In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-2539

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PAUL A. KRUEGER,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 03 CR 182—William C. Griesbach, Judge.

____________

ARGUED FEBRUARY 15, 2005—DECIDED JULY 28, 2005

____________

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. When defendant-appellant Paul

Krueger was stopped for speeding, Wisconsin authorities

discovered over two kilograms of marijuana in his truck.

Krueger was initially charged in state court for trafficking

in marijuana, but the state case was dismissed after federal

authorities announced their intent to prosecute Krueger for

that offense. Shortly after he was taken into federal custody

and at the invitation of federal agents, Krueger waived his

right to remain silent and gave a detailed statement
2 No. 04-2539

regarding his drug trafficking. Krueger later moved to

suppress that statement, contending that because he had

already invoked his Sixth Amendment right to an attorney

as to the state charges, federal agents were barred from

questioning him without an attorney present. See Michigan

v. Jackson, 475 U.S. 625, 106 S. Ct. 1404 (1986). The

district court denied the motion to suppress. R. 25, 33.

Krueger subsequently decided to plead guilty to possessing

marijuana with the intent to distribute, while reserving the

right to appeal the Sixth Amendment question insofar as

his self-incriminating statement had an impact on the

district court’s sentencing decision. At sentencing, the

district court found that Krueger was responsible for

distributing between 100 and 400 kilograms of marijuana

and ordered Krueger to serve a prison term at the low end

(57 months) of the range specified by the U.S. Sentencing

Guidelines.

Krueger appeals, contending because his statement to the

federal agents was taken in violation of his Sixth Amendment right to counsel it should have been suppressed, and

also that his sentence is plainly erroneous under United

States v. Booker, 125 S. Ct. 738 (2005). We conclude that we

need not decide whether Krueger’s statement was taken in

violation of Krueger’s Sixth Amendment rights, because

even if it was, the district court was nonetheless free to

consider it for sentencing purposes. As for Krueger’s

sentence, we shall direct a limited remand to the district

court so that it may determine whether it would be inclined

to sentence Krueger to a lesser prison term knowing in light

of Booker that the Sentencing Guidelines are advisory

rather than mandatory. See United States v. Paladino, 401

F.3d 471, 483-84 (7th Cir. 2005).
No. 04-2539 3

I.

A. Admitted Facts as to Krueger’s Guilt

We begin with a description of the facts that led to

Krueger’s arrest and that underlie his conviction. Krueger

admitted nearly all of these facts in his written plea

agreement. R. 34.

Marinette County, Wisconsin law enforcement officers

received information from a confidential informant (“CI”)

that Krueger traveled to Milwaukee every two weeks to

purchase marijuana and transported it back to Marinette

County in northeastern Wisconsin, making stops along the

way to sell to customers in the Outagamie and Marinette

County areas. According to the CI, Krueger had bragged

about dealing 450 pounds of marijuana per year. On

June 24, 2003, the CI advised Marinette County Deputy

Sheriff Rick Berlin that on the morning of June 25, Krueger

would be returning to Marinette County from Milwaukee in

his truck with a large quantity of marijuana. Deputy Berlin

subsequently relayed that information to his patrol officers,

along with a description of Krueger’s truck and an instruction to “make your own case” (i.e., find a justification for

stopping the vehicle) if the truck was spotted.

On the morning of June 25, 2003, Deputy Barry Degnitz

was conducting stationary radar surveillance in Marinette

County and conducted a traffic stop of Krueger’s vehicle,

which was traveling above the posted speed limit. Degnitz

advised dispatch that he had stopped Krueger’s vehicle. He

then approached the driver, who identified himself as

Krueger. While Degnitz was running Krueger’s license and

vehicle information through the computer in his squad car,

Deputy Jamie Curran along with her drug-detecting canine,

a Belgian Malinois by the name of Corey, and Deputy

Berlin arrived at the scene. Krueger was asked to step out

of his vehicle so that the dog could sniff around the vehicle’s

exterior for drugs. When the canine exhibited interest in
4 No. 04-2539

the truck, Berlin asked Krueger if there were any drugs in

the vehicle. Krueger initially denied having any drugs but

eventually admitted that he had some “smoke” in the pocket

of his shirt located inside the cab of the truck. Degnitz

searched the cab and found marijuana and a pipe in the

location Krueger had described. Krueger was then placed in

the backseat of Degnitz’s vehicle.

Corey the canine had “alerted” to both the passenger door

of the truck and the driver’s side of the tailgate. When he

was placed on the bed of the truck, Corey pushed the cover

off of a cooler located in the back of the truck. The cooler

was removed from the truck bed and the canine again

alerted to the container by scratching. A subsequent search

of the cooler revealed a .357 revolver, wrapped in an article

of clothing. Located directly beneath the gun was a backpack containing five large plastic bags of marijuana (with

an approximate total weight of 4.8 pounds), as well as

another plastic bag containing $3,310.56 in cash.

Berlin advised Krueger of his Miranda rights, which he

verbally agreed to waive. Krueger stated that the marijuana in his vehicle was for his personal use, although he

refused to identify his source. He admitted that there were

a couple of bags of marijuana at his residence but stated “it

was all shake.” (According to Wikipedia, a free-content online encyclopedia, “shake” is a term used to describe the

small bits of marijuana, usually leaves, that break off

and accumulate at the bottom of a plastic bag containing

marijuana when the bag is handled roughly. See http://

en.wikipedia.org; see also R. 19 at 78.) After Krueger

refused to consent to a search of his residence, Berlin

obtained a search warrant. During the search of the residence, deputies recovered a total of 1.8 pounds of marijuana

individually packaged in smaller quantities in plastic bags

and other containers along with various paraphernalia related to marijuana trafficking and consumption, including

scales and numerous plastic ziplock bags of multiple sizes.
No. 04-2539 5

B. Krueger’s Uncounseled Statement as to his Marijuana

Trafficking

Following his arrest on June 25, 2003, Krueger was

initially charged in Wisconsin state court with trafficking

in marijuana. An attorney with the state public defender’s

office was assigned to represent Krueger and did, in fact,

represent him in the state proceeding.

Federal authorities took an interest in the case, however,

after Marinette County officials referred the matter to

Special Agent Kenneth Handy of the federal Bureau of

Alcohol, Tobacco, Firearms and Explosives (“ATF”) and

Handy in turn referred it to the United States Attorney for

the Eastern District of Wisconsin. The U.S. Attorney

eventually advised the Marinette County District Attorney

that he would be pursuing federal charges against Krueger

for the same conduct underlying the state charge. On

August 7, 2003, a U.S. Magistrate Judge issued a federal

warrant for Krueger’s arrest pursuant to a sworn criminal

complaint charging him with possessing marijuana with the

intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1)

and 841(b)(1)(D), as well as possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.

§ 924(c)(1). R. 1, 4.

On the morning of August 8, 2003, Krueger appeared for

a hearing in the Marinette County District Court, where the

state charges against him were dismissed. Immediately

after that proceeding, Krueger was arrested on the federal

charges. A Marinette County deputy sheriff then drove

Krueger to Green Bay, Wisconsin, where he was transferred

to the custody of ATF Special Agents Handy and Sandra

DeValkenaere. Deputy Berlin, who had followed his colleague and Krueger to Green Bay, joined the ATF agents as

they walked Krueger through the initial stages of federal

processing.
6 No. 04-2539

Between 1:00 and 1:30 p.m., once Krueger had been interviewed by a federal pretrial services officer, Handy and

DeValkenaere drove him to the Brown County Courthouse,

where Handy had arranged for Krueger to be held pending

his first appearance in U.S. District Court at four o’clock

that afternoon. They parked their vehicle on the street in

front of the courthouse and allowed Krueger to begin eating

a lunch that Berlin and DeValkenaere had obtained for him

from McDonald’s. While Krueger ate, Agent Handy advised

him of his rights under Miranda v. Arizona, 384 U.S. 436,

86 S. Ct. 1602 (1966), and inquired whether he would be

willing to cooperate with the ATF’s investigation by

identifying his source of marijuana and other people that he

knew to be involved in drug trafficking, including his

customers.

Krueger refused to cooperate at first, but eventually

agreed to name one individual. Handy and DeValkenaere

told Krueger they were not interested in piecemeal cooperation, however. At several points, Handy threatened to

terminate the discussion and take Krueger to his holding

cell. “Fine, you’re done with your lunch, let’s go,” he said

finally. R. 19 at 101. But as Handy opened his car door and

began to get out of the vehicle, Krueger relented and agreed

to tell the agents what they wanted to know. At that point,

the agents invited Deputy Berlin, who had followed them to

the courthouse and whose car was parked next to theirs, to

join them, as he was likely to be more familiar with anyone

that Krueger might implicate. Krueger was again advised

of his Miranda rights, and he waived those rights, including

his right to the advice of counsel, by signing a written

WAIVER OF RIGHT TO REMAIN SILENT AND OF RIGHT TO

ADVICE OF COUNSEL form supplied by the agents. That form

included the following statement:

I do not want a lawyer at this time. I understand and

know what I am doing. . . . I hereby voluntarily and
No. 04-2539 7

1 The government decided not to pursue the section 924(c)(1)

firearm charge against Krueger after concluding that his possession of the firearm was not in furtherance of his marijuana

trafficking.

intentionally waive my rights, and I am willing to make

a statement and to answer questions.

Gov. Ex. 1 from evidentiary hearing held on Oct. 10, 2003.

Krueger then spoke with the officers for approximately

two hours. During the interview, he discussed the extent of

his marijuana trafficking, revealing that for a period of

between five and six years, he had been purchasing five to

seven pounds of marijuana every other week from an

Hispanic individual named “Luis” who lived on the south

side of Milwaukee. Krueger also identified eight people,

including his son, who regularly purchased marijuana from

him.

Krueger appeared in district court later that afternoon

and was released on a cash bond.

C. Motion to Suppress

Approximately three weeks later, a federal grand jury

indicted Krueger on a single charge that he had knowingly

possessed marijuana with the intent to distribute, in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). R. 8.1

Krueger subsequently moved to suppress the statement

that he made on August 8, 2003, after he was transferred

from state to federal custody, contending that the statement

was obtained in violation of his Sixth Amendment right to

counsel. Krueger argued that because he was represented

by an attorney on the state charges that were dismissed

earlier that day, because the federal authorities were in

communication with state authorities regarding Krueger

and were on notice that he was represented in the state
8 No. 04-2539

proceeding, and because the federal complaint pursuant to

which he was transferred to the custody of Special Agents

Handy and DeValkenaere was based on the same facts as

the state charges, Krueger had effectively invoked his right

to counsel as to the federal charge, thereby precluding the

agents from asking Krueger to speak with them, notwithstanding his subsequent decision to waive his right to

counsel. See Michigan v. Jackson, supra, 475 U.S. at 636,

106 S. Ct. at 1411 (“if police initiate interrogation after a

defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s

right to counsel for that police-initiated interrogation is

invalid”). R. 23 at 5-7.

After conducting an evidentiary hearing on the motion to

suppress, Magistrate Judge Patricia Gorence recommended

that the district court deny the motion, R. 25 at 18-20, and

the district judge accepted that recommendation, R. 33 at

12-23. Judge Griesbach rejected Krueger’s contention that

his prior invocation of his right to counsel in the state

proceeding extended to the factually related federal complaint that brought him into the custody of Special Agents

Handy and DeValkenaere. R. 33 at 18. Consequently,

Michigan v. Jackson would have barred the federal agents

from initiating a discussion with Krueger only if his right

to counsel had already attached in the federal case and

Krueger had invoked that right. Although the court agreed

that Krueger’s right to counsel had attached with the filing

of the federal criminal complaint, Krueger had not yet

invoked that right when he was taken into federal custody

and awaiting his first appearance in the district court. R. 33

at 21-23. As a result, Handy and DeValkenaere were free to

question him unless and until he did request an attorney.

Krueger’s written waiver of his Sixth Amendment right to

counsel was therefore valid. R. 33 at 23.
No. 04-2539 9

D. Plea Agreement

Following the denial of his motion to suppress, Krueger

entered into a detailed written plea agreement with the

government. R. 34. In that agreement, the parties “agree[d]

to recommend to the sentencing court that, based on evidence available to the government and admissible against

the defendant, the government is able to establish by a

preponderance of the evidence that the drug quantity

attributable to the defendant is at least 100 kilograms of

marijuana.” Id. at 5-6 ¶ 14. However, Krueger reserved “the

right to raise on appeal the issue of whether or not the

district court may properly rely upon the defendant’s

August 8, 2003 statement in determining the applicable

Sentencing Guideline range, given the Sixth Amendment

claim raised by the defendant in pretrial motions.” Id. at 9

¶ 27; see also R. 48 at 8.

At the conclusion of a change-of-plea hearing on

December 19, 2003, the district court accepted Krueger’s

plea of guilty.

E. Sentencing

For most narcotics offenses, the Sentencing Guidelines

prescribe a base offense level tied to the quantity of narcotics that the defendant’s relevant criminal conduct involved.

See U.S.S.G. §§ 2D1.1(a)(3), 2D1.1(c). The pre-sentence

report (“PSR”) prepared for Krueger’s sentencing included

a finding that Krueger was responsible for trafficking at

least 100 but less than 400 kilograms of marijuana, a

finding that resulted in a base offense level of 26. PSR at 7

¶ 27; see U.S.S.G. § 2D1.1(c)(7). The parties did not disagree

as to the quantity of marijuana attributed to Krueger: his

own statement of August 8, indicating that he had purchased between five and seven pounds of marijuana every

other week for five to six years, supported a finding that he

was responsible for a minimum of 295 kilograms; and it was
10 No. 04-2539

no doubt for that reason that Krueger had stipulated in the

plea agreement that the government could prove him

responsible for at least 100 kilograms of marijuana. R. 34

at 5-6 ¶ 14. The focus of the parties and the court at

sentencing instead focused on whether there was a basis for

the quantity finding independent of Krueger’s August 8

statement.

The government took the position that the court did not

need to rely on Krueger’s August 8 statement in order to

find him responsible for at least 100 kilograms of marijuana. The government reasoned that the following evidence, obtained from various sources other than Krueger’s

statement and set forth in the PSR, was sufficient to

establish that he had distributed at least 100 kilograms of

marijuana:

(1) 2.191 kilograms of marijuana was found in

Mr. Krueger’s truck at the time of his arrest, and

another 1.883 kilograms was discovered when his

home was searched later that same day. In addition, $3,310.56 was found in the truck at the time

of Krueger’s arrest; and assuming that the cash

represented the proceeds of marijuana sold at a

price of $90 per ounce (the price identified by one of

Krueger’s customers), it corresponded to another

1.043 kilograms of marijuana, for a total of

5.117 kilograms. PSR at 5 ¶ 18.

(2) The confidential informant who tipped off

Wisconsin authorities to Krueger had indicated that

Krueger had been traveling to Milwaukee every

other week for several months and purchasing

approximately 20 pounds of marijuana on each

occasion. Excluding the day of Krueger’s arrest, and

counting backward for a period of three months,

these biweekly 20-pound purchases would yield a

total of 54.43 kilograms. PSR at 5 ¶ 19.
No. 04-2539 11

(3) When Krueger made his biweekly trips to Milwaukee to purchase marijuana, his habit was to stop

along the way and stay with longtime friend Reuben Stoegbauer in or near Appleton, Wisconsin. On

August 27, 2003, several weeks after Krueger had

given his statement, one or more law enforcement

officials went to speak with Stoegbauer. Recall that

a gun was found in Krueger’s truck at the time of

his arrest, and this formed the basis for the charge

in the original complaint against Krueger that he

had possessed a firearm in furtherance of a drug

trafficking offense, in violation of 18 U.S.C.

§ 924(c)(1). However, Krueger evidently insisted

that he had only recently acquired the gun and that

he planned to hang it on a wall—in other words,

that his possession of the gun was unrelated to his

marijuana trafficking. See R. 49 at 17. Krueger

apparently suggested that Stoegbauer could back

him up on this. When officials followed up with

Stoegbauer, Stoegbauer evidently told them enough

to convince the government to drop the section

924(c) firearm charge. See id. at 17-18. More pertinently with respect to the drug quantity calculation, Stoegbauer also volunteered that he was one

of Krueger’s marijuana customers. Stoegbauer

revealed that he had been purchasing four-ounce

quantities of marijuana from Krueger every other

week for ten years at $90 an ounce. Those purchases added up to 29.484 kilograms of marijuana.

Stoegbauer also provided officials with the names

and addresses of six other individuals whom he

identified as regular customers of Krueger. PSR at

5-6 ¶ 20.

(4) The foregoing quantities of marijuana totaled

roughly 90 kilograms. To reach the 100-kilogram

threshold, the government cited two additional
12 No. 04-2539

2 In his written objections to the PSR, Krueger’s counsel said that

“I do not agree with all of the inferences and extrapolations in the

[government’s] alternative theory for relevant conduct . . . nor do

I agree that the two theories are separable factually or legally.”

PSR, attachment (April 18, 2004 letter from defense counsel to

probation officer) at 1-2.

pieces of evidence. First, the confidential informant

who brought Krueger to the attention of the authorities had said that Krueger bragged to him about

dealing 450 pounds (204 kilograms) of marijuana

per year. Second, Stoegbauer had identified six

other individuals who were regular customers of

Krueger. Although the government declined to

derive a particular drug quantity from either piece

of evidence, it reasoned that one could fairly infer

from both that Krueger was responsible for at least

another ten kilograms of marijuana. PSR at 5-6

¶ 20.

Krueger did not concede that the government’s alternate

evidentiary basis for the drug quantity determination was

sufficient, apart from his August 8 statement, to support a

finding that he was responsible for at least 100 kilograms.2

However, he did not identify any particular shortcoming in

the other evidence relating to his trafficking. At the sentencing hearing, Krueger’s counsel was studiously neutral

on the subject. It is evident from the attorney’s remarks

that Krueger wished to preserve his right to appeal the

denial of the motion to suppress his August 8 statement

and therefore did not want to concede that the court could

hold him responsible for 100 or more kilograms of marijuana without relying on that statement. But Krueger’s

counsel again did not cite any particular flaw in the alternative basis that the government proffered for the 100-plus

kilogram finding.
No. 04-2539 13

For his part, Judge Griesbach inquired whether the alternative evidentiary basis for the drug quantity was truly

independent of Krueger’s August 8 statement. Stoegbauer

gave his statement to the authorities after August 8, when

Krueger himself had discussed his marijuana sales with

federal agents; and by the time he was interviewed,

Stoegbauer was aware that Krueger had been arrested.

This caused the judge to wonder whether Stoegbauer might

have known that Krueger had already revealed the extent

of his marijuana trafficking. If he did know, then

Stoegbauer might have been more forthcoming about

Krueger’s criminal activity than he otherwise would have

been, and to that extent, Stoegbauer’s statement might be

viewed as the fruit of Krueger’s August 8 statement.

Neither Krueger’s counsel nor the AUSA could shed any

light on that possibility; neither attorney had spoken with

Stoegbauer, and neither could say whether he knew how

much Krueger had already told the ATF agents about his

drug dealing.

After adopting the factual findings set forth in the PSR,

Judge Griesbach determined that Krueger’s relevant conduct included trafficking in excess of 100 kilograms of

marijuana. R. 49 at 20. The judge noted that Krueger’s

August 8 statement alone supported a finding of at least

295 kilograms. Id. But the court also agreed that apart from

Krueger’s own statement, there was other evidence supporting a finding of at least 100 kilograms:

I’m satisfied that the report of the CI as recounted

in the pre-sentence report and the statement of

Mr. St[o]egbauer would provide an alternate basis for

me to conclude that the amount of marijuana that

Mr. Krueger sold over the period of time leading up to

his arrest was in excess of 100 kilograms. It was significantly in excess of that.

Id. The judge added the following qualification to his

finding:
14 No. 04-2539

Now I’m not making any determination as to whether

Mr. St[o]egbauer’s testimony would have been available

absent Mr. Krueger’s statement. I don’t know all that.

But I can making the finding and I will make the finding that even absent Mr. Krueger’s statement, that the

confidential informant and the statement recounted by

Mr. St[o]egbauer would be another way in which to

arrive at the relevant conduct.

Id. at 20-21.

The finding that Krueger had distributed in excess of 100

kilograms of marijuana resulted in a base offense level of 26

under the Sentencing Guidelines. U.S.S.G. § 2D1.1(c)(7).

The Guidelines specified a two-level enhancement based on

Krueger’s possession of a firearm. Id. § 2D1.1(b)(1). Three

levels were then subtracted based on Krueger’s timely

acceptance of responsibility (after the court granted the

government’s motion for the extra acceptance point).

§ 3E1.1. The resulting adjusted offense level of 25, combined with Krueger’s criminal history category of I, called

for a sentencing range of 57 to 71 months. However, the

statutory maximum sentence was 60 months, thus confining the court’s discretion to a range of 57 to 60 months.

See § 5G1.1(c)(1).

Before imposing a sentence on Krueger, Judge Griesbach

remarked on the limits of his discretion under the

Guidelines, observing that “[c]ourts do not have discretion

to sentence outside of the guidelines except under very rare

circumstances” and that “these are the guidelines that I am

to apply, and they prescribe a sentence within the range of

57 months to, as I said, 71 months, which is a little under

five years to almost six years, but the [statutory] maximum

here is five years.” R. 49 at 24-25. When asked for their

views, counsel for the government as well as Krueger urged

the court to impose the minimum Guidelines sentence. Id.

at 25, 27. The judge agreed with the parties that “the
No. 04-2539 15

minimal guidelines sentence here is appropriate.” Id. at 31.

Krueger was therefore ordered to serve a prison term of 57

months, followed by two years of supervised release. R. 42

at 2-3. The court also ordered Krueger to pay a fine of $500

and a special assessment of $100. Id. at 5.

II.

A. Sixth Amendment

Michigan v. Jackson holds that if the police initiate

interrogation of a defendant after he has asserted his Sixth

Amendment right to the assistance of counsel at an arraignment or a similar proceeding, any waiver by the

defendant of his right to counsel for purposes of that

interrogation is invalid. 475 U.S. at 636, 106 S. Ct. at 1411.

In order for the Jackson prohibition to apply, two conditions

must be met: first, the defendant’s right to counsel must

have attached, and second, the defendant must have

invoked that right. See United States v. Spruill, 296 F.3d

580, 586-87 (7th Cir. 2002) (quoting United States v.

Avants, 278 F.3d 510, 515 (5th Cir. 2002)); United States v.

McKinley, 84 F.3d 904, 908 (7th Cir. 1996). Once these

conditions are satisfied, Jackson precludes the police from

initiating a discussion with the defendant outside the

presence of his counsel, even if the defendant is amenable

to their overtures.

The question presented in this case is whether a defendant’s invocation of his right to representation in a state

prosecution can trigger the Jackson bar against interrogation as to a subsequent federal prosecution on a related

charge. There is no question that Krueger’s right to counsel

had attached and that he had invoked that right in Wisconsin state court: a public defender had been appointed for

Krueger, and on the very day that the state charges against

Krueger were dismissed in deference to the federal prosecution, Krueger appeared in court with his defender. As to the
16 No. 04-2539

3 “The dual sovereignty doctrine is founded on the common-law

conception of crime as an offense against the sovereignty of the

government. When a defendant in a single act violates the ‘peace

and dignity’ of two sovereigns by breaking the laws of each, he has

(continued...)

state charges, then, the Jackson prohibition was in full

force. But Krueger was not questioned about the state

charge: when Handy and DeValkenaere initiated their

discussion with Krueger, the state charges had been

dismissed, and Krueger was awaiting his first appearance

in federal court. A defendant cannot invoke his right to

counsel once as to all crimes that the authorities might wish

to question him about in the future, McNeil v. Wisconsin,

501 U.S. 171, 175, 111 S. Ct. 2204, 2207 (1991); rather, the

Sixth Amendment right to counsel is offense specific, ibid.;

Texas v. Cobb, 532 U.S. 162, 167-68, 121 S. Ct. 1335, 1340

(2001). Even if there is a factual relationship between prior

and subsequent charges, Jackson will not necessarily

prohibit the police from talking to the defendant about the

later charge. id. at 168, 121 S. Ct. at 1340-41. Generally

speaking, only if the two offenses may be considered the

“same” crime for double jeopardy purposes might Jackson

come into play. Id. at 173, 121 S. Ct. at 1343.

Without doubt, there is a substantial overlap between the

state and federal crimes with which Krueger was charged,

but the hurdle for Krueger is that the two sets of charges

were brought by separate sovereigns. The Supreme Court

has held that the Double Jeopardy Clause does not preclude

both the federal and state governments from prosecuting a

defendant based on the same set of facts, even if the

charged crimes have virtually identical elements. See Heath

v. Alabama, 474 U.S. 82, 89, 106 S. Ct. 433, 437-38 (1985)

(coll. cases); see also, e.g., United States v. Ray, 238 F.3d

828, 835 (7th Cir. 2001). Rather, pursuant to the doctrine of

dual sovereignty,3

 each sovereign is free to charge the
No. 04-2539 17

3 (...continued)

committed two distinct ‘offences.’ ” Heath, 474 U.S. at 88, 106 S.

Ct. at 437 (quoting United States v. Lanza, 260 U.S. 377, 382, 43

S. Ct. 141, 142 (1922)).

defendant under its own law. Heath, 474 U.S. at 88-90, 106

S. Ct. at 437-38. Because the Supreme Court has held that

term “offense” has the same meaning for purposes of the

Jackson Sixth Amendment analysis as it does for double

jeopardy purposes, Cobb, 532 U.S. at 173, 121 S. Ct. at

1343, one might conclude that a defendant’s invocation of

his right to counsel as to a charge brought by a state

government will not be treated as the invocation of his right

as to the federal charge, irrespective of the common factual

basis for the two charges. See United States v. Avants, 278

F.3d 510, 517 (5th Cir. 2002); United States v. Coker, 298 F.

Supp. 2d 184, 190-91 (D. Mass. 2003); contra United States

v. Mills, ___ F.3d ___, 2005 WL 1444145, at *1 (2d Cir. June

21, 2005) (concluding that “[u]nder Cobb, the Sixth Amendment right of counsel extends to offenses considered to be

the “same offense” as those to which the right has already

attached even when they are prosecuted by different

sovereigns”).

Still, the dual sovereignty doctrine may not pose an

insurmountable obstacle for someone in Krueger’s position:

in United States v. Red Bird, 287 F.3d 709 (8th Cir. 2002),

our colleagues on the Eighth Circuit concluded that Jackson

precluded a federal agent from initiating an interview with

the defendant about a possible federal charge when the

defendant had already been charged with essentially the

same crime in tribal court.

The defendant in Red Bird had been charged with rape,

arraigned on that charge, and assigned counsel in tribal

court when an FBI agent, with the assistance of a tribal

investigator, located the defendant and initiated an interview with him regarding the rape allegation. (Because the
18 No. 04-2539

4 Under his tribe’s constitution, Red Bird enjoyed a right to

counsel in tribal court. 287 F.3d at 711.

crime occurred on a Native American reservation, the federal government also had jurisdiction over the matter.) The

defendant waived his Miranda rights and gave a statement

to the FBI agent. He was subsequently charged with sexual

abuse in federal court based on precisely the same facts

underlying the rape charge in tribal court.

The district court suppressed his statement, concluding

that the defendant’s right to counsel had attached and had

been invoked when he was arraigned on the rape charge in

tribal court.4

 Both the tribal investigator and the FBI were

aware of the pending charge in tribal court and knew that

the defendant was represented in that proceeding, yet

neither had contacted the defendant’s attorney and sought

permission to speak with the defendant. Thus, the FBI

agent’s subsequent interview with the defendant was barred

by Jackson. United States v. Red Bird, 146 F. Supp. 2d 993

(D. S.D. 2001).

The Court of Appeals affirmed, rejecting the government’s

contention that because the federal sexual abuse charge

was not the same charge as the rape charge in tribal court

for double jeopardy purposes, it should be considered distinct for purposes of the Sixth Amendment as well. In the

Eighth Circuit’s view, because the tribal charge had triggered the federal inquiry, tribal authorities had “worked in

tandem” with the FBI to investigate the rape, the elements

of the tribal and federal charges were essentially the same,

and because tribal sovereignty was unique and limited in

nature, it was not dispositive that the two charges were

brought by different sovereigns. Id. at 715. Like the district

court, the Court of Appeals concluded that because the

defendant’s right to counsel had attached and been invoked

in the tribal proceeding, Jackson precluded the FBI from

instigating a discussion with him in the absence of his
No. 04-2539 19

counsel. Id. at 715-16. Accord United States v. Bowlson, 240

F. Supp. 2d 678, 683-84 (E.D. Mich. 2003) (“where the

federal and state authorities’ investigations were inexorably

intertwined,” Jackson barred federal agents from questioning defendant about a bank robbery with which he had

already been charged, and as to which he was already

represented by counsel, in state court, notwithstanding

federal government’s power to charge him separately for the

same robbery).

The Second Circuit has likewise rejected the contention

that the dual sovereignty doctrine renders overlapping

federal and state charges distinct for Sixth Amendment

purposes. Mills, 2005 WL 1444145. The court acknowledged

Cobb’s holding that the term “offense” should be given the

same meaning in the Sixth Amendment context as it is in

the double jeopardy setting. Id., at *4. The court also

recognized that the Double Jeopardy Clause will not bar

two sovereigns from separately charging a defendant based

on the same set of facts, even when the charged crimes

would amount to the “same offense” under Blockburger v.

United States, 284 U.S. 299, 52 S. Ct. 180 (1932). Mills,

2005 WL 1444145, at *4. Nonetheless, the court found no

support in Cobb for the notion that the dual sovereignty

doctrine permits a defendant to be questioned as to a

federal charge when he has already been charged with

essentially the same crime in state court and his right to

counsel has attached to the state charge:

Cobb makes clear that Sixth Amendment violations are

offense specific and, consequently, evidence obtained in

violation of the Sixth Amendment is not admissible in

subsequent prosecutions for the “same offense” as

defined by Blockburger. The fact that Cobb appropriates

the Blockburger test, applied initially in the double

jeopardy context, does not demonstrate that Cobb incorporates the dual sovereignty doctrine: The text is

used simply to define identity of offenses. Where, as
20 No. 04-2539

here, the same conduct supports a federal or a state

prosecution, a dual sovereignty exception would permit

one sovereign to question a defendant whose right to

counsel had attached, to do so in the absence of counsel

and then to share the information with the other

sovereign without fear of suppression. We easily conclude that Cobb was intended to prevent such a result.

Id., at *5; see also David J. D’Addio, Comment, Dual

Sovereignty and the Sixth Amendment Right to Counsel, 113

Yale L. J. 1991, 1992 (2004) (arguing that dual sovereignty

principles should not be imported into Sixth Amendment

jurisprudence, because to do so “creat[es] the potential for

cooperating sovereigns to circumvent a defendant’s Sixth

Amendment right to counsel”).

The facts in this case make room for a similar theory.

After Krueger was charged in state court, state officials

referred the case to ATF Special Agent Handy and the

U.S. Attorney for possible federal prosecution, and the U.S.

Attorney elected to pursue federal charges against Krueger.

Once a federal warrant was issued for Krueger’s arrest, the

state charges against Krueger were dismissed and he was

immediately arrested on the federal warrant at the

Marinette County Courthouse, driven to Green Bay by a

state deputy, and delivered into the custody of federal

agents. As Judge Griesbach observed, the transition between the state and federal prosecutions of Krueger was

virtually seamless:

In essence, the United States Attorney, with the agreement of the Marinette County District Attorney, took

over the prosecution of Krueger and the case was

essentially transferred to federal court. The transfer

was accomplished by the issuance of a federal arrest

warrant and criminal complaint on August 7, 2003,

followed by the dismissal of the state charges when

Krueger appeared at the Marinette County Courthouse
No. 04-2539 21

the following day. There was literally no lapse in time

between the two prosecutions.

R. 33 at 20-21. Moreover, even after Special Agents Handy

and DeValkenaere had taken custody of Krueger, at least

one state official remained involved in the case. Recall that

Deputy Sheriff Rick Berlin had followed Handy and

DeValkenaere to the Brown County Courthouse, where

Krueger was to be held pending his first appearance in

federal court later, and had parked his car behind theirs.

When Krueger finally agreed to be interviewed by the

federal agents, Berlin was invited to join the interview as

he was more likely to know the individuals that Krueger

would implicate in his marijuana trafficking. These facts

certainly give rise to the appearance of coordination between state and federal authorities. In view of that apparent coordination, an argument could be made along the

lines of Red Bird that the federal charges, although brought

by a different sovereign, were essentially the same ones

that had been asserted against Krueger in state court for

purposes of the Sixth Amendment. That would in turn

suggest that Handy and DeValkenaere may have ran afoul

of Jackson when they solicited Krueger’s cooperation, for

there is no doubt that Krueger’s right to counsel had

attached in the state proceeding and that Krueger had

invoked that right.

However, this is not a subject that we need to explore

further in this case. As a matter of prudence and restraint,

we decide constitutional questions only if it is truly necessary to do so. See, e.g., United States v. Westmoreland,

240 F.3d 618, 629 (7th Cir. 2001); United States v. Bloom,

149 F.3d 649, 653 (7th Cir. 1998). For the reasons that

follow, we are satisfied that it is unnecessary to decide the

Sixth Amendment question that Krueger’s motion to

suppress presented.

We note first that Krueger preserved his right to appeal

the district court’s ruling on this subject only insofar as his
22 No. 04-2539

August 8 statement affected his sentence. R. 34 at 9 ¶ 27.

The district court relied on the August 8 statement as one

of the bases for the drug quantity finding, but it also found

that there was an alternate evidentiary basis for the finding. R. 49 at 20-21. The evidence underlying that alternate

basis was set forth in the PSR, and the AUSA outlined that

basis at the sentencing hearing. Although Krueger, through

his counsel, did not concede that the cited evidence was

sufficient, independent of his own statement, to support a

quantity finding of at least 100 kilograms, neither did he

identity any particular shortcoming in that evidence. The

district court ultimately found that the evidence was sufficient to establish Krueger’s responsibility for 100 or more

kilograms apart from his August 8 statement. Id. at 20-21.

True, the district court made no determination as to

whether Stoegbauer’s statement as to the extent of

Krueger’s trafficking would have been available had

Krueger himself not already divulged that information to

the ATF agents. Id. However, the record as it stands does

not give us reason to doubt that Stoegbauer still would have

given the agents that information. The evidence indicates

that the authorities would have contacted Stoegbauer even

in the absence of Krueger’s August 8 statement, that

Stoegbauer was immediately cooperative when visited by a

federal agent, and that he readily gave statements that

incriminated himself as well as Krueger. On its face, this

evidence suggests that Stoegbauer’s statement was not the

fruit of Krueger’s August 8 statement. The possibility that

Stoegbauer might have known what his friend Krueger told

the agents on August 8 about the extent of his marijuana

dealing, and thus might have been more willing to incriminate Krueger, is not one that the evidence set forth in the

PSR suggests, nor is it one that the parties (or, for that

matter, the district court) raised in advance of the sentencing hearing. Had it been, Stoegbauer could have been

summoned to testify on that point at sentencing. See id. at

8, 19. As it stands, the record gives us no reason to believe
No. 04-2539 23

that Stoegbauer’s statement was in any way the result of or

tainted by Krueger’s August 8 statement.

But even if the record is as “muddy” on this point as

Krueger suggests it is, Krueger Reply Br. at 1, there is yet

another reason why we do not need to determine whether

Handy and DeValkenaere interrogated Krueger in violation

of his Sixth Amendment right to counsel. The premise of

Krueger’s argument is that if his August 8 statement was

obtained illegally, the district court could not consider it for

sentencing purposes. Yet, as the government has pointed

out, that is not necessarily the case.

The exclusionary rule is, for the most part, inapplicable

at the sentencing stage of a criminal prosecution. See

United States v. Brimah, 214 F.3d 854, 858-59 (7th Cir.

2000) (joining nine other circuits in holding that “in most

circumstances, the exclusionary rule does not bar the introduction of the fruits of illegal searches and seizures during sentencing proceedings”); Del Vecchio v. Illinois Dep’t of

Corrections, 31 F.3d 1363, 1388 (7th Cir. 1994) (en banc)

(concluding that the exclusionary rule did not bar the

consideration at sentencing of a confession that was allegedly procured in violation of the defendant’s Miranda

rights). Thus, sentencing judges, who operate under a

charge to consider the broadest possible array of information about each defendant, see 18 U.S.C. § 3661; U.S.S.G.

§§ 1B1.4, 6A1.3(a), may consider reliable evidence that was

obtained illegally in fashioning an appropriate sentence. See

United States v. Westmoreland, supra, 240 F.3d at 630;

United States v. Troxell, 887 F.2d 830, 835 (7th Cir. 1989)

(quoting United States v. Plisek, 657 F.2d 920, 926 (7th Cir.

1981)). Accordingly, even assuming that Krueger’s August

8 statement was taken in violation of his Sixth Amendment

right to counsel, the district court was nonetheless free to

rely on that evidence in making the findings necessary to

determine the sentencing range called for by the Sentencing

Guidelines.
24 No. 04-2539

We have, it is true, left open the possibility that the

exclusionary rule might apply at sentencing where the

authorities have deliberately violated the defendant’s constitutional rights for the purpose of acquiring evidence to

boost his prospective sentence. Brimah, 214 F.3d at 858

n.4.; but see United States v. Jewel, 947 F.2d 224, 238 (7th

Cir. 1991) (Easterbrook, J., concurring) (noting the near impossibility of showing that authorities obtained evidence

specifically for use in sentencing, and going on to observe

that “[i]t is awfully hard to see why motive should matter

on either prudential or doctrinal grounds”). Krueger suggests that this might be what happened here: as he sees it,

the aim of the August 8 interview was to gather evidence

that the government could use to boost the drug quantity

determination and thus his sentencing range. Krueger

Reply Br. at 5. Prior to that interview, Krueger points out,

he was known to be responsible for the three kilograms of

marijuana that was found in his truck and in his residence;

after the interview, the amount “ballooned” to over 100 kilograms. Krueger Reply Br. at 6. “Clearly, the purpose and

result of the interview was to increase Krueger’s sentence.

What other purpose could it serve?” Id.

But the record lends little or no support to the notion that

Handy and DeValkenaere deliberately violated Krueger’s

right to an attorney with the intent to gather evidence that

would increase his sentence. In fact, the testimony concerning the August 8 interview suggests that the agents were

primarily interested in having Krueger name other persons

who were involved in his drug dealing. Indeed, that proved

to be a sticking point between the agents and Krueger:

Krueger did not want to implicate anyone else (or at most,

one other person), whereas the agents were unwilling to

talk with him unless he was willing to name others.

Krueger ultimately relented, and when he did, Deputy

Sheriff Berlin was invited to join the discussion because he

was more likely to know the individuals that Krueger would
No. 04-2539 25

name. We do not suppose that the agents were blind to the

sentencing ramifications of what Krueger told them about

the extent of his marijuana sales. But the record as it

stands does not suggest that they purposely trampled his

constitutional rights in order to lengthen his prison sentence.

Thus, even if Handy and DeValkenaere did run afoul of

Michigan v. Jackson and Krueger’s right to the assistance

of counsel when they questioned him on August 8, the

district court was not precluded from relying on Krueger’s

statement at sentencing to ascertain the quantity of marijuana for which he was responsible. We leave for another

day the question of whether and when Jackson might

preclude interrogation as to a federal charge that is based

on the same facts underlying a state charge as to which the

defendant has already invoked his right to counsel.

B. Booker and the Judge’s Sentencing Determinations

For purposes of determining Krueger’s offense level under

the Sentencing Guidelines, the district court made certain

factual determinations regarding Krueger’s criminal

conduct. These findings went beyond the facts to which

Krueger had stipulated in his plea agreement and were

rendered by the court based on a preponderance of the

evidence. They obviously include the court’s finding as to

the total amount of marijuana for which Krueger was responsible as well as its finding that Krueger had possessed

a firearm during the drug offense. Both findings had the

effect of increasing Krueger’s offense level and thus the

Guidelines sentencing range. The Supreme Court’s decision

in United States v. Booker, supra, 125 S. Ct. 738, does not

preclude a sentencing judge from making factual findings

that have the effect of increasing the Guidelines sentencing

range, but it does render the Guidelines advisory in order
26 No. 04-2539

to avoid the constitutional problem that mandatory application of the Guidelines otherwise would present. See id. at

750.

Krueger did not make a constitutional objection to the

factfinding in which the district court engaged at sentencing. Although he arguably objected to the court basing its

findings on facts other than those which he admitted in the

plea agreement, see R. 49 at 7-8, he did not argue that the

court was without the power to make such findings. Accordingly, Krueger forfeited the Booker challenge to his sentence

that he makes on appeal, and our review is confined to one

for plain error.

Nonetheless, the government concedes that, in retrospect,

Booker error did occur and that the error was plain: the

district judge sentenced Krueger believing that the Guidelines were mandatory. The pertinent question, then, is

whether Krueger’s substantial rights were affected by the

error. See Fed. R. Crim. P. 52(b); United States v. Lee, 399

F.3d 864, 866 (7th Cir. 2005). We cannot answer that

question without knowing whether the district court would

have been inclined to sentence him more leniently had it

known that the Guidelines were advisory rather than mandatory. United States v. Paladino, supra, 401 F.3d at 482.

The judge’s remarks at sentencing as well as the sentence

it imposed suggest that he might have been so inclined. The

judge made a point of remarking on his lack of discretion

under the Guidelines, noting that the Guidelines had

“shifted the focus of any criminal sentencing procedure from

the normal concern and viewing of the individual, along

with the seriousness of the offense . . ., to almost an academic . . . or abstract calculation on guidelines,” R. 49 at 24;

the court also sentenced Krueger at the bottom of the

Guidelines range. We also note that the judge’s sentencing

discretion was even more confined here than it was in the

usual Guidelines case by virtue of the statutory maximum

term of five years. Under these circumstances, it is entirely
No. 04-2539 27

possible that had the judge realized that he had the discretion to sentence Krueger outside of the Guidelines range, he

might have sentenced Krueger to a lesser period of time in

prison than the 57-month term that he imposed. See

Paladino, 401 F.3d at 482.

Pursuant to the course we outlined in Paladino, we

therefore order a limited remand of the sentence to the

district court so that the court may consider whether it

would reimpose the original sentence if it were directed to

resentence Krueger in light of Booker. 401 F.3d at 483-84.

If the district court answers that question in the negative,

indicating that it would have imposed a lesser sentence had

it known that the Guidelines were merely advisory, then

plain error will have been established and we shall vacate

the sentence in order to permit re-sentencing. Id. at 484. If,

on the other hand, the district court concludes that it would

reimpose the same sentence, then we shall proceed to

consider whether that sentence is plainly erroneous in the

sense of being unreasonable. Id., citing Booker, 125 S. Ct. at

765.

III.

For the reasons discussed above, we find no constitutional

infirmity in Krueger’s sentence based on the district court’s

consideration of evidence that may have been obtained in

violation of the Supreme Court’s decision in Michigan v.

Jackson. However, we direct a limited remand of the

sentence so that the district court may determine whether

it would have sentenced Krueger differently had it known

that the Sentencing Guidelines are advisory rather than

mandatory. We retain appellate jurisdiction pending the

outcome of the limited remand we have ordered.
28 No. 04-2539

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-28-05