We now affirm.
6 The court also stated that its decision was "logically
compelled" by Charles v. Foltz,
741 F.2d
834, 837 (CA6 1984), cert. denied, 469 U. S. 1193 (1985), 979
F. 2d, at 415-416, 418 (" '[E]vidence of prior uncounselled
misdemeanor convictions for which imprisonment was not imposed ...
may be used for impeachment purposes' ").
7 Cf. Lovell v. State, 283 Ark. 425, 428, 678 S. W. 2d 318, 320
(1984) (Baldasar bars any prior uncounseled misdemeanor conviction
from enhancing a term of imprisonment following a second
conviction); State v. Vares, 71 Haw. 617, 620, 801 P. 2d 555, 557
(1990) (same); State v. Laurick, 120 N. J. 1, 16, 575 A. 2d 1340,
1347 (Baldasar bars an enhanced penalty only when it is greater
than that authorized in the absence of the prior offense or
converts a misdemeanor into a felony), cert. denied, 498 U. S. 967
(1990); Hlad v. State, 565 So. 2d 762, 764-766 (Fla. App. 1990)
(following the approach of JUSTICE BLACKMUN, thereby limiting
enhancement to situations where the prior uncounseled misdemeanor
was punishable by six months' imprisonment or less), aff'd, 585 So.
2d 928, 930 (Fla. 1991); Sheffield v. Pass Christian, 556 So. 2d
1052, 1053 (Miss. 1990) (Baldasar establishes no barrier to the
collateral use of valid, uncounseled misdemeanor convictions).
8The Sixth Circuit expressly joined the Fifth and Second
Circuits in essentially limiting Baldasar to its facts. See Wilson
v. Estelle,
625 F.2d
1158, 1159, and n. 1
(CA5 1980) (a prior uncounseled
misdemeanor convic-
743
In Scott v. Illinois,
440 U. S. 367 (1979), we
held that where no sentence of imprisonment was imposed, a
defendant charged with a misdemeanor had no constitutional right to
counseI.9 Our decision in Scott was dictated by Argersinger v.
Hamlin,
407 U. S.
25 (1972), but we stated that "[e]ven were the matter res nova,
we believe that the central premise of Argersinger-that actual
imprisonment is a penalty different in kind from fines or the mere
threat of imprisonment-is eminently sound and warrants adoption of
actual imprisonment as the line defining the constitutional right
to appointment of counsel." Scott, supra, at 373.
One year later, in Baldasar v. Illinois,
446 U. S. 222 (1980), a
majority of the Court held that a prior uncounseled misdemeanor
conviction, constitutional under Scott, could nevertheless not be
collaterally used to convert a second misdemeanor conviction into a
felony under the applicable Illinois sentencing enhancement
statute. The per curiam opinion in Baldasar provided no rationale
for the result; instead, it referred to the "reasons stated in the
concurring opinions."
tion cannot be used under a sentence enhancement statute to
convert a subsequent misdemeanor into a felony with a prison term),
cert. denied, 451 U. S. 912 (1981); United States v. Castro-Vega,
945 F.2d
496, 500 (CA2 1991) (Baldasar does not apply where "the court
used an uncounseled misdemeanor conviction to determine the
appropriate criminal history category for a crime that was already
a felony"), cert. denied sub nom. Cintron-Rodriguez v. United
States, 507 U. S. 908 (1992). But see, e. g., United States v.
Brady,
928 F.2d
844, 854 (CA9 1991) (Baldasar and the Sixth Amendment bar any
imprisonment in a subsequent case imposed because of an uncounseled
conviction in which the right to counsel was not waived).
9 In felony cases, in contrast to misdemeanor charges, the
Constitution requires that an indigent defendant be offered
appointed counsel unless that right is intelligently and
competently waived. Gideon v. Wainwright,
372 U. S. 335 (1963). We
have held that convictions gained in violation of Gideon cannot be
used "either to support guilt or enhance punishment for another
offense," Burgett v. Texas,
389 U. S. 109, 115
(1967), and that a subsequent sentence that was based in part on a
prior invalid conviction must be set aside, United States v.
Tucker,
404 U. S.
443, 447-449 (1972).
744
446 U. S., at 224. There were three different opinions
supporting the result. Justice Stewart, who was joined by JusTICES
Brennan and STEVENS, stated simply that the defendant "was
sentenced to an increased term of imprisonment
only because
he had been convicted in a previous prosecution in which he had
not had the assistance of appointed counsel in his defense,"
and that "this prison sentence violated the constitutional rule of
Scott .... " Ibid. Justice Marshall, who was also joined by
JUSTICES Brennan and STEVENS, rested his opinion on the proposition
that an uncounseled misdemeanor conviction is "not sufficiently
reliable" to support imprisonment under Argersinger, and that it
"does not become more reliable merely because the accused has been
validly convicted of a subsequent offense." 446 U. S., at 227-228.
JUSTICE BLACKMUN, who provided the fifth vote, advanced the same
rationale expressed in his dissent in Scott-that the Constitution
requires appointment of counsel for an indigent defendant whenever
he is charged with a "nonpetty" offense (an offense punishable by
more than six months' imprisonment) or when the defendant is
actually sentenced to imprisonment. 446 U. S., at 229-230. Under
this rationale, Baldasar's prior misdemeanor conviction was invalid
and could not be used for enhancement purposes because the initial
misdemeanor was punishable by a prison term of more than six
months.
Justice Powell authored the dissent, in which the remaining
three Members of the Court joined. The dissent criticized the
majority's holding as one that "undermines the rationale of Scott
and Argersinger and leaves no coherent rationale in its place."
Id., at 231. The dissent opined that the majority's result
misapprehended the nature of enhancement statutes that "do not
alter or enlarge a prior sentence," ignored the significance of the
constitutional validity of the first conviction under Scott, and
created a "hybrid" conviction, good for the punishment actually
imposed but not available for sentence enhancement in a later
prosecution.
745
446 U. S., at 232-233. Finally-and quite presciently-the dissent
predicted that the Court's decision would create confusion in the
lower courts. Id., at 234.
In Marks v. United States,
430 U. S. 188 (1977), we
stated that "[w]hen a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices,
'the holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest
grounds .... '" Id., at 193, quoting Gregg v. Georgia,
428 U. S. 153, 169, n. 15
(1976). This test is more easily stated than applied to the various
opinions supporting the result in Baldasar. A number of Courts of
Appeals have decided that there is no lowest common denominator or
"narrowest grounds" that represents the Court's holding. See, e.
g., United States v. Castro-Vega,
945 F.2d
496, 499-500 (CA2 1991); United States v. Eckford,
910 F.2d
216, 219, n. 8 (CA5 1990); Schindler v. Clerk of Circuit Court,
715 F.2d
341, 345 (CA7 1983), cert. denied, 465 U. S. 1068 (1984).
Another Court of Appeals has concluded that the holding in Baldasar
is JUSTICE BLACKMUN'S rationale, Santillanes v. United States
Parole Comm'n,
754 F.2d
887, 889 (CAlO 1985); yet another has concluded that the
"consensus" of the Baldasar concurrences is roughly that expressed
by Justice Marshall's concurring opinion. United States v.
Williams,
891 F.2d
212, 214 (CA9 1989). State courts have similarly divided.10 The
Sentencing Guidelines have also reflected uncertainty over
BaldasarY We think it not useful
10 See n. 7,
supra.
11 The 1989 version of the Sentencing Guidelines stated that, in
determining a defendant's criminal history score, an uncounseled
misdemeanor conviction should be excluded only if it "would result
in the imposition of a sentence of imprisonment under circumstances
that would violate the United States Constitution." USSG § 4A1.2,
Application Note 6 (Nov. 1989). Effective November 1, 1990, the
Sentencing Commission amended § 4A1.2 by deleting the above quoted
phrase and adding the following statement as background commentary:
"Prior sentences, not otherwise excluded, are to be counted in the
criminal history score, including uncoun-
746
to pursue the Marks inquiry to the utmost logical possibility
when it has so obviously baffled and divided the lower courts that
have considered it. This degree of confusion following a splintered
decision such as Baldasar is itself a reason for reexamining that
decision. Payne v. Tennessee,
501 U. S. 808, 829-830
(1991); Miller v. California,
413 U. S. 15, 2425
(1973).
Five Members of the Court in Baldasar-the four dissenters and
Justice Stewart-expressed continued adherence to Scott v. Illinois,
440 U. S. 367
(1979). There the defendant was convicted of shoplifting under a
criminal statute which provided that the penalty for the offense
should be a fine of not more than $500, a term of not more than one
year in jail, or both. The defendant was in fact fined $50, but he
contended that since imprisonment for the offense was authorized by
statute, the Sixth and Fourteenth Amendments to the United States
Constitution required Illinois to provide trial counsel. We
rejected that contention, holding that so long as no imprisonment
was actually imposed, the Sixth Amendment right to counsel did not
obtain. Id., at 373-374. We reasoned that the Court, in a number of
decisions, had already expanded the language of the Sixth Amendment
well beyond its obvious meaning, and that the line should be drawn
between criminal proceedings that resulted in imprisonment, and
those that did not. Id., at 372.
We adhere to that holding today, but agree with the dissent in
Baldasar that a logical consequence of the holding is that an
uncounseled conviction valid under Scott may be re-
seled misdemeanor sentences where imprisonment was not imposed."
USSG App. C, amdt. 353 (Nov. 1993). When the Sentencing Commission
initially published the amendment for notice and comment, it
included the following explanation: "The Commission does not
believe the inclusion of sentences resulting from constitutionally
valid, uncounseled misdemeanor convictions in the criminal history
score is foreclosed by Baldasar v. Illinois,
446 U. S. 222 (1980)." 55
Fed. Reg. 5741 (1990).
747
lied upon to enhance the sentence for a subsequent offense, even
though that sentence entails imprisonment. Enhancement statutes,
whether in the nature of criminal history provisions such as those
contained in the Sentencing Guidelines, or recidivist statutes that
are commonplace in state criminal laws, do not change the penalty
imposed for the earlier conviction. As pointed out in the
dissenting opinion in Baldasar, "[t]his Court consistently has
sustained repeat-offender laws as penalizing only the last offense
committed by the defendant. E.
g., Moore v. Missouri,
159 U. S. 673,
677 (1895); Oyler v. Boles,
368 U. S. 448, 451
(1962)." 446 U. S., at 232.
Reliance on such a conviction is also consistent with the
traditional understanding of the sentencing process, which we have
often recognized as less exacting than the process of establishing
guilt. As a general proposition, a sentencing judge "may
appropriately conduct an inquiry broad in scope, largely unlimited
either as to the kind of information he may consider, or the source
from which it may come." United States v. Tucker,
404 U. S. 443, 446
(1972). "Traditionally, sentencing judges have considered a wide
variety of factors in addition to evidence bearing on guilt in
determining what sentence to impose on a convicted defendant."
Wisconsin v. Mitchell,
508 U. S. 476, 485
(1993). One such important factor, as recognized by state
recidivism statutes and the criminal history component of the
Sentencing Guidelines, is a defendant's prior convictions.
Sentencing courts have not only taken into consideration a
defendant's prior convictions, but have also considered a
defendant's past criminal behavior, even if no conviction resulted
from that behavior. We have upheld the constitutionality of
considering such previous conduct in Williams v. New York,
337 U. S. 241 (1949). We
have also upheld the consideration of such conduct, in connection
with the offense presently charged, in McMillan v. Pennsylvania,
477 U. S. 79
(1986). There we held that
748
the state could consider, as a sentence enhancement factor,
visible possession of a firearm during the felonies of which
defendant was found guilty.
Thus, consistently with due process, petitioner in the present
case could have been sentenced more severely based simply on
evidence of the underlying conduct that gave rise to the previous
DUI offense. And the state need prove such conduct only by a
preponderance of the evidence. Id., at 91. Surely, then, it must be
constitutionally permissible to consider a prior uncounseled
misdemeanor conviction based on the same conduct where that conduct
must be proved beyond a reasonable doubt.
Petitioner contends that, at a minimum, due process requires a
misdemeanor defendant to be warned that his conviction might be
used for enhancement purposes should the defendant later be
convicted of another crime. No such requirement was suggested in
Scott, and we believe with good reason. In the first place, a large
number of misdemeanor convictions take place in police or justice
courts which are not courts of record. Without a drastic change in
the procedures of these courts, there would be no way to
memorialize any such warning. Nor is it at all clear exactly how
expansive the warning would have to be; would a Georgia court have
to warn the defendant about permutations and commutations of
recidivist statutes in 49 other States, as well as the criminal
history provision of the Sentencing Guidelines applicable in
federal courts? And a warning at the completely general level-that
if he is brought back into court on another criminal charge, a
defendant such as Nichols will be treated more harshly-would merely
tell him what he must surely already know.
Today we adhere to Scott v. Illinois, supra, and overrule
Baldasar.12 Accordingly we hold, consistent with the Sixth
12 Of course States may decide, based on their own constitutions
or public policy, that counsel should be available for all indigent
defendants charged with misdemeanors. Indeed, many, if not a
majority, of States
749
and Fourteenth Amendments of the Constitution, that an
uncounseled misdemeanor conviction, valid under Scott because no
prison term was imposed, is also valid when used to enhance
punishment at a subsequent conviction.
The judgment of the Court of Appeals is therefore
Affirmed.
JUSTICE SOUTER, concurring in the judgment.
I write separately because I do not share the Court's view that
Baldasar v. Illinois,
446 U. S. 222 (1980), has
a holding that can be "overrule[d]," ante, at 748, and because I
wish to be clear about the narrow ground on which I think this case
is properly decided. Baldasar is an unusual case, not because no
single opinion enlisted a majority, but because no common ground
united any five Justices. As I read the various opinions, eight
Members of the Baldasar Court divided, four to four, over whether
an uncounseled misdemeanor conviction that is valid because no
prison sentence was imposed, see Scott v. Illinois,
440 U. S. 367 (1979), may
be used for automatic enhancement of the prison sentence attached
to a subsequent conviction. See Baldasar, 446 U. S., at 224
(Stewart, J., joined by Brennan and STEVENS, JJ., concurring);
id., at 224-229 (Marshall, J., joined by Brennan and
STEVENS, JJ., concurring);
id., at 230-235 (Powell, J.,
joined by Burger, C. J., and White and REHNQUIST, JJ.,
dissenting).
guarantee the right to counsel whenever imprisonment is
authorized by statute, rather than actually imposed. See, e.
g., Alaska Stat. Ann. § 18.85.100 (1991) ("serious" crime
means any crime where imprisonment authorized); Ariz. Rule Crim.
Proc. 6.1(b) (indigent defendant shall be entitled to have attorney
appointed in any criminal proceeding that may result in punishment
by loss of liberty, or where court concludes that appointment
satisfies the ends of justice); Cal. Penal Code Ann. § 15 (West
1988), Cal. Penal Code Ann. § 858 (West 1985); Brunson v. State,
182 Ind. App. 146,394 N. E. 2d 229 (1979) (right to counsel in
misdemeanor proceedings guaranteed by Ind. Const., Art. I, § 13);
N. H. Rev. Stat. Ann. § 604-A:2 (1986 and Supp. 1992).
750
SOUTER, J., concurring in judgment
Instead of breaking the tie, the ninth Justice, JUSTICE
BLACKMUN, declined to accept the premise on which the others
proceeded (that the prior uncounseled conviction was valid under
Scott), adhering to his earlier position that an uncounseled
conviction of the sort involved in Baldasar was not valid for any
purpose. See 446 U. S., at 229-230 (BLACKMUN, J., concurring)
(discussing Scott, supra, at 389-390 (BLACKMUN, J., dissenting)).
Significantly for present purposes, JUSTICE BLACKMUN gave no
indication of his view on whether an uncounseled conviction, if
valid under Scott, could subsequently be used for automatic
sentence enhancement. On the question addressed by the other eight
Justices, then, the Baldasar Court was in equipoise, leaving a
decision in the same posture as an affirmance by an equally divided
Court, entitled to no precedential value, see United States v.
Pink,
315 U. S.
203, 216 (1942). Cf. Waters v. Churchill, ante, p. 661; ante,
at 685 (SOUTER, J., concurring); Book Named "John Cleland's Memoirs
of a Woman of Pleasure" v. Attorney General of Mass.,
383 U. S. 413 (1966)
(discussed in Marks v. United States,
430 U. S. 188, 193-194
(1977)).
Setting Baldasar aside as controlling precedent (but retaining
the case's even split as evidence), it seems safe to say that the
question debated there is a difficult one. The Court in Scott,
relying on Argersinger v. Hamlin,
407 U. S. 25 (1972), drew
a bright line between imprisonment and lesser criminal penalties,
on the theory, as I understand it, that the concern over
reliability raised by the absence of counsel is tolerable when a
defendant does not face the deprivation of his liberty. See Scott,
supra, at 372-373; see also Argersinger, supra, at 34-37
(discussing studies showing that "the volume of misdemeanor cases
... may create an obsession for speedy dispositions, regardless of
the fairness of the result") (footnote omitted). There is an
obvious and serious argument that the line drawn in Scott is
crossed when, as Justice
751
Stewart put it in Baldasar, a defendant is "sentenced to an
increased term of imprisonment only because he had been convicted
in a previous prosecution in which he had not had the assistance of
appointed counsel in his defense." 446 U. S., at 224 (concurring
opinion) (emphasis in original); see also
id., at 227
(Marshall, J., concurring) (petitioner's prison sentence "was
imposed as a direct consequence of [the previous] uncounseled
conviction and is therefore forbidden under Scott and
Argersinger").
Fortunately, the difficult constitutional question that argument
raises need not be answered in deciding this case, cf. Ashwander v.
TV A,
297 U. S.
288, 346-347 (1936) (Brandeis, J., concurring), for unlike the
sentence-enhancement scheme involved in Baldasar, the United States
Sentencing Commission's Guidelines (Guidelines) do not provide for
automatic enhancement based on prior uncounseled convictions. Prior
convictions, as the Court explains, serve under the Guidelines to
place the defendant in one of six "criminal history" categories;
the greater the number of prior convictions, the higher the
category. See ante, at 740, and n. 2. But the Guidelines seek to
punish those who exhibit a pattern of "criminal conduct," not a
pattern of prior convictions as such, see United States Sentencing
Commission, Guidelines Manual (USSG) ch. 4, pt. A (Nov. 1993)
(intro. comment.), and accordingly do not bind a district court to
the category into which simple addition places the defendant. Thus,
while the Guidelines require that "uncounseled misdemeanor
sentences where imprisonment was not imposed" are "to be counted in
the criminal history score," USSG App. C, amdt. 353 (Nov. 1993),
they also expressly empower the district court to depart from the
range of sentences prescribed for a criminalhistory category that
inaccurately captures the defendant's actual history of criminal
conduct. See
id., § 4A1.3. In particular, the Guidelines
authorize downward departure "where the court concludes that a
defendant's criminal his-
752
SOUTER, J., concurring in judgment
tory category significantly over-represents the seriousness of a
defendant's criminal history or the likelihood that the defendant
will commit further crimes." Ibid.
*
Under the Guidelines, then, the role prior convictions play in
sentencing is presumptive, not conclusive, and a defendant has the
chance to convince the sentencing court of the unreliability of any
prior valid but uncounseled convictions in reflecting the
seriousness of his past criminal conduct or predicting the
likelihood of recidivism. A defendant may show, for example, that
his prior conviction resulted from railroading an unsophisticated
indigent, from a frugal preference for a low fine with no counsel
fee, or from a desire to put the matter behind him instead of
investing the time to fight the charges.
Because the Guidelines allow a defendant to rebut the negative
implication to which a prior uncounseled conviction gives rise,
they do not ignore the risk of unreliability associated with such a
conviction. Moreover, as the Court observes, permitting a court to
consider (in contrast to giving conclusive weight to) a prior
uncounseled conviction is "consistent with the traditional
understanding of the sentencing process," under which a "judge 'may
appropriately conduct an inquiry broad in scope, largely unlimited
either as to the
* "Congress gave the Sentencing Commission authority to
'maintai[n] sufficient flexibility to permit individualized
sentences when warranted by mitigating or aggravating factors not
taken into account in the establishment of general sentencing
practices.' 28 U. S. C. § 991(b)(1)(B). The Commission used this
authority in adopting § 4A1.3, which it said was designed to
'recognizeE] that the criminal history score is unlikely to take
into account all the variations in the seriousness of criminal
history that may occur.' USSG §4A1.3 (commentary)." United States
v. Beckham,
968 F.2d
47, 54 (CADC 1992); see also United States v. Shoupe,
988 F.2d
440, 445
(CA3 1993) ("[I]n Guidelines § 4A1.3, the
Commission specifically provided district courts with flexibility
to adjust the criminal history category calculated through ...
rigid formulae"). Cf. Miller & Freed, Honoring Judicial
Discretion Under the Sentencing Reform Act, 3 Fed. Sent. R. 235,
238 (1991) (discussing "Congress' desire to leave substantial
sentencing discretion in the hands of the sentencing judge").
753
kind of information he may consider, or the source from which it
may come,'" at least as long as the defendant is given a reasonable
opportunity to disprove the accuracy of information on which the
judge may rely, and to contest the relevancy of that information to
sentencing. Ante, at 747 (quoting United States v. Tucker,
404 U. S. 443, 446
(1972)). Where concern for reliability is accommodated, as it is
under the Guidelines, nothing in the Sixth Amendment or our cases
requires a sentencing court to ignore the fact of a valid
uncounseled conviction, even if that conviction is a less confident
indicator of guilt than a counseled one would be. Cf. United States
Sentencing Commission, Sentencing Guidelines for United States
Courts, 55 Fed. Reg. 5741 (1990) (explaining that valid,
uncounseled convictions should be counted in determining a
defendant's criminal history category because the alternative would
"deprive the [sentencing] court of significant information relevant
to the purposes of sentencing").
I therefore agree with the Court that it is "constitutionally
permissible" for a federal court to "consider a prior uncounseled
misdemeanor conviction" in sentencing a defendant under the
Guidelines. Ante, at 748. That is enough to answer the
constitutional question this case presents, whether "[t]he District
Court should ... have considered [petitioner's] previous
uncounseled misdemeanor in computing [his] criminal history score"
under the Guidelines. Pet. for Cert. i; see also Brief for United
States I (stating question presented as "[w]hether it violated the
Constitution for the sentencing court to consider petitioner's
prior uncounseled misdemeanor conviction in determining his
criminal history score under the Sentencing Guidelines"). And
because petitioner did not below, and does not here, contend that
counting his 1983 uncounseled conviction for driving under the
influence placed him in a criminal-history category that
"significantly overrepresents the seriousness of [his] criminal
history or the likelihood that [he] will commit further crimes,"
USSG
754
§ 4A1.3, the Court properly rejects petitioner's challenge to
his sentence.
I am shy, however, of endorsing language in the Court's opinion
that may be taken as addressing the constitutional validity of a
sentencing scheme that automatically requires enhancement for prior
uncounseled convictions, a scheme not now before us. Because I
prefer not to risk offending the principle that "[t]he Court will
not 'anticipate a question of constitutional law in advance of the
necessity of deciding it,'" Ashwander, 297 U. S., at 346 (citation
omitted), I concur only in the judgment.
JUSTICE BLACKMUN, with whom JUSTICE STEVENS and JUSTICE GINSBURG
join, dissenting.
In 1983, petitioner Kenneth O. Nichols pleaded nolo contendere
to driving under the influence of alcohol (DUI) and paid a $250
fine. He was not represented by counsel. Under Scott v. Illinois,
440 U. S. 367
(1979), this uncounseled misdemeanor could not have been used as
the basis for any incarceration, not even a i-day jail sentence.
Seven years later, when Nichols pleaded guilty to a federal drug
charge, this uncounseled misdemeanor, used to enhance his sentence,
led directly to his imprisonment for over two years. The majority's
holding that this enhancement does not violate the Sixth Amendment
is neither compelled by Scott nor faithful to the concern for
reliability that lies at the heart of our Sixth Amendment cases
since Gideon v. Wainwright,
372 U. S. 335 (1963).
Accordingly, I dissent.
I
The Sixth Amendment provides: "In all criminal prosecutions, the
accused shall enjoy the right ... to have the Assistance of Counsel
for his defence." In Gideon v. Wainwright, this Court recognized
the "Sixth Amendment's guarantee of counsel" as "'fundamental and
essential to a fair trial,'"
id., at 342, because" '[e]ven
the intelligent and educated layman
755
.. requires the guiding hand of counsel at every step in the
proceedings against him,'" id., at 345, quoting Powell v. Alabama,
287 U. S. 45, 69
(1932).
Both the plain wording of the Amendment and the reasoning in
Gideon would support the guarantee of counsel in "all" criminal
prosecutions, petty or serious, whatever their consequences. See
Scott v. Illinois, 440 U. S., at 376, 379 (Brennan, J.,
dissenting). Although the Court never has read the guarantee of
counsel that broadly, one principle has been clear, at least until
today: No imprisonment may be imposed on the basis of an
uncounseled conviction. Thus, in Argersinger v. Hamlin,
407 U. S. 25 (1972), the
Court rejected a formalistic distinction between petty and
non-petty offenses and applied Gideon to "any criminal trial, where
an accused is deprived of his liberty." Id., at 32; id., at 41, 42
(Burger, C. J., concurring in result) (because "any deprivation of
liberty is a serious matter," no individual "can be imprisoned
unless he is represented by counsel").
A year later, Scott confirmed that any deprivation of liberty,
no matter how brief, triggers the Sixth Amendment's right to
counsel:
"Even were the matter res nova, we believe that the central
premise of Argersinger-that actual imprisonment is a penalty
different in kind from fines or the mere threat of imprisonment-is
eminently sound and warrants adoption of actual imprisonment as the
line defining the constitutional right to appointment of counsel.
... We therefore hold that the Sixth and Fourteenth Amendments to
the United States Constitution require only that no indigent
criminal defendant be sentenced to a term of imprisonment unless
the State has afforded him the right to assistance of appointed
counsel in his defense." 440 U. S., at 373-374.
Finally, although the Court, in Baldasar v. Illinois,
446 U. S. 222 (1980), in
one sense, was "splintered," ante, at 740, a
756
majority of the Court concluded that an uncounseled conviction
could not be used to support a prison term, either initially, to
punish the misdemeanor, or later, to lengthen the jail time for a
subsequent conviction. See Baldasar, 446 U. S., at 224 (Stewart,
J., concurring) (sentencing an indigent "to an increased term of
imprisonment
only because he had been convicted in a
previous prosecution in which he had
not had the assistance
of appointed counsel in his defense" violated Scott); 446 U. S., at
226 (Marshall, J., concurring) (even on Scott's terms, a "prior
uncounseled misdemeanor conviction could not be used collaterally
to impose an increased term of imprisonment upon a subsequent
conviction"); 446 U. S., at 230 (BLACKMUN, J., concurring)
(adhering to dissenting position in Scott that an uncounseled
conviction is invalid not only where the defendant is sentenced to
any actual incarceration but also where the defendant is convicted
of an offense punishable by more than six months in prison).l
1 I dissented in Scott v. Illinois,
440 U. S. 367 (1979), in
which five Members of the Court held that the Sixth Amendment
required counsel only for convictions that were punished by actual
imprisonment, and not for offenses that were punishable by
imprisonment, but where imprisonment was not imposed. Believing
that the line the Court drew did not protect indigent defendants
adequately or keep faith with our Sixth Amendment principles, I
argued for a right to counsel not only where the defendant was
convicted and sentenced to jail time, but also where the defendant
was convicted of any offense punishable by more than six months'
imprisonment, regardless of the punishment actually imposed. Id.,
at 389-390.
A year later, when the Court decided Baldasar v. Illinois,
446 U. S. 222
(1980), I adhered to this position, concurring in the Court's per
curiam opinion and its judgment that the uncounseled conviction
could not be used to justify increasing Baldasar's jail time.
Although I based my decision on my belief that the uncounseled
conviction was invalid in the first instance because Baldasar was
charged with an offense punishable by more than six months in
prison, I expressed no disagreement, and indeed had none, with the
premise that an uncounseled conviction that was valid under Scott
was invalid for purposes of imposing increased incarceration for a
subsequent offense. 446 U. S., at 229-230. Obviously, logic
dictates that, where the threat of imprisonment is enough to
trigger the Sixth
757
Thus, the animating concern in the Court's Sixth Amendment
jurisprudence has been to ensure that no indigent is deprived of
his liberty as a result of a proceeding in which he lacked the
guiding hand of counsel. While the Court has grappled with, and
sometimes divided over, extending this constitutional guarantee
beyond convictions that lead to actual incarceration, it has never
permitted, before now, an uncounseled conviction to serve as the
basis for any jail time.
II
Although the Court now expressly overrules Baldasar v.
Illinois, ante, at 748, it purports to adhere to Scott,
describing its holding as a "logical consequence" of Scott, ante,
at 746. This logic is not unassailable. To the contrary, as Justice
Marshall stated in Baldasar, "a rule that held a conviction invalid
for imposing a prison term directly, but valid for imposing a
prison term collaterally, would be an illogical and unworkable
deviation from our previous cases." 446 U. S., at 228-229
(concurring opinion). It is more logical, and more consistent with
the reasoning in Scott, to hold that a conviction that is invalid
for imposing a sentence for the offense itself remains invalid for
increasing the term of imprisonment imposed for a subsequent
conviction.
The Court skirts Scott's actual imprisonment standard by
asserting that enhancement statutes "do not change the penalty
imposed for the earlier conviction," ante, at 747, because they
punish only the later offense. Although it is undeniable that
recidivist statutes do not impose a second punishment for the first
offense in violation of the Double Jeopardy Clause, Moore v.
Missouri,
159 U. S.
673, 677 (1895), it also is undeniable that Nichols' DUI
conviction directly resulted in more than two years' imprisonment.
In any event, our concern here is not with multiple punishments,
but with reliability. Specifically, is a prior uncounseled
misdemeanor
Amendment's guarantee of counsel, the actual imposition of
imprisonment through an enhancement statute also requires the
appointment of counsel.
758
conviction sufficiently reliable to justify additional jail time
imposed under an enhancement statute? Because imprisonment is a
punishment "different in kind" from fines or the threat of
imprisonment, Scott, 440 U. S., at 373, we consistently have read
the Sixth Amendment to require that courts decrease the risk of
unreliability, through the provision of counsel, where a conviction
results in imprisonment. That the sentence in Scott was imposed in
the first instance and the sentence here was the result of an
enhancement statute is a distinction without a constitutional
difference.
The Court also defends its position by arguing that the process
of sentencing traditionally is "less exacting" than the process of
establishing guilt. Ante, at 747. This may be true as a general
proposition,2 but it does not establish that
2 In support of its position, the majority cites several cases
that refer to a sentencing judge's traditional discretion. The
cases provide scant, if any, support for the majority's rule
sanctioning the use of prior uncounseled convictions as the basis
for increased terms of imprisonment. None even addresses the Sixth
Amendment guarantee of counsel.
In
McMillan v.
Pennsylvania, 477 U. S. 79 (1986), the
Court held 5 to 4 that a state statute defining visible possession
of a firearm as a sentencing consideration that could be proved by
a preponderance of the evidence, rather than as an element of the
crime that must be proved beyond a reasonable doubt, did not
violate due process.
McMillan did not involve the use of a
prior conviction in a subsequent proceeding. Additionally,
McMillan involved only felony convictions, in which the
defendants were entitled to counsel at every step of the
proceedings to assist in proving or disproving the facts to be
relied on in sentencing. The Court also noted that the "risk of
error" in the challenged proceeding was "comparatively slight"
because visible possession was "a simple, straightforward issue
susceptible of objective proof." Id., at 84. The same cannot be
said for the reliability of prior uncounseled misdemeanors. See
Argersinger v.
Hamlin, 407 U. S. 25, 34 (1972)
(observing that the volume of misdemeanor cases "may create an
obsession for speedy dispositions, regardless of the fairness of
the result");
id., at 35 (noting that" '[t]he misdemeanor
trial is characterized by insufficient and frequently irresponsible
preparation,'" quoting Hellerstein, The Importance of the
Misdemeanor Case on Trial and Appeal, 28 The Legal Aid Brief Case
151, 152 (1970)). Moreover, a finding of visible possession did not
expose a defendant to a greater or
759
an uncounseled conviction is reliable enough for Sixth Amendment
purposes to justify the imposition of imprisonment, even in the
sentencing context. Nor does it follow that, because the state may
attempt to prove at sentencing conduct justifying greater
punishment, it also may rely on a prior uncounseled conviction. In
McMillan v.
Pennsylvania, 477 U. S. 79 (1986), for
example, the State was permitted to prove at sentencing that the
defendant visibly possessed a firearm during the commission of the
felonies of which he was convicted.3 Where, as in
McMillan,
the state sets out
additional punishment than otherwise authorized, McMillan, 477
U. S., at 88, while the prior conviction at issue here exposed
petitioner to two additional years in prison.
Wisconsin v. Mitchell,
508 U. S. 476 (1993), in
which the Court rejected a First Amendment challenge to a state
statute that enhanced a penalty based on the defendant's motive, is
no more helpful to the majority's position. The Court simply
observed that the defendant's motive was a factor traditionally
considered by sentencing judges; it said nothing about the validity
of prior convictions or even about the standard required to prove
the motive. Similarly, although United States v. Tucker,
404 U. S. 443, 446
(1972), made passing reference to a sentencing judge's broad
inquiry, it held only that Gideon v. Wainwright,
372 U. S. 335 (1963),
required resentencing where the sentencing court had considered
prior felony convictions that later were found to have been
uncounseled.
Finally, Williams v. New York,
337 U. S. 241 (1949), was
a Confrontation Clause challenge to a sentencing judge's
consideration of evidence obtained through a presentence
investigation. The court did not rely on any prior convictions; the
defendant, who was represented by counsel, did not challenge the
accuracy of the information the judge considered, ask the judge to
disregard it, or seek to refute or discredit it; and the
consideration of this information did not expose the defendant to a
greater or additional punishment.
3 McMillan, of course, was a due process case. Curiously,
the Court appears to rest its holding as much on the Due Process
Clause as on the Sixth Amendment. See ante, at 748. But even if the
use of a prior uncounseled conviction does not violate due process,
that does not conclusively resolve the Sixth Amendment question.
Compare Betts v. Brady,
316 U. S. 455, 462 (1942)
(holding that the right to counsel was not required under the Due
Process Clause of the Fourteenth Amendment and recognizing due
process as a "concept less rigid and more fluid than those
envis-
760
to prove actual conduct rather than the fact of conviction in a
sentencing proceeding at which the defendant is represented by
counsel, counsel can put the state to its proof, examining its
witnesses, rebutting its evidence, and testing the reliability of
its allegations. See Argersinger, 407 U. S., at 31 (the accused"
'requires the guiding hand of counsel
at every step in the
proceedings against him,'" quoting Powell v.
Alabama, 287 U.
S., at 69) (emphasis added). In contrast, where the state simply
submits a record of a conviction obtained in a proceeding in which
the defendant lacked the assistance of counsel, we lack similar
confidence that the conviction reliably reflects the defendant's
conduct.
Moreover, as a practical matter, introduction of a record of
conviction generally carries greater weight than other evidence of
prior conduct. Indeed, the United States Sentencing Commission's
Guidelines (Guidelines) require a district court to assess criminal
history points for prior convictions, and to impose a sentence
within the range authorized by the defendant's criminal history,
unless it concludes that a defendant's "criminal history category
significantly over-
aged in other specific and particular provisions of the Bill of
Rights"), with Gideon v. Wainwright, 372 U. S., at 339 (holding
that the Sixth Amendment requires counsel in all state felony
prosecutions).
Nor do I read the majority's reliance on due process to reflect
an understanding that due process requires only partial
incorporation of the Sixth Amendment right to counsel in state
courts. This Court long has recognized the "Sixth Amendment's
guarantee of counsel" as "'fundamental and essential to a fair
trial''' and therefore "made obligatory upon the States by the
Fourteenth Amendment." Id., at 342; see also Johnson v. Zerbst,
304 U. S. 458,
462 (1938) (the assistance of counsel "is one of the safeguards of
the Sixth Amendment deemed necessary to insure fundamental human
rights of life and liberty"); Grosjean v. American Press Co.,
297 U. S. 233,
243-244 (1936) ("the fundamental right of the accused to the aid of
counsel in a criminal prosecution" is "safeguarded against state
action by the due process of law clause of the Fourteenth
Amendment"). No decision of this Court even has intimated that the
Sixth Amendment right to counsel somehow is diluted or truncated in
state proceedings.
761
represents the seriousness of a defendant's criminal history or
the likelihood that a defendant will commit further crimes." United
States Sentencing Commission, Guidelines Manual § 4A1.3 (Nov.
1993). Realistically, then, the conclusion that a state may prove
prior conduct in a sentencing proceeding at which the defendant is
aided by counsel does not support, much less compel, a conclusion
that the state may, in lieu of proving directly the prior conduct,
rely on a conviction obtained against an uncounseled
defendant.4
4JUSTICE SOUTER concludes that this provision passes Sixth
Amendment muster by providing the defendant a "reasonable
opportunity" to disprove the accuracy of the prior conviction.
Ante, at 753. Even assuming that the Guidelines would permit a
sentencing court to depart downward in response to a defendant's
claim that his conviction resulted from his lack of sophistication
or his calculation that it was cheaper to plead and pay a low fine
than to retain counsel and litigate the charge, such a safety valve
still does not accommodate reliability concerns sufficiently. As
Chief Justice Burger recognized in Argersinger, "[a]ppeal from a
conviction after an uncounseled trial is not likely to be of much
help to a defendant since the die is usually cast when judgment is
entered on an uncounseled trial record." 407 U. S., at 41
(concurring opinion). A collateral proceeding holds forth no
greater promise of relief. The uncounseled misdemeanor convictions
that are considered inherently unreliable under Argersinger and
Scott are presumptively valid under most sentence enhancement
schemes, see, e. g., Custis v. United States, ante, p. 485
(limiting a defendant's right to attack as unconstitutional a prior
conviction used to enhance a sentence under the Armed Career
Criminal Act of 1984, 18 U. S. C. § 924(e)); Parke v. Raley,
506 U. S. 20
(1992) (presumption of validity that attaches to final judgments
properly extended to prior convictions used for sentence
enhancement under a state recidivism statute), and are
presumptively reflected in a defendant's criminal history score-and
sentence-under the Guidelines, see United States Sentencing
Commission, Guidelines Manual App. C, amdt. 353 (Nov. 1993) ("Prior
sentences, not otherwise excluded, are to be counted in the
criminal history score, including uncounseled misdemeanor sentences
where imprisonment was not imposed").
Moreover, although it might be salutary for courts to consider
under the Guidelines a defendant's reasons other than culpability
for pleading nolo contendere to a prior misdemeanor conviction, I
do not share JUSTICE
762
III
Contrary to the rule set forth by the Court, a rule that an
uncounseled misdemeanor conviction never can form the basis for a
term of imprisonment is faithful to the principle born of Gideon
and announced in Argersinger that an uncounseled misdemeanor, like
an uncounseled felony, is not reliable enough to form the basis for
the severe sanction of incarceration. This Court in Gideon stated
that "reason and reflection require us to recognize that in our
adversary system of criminal justice, any person haled into court,
who is too poor to hire a lawyer, cannot be assured a fair trial
unless counsel is provided for him." 372 U. S., at 344. Gideon
involved a felony, but we recognized in Argersinger, 407 U. S., at
31, that counsel was "often a requisite to the very existence of a
fair trial" in misdemeanor cases, as well. In the absence of this
"assurance" of or "requisite" to a fair trial, we cannot have
confidence in the reliability of the conviction and, therefore,
cannot impose a prison term based on it.
These reliability concerns have prompted this Court to hold that
an uncounseled felony conviction cannot later be used to increase a
prison term under a state recidivist statute, Burgett v. Texas,
389 U. S. 109
(1967), nor even be considered by a court in sentencing for a
subsequent conviction, United States v. Tucker,
404 U. S. 443 (1972). The
Court offers no reason and I can think of none why the same
rules
SOUTER'S confidence that such a benevolent review of a
defendant's circumstances is occurring now. Even if it were, a
district court, after the most probing review, generally may depart
downward only in "atypical" cases, outside the "heartland" carved
by each guideline, United States Sentencing Commission, Guidelines
Manual, ch. 1, pt. A, comment., 4(b) (Nov. 1991). This does not
alleviate our concern in Argersinger that the "typical" misdemeanor
case presents pressures to plead guilty or nolo contendere,
regardless of the fairness or accuracy of that plea. 407 U. S., at
34-36. Accordingly, I find the district court's authority to depart
downward too tenuous a check on the use of unreliable misdemeanor
convictions to salvage a sentencing scheme that is, in my view, a
violation of Scott.
763
should not apply with regard to uncounseled misdemeanor
convictions. Counsel can have a profound effect in misdemeanor
cases, where both the volume of cases and the pressure to plead are
great. See Argersinger, 407 U. S., at 36 (" '[m]isdemeanants
represented by attorneys are five times as likely to emerge from
police court with all charges dismissed as are defendants who face
similar charges without counsel,'" quoting American Civil Liberties
Union, Legal Counsel for Misdemeanants, Preliminary Report 1
(1970)); Baldasar, 446 U. S., at 228, n. 2 (Marshall, J.,
concurring) (recognizing that misdemeanor convictions may be less
reliable than felony convictions because they are obtained through
"assembly-line justice" and because jurors may be less scrupulous
in applying the reasonable-doubt standard to a minor offense).
Given the utility of counsel in these cases, the inherent risk of
unreliability in the absence of counsel, and the severe sanction of
incarceration that can result directly or indirectly from an
uncounseled misdemeanor, there is no reason in law or policy to
construe the Sixth Amendment to exclude the guarantee of counsel
where the conviction subsequently results in an increased term of
incarceration.
Moreover, the rule that an uncounseled misdemeanor conviction
can never be used to increase a prison term is eminently logical,
as Justice Marshall made clear in Baldasar:
"An uncounseled conviction does not become more reliable merely
because the accused has been validly convicted of a subsequent
offense. For this reason, a conviction which is invalid for
purposes of imposing a sentence of imprisonment for the offense
itself remains invalid for purposes of increasing a term of
imprisonment for a subsequent conviction under a repeatoffender
statute." Id., at 227-228 (concurring opinion).5
5 From another perspective, the prior uncounseled conviction can
be viewed as a "hybrid" conviction: valid for the purpose of
imposing a sentence, but invalid for the purpose of depriving the
accused of his lib-
764
Finally, this rule is workable. As the Court has engaged in
"constitutional line drawing" to determine the "precise limits and
... ramifications" of Gideon's principles, Scott, 440 U. S., at
372, it has sought to draw a clear line, one that adequately
informs judges, prosecutors, and defendants of the consequences of
their actions and decisions. Under the clear rule that an
uncounseled misdemeanor conviction can never justify any term of
imprisonment, the judge and the parties will know, at the beginning
of a misdemeanor trial, that no imprisonment may be imposed,
directly or collaterally, based on that proceeding, unless counsel
is appointed to represent the indigent accused. See Argersinger,
407 U. S., at 42 (Burger, C. J., concurring in result). Admittedly,
this rule might cause the state to seek and judges to grant
appointed counsel for more indigent defendants, in order to
preserve the right to use the conviction later for enhancement
purposes. The Sixth Amendment guarantee of counsel should not be
subordinated to these costs. See
id., at 43, 44 (Burger, C.
J., concurring in result) (accepting that the Court's holding would
require the appointment of more defense counsel). In any event, the
majority's rule, which exposes indigent defendants to substantial
sentence enhancements on the basis of minor offenses, may well have
the same result by encouraging more indigent defendants to seek
counsel and to litigate offenses to which they other-
erty. See Baldasar, 446 U. S., at 232 (Powell, J., dissenting).
There is nothing intuitively offensive about a "hybrid." See
id., at 226 (Marshall, J., concurring) (noting and accepting
that Baldasar's conviction was not valid for all purposes); see
also 15 U. S. C. § 16(a) (certain consent decrees or consent
judgments in favor of the Government in a civil or criminal
antitrust action shall not be prima facie evidence in a subsequent
proceeding brought by another party); § 16(h) (district court
proceedings leading to a consent judgment proposed by the
Government are inadmissible as evidence in subsequent proceedings);
10 J. von Kalinowski, Antitrust Laws and Trade Regulation §
105.02[10], p. 110 (1993) ("[A]llegations based on pleas of nolo
contendere in government suits, and the judgments entered thereon,
should not be included in the complaint" in a subsequent
action).
765
wise might have pleaded. This case is illustrative. When charged
with driving under the influence, petitioner sought out an
attorney, who told him that he did not need a lawyer if he was
pleading nolo contendere. This advice made sense if a $250 fine was
the only consequence of the plea. Its soundness is less apparent
where the consequences can include a 2-year increase in a prison
sentence down the road.
IV
With scant discussion of Sixth Amendment case law or principles,
the Court today approves the imposition of two years of
incarceration as the consequence of an uncounseled misdemeanor
conviction. Because uncounseled misdemeanor convictions lack the
reliability this Court has always considered a prerequisite for the
imposition of any term of incarceration, I dissent.
JUSTICE GINSBURG, dissenting.
In Custis v. United States, ante, p. 485, the Court held that,
with the sole exception of convictions obtained in violation of the
right to counsel, a defendant in a federal sentencing proceeding
has no right to attack collaterally a prior state conviction used
to enhance his sentence under the Armed Career Criminal Act of
1984. This case is dispositively different.
Custis presented a forum question. The issue was where, not
whether, the defendant could attack a prior conviction for
constitutional infirmity. See ante, at 497 (Custis "may attack his
state sentence in Maryland or through federal habeas review").
Here, we face an uncounseled prior conviction tolerable under
the Sixth Amendment "assistance of counsel" guarantee only because
it did not expose defendant Nichols to the prospect of
incarceration. See Scott v. Illinois,
440 U. S. 367 (1979).
Today's decision enlarges the impact of that uncounseled
conviction. It turns what was a disposition allowing
766
no jail time-a disposition made for one day and case aloneinto a
judgment of far heavier weight. Nichols does not attack his prior
uncounseled conviction for what it was. He is seeking only to
confine that conviction to the term (no incarceration) that
rendered it constitutional.
Recognizing that the issue in this case is not like the one
presented in Custis, I join JUSTICE BLACKMUN'S dissenting
opinion.
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