U.S. v. Nichols

• Decision Date: 16 February 1993
• Docket Number: No. 91-5581,91-5581
• Citation: 979 F.2d 402
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth O. NICHOLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 402

979 F.2d 402

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth O. NICHOLS, Defendant-Appellant.

No. 91-5581.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 28, 1992.

Decided Nov. 6, 1992.

Rehearing and Rehearing En Banc

Denied Feb. 16, 1993.

Steven H. Cook, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Atty., Knoxville, Tenn. and Jerry G. Cunningham, U.S. Atty., Office of the U.S. Atty., Chattanooga, Tenn., for plaintiff-appellee.

William B. Carter (argued and briefed), Carter, Mabee & Paris, Chattanooga, Tenn., for defendant-appellant.

Before: JONES and NELSON, Circuit Judges; and LIVELY, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

Defendant, Kenneth O. Nichols, challenges the sentence imposed under the sentencing guidelines upon his guilty plea to conspiracy to distribute cocaine. A majority of the court has concluded that the sentence must be affirmed. For reasons stated in Part II of the following opinion, I would vacate Nichols' sentence and remand for resentencing.

I

On March 4, 1988, Georgia law-enforcement officers, acting on a lead from a lawful wiretap of suspected drug dealer David Sledge, observed Nichols sell Sledge three ounces of cocaine in a post office parking lot. Nichols and Sledge were arrested, and the ensuing search of Nichols and his vehicle yielded two ounces of cocaine, four firearms, and almost five thousand dollars.

Nichols was charged and subsequently released on bond by the Georgia state courts. Soon thereafter, Nichols became involved in further cocaine trafficking with Robert Harkins, who occasionally performed various construction jobs for Nichols. It appears that Nichols supplied Harkins with cocaine, while Harkins, in turn, supplied Nichols with firearms.

The conviction forming the basis for the present appeal had its genesis in March of 1990, when a third party contacted Harkins and told him of individuals willing to sell kilogram quantities of cocaine. Unbeknownst to Nichols or Harkins, the suppliers were undercover federal law-enforcement officers. Harkins passed word of the suppliers on to Nichols, who asked Harkins to price the cocaine. Upon learning that the suppliers were asking $20,000 per kilogram, Nichols and Harkins agreed to purchase five kilograms. At some point prior to the transaction, Nichols displayed to Harkins a box full of cash and assured Harkins that he had sufficient funds to complete the transaction. Nichols asked Harkins to meet with the suppliers, apparently so that he could avoid another arrest. Nichols also instructed Harkins to bring one kilogram of cocaine to him for testing before paying for it, then return to the suppliers with the full payment if the cocaine tested positive.

Harkins and the undercover agents met in a motel room in Tennessee to negotiate the purchase of the five kilograms. When the agents refused to allow Harkins to leave with a kilogram for testing without paying for it, Harkins telephoned Nichols, who told him to call off the deal. The transaction was never completed.

Nichols and Harkins met in September of 1990 and agreed to contact the undercover agents again with an eye toward purchasing cocaine. Pursuant to their agreement, Harkins contacted the agents and negotiated a price of $65,000 for three kilograms of cocaine and further agreed that the transfer would take place in Cleveland, Tennessee. This time, Harkins was to purchase one kilogram, take it to Nichols for testing, then assuming it tested positive, return to purchase the remaining two kilograms. Meanwhile, Nichols would remain at a nearby location known only to himself and Harkins.

The purchase date was set for September 21, 1990. Prior to the meeting, when Harkins asked Nichols whether he should carry a firearm, Nichols responded that Harkins should use his discretion. When Harkins arrived at the agreed-upon meeting place, he was arrested. The ensuing search revealed that Harkins carried a loaded firearm.

Unknown to Nichols and Harkins, surveillance officers had observed them meeting together prior to the planned transaction. Approximately fifteen to twenty minutes after Harkins' arrest, officers found Nichols emerging from a wooded area toward his truck, parked nearby. In the woods, agents found $40,000 in cash hidden in a tree stump. A search of Nichols' vehicle revealed a shoulder holster but no firearm. Soon after the arrests, Harkins decided to cooperate with the authorities.

On October 10, 1990, Nichols was charged in a three-count indictment. Count one charged Nichols and Harkins with conspiracy to possess with intent to distribute cocaine, and count two charged them with attempt to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 841 (1988) (amended Nov. 29, 1990) and 21 U.S.C. § 846 (1988). Count three charged Nichols and Harkins with traveling in interstate commerce to facilitate a drug trafficking offense, in violation of 18 U.S.C. § 1952(a) (1988) (amended Nov. 29, 1990). On December 10, 1990, Nichols pleaded guilty to count one of the indictment.

A presentence report, filed on March 11, 1991, set a sentencing guideline range of 188 to 235 months. Nichols filed numerous objections to the report, and on April 1 and April 29, 1991, the court held hearings to consider Nichols' objections. At the conclusion of the second hearing, the district court announced that it would consider a prior uncounseled misdemeanor conviction in calculating Nichols' criminal-history score. The court further indicated that it would consider evidence that was illegally seized in the course of Nichols' 1988 arrest on state drug charges in determining where, within the recommended guideline range, to sentence Nichols. ¹ This timely appeal followed.

II

I first consider Nichols' claim that the district court improperly considered a prior uncounseled misdemeanor conviction in calculating his criminal-history score under the sentencing guidelines. In 1983, Nichols pleaded nolo contendere to driving under the influence of alcohol ("DUI"), a misdemeanor, for which Nichols was fined but not imprisoned. Nichols was not represented by counsel in the DUI proceedings, and the court below found that Nichols did not knowingly waive his right to counsel.

Nichols advances a two-pronged attack against the counting of his DUI conviction. First, Nichols contends that the district court applied the wrong version of the guidelines. Because Nichols was sentenced on April 29, 1991, the district court applied the 1990 version of the guidelines, which became effective on November 1, 1990. Nichols argues, however, that the court should have applied the 1989 version of the guidelines, as the 1990 version became effective only after the criminal conduct to which he pleaded guilty. Because Nichols challenges the application of the sentencing guidelines to the undisputed facts, our review is de novo. United States v. Edgecomb, 910 F.2d 1309, 1311 (6th Cir.1990).

In imposing a sentence, the sentencing court is normally required to apply the guidelines in effect on the date of sentencing. United States v. Jennings, 945 F.2d 129, 135 n. 1 (6th Cir.1991); see also 18 U.S.C. § 3553(a)(4), (5) (1988). Nonetheless, when the guidelines in effect at the time of sentencing provide for a greater term of imprisonment than those in effect at the time of the commission of the crime, ex post facto problems may arise; thus, the court may not impose a sentence in excess of that permitted under the version of the guidelines in effect at the time of the criminal conduct at issue. United States v. Nagi, 947 F.2d 211, 213 n. 1 (6th Cir.1991), cert. denied, --- U.S. ----, ----, 112 S.Ct. 2309, 119 L.Ed.2d 230 (1992).

For purposes of Nichols' present challenge, I believe that any differences between the 1990 version of the guidelines, under which Nichols was sentenced, and the 1989 version, which he argues should have been applied, are irrelevant. The operative provision of the guidelines is section 4A1.2. The commentary to the 1990 version of that section provides that "[c]onvictions for driving while intoxicated or under the influence (and similar offenses by whatever name they are known) are counted." United States Sentencing Commission, Guidelines Manual § 4A1.2, comment. (n. 5) (Nov. 1990) [hereinafter U.S.S.G.]. The commentary further provides that "[p]rior sentences, not otherwise excluded, are to be counted in the criminal history score, including uncounseled misdemeanor sentences where imprisonment was not imposed." Id. comment. (backg'd). Thus, the commentary instructs the sentencing court to count a prior uncounseled misdemeanor conviction for DUI in calculating a defendant's criminal history score.

The 1989 version of the guidelines provides, by contrast, that a

sentence resulting [from] a valid conviction is to be counted in the criminal history score.... Also, if to count an uncounseled misdemeanor conviction would result in the imposition of a sentence of imprisonment under circumstances that would violate the United States Constitution, then such conviction shall not be counted in the criminal history score.

Id. comment. (n. 6) (Nov. 1989). Thus, the 1989 version of the guidelines requires the court to count a prior uncounseled misdemeanor conviction unless doing so would violate the United States Constitution. If counting the conviction would offend the Constitution, however, nothing in more recent versions of the guidelines would permit a court to ignore this constitutional infirmity. Accordingly, under the 1989 and subsequent versions of the sentencing guidelines, an uncounseled misdemeanor conviction for DUI is to be counted unless doing so would violate the Constitution.

In his second line of attack, Nichols advances precisely such a constitutional claim, and contends that the Sixth Amendment proscribes the use of a prior uncounseled misdemeanor conviction, for which a sentence of imprisonment was not...