F I LED

United States Court of Appeals

Tenth Circuit

July 9, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WAYNE JACKSON,

Defendant-Appellant.

No. 06-2079

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CR-05-1088-JAP-2)

Howard L. Anderson, Las Cruces, New Mexico, for Defendant-Appellant.

Gregory B. Wormuth, Assistant United States Attorney (David C. Iglesias, United

States Attorney, with him on the brief), Las Cruces, New Mexico, for PlaintiffAppellee.

Before TACHA, Chief Circuit Judge, BRISCOE, and GORSUCH, Circuit

Judges.

GORSUCH, Circuit Judge.

Wayne Jackson contends that the federal district court charged with

assessing an appropriate sentence for his participation in a conspiracy to

distribute cocaine erred by considering his prior uncounseled state misdemeanor
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sentences for domestic violence and the negligent use of a firearm, and that this

error implicates his Sixth Amendment right to counsel. Our case law and

repeated guidance from the Supreme Court, however, instruct that a federal

sentencing court may, consistent with the Sixth Amendment, take into account a

defendant’s previous uncounseled misdemeanor convictions, together with any

sentence that does not result in actual imprisonment. Though constrained to

disregard the portion of his uncounseled misdemeanor sentence resulting in a

prison term, the district court was therefore free to devise a sentence taking

account of Mr. Jackson’s prior misdemeanor convictions and associated fine. 

Proceeding as it did on just this course, we affirm the district court’s judgment. 

I

On September 14, 2005, Mr. Jackson pled guilty to six counts of illegal

drug distribution and one count of conspiracy in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(C), and 846, and 18 U.S.C. § 2, based on the fact that Mr.

Jackson and a cohort sold approximately 7.36 grams of crack cocaine and an

additional 2.63 grams of cocaine to undercover officers on six different occasions

in Roswell, New Mexico, during early 2005. In the usual course, a presentence

report (“PSR”) was prepared for the district court analyzing Mr. Jackson’s

background and prior criminal history. The PSR in this case took note of a pair

of prior convictions and thus assessed Mr. Jackson with two criminal history

points. One of these points derived from Mr. Jackson’s conviction for driving
 Mr. Jackson contends that $350 of his fine was suspended in connection 1

with his obtaining drug counseling. See Tr. R. Vol. 1, Doc. 33, ¶ 1. 

 USSG § 5C1.2(b) provides that a safety valve recipient whose offense 2

would otherwise carry a statutory mandatory minimum of at least five years must

be sentenced at an adjusted offense level of at least 17, which has a recommended

sentencing range of 24 to 30 months for criminal history category I. In this case,

Mr. Jackson had an adjusted offense level of 23, PSR at 8, which would have

been reduced to 21 if he qualified for the safety valve, see USSG § 2D1.1(b)(7),

resulting in a recommended sentencing range of 37 to 46 months for criminal

history category I.

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while intoxicated in 1996. The other point, and the font of this litigation, arose

from Mr. Jackson’s 1995 New Mexico state convictions for battery, domestic

violence, and the negligent use of a firearm. For these latter offenses, Mr.

Jackson was sentenced to 90 days in custody, all of which was suspended, and

ordered to pay a fine of $528. 

1

By virtue of their comparatively “clean” records, Congress has instructed

that individuals with but a single criminal history point may be eligible for the socalled “safety valve” reduction codified in 18 U.S.C. § 3553(f); under this

provision, individuals may escape the normal operation of Congress’s mandatoryminimum five-year sentence for convictions under 21 U.S.C. §§ 841(b)(1)(C) and

846 and, instead, obtain sentences as low as 24 months under the advisory

guidelines, see 2005 United States Sentencing Guidelines (“USSG”) §§ 5C1.2(b),

5A (Table). Mr. Jackson urged the district court in this case to disregard entirely 2

his 1995 convictions and sentence for purposes of tallying his criminal history

score (and thus eligibility for the safety valve reduction), contending that the state
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of New Mexico violated his Sixth Amendment rights in his 1995 proceeding by

failing to afford him the assistance of counsel or the opportunity to waive such

assistance knowingly. The district court held two sentencing hearings on the

matter and ordered supplemental briefing. 

Before the district court, the government conceded that Mr. Jackson failed

to receive counsel in his 1995 state court case, that he was entitled to such

assistance, and, thus, that the conditional prison sentence he received violated the

Sixth Amendment. Still, the government submitted, the conviction itself, together

with the portion of the sentence imposing a fine, was both constitutional and

sufficient to sustain the assessment of a criminal history point under extant

Supreme Court and Tenth Circuit precedent. The district court ultimately

concurred, holding that, even after excising the portion of the sentence relating to

imprisonment derived in violation of his Sixth Amendment right to counsel, Mr.

Jackson’s 1995 convictions and fine merited the assessment of the contested

criminal history point; on the basis of this second point, the district court denied

application of the statutory safety valve and imposed the mandatory minimum

sentence of five years’ imprisonment. Mr. Jackson appealed.
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II

A

The Sixth Amendment speaks of a defendant’s right “[i]n all criminal

prosecutions” to “have the [a]ssistance of [c]ounsel.” U.S. Const. amend. VI. 

That this language affords not merely the right to retain counsel but the associated

right of indigent persons to receive assistance from appointed counsel has long

found voice in our jurisprudence. See, e.g., Johnson v Zerbst, 304 U.S. 458

(1938); Gideon v Wainwright, 372 U.S. 335 (1963). But the question exactly

when counsel ought to be appointed has proven less easy to resolve. For a period,

some thought the right to receive the assistance of appointed counsel paralleled

the jury trial right, which also flows from the Sixth Amendment, and thus

pertained only to felony trials or their equivalent. See Argersinger v. Hamlin, 407

U.S. 25, 26-27 n.1 (1972). In Argersinger, however, the Supreme Court severed

any such linkage to the jury trial right and extended the right to receive appointed

counsel to misdemeanor trials. Even so, the Court stopped short of reading this

right as pertaining to “all criminal proceedings,” holding instead that the Sixth

Amendment’s purposes are served if counsel is appointed in any trial involving a

sentence of “actual deprivation of a person’s liberty.” Id. at 40. Whatever else

might be said of the importance of receiving the assistance of an attorney, the

Court explained that the “guiding hand of counsel” is an indispensable imperative

“when one’s liberty is in jeopardy.” Id. at 40 (internal quotation omitted); see
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also Gideon, 372 U.S. at 345 (defending the right to counsel where “the

fundamental human rights of life and liberty” are implicated (internal quotation

omitted)).

Seven years later, the Court contemplated lifting its mandate that a

violation of the Sixth Amendment depends on the sort of sanction imposed. Scott

v. Illinois, 440 U.S. 367 (1979), presented the Court with a defendant who

contended that his misdemeanor conviction and sentence of a fine alone, with no

associated jail time, should be vacated. The Court demurred. It did so explaining

that there is “considerable doubt that the Sixth Amendment, as originally drafted

by the Framers of the Bill of Rights, contemplated any guarantee other than the

right of an accused . . . to employ a lawyer to assist in his defense,” id. at 370,

and that, though the right to receive the assistance of appointed counsel was

developed through a series of cases before the Court, “constitutional line drawing

[became] more difficult,” id. at 372, especially as the Sixth Amendment was

incorporated into the Fourteenth Amendment and applied against the states: 

The range of human conduct regulated by state criminal laws is much

broader than that of the federal criminal laws, particularly on the

“petty” offense part of the spectrum. As a matter of constitutional

adjudication, we are, therefore, less willing to extrapolate an already

extended line when, although the general nature of the principle

sought to be applied is clear, its precise limits and their ramifications

become less so. 

Id. Emphasizing that Gideon, Argersinger, and other cases developing the right

to receive the assistance of counsel focused on the unique hardships associated
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with a sentence of imprisonment and the deprivation of the fundamental right to

liberty such a sentence entails, id. at 372-73, the Court decided to “delimit” the

constitutional line there. “Even were the matter res nova,” the Court indicated,

“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.” Id.; see also Glover v. United

States, 531 U.S. 198, 203 (2001) (indicating that a sentence “has Sixth

Amendment significance” when, but only when, it involves “any amount of jail

time”). 

Thus went things for nearly a quarter of a century until the Supreme Court

confronted a sentence neither fish nor fowl yet highly common – a suspended

term of imprisonment. With lower courts split on the question whether such

sentences are controlled by Argersinger or Scott, the Court granted certiorari in a

case from the Alabama Supreme Court to resolve the dispute and ultimately

concluded that Argersinger controlled. Holding that a suspended sentence of

imprisonment is more akin to a “sentence of actual imprisonment” than a fine, the

Court observed that, “[o]nce the [suspended] prison term is triggered, the

defendant is incarcerated not for the probation violation, but for the underlying

offense,” and thus ends up having his or her liberty deprived as a result of an

uncounseled conviction – “precisely what the Sixth Amendment, as interpreted by
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Argersinger and Scott, does not allow.” Alabama v. Shelton, 535 U.S. 654, 662

(2002). Accordingly, though the Court perhaps extended what qualifies as

imprisonment, it confirmed that the presence of a Sixth Amendment violation still

turns on the nature of the sentence imposed and, more specifically, on the

presence of a term of imprisonment.

Clarifying another critical point of confusion over the years, in Nichols v.

United States, 511 U.S. 738 (1994), the Supreme Court instructed 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,” id. at 749, such as under the advisory federal sentencing guidelines

that assign criminal history points, and corresponding prison terms, based on the

number and seriousness of a defendant’s prior sentences. See also id. at 746-47

(“[A]n 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, whether in the nature of criminal history

provisions such as those contained in the Sentencing Guidelines . . . do not

change the penalty imposed for the earlier conviction.”). 

B

Mr. Jackson’s 1995 misdemeanor sentence involves aspects of both

Argersinger and Scott/Nichols. On the one hand, it includes a conditional prison

sentence, something that falls on the “actual imprisonment” side of the ledger
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after Shelton. On the other hand, it involves the payment of a fine, something

that, under Scott, poses no Sixth Amendment problems and, pursuant to Nichols,

may be employed as a sentencing enhancement. Further complicating matters,

Mr. Jackson contends, the fine and the conditional prison sentence entwine such

that he was subject to potential jail time if he failed to pay the requisite fine. 

Appellant’s Br. at 5. 

1. Unfortunately for Mr. Jackson, we addressed much this same situation

in United States v. Reilley, 948 F.2d 648 (10th Cir. 1991). There, the defendant,

charged in federal court with the misdemeanor of leaving property unattended in a

national park, was tried without counsel, convicted, and subjected to a sentence of

thirty days’ imprisonment and a fine of $500, all of which was suspended on the

condition that he pay $100. Id. at 650. Rather than quash the conviction or

sentence entirely, on appeal we determined that the appropriate remedy in such

cases is to strike down the suspended sentence of imprisonment but affirm the

conviction and the “remainder of the sentence” – namely, the fine. Id. at 654. 

We took this course on the implicit basis that the remedy ought to fit the right. 

As defined at least so far by Argersinger and Scott, and recently reaffirmed by

Shelton, the Sixth Amendment right at issue protects individuals against being

sentenced to a deprivation of liberty without the benefit of counsel; accordingly,

we held, the proper remedy was to vacate that portion of the sentence offensive to

the Sixth Amendment without doing harm to the defendant’s conviction or the
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remaining, constitutionally inoffensive, portions of his sentence. To go further, to

hold the conviction and fine portion of a sentence infirm, would be to relieve the

defendant from any consequence of his or her actions despite guidance from Scott

and Nichols and now Shelton that uncounseled misdemeanor convictions and nonprison sentences may be given respect and effect consistent with the Sixth

Amendment’s remedial purposes. 

We followed this same course nine years later, in Shayesteh v. City of South

Salt Lake, 217 F.3d 1281 (10th Cir. 2000). There, much like here, the defendant

argued that his fine and jail time were linked and inseparable. In response, we

recognized that it may be “impossible to reconstitute the mind of the trial judge,

making it impossible to disaggregate” a sentence involving probation and jail time

suspended upon payment of a fine, but nonetheless recognized that the Sixth

Amendment’s purposes, as elucidated by the Supreme Court, were satisfied by

vacating the sentence of probation and suspended jail time and retaining as

“valid” the underlying conviction and fine. Id. at 1285. 

The path Reilley and Shayesteh followed has been traveled by many courts

in many jurisdictions and even by Shelton itself. In Shelton, the Alabama state

trial court imposed a thirty day jail sentence but suspended that sentence should

the defendant satisfy certain conditions – specifically, two years’ unsupervised

probation and the payment of court costs, a $500 fine, reparations of $25, and

restitution in excess of $500. Expressly following our decision in Reilley, the
 The Court’s decision in Shelton left unresolved only what should happen 3

to the portion of the sentence imposing a term of probation, see id. at 673, a

question that some courts of appeals have more recently confronted, see infra at

12-13.

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Alabama Supreme Court affirmed the conviction and the monetary portions of the

sentence but reversed that aspect of the defendant’s sentence imposing a

suspended jail sentence. See Ex parte Shelton, 851 So. 2d 96, 101-02 (Ala. 2000)

(“Applying the rationale of Reilley, Argersinger, and Scott, we hold that the

defendant in this case was entitled to representation by counsel because he was

sentenced to a term of imprisonment, albeit suspended. . . . Having held that a

defendant who receives a suspended or probated sentence to imprisonment has a

constitutional right to counsel, . . . we affirm Shelton’s conviction but reverse that

aspect of his sentence imposing 30 days of suspended jail time.”). On review, the

United States Supreme Court affirmed the Alabama’s Supreme Court’s decision in

all respects – both with respect to its vacatur of the suspended jail term and its

decision to uphold the conviction, fine, and restitution. See Shelton, 535 U.S. at

658, 673.3

Much before Shelton, the Second Circuit in United States v. Ortega, 94

F.3d 764 (2d Cir. 1996), confronted an uncounseled state court misdemeanor that

the government, as here, sought to use as a sentencing enhancement in a

subsequent federal proceeding. Also not unlike here, the state sentence at issue

involved a variety of elements, including a suspended sentence, probation, as well
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as a fine and surcharge, all of which except the fine were subsequently vacated,

apparently after the defendant satisfied the monetary portion of his sentence. The

Second Circuit considered, but rejected, the defendant’s claim that the state court

conviction at issue was invalid, emphasizing that the Sixth Amendment right, as

developed by Argersinger, Scott, and Nichols, protects an uncounseled

misdemeanor defendant not from a judgment of conviction but from any sentence

involving the deprivation of his or her liberty. Id. at 769. The court then

proceeded to cite Reilley and explain that the “appropriate remedy” is “vacatur of

the invalid portion of the sentence, and not reversal of the conviction itself”; on

this basis, it held, the defendant’s “conviction and the monetary portion of his

sentence were clearly valid under Scott, and were properly considered in his

criminal history pursuant to Nichols.” Id. The Eighth Circuit has reached much

this same conclusion, see United States v. White, 529 F.2d 1390, 1394 n.4 (8th

Cir. 1976) (“the Argersinger doctrine relieves an uncounseled defendant

convicted for a misdemeanor only from the penalty of incarceration,” (internal

quotation omitted)), as has the Third Circuit, see United States v. Moskovits, 86

F.3d 1303, 1309 (3d Cir. 1996). 

After the Supreme Court’s decision in Shelton, moreover, the Fifth Circuit

had occasion to consider whether, consistent with that decision, see supra at note

3, an uncounseled conviction resulting in a stand alone sentence of probation for

illegally reentering this country may be employed as a sentencing enhancement in
 See also United States v Rios-Cruz, 376 F.3d 303, 304-05 (5th Cir. 2004) 4

(to similar effect); United States v. Foster, 904 F.2d 20, 21 (9th Cir. 1990)

(holding that the remedy under Argersinger is that “when probation is revoked,

(continued...)

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a subsequent case, even though a violation of the terms of the original

probationary sentence might result in a prison term. Though the issue is of course

one we need not decide today, the Fifth Circuit’s reasoning illustrates the

continuing uniformity of circuit views regarding the focus of the right and remedy

afforded by the Sixth Amendment. The Fifth Circuit explained that the

imposition of probation itself, without more, does not trigger the Sixth

Amendment because, as it put it, “[i]f a defendant receives only a sentence of

probation, he is sentenced to community release with conditions; he does not

receive a sentence of imprisonment.” United States v. Perez-Macias, 335 F.3d

421, 426-27 (5th Cir. 2003) (King, C.J.). Acknowledging that the revocation of

probation, like the suspended sentence at issue in Shelton, can sometimes lead to

imprisonment, the court emphasized that a defendant in such a situation may

receive only a sentence “that was originally available at sentencing,” thus

intimating, if not holding, that, if a jail sentence would have been unlawful under

the Sixth Amendment at the outset, so will it be if invoked in a probation

revocation hearing. Id. at 427. Yet, while a sentence of probation might later

become invalid, the court held it is not so until and unless it, in conformity with

Argersinger and Shelton, results in a sentence of actual imprisonment. 

4
(...continued) 4

the case reverts to its status at the time probation was granted[, and, s]ince

imprisonment could not have been imposed on Foster at the conclusion of his

trial, imprisonment could not be imposed on Foster following revocation of his

probation” (internal quotations and citations omitted)).

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2. In addition to the wall of precedent blocking its path, Mr. Jackson’s

argument also neglects to take account of factors unique to the federal sentencing

process that at least mitigate concerns about the reliance on prior uncounseled

misdemeanor convictions and misdemeanor sentences in subsequent sentencing

proceedings.

In the first place, the Sentencing Commission was well aware of the

prevalence of uncounseled misdemeanor convictions and sought to modulate their

effect on federal sentences within the mechanisms of the Guidelines. While

imposing more criminal history points – and allowing them to accumulate without

limitation – for more serious offenses, the Guidelines impose but a single point

for prior sentences resulting in less than sixty days’ imprisonment and cap the

number of such sentences that may be counted at four. See USSG §4A1.1(c); see

also USSG § 4A1.2 Application Notes (“Background: Prior sentences, not

otherwise excluded, are to be counted in the criminal history score, including

uncounseled misdemeanor sentences where imprisonment was not imposed.”);

USSG § 4A1.1 Application Notes (“Subdivisions (a), (b), and (c) of §4A1.1

distinguish confinement sentences longer than one year and one month, shorter
 The parties speak in terms of using a “conviction” to calculate Mr. 5

Jackson’s criminal history points; however, as noted above, USSG § 4A1.1,

though not 18 U.S.C. § 3553(a), provides that criminal history should be

calculated based on “sentences.” 

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confinement sentences of at least sixty days, and all other sentences, such as

confinement sentences of less than sixty days, probation, fines, and residency in a

halfway house.”). 

5

Further, of course, under the Guidelines themselves the district court

remains free to find that a defendant’s criminal history score incorporating an

uncounseled misdemeanor sentence “over-represents the seriousness of [his or

her] criminal history or the likelihood that the defendant will commit further

crimes” and, on that basis, depart from the Guidelines’ suggested sentencing

range as the court sees fit. USSG § 4A1.3(b)(1). As Justice Souter observed in

Nichols, “[b]ecause 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.” 511 U.S. at 752

(Souter, J., concurring). Finally, along these same lines, after Booker, et al., the

Guidelines themselves are of course no longer applied by rote and a district court

is free, in appropriate circumstances, to issue an entirely different sentence based

on the factors delineated by Congress in 18 U.S.C. § 3553(a).

3. Mr. Jackson responds to all this by directing us to our decision in

United States v. Cousins, 455 F.3d 1116 (10th Cir. 2006). There, a state court
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convicted Mr. Cousins in 1996 for receiving stolen goods and sentenced him to a

$500 fine or, alternatively, 30 days in jail. The court in Cousins noted that the

case was “analogous to Shelton in the sense that the sentence imposed by the

[state] court was essentially a suspended [jail] sentence.” Id. at 1126. Under

Shelton’s holding that suspended sentences of imprisonment are as problematic as

those immediately imposed, the court found a Sixth Amendment violation and,

from there, proceeded to hold that “having concluded that the South Carolina

conviction violated Kurt’s Sixth Amendment rights, we must also conclude that it

was error for the district court to use this conviction in calculating Kurt’s criminal

history category.” Id. at 1127. Mr. Jackson seeks to read into this a suggestion

that any time an uncounseled misdemeanor sentence intertwines fines with jail

time (or suspended jail time) we must vacate the entire sentence. 

Our decision cannot bear the weight he seeks to impose upon it. In

Cousins, we rejected the government’s argument “that it is improper for [a

defendant] to challenge the constitutionality of his prior state court conviction in

a federal sentencing proceeding” because a defendant should lodge such a

challenge in the state court system instead. Id. at 1124-25 (emphasis added). We

held that a defendant “may challenge the constitutionality of his state court

conviction on Sixth Amendment grounds in a federal sentencing proceeding

where the purpose of the challenge is to establish eligibility for safety valve

consideration under § 3553(f).” Id. at 1125. The continuing vitality of the
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defendant’s uncounseled state conviction and fine and the propriety of their use in

subsequent federal sentencing proceedings simply was not at issue in, and thus

resolved by, Cousins. Indeed, the government in Cousins failed to argue, as it has

here, that an uncounseled state misdemeanor conviction and associated fine may

be considered by a federal sentencing court in a manner consistent with the Sixth

Amendment’s guarantee of the right to counsel. See generally id. at 1125-27

(arguing merely that Shelton did not apply retroactively on appeal). 

To read Cousins as Mr. Jackson suggests would require us to attribute to it

a holding on a legal question on which the parties never engaged, and it would

require us to overlook the longstanding rule that the government’s failure to raise

an argument in one case does not preclude its consideration by courts in future

cases. See United States v. Mendoza, 464 U.S. 154, 162 (1984). Even more

problematically, it would require us to overrule our prior decisions in Reilley and

Shayesteh, something we, as a panel of this court, are powerless to do; disregard

the Supreme Court’s guidance in Argersinger, Scott, Nichols, and Shelton,

something we are never at liberty to do; shrug off the Guidelines’ nuanced

response to the concerns associated with reliance on uncounseled misdemeanors;

and bypass the uniform teaching of our sister circuits which have recognized,

even in the presence of a prison sentence violating the Sixth Amendment, the

persistent vitality of a misdemeanor conviction as well as any non-imprisonment
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sentencing terms. Such consequences, all directly flowing from Mr. Jackson’s

position, illustrate vividly why we decline to adopt his argument as our own. 

* * * 

The right to receive the assistance of appointed counsel, as developed to

date, extends to cases involving a sentence of actual imprisonment, and the

remedy commensurate to that right extends to the invalidation of any such

sentence imposed when the right to counsel was not afforded. Accordingly, while

obliged to disregard Mr. Jackson’s 1995 state misdemeanor jail sentence, the

district court was free to consider the conviction itself and accompanying fine in

assessing an appropriately tailored sentence in this case. 

Affirmed.