F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
July 9, 2007
UNITED STATES COURT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v.
No. 06-2079
W A Y N E JA CK SO N ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of New M exico
(D.C. No. CR-05-1088-JAP-2)
Howard L. Anderson, Las Cruces, New M exico, for D efendant-Appellant.
Gregory B. W ormuth, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with him on the brief), Las Cruces, New M exico, for Plaintiff-
Appellee.
Before TA CH A, Chief Circuit Judge, BR ISC OE, and GORSUCH, Circuit
Judges.
G O R SU CH, Circuit Judge.
W ayne 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
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 M r. 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, M r. 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 M r.
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 M exico, during early 2005. In the usual course, a presentence
report (“PSR”) w as prepared for the district court analyzing M r. Jackson’s
background and prior criminal history. The PSR in this case took note of a pair
of prior convictions and thus assessed M r. Jackson with two criminal history
points. One of these points derived from M r. Jackson’s conviction for driving
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while intoxicated in 1996. The other point, and the font of this litigation, arose
from M r. Jackson’s 1995 New M exico state convictions for battery, domestic
violence, and the negligent use of a firearm. For these latter offenses, M r.
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 so-
called “safety valve” reduction codified in 18 U.S.C. § 3553(f); under this
provision, individuals may escape the normal operation of Congress’s mandatory-
minimum 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 (“U SSG”) §§ 5C1.2(b),
5A (Table). 2 M r. Jackson urged the district court in this case to disregard entirely
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
1
M r. Jackson contends that $350 of his fine was suspended in connection
with his obtaining drug counseling. See Tr. R. Vol. 1, Doc. 33, ¶ 1.
2
USSG § 5C1.2(b) provides that a safety valve recipient whose offense
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,
M r. 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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of New M exico 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 M r. 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 A mendment right to counsel, M r.
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. M r. 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. W hatever 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. W ith 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
M r. 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,
M r. Jackson contends, the fine and the conditional prison sentence entwine such
that he was subject to potential jail tim e if he failed to pay the requisite fine.
Appellant’s Br. at 5.
1. Unfortunately for M r. 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.
W e 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 non-
prison sentences may be given respect and effect consistent with the Sixth
Amendment’s remedial purposes.
W e 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
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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
M uch 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
3
The Court’s decision in Shelton left unresolved only what should happen
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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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 w ere 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. M oskovits, 86
F.3d 1303, 1309 (3d Cir. 1996).
After the Supreme Court’s decision in Shelton, moreover, the Fifth Circuit
had occasion to consider w hether, 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
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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-M acias, 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
4
See also United States v Rios-Cruz, 376 F.3d 303, 304-05 (5th Cir. 2004)
(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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2. In addition to the wall of precedent blocking its path, M r. 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 w ithin the mechanisms of the Guidelines. W hile
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 w here 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
4
(...continued)
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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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
halfw ay house.”). 5
Further, of course, under the Guidelines them selves 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 comm it 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 w hich 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. M r. 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
5
The parties speak in terms of using a “conviction” to calculate M r.
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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convicted M r. 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. M r. Jackson seeks to read into this a suggestion
that any time an uncounseled misdemeanor sentence intertwines fines w ith jail
time (or suspended jail time) w e must vacate the entire sentence.
Our decision cannot bear the w eight 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). W e
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 M r. 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. M endoza, 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 w ith 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 M r. 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 M r. 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.
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