United States v. Salemo

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit

7-26-1995

United States v Salemo
Precedential or Non-Precedential:

Docket 94-1361

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3551

58102

109153

160204

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 94-1361 & 94-1438

UNITED STATES OF AMERICA
v.

GEORGE P. SALEMO,
Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 92-cr-00547

Argued: May 2, 1995

Before: SLOVITER, Chief Judge, ALITO and MCKEE, Circuit Judges.

(Filed July 26, 1995)

OPINION OF THE COURT

GEORGE P. SALEMO, Pro Se
No. 22891-008 YUMA
37910 N. 45th Avenue
Phoenix, AZ 85027-7055

STEVEN A. MORLEY, ESQUIRE (ARGUED)
834 Chestnut Street, Suite 206
Philadelphia, PA 19107
Attorney for Appellant

1
WALTER S. BATTY, JR., ESQUIRE
Asst. United States Attorney
EMILY MCKILLIP, ESQUIRE (ARGUED)
Asst. United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106-4476
Attorneys for Appellee

2
McKEE, Circuit Judge

George Salemo brings this appeal after being sentenced for a

crime commonly known as "check kiting."1 Although he challenges

his sentence on numerous grounds, we need only address his claim

that he was denied his Sixth Amendment right to counsel at

sentencing. Because we find this assertion to have merit we will

remand for resentencing.

I.

On September 24, 1992, a federal grand jury returned a two-

count indictment charging Salemo with bank fraud in violation of

18 U.S.C. § 1344. Prior to trial, the public defender who had

been appointed to represent Salemo was allowed to withdraw, and

the district court then appointed an attorney of Salemo's own

choosing to represent Salemo at trial. After a two day trial, the

jury convicted Salemo of both counts.

Sentencing was originally set for January 10, 1994, however,

on three separate occasions, Salemo moved pro se for a

continuance of the sentencing date and the district court granted

each request. On March 1, 1994, Salemo wrote to his trial

attorney and asked him to withdraw as counsel. Salemo also wrote

1
Salemo raises a plethora of issues regarding his trial. He
complains that the indictment was duplicitous and inadequately
charged him with bank fraud; that the government failed to
disclose exculpatory information; that the trial court improperly
excluded evidence; that the trial court's jury instruction on
constructive control was misleading and that a misstatement of
certain facts by the court created a risk of an unjust verdict;
and, that his sentence in this case violates the double jeopardy
provision of the Fifth Amendment. We find these contentions to
be without merit.

3
to the district court and requested new counsel and yet another

postponement of the sentencing. He stated that given his request

for a change of counsel, he needed the continuance in order to

have an opportunity to meet with an attorney and adequately

prepare for sentencing. The sentencing hearing finally

proceeded on April 4, 1994. At the beginning of that hearing the

following discussion occurred between the district judge,

Salemo's appointed counsel and Salemo:
THE COURT: We're ready for the sentence of Mr. Salemo,
but I understand that there are some preliminary
matters which we need to deal with.

The first is Mr. Salemo may not wish to have you,
[trial counsel]. I don't know.

[TRIAL COUNSEL]: I'm perfectly aware of that, Your
Honor. We have talked at length about it.

THE COURT: Do you wish to remain with him at counsel
table or does he wish for you to step back and remain
available as a standby counsel?

[TRIAL COUNSEL]: I will tell the Court what I told Mr.
Salemo on several occasions. I will not withdraw
voluntarily. If he does not want me seated here, I
shall step back. . . .

THE COURT: Mr. Salemo, do you wish to state anything
in regard to [trial counsel]?

THE DEFENDANT: Yes, Your Honor. As far as the
sentencing today, again, I'm going to reiterate my
request that it be continued.

THE COURT: Well, first we have to determine -- we're
not there yet. We're going to deal with that.

THE DEFENDANT: All right. No, I had, as of March 1st,
I wrote [my attorney] the letter that I've submitted to
the Court, which I don't know if you received it in the
mail on Friday --

THE COURT: Yes.

4
THE DEFENDANT: -- and I had asked him to withdraw. He
came and saw me at Fairton and we spent about ten,
fifteen minutes together and I was under the
understanding that he was going to withdraw. I guess
we had a misunderstanding that he was going to wait and
see what the Court said. . . .

We have not discussed the pre-sentence at all, I mean
not in the slightest, and we haven't discussed the
sentencing problems at all. Therefore, if we went
ahead with the sentencing, I would have to represent
myself. [Trial counsel] is not prepared to do that
based -- and I filed an awful lot of material as the
Court is aware on this -- on any of the issues or any
of the problems with the pre-sentence report. . . .

I would prefer other representation.

THE COURT: Well, that's why we continued the case the
last time. This is not the first time you've been
brought down for sentencing.

THE DEFENDANT: No, I understand that, Your Honor, very
definitely.

THE COURT: And we thought that the reasons to continue
the last sentencing were weak, but . . . we thought
we'd give you the benefit of the doubt and extend --
continue the sentencing till today, but we're not
willing to continue it any further.

So we'll proceed.

THE DEFENDANT: Then I would have to represent myself,
Your Honor. . . .

I don't know how he could represent me, not knowing any
of the issues. You know, no slight to [trial counsel],
but he doesn't --

THE COURT: Well, we've looked at what you've submitted
--

THE DEFENDANT: -- but he doesn't have a crystal ball,
either.

THE COURT: -- and there doesn't seem to be much in
issue.

Why don't we go through what you want to raise and see
if there's anything in it that has any merit. On the

5
 surface, it doesn't seem to have any merit; but maybe
I'm missing something and we'll give you an opportunity
to explain.

Let's take your points one by one and we'll deal with
them in that way.

What's your first point?

THE DEFENDANT: May I sit, Your Honor?

THE COURT: Sure.

Why don't you stay there in case -- he doesn't bother
you sitting there, right?

[TRIAL COUNSEL]: Better not. I've known him for too
long.

THE DEFENDANT: No, no, not at all. [My attorney] and
I have known each other -- we're friends. We've known
each other for 20 years.

THE COURT: Okay.

THE DEFENDANT: That's not a personal slight at all.

THE COURT: Okay. Okay.

App. at 525-28 (Transcript of Sentencing Hearing, April 4, 1994).

The district court then listened as Salemo argued the

inaccuracy of the pre-sentence report and the application of case

law to his situation. After rejecting Salemo's arguments, the

district court imposed a sentence of ninety-six months

imprisonment, followed by five years supervised release,

restitution of $15,000, no fine, and a $100 special assessment.

II.

When Salemo filed the notice of appeal from his sentence he

requested appointment of counsel, and the district court

6
appointed appellate counsel who filed a brief on Salemo's behalf.

Salemo has also filed a pro se brief in this appeal.2

Salemo raises an issue in his pro se brief that was not

raised in the brief submitted by his attorney on appeal. Salemo

claims that his purported waiver of counsel at the sentencing

hearing was not knowing, intelligent and voluntary, and that the

sentencing court therefore erred in allowing him to represent

himself at sentencing. The government concedes that the trial

court did not engage in an inquiry with Salemo to ascertain the

extent of his understanding of the ramifications of dispensing

with counsel and proceeding pro se at the sentencing hearing.

Nevertheless, the government argues that "[t]he record that was

before the trial court showed that Salemo understood the nature

of the sentencing proceeding and the possible consequences."

Brief for Appellee at 34. The government further claims that the

trial court properly inferred that Salemo's waiver of counsel was

knowing and intelligent and that the record supports that

implicit finding.

A.

The Supreme Court has recognized that a criminal defendant

has the constitutional right to defend him/herself at trial.

Faretta v. California, 422 U.S. 806, 814-16 (1975); Adams v.

2
This case presents one of the rare instances in which a
defendant who is represented by court appointed appellate counsel
is also allowed to brief his own appeal before this Court. We
emphasize that ordinarily we do not consider the pro se briefs of
counselled parties and we do not intend our consideration of the
dual briefs filed on behalf of the defendant in this case to
signal a departure from our usual practice to the contrary.

7
United States ex rel. McCann, 317 U.S. 269, 279 (1942) (the Sixth

Amendment right to counsel implicitly includes the "correlative

right to dispense with a lawyer's help"). The Court, however,

has scrupulously required that a defendant's waiver of counsel be

both voluntary and a "knowing and intelligent relinquishment or

abandonment of a known right or privilege." Edwards v. Arizona,

451 U.S. 477, 482 (1981). Whether a defendant has voluntarily,

knowingly and intelligently relinquished the right to counsel

"depends in each case 'upon the particular facts and

circumstances surrounding that case, including the background,

experience, and conduct of the accused.'" Id. (quoting Johnson

v. Zerbst, 304 U.S. 458, 464 (1938)). In general, however, the

Supreme Court has required that "courts indulge in every

reasonable presumption against waiver." Brewer v. Williams, 430

U.S. 387, 404 (1977).

In United States v. Welty, 674 F.2d 185 (3d Cir. 1982), we

set forth guidelines for conducting a proper inquiry following a

defendant's request for substitution or waiver of counsel:
First, the court must decide if the reasons
for the defendant's request for substitute
counsel constitute good cause and are thus
sufficiently substantial to justify a
continuance of the trial in order to allow
new counsel to be obtained. If the district
court determines that the defendant is not
entitled to a continuance in order to engage
new counsel, the defendant is then left with
a choice between continuing with his existing
counsel or proceeding to trial pro se, thus
bringing into play the court's second stage
of inquiry. Since the decision to proceed
pro se involves a waiver of the defendant's
sixth amendment right to counsel, the
district court then has the responsibility of
ensuring that any decision by the defendant

8
 to represent him[/her]self is intelligently
and competently made.

It is vital that the district court take
particular pains in discharging its
responsibility to conduct these inquiries
concerning substitution of counsel and waiver
of counsel. . . . [A] trial cannot be
permitted to go forward when a defendant does
not fully appreciate the impact of his[/her]
actions on his[/her] fundamental
constitutional rights.

Id. at 187 (citation omitted).
In Welty, we concluded that the defendant could not have

effectively waived his right to counsel because "the record

reveal[ed] no inquiry by the district court judge as to the

reasons for Welty's dissatisfaction with his appointed counsel

and little inquiry into whether Welty's decision to proceed pro

se was made knowingly and intelligently." Id. at 189. Similarly,
in McMahon v. Fulcomer, 821 F.2d 934 (3d Cir. 1987), we held that

the defendant did not knowingly and intelligently waive his right

to counsel where the "record reflect[ed] a total absence of any

`searching inquiry' or colloquy as to defendant's understanding

of the dangers and disadvantages he faced proceeding pro se."

Id. at 945.

Conversely, we upheld the validity of a defendant's waiver

of counsel in Government of Virgin Islands v. James, 934 F.2d 468
(3d Cir. 1991). There, the trial court was not presented with a

request for substitute counsel as James sought only to represent

himself. Throughout the pre-trial proceedings James had been

represented by a public defender. However, when jury selection

was to begin James told the court that he wanted to discharge his

9
attorney and represent himself. Id. at 470. The district judge

conducted a lengthy colloquy with James in which the court

informed him of the perils of self-representation. Id. at 470.

On review, we considered the contents of that colloquy and

concluded that James' waiver was knowing and intelligent:
After admonishing appellant with the old
adage that a lawyer who has himself for a
client is a fool, the court discussed the
nature of the possible charges against James
and the possible penalties he faced; James
was apprised of the difficulty he would face
in getting his decision to waive overturned
on appeal from a conviction; the court
determined that James had some familiarity
with the workings of a trial as a result of
two prior convictions; the court also
determined that James' waiver was voluntary.
. . . Most significantly, the court did not
allow James to proceed completely unassisted
but appointed stand-by counsel to sit with
him and answer any questions that he may have
had during trial.
3
Id. at 472-73.
B.

The issue before us is, of course, raised in a different

context as Salemo's purported waiver occurred at sentencing as

opposed to trial. This distinction is clearly relevant to the

content of the colloquy which the court must have with the

defendant. It does not, however, eliminate the need for the

district court to make an inquiry sufficient to support a finding

that the waiver of counsel is voluntary, knowing and intelligent.

It is well settled that "[i]t is the solemn duty of a

3
James was also required to execute a waiver form attesting
that the waiver was made voluntarily and with full knowledge and
understanding. Id. at 470 n.2.

10
federal judge before whom a defendant appears without counsel to

make a thorough inquiry and to take all steps necessary to insure

the fullest protection of this constitutional right at every

stage of the proceedings." Von Moltke v. Gillies, 332 U.S. 708,

722 (1948) (Black, J., plurality opinion) (emphasis added).

Neither logic nor precedent supports carving out an exception

when the waiver occurs at sentencing. Of course, the inquiry at

sentencing need only be tailored to that proceeding and the

consequences that may flow from it. Therefore, it need not be as

exhaustive and searching as a similar inquiry before the

conclusion of trial. "Sentencing hearings demand much less

specialized knowledge than trials; for instance, the Federal

Rules of Evidence do not apply in sentencing hearings." United

States v. Day, 998 F.2d 622, 626 (1st Cir. 1993), cert. denied,

114 S. Ct. 2140 (1994). Nevertheless, sentencing is a critical

and often times complicated part of the criminal process that

contains subtleties which may be beyond the appreciation of the

average layperson seeking to represent him/herself.

We have, for example, previously noted that "[t]he

[Sentencing] Guidelines contain a complex procedure for

determining the appropriate increase in offense level for

conviction of multiple counts." United States v. Johnson, 931

F.2d 238, 242 (3d Cir. 1991). See also United States v. Smith,

997 F.2d 396, 398 (8th Cir. 1993) (Gibson, J., concurring) ("The

guidelines . . . have created a complex hypertechnical system

consuming great amounts of judicial time for both trial and

appellate judges."). Commentators have also bemoaned the

11
complexities of our sentencing system. Id. at 399 (Bright, J.,

dissenting) (citing articles that "call attention to the

frustrations of lawyers, judges and probation officers who must

try to understand the complexities of the [sentencing] system").

Indeed, in some cases, one's ultimate fate is determined

more by the application of the Guidelines than the determination

of innocence or guilt. For example, sentencing judges are not

limited to a consideration of the specific conduct that

constitutes the offense of conviction in determining whether a

given offense characteristic applies. Under USSG § 1B1.3, a

judge generally must consider all "relevant conduct."4 Thus,

"[t]he Guidelines are clear that conduct beyond the precise acts

of the offense of conviction may be used to determine specific

offense characteristics." United States v. Frierson, 945 F.2d

650, 653 (3d Cir. 1991). Accordingly, we have upheld sentences

4
Section 1B1.3 of the Guidelines states:

Relevant Conduct (Factors that Determine the Guideline
Range)

Unless otherwise specified, . . . specific
offense characteristics . . . shall be
determined on the basis of . . . all acts and
omissions committed or aided and abetted by
the defendant, or for which the defendant
would be otherwise accountable, that occurred
during the commission of the offense of
conviction, in preparation for that offense,
. . . or that otherwise were in furtherance
of that offense.

USSG § 1B1.3(a). For certain crimes, relevant conduct also
includes any acts or omissions that were "part of the same course
of conduct or common scheme or plan as the offense of
conviction." USSG § 1B1.3(a)(2).

12
which were based in part upon conduct for which the defendant was

not convicted. See United States v. Cianscewski, 894 F.2d 74,

80-81 (3d Cir. 1990); United States v. Ryan, 866 F.2d 604, 608-09

(3d Cir. 1989). Given these intricacies, it is particularly

important that a sentencing court be certain that a defendant

understands the perilous path he/she is going down in attempting

to proceed to sentencing without the benefit of counsel.

In addition, a defendant who is unfamiliar with the post

conviction process may inadvertently waive a meritorious argument

that he/she might otherwise have raised on appeal. Thus, at

sentencing, just as at trial, "a defendant's waiver of counsel

can be deemed effective only where the district court has made a

searching inquiry sufficient to satisfy him[/her] that the

defendant's waiver was understanding and voluntary." Welty, 674

F.2d at 189. We have not previously, nor do we now, require a

rote dialogue "such as that mandated for guilty plea proceedings

conducted pursuant to Rule 11 of the Federal Rules of Criminal

Procedure." James, 934 F.2d at 473. However, at a minimum, a

trial judge must make "a searching inquiry sufficient to satisfy

him[/her] that the defendant's waiver was understanding and

voluntary." Welty, 674 F.2d at 189. The court's inquiry must be

calculated to insure that the defendant is "made aware of the

dangers and disadvantages of self-representation, so that the

record will establish that 'he[/she] knows what he[/she] is doing

and [the] choice is made with eyes open.'" Faretta, 422 U.S. at

834 (quoting Adams, 317 U.S. at 279). "Perfunctory questioning

is not sufficient." Welty, 674 F.2d at 187. Where the record

13
contains no such inquiry, or one that is inadequate, there can be

no valid waiver of the right to counsel. Salemo's purported

waiver was accepted without such an inquiry and therefore it

cannot stand.

C.

The inquiry required here did not have to include a

discussion of the reasons for Salemo's request for a continuance

in order to get new counsel because Salemo clearly stated the

reasons for his dissatisfaction when he requested another

continuance of the sentencing date. See McKee v. Harris, 649 F.2d

927, 933 (2d Cir. 1981). When a defendant insists on proceeding

pro se, the next inquiry a court must make under Welty is whether

the defendant's request for waiver of counsel is voluntary,

knowing and intelligent. Here, Salemo's own language casts doubt

upon the voluntariness of his request. Although a defendant can

be deemed to have waived the right to counsel by refusing the

assistance of appointed counsel and persisting in a demand for

different counsel, see Wiggins v. Procunier, 753 F.2d 1318, 1320

(5th Cir. 1985), a defendant will not normally be deemed to have

waived the right to counsel by reluctantly agreeing to proceed

pro se under circumstances where it may appear that there is no

choice. See United States ex rel. Martinez v. Thomas, 526 F.2d

750, 755-56 (2d Cir. 1975) (defendant who represented himself

"reluctantly, unwillingly and greatly to his detriment" had "no

freedom of choice" but was merely "bowing to the inevitable," and

was thereby denied his constitutional rights). Here, the

circumstances were such that the district court had an obligation

14
to make a sufficient inquiry of the defendant to allow the court

to decide whether the defendant was "bowing to the inevitable" or

voluntarily and affirmatively waiving his right to counsel.

We do not, however, suggest that the district court should

have allowed itself to be manipulated into granting a continuance

and appointing new counsel. Nevertheless, the defendant's

apparent reluctance to proceed without counsel should have

alerted the court to the need to inform the defendant of the

pitfalls and technicalities of the sentencing hearing which was

about to begin. Such a warning would have better enabled the

defendant to decide if he still wanted to proceed pro se instead

of allowing counsel, who was standing at his side, to represent

him.

We appreciate that the sentencing judge (who also conducted

Salemo's trial) may have felt that he had sufficient familiarity

with this defendant to accept a waiver of counsel for purposes of

sentencing without a searching inquiry into Salemo's familiarity

with, or appreciation of, the complexities of sentencing. Before

sentencing, Salemo, acting pro se, filed several documents

including an extensive challenge to the pre-sentence report,

objections to the revised pre-sentence report, a sentencing

memorandum, a letter to the trial court objecting to the

government's sentencing memorandum, and voluminous exhibits in

support of his arguments.5 Thus, we can understand how the

5
In addition, at his sentencing, Salemo made respectable
legal arguments (citing cases which were, for the most part,
relevant to his argument), argued the application of specific

15
sentencing judge may have concluded that Salemo was better able

to represent himself than the average defendant. However, we

cannot infer a valid waiver of the right to counsel based upon

the district court's subjective overall impression of a

defendant. We have previously stated "that a colloquy between

the defendant and trial judge is the preferred method of

ascertaining that a waiver is voluntary, knowing and

intelligent." James, 934 F.2d at 473. See also Wiggins, 753

F.2d at 1320 ("We are convinced that a colloquy between a

defendant and a trial judge is the preferred method of

ascertaining that a waiver is voluntary, knowing and

intelligent."). We reiterate that "[i]t is appropriate for this

searching inquiry to appear upon the record," McMahon, 821 F.2d

at 945, so as to allow a reviewing court to examine the district

court's determination in the event of an appeal. Here, the

district court's failure to do this requires a remand for

resentencing.

Moreover, we decline to engage in a harmless error analysis

here. The right to representation by counsel in a criminal

proceeding is one of the most fundamental and cherished rights

guaranteed by the Constitution. See Johnson, 304 U.S. at 462

(describing assistance of counsel as "one of the safeguards of

the Sixth Amendment deemed necessary to insure fundamental human

rights of life and liberty"). It is "among those `constitutional

rights [which are] so basic to a fair trial that their infraction

provisions of the Sentencing Guidelines, and he has now
successfully presented a legal argument to this Court on appeal.

16
can never be treated as harmless error.'" Welty, 674 F.2d at 196

n.6 (quoting Chapman v. California, 386 U.S. 18, 23 & n.8

(1967)). Furthermore, the purpose and effect of the Sixth

Amendment is to "withhold[] from federal courts, in all criminal

proceedings, the power and authority to deprive an accused of his

life or liberty unless he has or waives the assistance of

counsel." Johnson, 304 U.S. at 463 (footnotes omitted).

Accordingly, we do not feel that the deprivation of the

defendant's right to representation at sentencing under the

circumstances of this case justifies a harmless error analysis.

In summary, we do not believe that the district court's

instruction for Salemo's appointed counsel to serve as standby

counsel during the sentencing is a sufficient substitute for

obtaining a valid waiver of the right to counsel from the

defendant. Although the court's instruction was a noteworthy

attempt to safeguard Salemo's Sixth Amendment right, it did not

satisfy the court's "responsibility of ensuring that any choice

of self-representation is made . . . with an awareness of the

dangers and disadvantages inherent in representing oneself."

Welty, 674 F.2d at 188.

III.

Salemo raises several other issues pertaining to his

sentencing. He claims that the district court improperly

calculated the amount of loss by "double counting" the same funds

as both actual and intended loss. He argues that his sentence

level should be reduced by three points because his federal

conviction in Florida and state conviction in Arizona were part

17
of a common scheme as defined in USSG § 4A1.2. Further, Salemo

objects to the two point enhancement he received for "more than

minimal planning" and complains that he was improperly denied a

two point reduction for acceptance of responsibility. Lastly,

Salemo, through the brief submitted by his counsel, complains

that he did not receive "sufficient notice" of the potential for

sentence enhancement for commission of a crime while on bail

release, as required by the Background Commentary accompanying

USSG § 2J1.7. We decline to take any position as to the merits

of any of these arguments now. On remand, these arguments can be

presented to the sentencing court by competent legal counsel, or

by the defendant after an appropriate waiver of counsel.

We will affirm the judgment of conviction but will vacate

the sentence and remand for resentencing.

18
United States v. Salemo
Nos. 94-1361 and 94-1438

ALITO, Circuit Judge. concurring:

I would not write separately here if the majority opinion did

not include the following paragraph in its opinion.
Moreover, we decline to engage in a harmless error
analysis here. The right to representation by counsel
in a criminal proceeding is one of the most fundamental
and cherished rights guaranteed by the Constitution.
See Johnson, 304 U.S. at 462 (describing assistance of
counsel as "one of the safeguards of the Sixth
Amendment deemed necessary to insure fundamental human
rights of life and liberty"). It is "among those
'constitutional rights [which are] so basic to a fair
trial that their infraction can never be treated as
harmless error.'" Welty, 674 F.2d at 196 n.6 (quoting
Chapman v. California, 386 U.S. 18, 23 & n.8 (1967)).
Furthermore, the purpose and the effect of the Sixth
Amendment is to "withhold[] from federal courts, in all
criminal proceedings, the power and authority to
deprive an accused of his life or liberty unless he has
or waives the assistance of counsel." Johnson, 304
U.S. at 463 (footnotes omitted). Accordingly, we do
not feel that the deprivation of the defendant's right
to representation at sentencing under the circumstances
of this case justifies a harmless error analysis.

Maj. Op. 15-16.

If this paragraph is narrowly interpreted to mean only that

the error in this case was not harmless, then this paragraph is

correct -- but unnecessary -- for nobody has ever claimed that

the challenged actions of the district court, if they amounted to

constitutional error, could be found, based on the record that we

have, to have been harmless. The government's brief made no such

19
argument, and at oral argument the government emphasized that it

was not advancing any such claim.

I am concerned, however, that the paragraph in question will

be interpreted to mean something more than merely that the error

here was not harmless. After all, the majority begins this

paragraph by saying that it "decline[s] to engage in a harmless

error analysis" (Maj. Op. at 15), not that it concludes, after

performing such an analysis, that the error was not harmless.

Similarly, the majority concludes the paragraph by stating that

"a harmless error analysis" is not "justifie[d]." Id. In

between, the majority inserts quotations, taken from cases

involving the right to counsel at trial, that strongly suggest

that the deprivation of counsel can never be harmless. Thus, the

paragraph in question may well be read broadly to mean that the

deprivation of counsel at sentencing can never be harmless

error.6 Such a suggestion would, of course, be dictum and thus

not binding on our court or on the district courts, but I am not

prepared to endorse such dictum in this case.

In suggesting that the deprivation of counsel can never be

harmless, the majority quotes two cases -- this court's decision

6
Such a blanket rule could produce some strange results. For
example, suppose that a defendant does not validly waive counsel
at sentencing but is given the mandatory minimum sentence
prescribed by statute. Or suppose that a defendant who has not
validly waived counsel at sentencing is given the minimum
sentence within the range specified by the Sentencing Guidelines
and that the defendant, now represented by able counsel, concedes
that the range calculated by the district court was correct and
cannot think of any grounds for departure. In this case, must
the sentence to be vacated and the case remanded so that the very
same sentence can be imposed with counsel present?

20
in Welty and the Supreme Court's decision in Johnson. Both of

these cases concerned the right to counsel at trial, not

sentencing. The majority's quotation from Welty includes a

quotation from Chapman, 386 U.S. at 23 & n.8. The Chapman

quotation likewise concerns the right to counsel at trial, not

sentencing. Now, it may well be that these precedents should be

extended to govern the deprivation of counsel at sentencing, but

neither the Supreme Court nor this court has yet done so, and I

think that such an extension would warrant careful analysis.

For one thing, such an extension would require consideration

of decisions such as Satterwhite v. Texas, 486 U.S. 249 (1988),

that make it clear that the deprivation of counsel in violation

of the Sixth Amendment can be harmless in some contexts. In that

case, a defendant sought to have his sentence reversed because of

the use at a capital sentencing proceeding of psychiatric

testimony taken in violation of the Sixth Amendment. Id. at 253-

54. In support of his position, the defendant relied on the

following statement from Holloway v. Arkansas, 435 U.S. 475, 489

(1978):
[W]hen a defendant is deprived of the presence and
assistance of his attorney, either throughout the
prosecution or during a critical stage in, at least,
the prosection of a capital offense, reversal is
automatic. Gideon v. Wainwright, 372 U.S. 335 (1963);
Hamilton v. Alabama, 368 U.S. 52 (1961); White v.
Maryland, 373 U.S. 59 (1963).

The Satterwhite Court, however, refused to adopt such a

categorical rule, noting that the Court had previously approved

harmless error analysis in a number of cases involving violations

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of the Sixth Amendment. See Milton v. Wainwright, 407 U.S. 371

(1972) (harmless error analysis applied to confession obtained in

violation of Massiah v. United States, 377 U.S. 201 (1964));

Monroe v. Illinois, 434 U.S. 220 (1977) (harmless error analysis

applied to admission of identification testimony obtained in

violation of right to counsel at postindictment lineup); see also

Coleman v. Alabama, 399 U.S. 1 (1970) (harmless error applied to

violation of right to counsel at preliminary hearing). Rather,

the Satterwhite Court distinguished Holloway stating that

reversal was automatic only when the "deprivation of the right to

counsel affected--and contaminated--the entire criminal

proceeding." 486 U.S. at 257. The Court thus held that where a

reviewing court could make an "intelligent judgment" as to the

effect that the constitutional violation could have on the

sentencing jury, harmless error analysis applied. 486 U.S. at

258. See also Sullivan v. Louisiana, 113 S. Ct. 2078, 2083

(1993) (Rehnquist, C.J., concurring) (noting that the Supreme

Court has "long since rejected the argument that, as a general

matter, the Sixth Amendment prohibits the application of

harmless-error analysis in determining whether constitutional

error had a prejudicial impact on the outcome of the case").

I also note that one other court of appeals has indicated

that an invalid waiver of counsel at sentencing is subject to

harmless error analysis. Richardson v. Lucas, 741 F.2d 753 (5th

Cir. 1984). Cf. Golden v. Newsome, 755 F.2d 1478 (11th Cir.

1985) (denial of right to counsel at sentencing not subject to

harmless error analysis); United States v. Balough, 820 F.2d 1485

22
(9th Cir. 1987) (denial of right to counsel at hearing on motion

to withdraw guilty plea and sentencing not subject to harmless

error analysis).

In conclusion, I emphasize that I express no view as to

whether the unconstitutional deprivation of counsel at sentencing

can be harmless. That is precisely my point: without any need

to decide this question and without briefing or argument on the

issue, I refuse to endorse the majority dictum.

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