United States v. Tolase-Cousins

UNITED STATES COURT O F APPEALS

TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,
v.
Nos. 04-2218 & 04-2264
KURT DONALD COUSINS, and
BU KOLA TO LA SE-CO USINS,

Defendants - Appellants.

OR DER
Filed July 26, 2006

Before EBEL, Circuit Judge, BROR BY, Senior Circuit Judge, and HENRY,
Circuit Judge.

M s. Bukola Tolase-Cousins filed a petition for rehearing by the panel with

a suggestion for consideration by the en banc court. W e grant the petition for

panel rehearing in part for the limited purpose of revising our discussion of the

standard of review for curtilage determinations. In all other respects, M s. Tolase-

Cousins’s petition for rehearing is denied. The court’s opinion filed on M arch 17,

2006 is withdrawn, and a copy of the amended opinion is attached to this order.

The mandate issued in appeal number 04-2264, is hereby recalled.

In light of the en banc request, the petition for rehearing was transmitted to

all of the judges of the court who are in regular active service. As no judge in
regular active service requested that the court be polled on the petition, the

request for en banc review is denied.

Entered for the Court
Elisabeth A . Shumaker, Clerk of Court

By:
Deputy Clerk

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 F I L E D
United States Court of Appeals
Tenth Circuit

July 26, 2006
PU BL ISH
Elisabeth A. Shumaker
UNITED STATES COURT O F APPEALS Clerk of Court

TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,
v.
Nos. 04-2218 & 04-2264
KURT DONALD COUSINS, and
BU KOLA TO LA SE-CO USINS,

Defendants - Appellants.

Appeal from the United States District Court
for the District of New M exico
(D.C. No. CR-03-1451 BB)

H ope Eckert, A ttorney at Law , LLC, Albuquerque, New M exico (M ichael A.
Keefe, Assistant Federal Public Defender, Albuquerque, New M exico, with her on
the briefs) for Defendants-Appellants.

David N. W illiams, Assistant United States Attorney, Albuquerque, New M exico
(D avid C. Iglesias, United States A ttorney for the District of New M exico, with
him on the brief) for Plaintiff-A ppellee.

Before EBEL, Circuit Judge, BROR BY, Senior Circuit Judge, and HENRY,
Circuit Judge.

EBEL, Circuit Judge.
 Kurt Cousins and Bukola Cousins pled guilty to various drug charges

stemming from the discovery of over 500 marijuana plants growing in their

backyard. Police officers, acting on a tip from a utility employee, entered into a

“sideyard” of Defendants’ house and, looking through a hole in a fence, were able

to observe marijuana plants growing in Defendants’ backyard. Below and on

appeal, Defendants argue that the police conduct violated the Fourth Amendment

because the sideyard was within the curtilage of their house. W e conclude that

the district court properly rejected this claim and therefore AFFIRM the district

court’s denial of the motion to suppress.

Defendant Kurt Cousins also challenges the validity of his sentence.

Specifically, Kurt Cousins argues that the district court should not have used a

1996 state court conviction in calculating his criminal history category because

that conviction was obtained without the benefit of counsel and in violation of the

Sixth Amendment. W e conclude that Kurt Cousins’s 1996 conviction was

unconstitutional at the time it was imposed and REVERSE his sentence and

REM AND for resentencing.

BACKGROUND

I. Factual background

On June 12, 2003, Robert Bryant, an employee with Public Service of New

M exico (“PNM ”), visited the home of Kurt Donald Cousins (“Kurt”) and Bukola

Tolase-Cousins (“Bukola”) (collectively “Defendants”), a married couple. Bryant

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was attempting to collect on a delinquent bill for electricity and gas services.

W hen he knocked on the door, there was no answer. After leaving a note stating

that the home’s power would be cut off, Bryant then went to the electricity meter

and cut the power to the house using two plastic “boots.” The meter was located

on the east side of a small “sideyard,” directly adjacent to the Cousinses’ home.

The sideyard was approximately eight feet wide and was bordered to the

north by a gate leading to the Cousinses’ backyard, to the west by a fence

separating the Cousinses’ property from their neighbor’s, and to the east by the

Cousinses’ residence. There was no barrier to the south. One could enter the

sideyard from the south by walking north along the Cousinses’ driveway and

following a paved walkway that led west (away from the front door) and turned

north at the edge of the Cousinses’ garage where it ended in front of the gate.

The distance from the electric meter to the gate w as approximately thirteen feet.

Defendants had planted a small melon garden in the sideyard to the left of the

paved walkway.

Bryant returned on July 2, 2003, because payment on the utility bill still

had not been made. He discovered that the electric meter had been tampered

with: the boots had been removed and the meter had been reinstalled. Bryant

disconnected the pow er and placed a new lock on the electric meter and also

disconnected the gas service to the house.

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 The following afternoon, Bryant again returned to Defendants’ residence

and discovered that someone had attached jumper cables to the meter in order to

provide electricity illegally to the house. Bryant then called PNM and requested a

“trouble truck” be sent to the address so that electricity could be cut at the

transformer, which would prevent theft of electricity from the meter. As he was

waiting for the truck to arrive, Bryant leaned against the west wall of the

sideyard, where he was able to see into the backyard of the house through an open

gate. 1 As he was looking through the gate, Bryant saw what he recognized to be

marijuana plants growing in Defendants’ backyard.

After the trouble truck came and completed the process of cutting off

electricity at the transformer, Bryant left the premises. After driving about half a

block, Bryant saw a police car pulling out in front of him from a nearby side

street. Bryant got out of his car and flagged down Officer M ark M anno of the

R io R ancho D epartment of Public Safety. Bryant identified himself as a PNM

employee and told M anno he had seen marijuana growing in the backyard at the

Cousinses’ residence. Officer M anno then put in a call for backup, to which

Officers Sal Gonzalez, Tim Robey, and Robert Kinney responded. After Bryant

left, the four officers drove to the area in which Defendants lived, parked several

1
At the suppression hearing, Bryant stated that he was “positive” that the
gate w as open when he saw the marijuana plants in the back yard. However,
when police officers arrived at the scene, the gate was closed.

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houses away, and approached the Cousinses’ residence on foot. All four officers

walked up Defendants’ driveway, turned west (away from the front door), and

walked north into the sideyard where the electric meter was located. Although

the open gate Bryant had spoken of earlier was now closed, Gonzalez noticed that

the door of the gate had three heart-shaped cutouts through which one could see

into the backyard. All four officers looked through the holes in the gate and

agreed that there was, in fact, marijuana growing in the backyard. Gonzales also

detected the faint smell of marijuana in the area. After a few minutes, the four

officers then “backed away,” so that they could form a plan of action.

Officer Gonzalez contacted Officer French, a local patrol officer who was

also assigned to the local Drug Enforcement Agency (“DEA”) task force. Officer

French advised that he w ould be there shortly and instructed G onzalez to establish

a security perimeter around the house and to detain anyone coming in or out.

Before the officers established the perimeter, they saw a woman (later identified

to be Defendant Bukola Cousins) drive up to the residence in a white car. Officer

Gonzalez approached Bukola and asked her if she was a resident of the house, to

which she answered “yes.” Bukola refused to identify herself, saying only that

she was a “secured party.” Officer G onzalez handcuffed Bukola and placed her in

his police car. Gonzalez then ordered the other three officers to establish a

security perimeter around the house due to concerns about officer safety. Officer

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Robey secured the rear of the house from the backyard while Officer M anno

secured the front entrance.

A short time thereafter, Officer French arrived with Detective Jeremy

M elton. French and M elton took control of the investigation and interviewed the

other officers as well as Bukola. M elton prepared an affidavit for a search

warrant seeking authority to search Defendants’ home. A New M exico state

district court judge issued the warrant, and later that evening, officers executed a

search of the premises. They discovered Defendant Kurt Cousins as well as 505

marijuana plants of various sizes in the backyard.

II. Procedural history

On August 1, 2003, a federal grand jury returned a three-count indictment

against D efendants. Count I accused Defendants of conspiring to manufacture

more than 100 marijuana plants, in violation of 21 U.S.C. § 846. Count II

accused Defendants of maintaining a place to manufacture and distribute

marijuana, in violation of 21 U.S.C. § 856(a)(1) and (b). Count III sought the

criminal forfeiture of Defendants’ residence in the event they were convicted of

either crime alleged in the previous counts, pursuant to 21 U.S.C. § 853.

On January 30, 2004, Defendants filed a joint motion to suppress all

evidence discovered at their residence when officers executed the search warrant.

They had two primary arguments: First, Defendants claimed that officers violated

the Fourth Amendment by entering upon the curtilage of their house without a

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warrant. Second, they claimed the affidavit in support of the warrant contained

false statements which rendered the warrant invalid under Franks v. Delaware,

438 U.S. 154 (1978).

The district court denied the motions to suppress as well as a subsequent

motion to reconsider. Subsequently, pursuant to a plea agreement, Bukola agreed

to plead guilty to Count II (maintaining a place to manufacture marijuana) of the

indictment while reserving the right to appeal the district court’s suppression

ruling. The G overnment, in turn, agreed to dismiss Count I. The district court

accepted the plea and sentenced Bukola to five months’ imprisonment and three

years’ supervised release, in accordance with the recommendations made in her

presentence report (“PSR”).

Kurt Cousins also entered into a plea agreement whereby he agreed to plead

guilty to Count I of the indictment (conspiracy) in exchange for the G overnment’s

agreement to drop Count II. 2 The probation office then prepared a PSR and

recommended a level II criminal history category for Kurt and an offense level of

18. Based on these recommendations, Kurt would have been eligible under the

sentencing guidelines for a sentence of between 30 and 37 months. However, the

crime for which Kurt was convicted carried a five-year mandatory minimum

sentence. See 21 U.S.C. § 841(b)(1)(B). The only way around this mandatory

2
As part of their plea agreements, both Defendants agreed to forfeit their
property as outlined in Count III of the indictment.

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minimum sentence was to qualify for a safety valve reduction, see 18 U.S.C.

§ 3553(f), w hich requires, among other things, a level I criminal history category.

Therefore, at sentencing, Kurt objected to the PSR’s criminal history

recommendation. He argued that one of the two criminal history points accorded

to him was due to a 1996 South Carolina misdemeanor conviction during which

Kurt alleges he w as deprived the right to counsel. W ithout this criminal history

point, Kurt would have been eligible for the safety valve reduction and therefore

for the lower sentencing guidelines range. After holding a hearing, the district

court overruled Kurt’s objection, adopted the findings of the PSR, and sentenced

Kurt to the statutory mandatory minimum, five years’ imprisonment.

Kurt and Bukola each filed appeals regarding the district court’s denial of

their motion to suppress. 3 In addition, Kurt filed an appeal challenging the

legality of his sentence. Kurt’s and Bukola’s appeals have been consolidated

before this panel.

D ISC USSIO N

I. M otion to suppress

W hen review ing a district court’s ruling on a suppression motion, “we

accept the district court’s factual findings absent clear error and review de novo

3
As noted above, the original suppression motion argued both that the
officers invaded the house’s protected curtilage and the accuracy of statements in
the warrant affidavit. However, on appeal, Defendants only challenge the
curtilage aspect of the district court’s decision denying the motion to suppress.

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the district court’s determination of reasonableness under the Fourth

Amendment.” U nited States v. Olguin-Rivera, 168 F.3d 1203, 1204 (10th Cir.

1999). In the past, we have reviewed district courts’ curtilage determinations for

clear error. See, e.g., United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir.

1993). However, based on the Supreme Court decision in Ornelas v. United

States, 517 U.S. 690 (1996), we now conclude that ultimate curtilage conclusions

are to be reviewed under a de novo standard although we continue to review

findings of historical facts for clear error. 4 Accord Ornelas, 517 U.S. at 691;

United States v. Barajas-Avalos, 377 F.3d 1040, 1054 (9th Cir. 2004) (citing

United States v. Johnson, 256 F.3d 895, 912 (9th Cir. 2001) (en banc)), cert.

denied, 543 U.S. 1188 (2005); United States v. Breza, 308 F.3d 430 (4th Cir.

2002); United States v. Diehl, 276 F.3d 32 (1st Cir. 2002).

A. Applicable law

“The curtilage concept originated at comm on law to extend to the area

immediately surrounding a dwelling house the same protection under the law of

4
W e have circulated this portion of our opinion to the en banc court, which
has unanimously agreed that the ultimate curtilage determination is a legal
question to be reviewed de novo and that findings of historic facts are reviewed
for clear error. To the extent that any holdings in our prior cases are to the
contrary, such holdings are therefore overruled. See, e.g., United States v. Long,
176 F.3d 1304, 1308 (10th Cir. 1999) (stating, post-Ornelas, that “[t]he district
court’s factual determination that the bags w ere located outside the curtilage is
subject to a clearly erroneous standard of review”); United States v. Knapp, 1
F.3d 1026, 1029 (10th Cir. 1993); United States v. Sw epston, 987 F.2d 1510,
1513 (10th Cir. 1993).

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burglary as was afforded the house itself.” United States v. Dunn, 480 U.S. 294,

300 (1987). In O liver v. United States, 466 U.S. 170 (1984), the Supreme Court

recognized that the Fourth Amendment protects the curtilage of a house and that

the extent of the curtilage is determined by factors that bear upon whether an

individual reasonably may expect that the area in question will remain private.

Id. at 180. The central component of this inquiry is whether the area harbors the

“intimate activity associated with the sanctity of a man’s home and the privacies

of life.” Id. (quotation omitted). In Dunn, the Court more carefully defined this

standard and articulated four factors used to determine whether a particular area

was within the curtilage of a house: (1) the proximity of the area to the house; (2)

whether the area is included within an enclosure surrounding the home; (3) the

nature of the use to which the area is put; and (4) the steps taken by the resident

to protect the area from observation. 480 U.S. at 301. These factors are not a

“finely tuned formula,” but “are useful analytical tools only to the degree that, in

any given case, they bear upon the centrally relevant consideration— whether the

area in question is so intimately tied to the home itself that it should be placed

under the home’s ‘umbrella’ of Fourth Amendment protection.” Id. at 301.

B. Analysis

Applying the four Dunn factors, we conclude that the district court did not

clearly err in finding that the sideyard area was not within the curtilage of the

Cousinses’ home.

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 1. Proximity of area to house

The sideyard was immediately adjacent to the house. Thus, the proximity

factor suggests this area is curtilage.

2. Enclosure

The sideyard was enclosed on three sides: (1) on the east by an exterior

wall of the house; (2) on the north by the gate door; and (3) on the west by a

fence. As such, the sideyard is partially, though not completely, enclosed.

Courts have found an area to be curtilage where the area in question is only

partially enclosed. See, e.g., Sw epston, 987 F.2d at 1515 (“Here . . . although the

barbed wire fence around [Defendant’s] property was incomplete, the same fence

encircled both [Defendant’s] house and his chicken shed, and no fence separated

the two.”). In United States v. Jenkins, 124 F.3d 768 (6th Cir. 1997), the Sixth

Circuit found an area to be curtilage w here the yard was

enclosed on three sides by a wire fence, making it impossible for
someone to enter the yard from the fields without using the gate or
climbing over the fence. Entry from the remaining side, although not
completely barred, [was] partially obstructed by the house.

Id. at 773. W hat makes the instant case different from Jenkins is that the

unenclosed side is the expected path one would take to get to the sideyard, and it

is a paved sidewalk. Given this, it is substantially different from the areas in

question in either Jenkins or Sw epston. Thus, this factor weighs against a finding

of curtilage.

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 3. Nature of the use of the area

There is some evidence in the record that a portion of the sideyard area was

used as a garden for melons. Gardening is an activity often associated with the

curtilage of a home. See United States v. Breza, 308 F.3d 430, 436 (4th Cir.

2002). This is not to say that simply because an area has a garden, it will always

be within the curtilage. As Dunn makes clear, the area in question must be used

for the “intimate activities of the home.” 480 U.S. at 302. W hatever intimate

character a few melon plants might add to the sideyard, we cannot conclude that

gardening was a primary or even significant use of this area. Indeed, the presence

of the electric meter and paved walkway belie any claim that the sideyard was

intended as a private space for gardening. Thus, this factor also weighs against a

finding of curtilage.

4. Shielding from public view

As for the fourth Dunn factor, the district court concluded that “no steps

were taken by Defendants to limit access to this walkw ay even when they were

clearly aw are utility employees frequented this area.” D efendants’ main counter-

argument is that a number of trees and bushes restricted the view of the sideyard

from the street. Even if this is true, it is still clear that the utility meter and gate

were visible from the street and that the sideyard was connected to the driveway

by a paved walkway that was accessible to any and all persons wishing to enter

upon it. See LaFave, supra, at 599-603 (“In the course of urban life, we have

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come to expect various members of the public to enter upon such a driveway, e.g.,

brush salesmen, newspaper boys, postmen, Girl Scout cookie sellers, distressed

motorists, neighbors, friends. Any one of them may be reasonably expected to

report observations of criminal activity to the police.”) (quoting State v. Corbett,

516 P.2d 487, 490 (Or. Ct. App. 1973)).

Furthermore, since the electric meter was located in this area, the Cousinses

knew that utility employees would be in the area at least once a month to read the

meter. The Cousinses claim that these employees were not “uninvited visitors,”

but that they were “invited as the result of an easement to which the Cousins

voluntarily agreed.” The Cousinses, however, could have had no reasonable

expectation that such visitors w ould protect the Cousinses’ privacy; the utility

employees could potentially report any illegal conduct observed while on the

property (as happened in this case). Inviting such persons onto their property

further shows that the Cousinses did not take steps to protect the area from

observation. See United States v. Domitrovich, 1995 W L 358624, at *1 (9th Cir.

1995) (unpublished) (affirming the district court’s conclusion that an area was not

curtilage, in part because the defendant “had regularly allowed meter readers

access to the area around the home”), aff’g 852 F. Supp. 1460, 1467–71 (E.D.

W ash. 1994) (“M eter readers were afforded unrestricted access to the area around

the residence while going to and from the meter. . . . [Thus,] the defendant’s

actions were not entirely consistent with his professed zeal for privacy.”). Cf.

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United States v. Depew, 8 F.3d 1424, 1428 (9th Cir. 1993) (finding that the fourth

Dunn factor weighed in the defendant’s favor, in part because he “had a post

office box in town and read his own meter so that no postal worker or meter

reader came to his premises”), overruled on other grounds by Johnson, 256 F.3d

at 913 n.4; State v. Poulos, 942 P.2d 901, 904 n.2 (Or. Ct. App. 1997)

(concluding that the defendant had shown an intent to exclude the public, in part

because “by agreement with the electric company, defendant read his own meter

and reported it to the company”).

Allowing meter readers on the premises is not necessarily dispositive, but

here the fact that the area was accessed by a walkway and was not enclosed,

coupled with the fact that the Defendants knew the area was frequented by a

meter reader who might be expected to report observed illegal activity, leads to a

conclusion that this fourth factor also weighs against a finding of curtilage.

5. Conclusion

As a result of the above analysis, we conclude that Defendants’ sideyard

did not fall within the curtilage of their home. As a result, law enforcement

presence in this area did not violate the Fourth Amendment.

II. K urt Cousins’s sentencing appeal

Under 21 U.S.C. § 841(b)(1)(B)(vii), a conviction under 21 U.S.C. § 841(a)

involving more than 100 marijuana plants is subject to a five-year mandatory

minimum sentence. However, a defendant can exempt himself from the

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mandatory minimum sentence if he meets the following safety valve

requirements:

(1) the defendant does not have more than 1 criminal history
point, as determined under the sentencing guidelines;
(2) the defendant did not use violence . . . or possess a firearm
or other dangerous weapon . . . in connection with the offense;
(3) the offense did not result in death or serious bodily injury
to any person;
(4) the defendant was not an organizer, leader, manager, or
supervisor of others in the offense . . . and was not engaged in a
continuing criminal enterprise . . . ; and
(5) . . . the defendant has truthfully provided to the
Government all information and evidence the defendant has
concerning the offense . . . .

18 U.S.C. § 3553(f)(1)-(5). If the district court makes these five findings, the

defendant is eligible instead for the range proscribed by the United States

Sentencing Guidelines.

Here, the district court sentenced Kurt Cousins to five years in prison,

pursuant to the statutory mandatory minimum. If, however, Kurt’s criminal

history category had been level I instead of level II, he may have been eligible for

a safety-valve reduction. See id. Kurt’s criminal history category classification

was due, in part, to a 1996 South Carolina misdemeanor conviction for receiving

stolen goods where he was sentenced to a $500 fine or, in the alternative, to 30

days in prison. 5 Kurt contends that he was deprived of the right to counsel at

5
On February 26, 1996, in Greenville County, South Carolina, Kurt was
convicted of the misdemeanor offense of receiving stolen goods, pursuant to a
(continued...)

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these state court proceedings and that therefore the district court in the instant

case should not have included the conviction in his criminal history category

calculation.

A. Standard of review

W e review de novo both the legality of a sentence and the constitutionality

of a state court conviction used in sentencing proceedings. See United States v.

W icks, 995 F.2d 964, 975-76 (10th Cir. 1993).

B. W hether a Defendant may collaterally challenge the validity of
his state-court conviction at a federal sentencing proceeding

In its answ er brief, the Government asserts that it is improper for K urt to

challenge the constitutionality of his prior state court conviction in a federal

sentencing proceeding. The proper route, according to the Government, would

have been to challenge the conviction within the South Carolina state court

system.

The Supreme Court has held that a defendant may not generally challenge

the constitutionality of his prior state court conviction by objecting at a federal

sentencing hearing to the use of that prior conviction as part of a sentencing

5
(...continued)
guilty plea. The written judgment reflects a sentence of 30 days in jail or a $500
fine. The word “suspended” is circled. A provision for one month unsupervised
probation is crossed out. The Government stipulated that the South Carolina
court effectively imposed a suspended sentence requiring Kurt to pay the $500
fine or, if he did not, to spend 30 days in jail. There is also no dispute that Kurt
was not represented by an attorney during these proceedings.

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enhancement. Custis v. United States, 511 U.S. 485, 487 (1994). However, an

exception to this general rule is that challenges to the constitutionality of a

conviction based upon a violation of the right to counsel are permitted in

sentencing proceedings, even though the defendant is attacking the prior state

conviction collaterally in federal court. Id. Thus, on its face, the G overnment’s

argument appears to be meritless.

However, there is a slight distinction betw een the instant case and Custis.

In Custis, the defendant raised his constitutional challenge to the prior state

conviction as part of his objections to a sentence enhancement. 511 U.S. at 487.

Here, by contrast, the objection is to the non-application of the safety-valve

provision. That provision does not enhance a sentence; rather, it makes a

defendant eligible for exemption from the statutory mandatory minimum.

Thus, while it is clear that a defendant may challenge his state conviction

in federal court when it is used to enhance his sentence, the question before us is

whether he may do so when he seeks a safety valve exemption from the statutory

mandatory minimum to reduce his likely sentence. In Lewis v. United States, the

Court stated: “W e recognize, of course, that under the Sixth Amendment an

uncounseled felony conviction cannot be used for certain purposes. The Court,

however, has never suggested that an uncounseled conviction is invalid for all

purposes.” 445 U.S. 55, 66-67 (1980) (citations omitted). W ith this in mind, the

Court in Lewis held that it was permissible to use an uncounseled conviction for

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the purposes of imposing a civil restriction against owning a firearm, even though

the conviction could not be used to enhance a criminal sentence. Id. at 67. This

was because prohibiting the use of uncounseled convictions in sentencing

enhancements is based on a concern about the reliability of an uncounseled

conviction. Id. The federal gun laws, by contrast, focus on the mere fact of

conviction (or even indictment) in order to keep firearms away from potentially

dangerous people. Id.

The instant case is closer to Custis than it is to Lewis. W hether or not we

are enhancing a sentence based on a conviction or determining on the basis of that

prior conviction that a defendant is not eligible for a safety-valve reduction, the

principle concern is w hether the prior conviction being used against him is

accurate and reliable. There is no principled reason that the Sixth Amendment

would protect someone from a sentence enhancement yet deny that person the

benefit of an exemption from a mandatory minimum on the basis of the same

prior conviction, particularly since both challenges seek to reduce the amount of

prison time a defendant has to serve.

Thus, we hold that Kurt 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).

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 C. W hether the South Carolina conviction violated the Sixth
Amendment

In G ideon v. W ainw right, 372 U.S. 335, 344-45 (1963), the Supreme Court

held that the Sixth Amendment’s guarantee of the right to appointed counsel

applies to state criminal prosecutions through the Fourteenth Amendment.

Clarifying the scope of Gideon, the Court later held that an indigent defendant

must be appointed counsel in any criminal prosecution, regardless of its

classification as a misdemeanor or a felony, “that actually leads to imprisonment

even for a brief period . . . .” Argersinger v. Hamlin, 407 U.S. 25, 33 (1972).

Seven years later, in Scott v. Illinois, 440 U.S. 367 (1979), the Court established

the outer limit of the right first enunciated in Argersinger. Id. at 373. Although

the statute under which the defendant in Scott was charged authorized up to a

one-year jail term, the Court held that the defendant had no right to state-

appointed counsel because the sole sentence imposed on him was a $50 fine. Id.

at 368, 373-74.

The next major development in this area of law was Alabama v. Shelton,

535 U .S. 654 (2002). The defendant in Shelton was sentenced to 30 days’

imprisonment after a conviction for misdemeanor assault. Id. at 658. The trial

court suspended that sentence, how ever, and placed the defendant on two years’

unsupervised probation. Id. If the defendant violated his terms of probation, he

would be subject to the 30 days’ imprisonment. Id. The Court held that a

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suspended sentence that may end up in actual deprivation of a person’s liberty fit

under the Argersinger-Scott “actual imprisonment” rule and thus entitled the

defendant to the benefit of counsel. Id. at 674.

The instant case is analogous to Shelton in the sense that the sentence

imposed by the South Carolina court was essentially a suspended sentence: either

Defendant paid the $500 fine or he went to jail for 30 days. Therefore, by

depriving Kurt of the benefit of counsel, South Carolina appears to have violated

Kurt’s Sixth Amendment rights.

The G overnment on appeal contends that Shelton does not apply to K urt’s

South Carolina conviction because the Supreme Court issued Shelton after Kurt’s

state court conviction had taken effect and Shelton did not apply retroactively to

that conviction. See Teague v. Lane, 489 U.S. 288, 310 (1989) (holding that a

“new rule” does not retroactively apply to cases on collateral review unless it

falls within one of a narrowly-defined set of exceptions). 6 Thus, argues the

government, since the conviction was valid at the time it was made, it could be

6
In Schriro v. Summerlin, 542 U.S. 348 (2004), the Supreme Court recently
summarized the types of cases that fall outside the Teague retroactivity bar.
Generally speaking, new substantive rules apply retroactively. Id. at 351. “This
includes decisions that narrow the scope of a criminal statute by interpreting its
terms as well as constitutional determinations that place particular conduct or
persons covered by the statute beyond the State’s power to punish.” Id. at 351–52
(citations omitted). New rules of procedure, on the other hand, generally do not
apply retroactively, unless they fall into the small set of “watershed rules of
criminal procedure,” implicating the fundamental fairness and accuracy of the
criminal proceeding. Id. at 352.

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used for the purposes of denying a safety-valve exemption. See Nichols v. United

States, 511 U.S. 738, 748-49 (1994).

However, the Teague bar is not jurisdictional and it may be waived. See

Schiro v. Farley, 510 U.S. 222, 228 (1994). In reviewing the record, it appears

that the Government did not raise a Teague-style objection to the application of

Shelton below. Therefore, we decline to address this issue. See Duckett v.

Godinez, 67 F.3d 734, 746, n.6 (9th Cir. 1995); Hanrahan v. Greer, 896 F.2d 241,

245 (7th Cir. 1990).

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. 7

C ON CLU SIO N

For the reasons outlined above, we AFFIRM the district court’s decision to

deny Defendants’ motion to suppress. However, we REVERSE Defendant Kurt

Cousins’s sentence and REM AND for resentencing.

7
This is not to say, of course, that Kurt Cousins necessarily qualifies for a
safety valve exception. 18 U.S.C. § 3553(f) presents a five part test. The district
court did not address the other four parts given the ruling on Defendant’s criminal
history. Consequently, we must remand for the district court to consider the other
four requirements under § 3553(f) to determine whether Kurt Cousins qualifies
for safety valve relief.

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