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 Amend-
ment 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 instruc-
tion 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 back-
pack 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 mari-
juana 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 on-
line 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 resi-
dence, 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 re-
lated 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 further-
ance 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 col-
league 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 in-
terviewed 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 coopera-
tion, 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
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
1
The government decided not to pursue the section 924(c)(1)
firearm charge against Krueger after concluding that his pos-
session of the firearm was not in furtherance of his marijuana
trafficking.
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, notwith-
standing 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 proceed-
ing, 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 com-
plaint 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 evi-
dence 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 narcot-
ics 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 pur-
chased 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 mari-
juana. The government reasoned that the following evi-
dence, 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 addi-
tion, $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 Milwau-
kee to purchase marijuana, his habit was to stop
along the way and stay with longtime friend Reu-
ben 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 perti-
nently with respect to the drug quantity calcula-
tion, 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 pur-
chases 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
pieces of evidence. First, the confidential informant
who brought Krueger to the attention of the author-
ities 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 sen-
tencing 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 mari-
juana without relying on that statement. But Krueger’s
counsel again did not cite any particular flaw in the alter-
native basis that the government proffered for the 100-plus
kilogram finding.
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.
No. 04-2539 13
For his part, Judge Griesbach inquired whether the al-
ternative 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 con-
duct 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 support-
ing 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 sig-
nificantly 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 find-
ing 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, com-
bined 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 con-
fining 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 ar-
raignment 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 defen-
dant’s invocation of his right to representation in a state
prosecution can trigger the Jackson bar against interro-
gation 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 Wiscon-
sin 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 prosecu-
tion, Krueger appeared in court with his defender. As to the
16 No. 04-2539
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
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...)
No. 04-2539 17
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 Amend-
ment 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 inter-
view with him regarding the rape allegation. (Because the
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)).
18 No. 04-2539
crime occurred on a Native American reservation, the fed-
eral 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 dis-
tinct for purposes of the Sixth Amendment as well. In the
Eighth Circuit’s view, because the tribal charge had trig-
gered 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
4
Under his tribe’s constitution, Red Bird enjoyed a right to
counsel in tribal court. 287 F.3d at 711.
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 question-
ing 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 in-
corporates 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 con-
clude 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 be-
tween the state and federal prosecutions of Krueger was
virtually seamless:
In essence, the United States Attorney, with the agree-
ment 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 be-
tween state and federal authorities. In view of that ap-
parent 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 nec-
essary 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 find-
ing. 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 suf-
ficient 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 incrimi-
nate 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 sentenc-
ing 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 in-
troduction of the fruits of illegal searches and seizures dur-
ing 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 al-
legedly procured in violation of the defendant’s Miranda
rights). Thus, sentencing judges, who operate under a
charge to consider the broadest possible array of informa-
tion 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 con-
stitutional 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 im-
possibility 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 sug-
gests 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 kilo-
grams. 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 concern-
ing 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 sen-
tence.
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 mari-
juana 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 re-
sponsible 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 applica-
tion 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 sentenc-
ing. 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. Accord-
ingly, 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 Guide-
lines 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 man-
datory. 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 aca-
demic . . . 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 discre-
tion 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