concurring in judgment.
■ In Part II of his opinion, Judge Jones presents a very cogent explanation of his reasons for thinking that our sister circuits *415have erred in failing to read Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), as proscribing the use, for Sentencing Guidelines purposes, of pri- or “uncounseled”, misdemeanor convictions not resulting in incarceration. It seems to me, however, that Judge Jones’ real quarrel is not with the other circuits for misreading Baldasar, but with Justice Black-mun for not joining Justices Brennan and Stevens in concurring with Justice Marshall.
Because the rationale of the separate opinion filed by Justice Marshall was not endorsed by a majority of the justices, I believe that the reading which the other courts of appeals have given the Baldasar decision is correct. I am authorized to state that Judge Lively agrees, and Part I of the following opinion thus represents the opinion of the court on this issue.
I
The precise question presented to the Supreme Court in Baldasar was whether the misdemeanor conviction of an offender who did not have a lawyer and who was not incarcerated “may be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term.” 446 U.S. at 222, 100 S.Ct. at 1585 (emphasis supplied).
Four members of the Supreme Court concluded that such a conviction may be used to convert a subsequent misdemeanor into a felony, while five members of the Court concluded that it may not be so used. If all five members of the majority had concurred in the reasoning set forth by Justice Marshall in his separate opinion, the logic of Baldasar might require us to hold, in the case at bar, that defendant Nichols’ “uncounseled” DUI conviction1 could not be used in determining the sentence for his felony cocaine conviction. The problem, of course, is that Justice Marshall’s reasoning did not command the support of a majority of the court — and the “reach” that Baldasar has as a precedent obviously depends on the reasoning that led each member of the majority to vote to reverse the judgment of the lower court.
Justice Blaekmun, who provided the critical fifth voté in favor of reversal, made it very clear why he voted as he did: adhering to the view expressed in his dissent in Scott v. Illinois, 440 U.S. 367, 389-90, 99 S.Ct. 1158, 1170, 59 L.Ed.2d 383 (1979), Justice Blaekmun felt that because Mr. Baldasar’s prior misdemeanor was punishable by more than six months’ imprisonment, and because Baldasar was not represented by an attorney at the time of his conviction, the conviction was simply “invalid.” Being invalid, in Justice • Black-mun’s view, the conviction “may not be used to support enhancement.” Baldasar, 446 U.S. at 230, 100 S.Ct. at 1589 (separate concurrence of Blaekmun, J.) This is Justice Blackmun’s only stated reason for concurring in the Court’s decision to reverse.
Unlike Justices of the Supreme Court, the members of this court are not free to pick and choose among Supreme Court precedents, following those they like and rejecting those they do not like. Supreme Court precedent that is binding on this court requires that we treat defendant Nichols’ DUI conviction as constitutionally valid. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). And because the DUI conviction was valid, it can be used for any legitimate purpose— including sentence enhancement — as far as the logic of Justice Blackmun’s opinion is concerned.
Our own court, indeed, has held that “evidence, of prior uncounselled misdemeanor convictions for which imprisonment was not imposed [] may be used for im*416peachment purposes.” Charles v. Foltz, 741 F.2d 834, 837 (6th Cir.1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 970, 83 L.Ed.2d 973 (1985), citing Wilson v. Estelle, 625 F.2d 1158, 1159 (5th Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1985, 68 L.Ed.2d 302 (1981). If defendant Nichols had chosen to go before a jury on the felony drug charges, therefore, Charles v. Foltz shows that the jury could have considered his prior DUI conviction in determining whether Mr. Nichols was guilty or innocent. That being so, it strikes me as anomalous, to say the, least, that a judge should not be allowed to consider the prior DUI conviction in determining what sentence to impose once guilt has been established.
The anomaly comes into sharper focus, perhaps, when we observe that the statute governing the case at bar makes it mandatory that the sentencing court impose “a term of imprisonment which may not be less than 10 years and not more than life....” 21 U.S.C. § 841(b)(1)(B) (emphasis supplied). In Baldasar, as Justice Marshall was careful to point out, “[t]he sentence [Mr. Baldasar] actually received would not have been authorized by statute but for the previous conviction.” 446 U.S. at 227, 100 S.Ct. at 1587. In the present case, by contrast, a sentence of up to life imprisonment would have been authorized by statute whether or not there was a previous DUI conviction in defendant Nichols’ record.2
In Wilson v. Estelle (the Fifth Circuit decision that was followed by our court in Charles v. Foltz) the Fifth Circuit expressed itself as follows:
“We find no error in the admission of the evidence as to Wilson’s prior [un-counseled] misdemeanor conviction.... Fot this conviction Wilson' was not imprisoned. It is well settled that the Sixth and Fourteenth Amendments do not require the state to afford counsel to an indigent criminal defendant in those misdemeanor cases in which the offender is not imprisoned. Scott v. Illinois, 440 U.S. 367, 373-74, 99 S.Ct. 1158, 1162-1163, 59 L.Ed.2d 383, 388-389 (1979). Furthermore, this court in Griffin v. Blackburn, 594 F.2d 1044 (5th Cir.1979) held that evidence of prior uneounseled misdemeanor convictions for which imprisonment was not imposed may be used for impeachment purposes and opened the door for other uses of such evidence as well:
Logically, if a conviction is valid for purposes of imposing its own pains and penalties — the ‘worst’ case — it is valid for all purposes.
594 F.2d at 1046. [Footnote (“But cf. Baldasar v. Illinois_”) omitted.] We see no compelling reason for placing a special exclusion on the introduction of such evidence at the punishment stage of a trial.” Wilson v. Estelle, 625 F.2d at 1159.
The logic employed by the Fifth Circuit in Wilson v. Estelle and by this court in Charles v. Foltz would seem to compel the conclusion that a prior uncounseled misdemeanor conviction that did not result in imprisonment may be used in calculating a defendant’s criminal history category under the Sentencing Guidelines. And that is exactly the conclusion reached by the Fifth Circuit in United States v. Eckford, 910 F.2d 216 (5th Cir.1990). Recognizing that it was “bound by prior Circuit precedent,” id. at 217, the court there affirmed a sentence at the top of a guideline range determined by reference to two prior uncoun-seled misdemeanor convictions that had not resulted in imprisonment. Following Wilson v. Estelle, and notwithstanding Baldasar, the Eckford court made these observations:
“The ' inconsistency between Justice Blackmun’s narrow approach and Justice Marshall’s expansive approach has clouded the scope of the Baldasar decision. Many courts have questioned whether Baldasar expresses any persuasive au*417thority on the collateral use of uncoun-seled misdemeanor convictions. See, e.g., Schindler v. Clerk of Circuit Court, 715 F.2d 341, 345 (7th Cir.1983) (‘the [Baldosar] decision provides little guidance outside of the precise factual context in which it arose.’), cert. denied, 465 U.S. 1068, 104 S.Ct. 1419, 79 L.Ed.2d 745 (1984); United States v. Robles-Sandoval, 637 F.2d 692, 693 n. 1 (9th Cir.) (‘The court in Baldosar divided in such a way that no rule can be said to have resulted.’), cert. denied, 451 U.S. 941, 101 S.Ct. 2025, 68 L.Ed.2d 330 (1981).” United States v. Eckford, 910 F.2d at 219 (footnotes omitted).
In Wilson v. Estelle, the Fifth Circuit explained, Baldosar had “essentially [been] limited ... to its particular factual scenario: ‘a prior uncounseled misdemeanor conviction may not [be] used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term.’ ” Eckford, 910 F.2d at 220, quoting Wilson v. Estelle, 625 F.2d at 1159 n. 1. The Eckford court went on to observe that subsequent opinions had reinforced Wilson:
“In Thompson v. Estelle, 642 F.2d 996 (5th Cir. Unit A 1981), we again concluded that ‘evidence of a prior uncounselled misdemeanor conviction for which no imprisonment was imposed may properly be introduced in the punishment phase of a trial.’ Id. at 998. In United States v. Smith, 844 F.2d 203 (5th Cir.1988), we held that a sentencing court could consider the defendant’s numerous prior un-counseled convictions, none of which resulted in imprisonment.” Eckford, 910 F.2d at 220.
“[I]n the absence of reconsideration en banc,” Eckford concluded, “this Court is not empowered to disturb our prior reasoned decisions that Baldasar v. Illinois does not preclude the use of uncounseled misdemeanor convictions during sentencing for a subsequent criminal offense.” Id. (footnote omitted).
In United States v. Castro-Vega, 945 F.2d 496 (2d Cir.1991), petition for cert. filed (Jan.1992), similarly, the Court of Appeals for the Second Circuit — which apparently had no prior precedents comparable to Wilson v. Estelle or our own Charles v. Foltz decision — held, in a carefully reasoned opinion, that it is not unconstitutional to count prior uncounseled misdemeanor convictions with no incarceration in calculating a defendant’s criminal history category under the Sentencing Guidelines. The Second Circuit noted that the Sentencing Commission, in its Background Comment on Guideline § 4A1.2 (1990 ed.), had stated explicitly that “[p]rior sentences, not otherwise excluded, are to be counted in the criminal history score, including uncoun-seled misdemeanor sentences where imprisonment was not imposed.” 945 F.2d at 499 (emphasis added by the Second Circuit).3 Analyzing Baldosar in the same way the Fifth Circuit and others had done earlier, the Second Circuit found that “no common denominator ... upon which all of the Justices in the Baldosar majority agreed” could be considered applicable in the case before it. 945 F.2d at 499-500.
In further explanation of its holding that prior uncounseled misdemeanor convictions may be used in the manner directed by the Sentencing Guidelines, the Second Circuit said this:
“The problem posed in this case — calculating a defendant’s criminal history by relying in part on a prior uncounseled misdemeanor conviction — is different from the situation in Baldasar. In Baldasar, the defendant’s prior conviction materially altered the substantive offense for which he could be held criminally responsible by converting it from a misdemeanor to a felony with a prison *418term — an offense that on its own would trigger a right to counsel. In the instant case, the court used an uncounseled misdemeanor conviction to determine the appropriate criminal history category for a crime that was already a felony. See id.
******
In the absence of any clear direction from the Supreme Court, and given the narrowness of the Baldasar holding, we decline to extend Baldasar to this case.” 945 F.2d at 500.
Agreeing with the conclusion reached by our sister circuits — a conclusion that is logically compelled, as I see it, by our own prior holding in Charles v. Foltz — I would affirm the judgment of the district court insofar as the use of defendant Nichols’ “uncounseled” DUI conviction is concerned.
II
Although I agree with the conclusion of my colleagues that the district court did not err in considering the evidence which the state police officers found in defendant Nichols’ pickup truck and on his person— evidence consisting of cocaine, loaded weapons, false-bottom oil cans, and $2,800 in cash — I prefer not to join in some of the dicta that accompany the court’s announcement of this conclusion. Our disposition of this appeal makes it unnecessary to say, for example, whether we agree or disagree with the “broad rule” that other Courts of Appeals have adopted with respect to the use at sentencing of evidence inadmissible at trial.4 And whatever our individual views may be on the merits of the “interpretation” of the exclusionary rule that the Supreme Court has fashioned over the past four decades, the Court clearly does not view its rule as being “embedded” in the Fourth Amendment’s proscription of unreasonable searches and seizures. See, e.g., United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974) (the exclusionary rule “is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved”); United States v. Janis, 428 U.S. 433, 459, 96 S.Ct. 3021, 3034, 49 L.Ed.2d 1046 (1976); Elkins v. United States, 364 U.S. 206, 216-17, 80 S.Ct. 1437, 1443-44, 4 L.Ed.2d 1669 (1960). For these reasons, among others, I do not concur in Part III of Judge Jones’ opinion. I do concur in Parts I, IV, V, and VI.
. In point of fact, Mr. Nichols may well have waived his right to counsel in the DUI proceeding; he told the probation officer who prepared the presentence report here “that he had contacted an attorney and had been informed by that attorney that he did not need to be represented at the hearing, since he would be pleading nolo contendere.” Stating that "[t]he proof is unclear as to whether he may have validly waived his right to counsel," the district court determined, on the basis of the facts before it, that there was no valid waiver. United States v. Nichols, 763 F.Supp. 277, 278 (E.D.Tenn.1991). I do not question the propriety of this determination as a legal matter, but would note that it may be incorrect as a factual matter.
. Under the Sentencing Guidelines, it is true, the sentencing court could not have imposed a sentence outside a range of 168-210 months, absent the DUI conviction, unless the court made findings sufficient to support a “departure” under 18 U.S.C. § 3553(b). Examination of the record in this case suggests that such a departure might well have been warranted.
. As originally proposed by the Sentencing Commission, the Comment would have stated explicitly that "[t]he Commission does not believe the inclusion of sentences resulting from constitutionally valid, uncounseled misdemeanor convictions in the criminal history score is foreclosed by Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980).” 55 Fed.Reg. 5718, 5741 (Feb. 16, 1990). The reference to Baldosar was dropped in the final version of the Comment, but that version obviously could not have been adopted without adherence to the view expressed in the Federal Register notice.
. Courts that have been required to decide this issue have usually been careful not to address issues not raised by the facts of the case before them. In United States v. Lynch, 934 F.2d 1226, 1237 (11th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 885, 116 L.Ed.2d 788 (1992), for example, where a panel consisting of Justice Powell, Chief Judge Tjoflat and Judge Kravitch "decline[d] to extend the exclusionary rule to sentencing proceedings,” Chief Judge Tjoflat’s opinion added this note:
"We do not address — because the facts of this case do not raise the issue — whether the exclusionary rule should apply in sentencing proceedings to evidence unconstitutionally seized solely to enhance the defendant’s sentence. See Verdugo v. United States, 402 F.2d 599, 610-13 (9th Cir.1968), cert. denied, 402 U.S. 961, 91 S.Ct. 1623, 29 L.Ed.2d 124 (1971). In that situation, it may be that the exclusionary rule’s rationale can be served only by excluding the illegally seized evidence from consideration at sentencing." Lynch, 934 F.2d at 1237 n. 15.