concurring.
I concur in Judge Clay’s excellent opinion in all respects. As Judge Clay makes clear, justice would be better served if Mr. Moody could be given the benefit of the bargain he rejected due to the ineffective assistance of his counsel. Yet, the rule of law — the greater good of stability within the law — requires that we follow the trail blazed by the Supreme Court and hold that without the formal initiation of adversarial proceedings, Mr. Moody was not constitutionally entitled to the effective assistance of counsel under the Sixth Amendment.
I write separately only to emphasize the pressures that the Federal Sentencing Guidelines have brought to bear on the criminal justice system and why such pressures make our rigid application of Supreme Court precedent a reluctant application. Numerous commentators have observed and written on the complexity of the Sentencing Guidelines, so there is no need to do so here. Likewise, there is little need to comment on the discretion the Guidelines provide federal prosecutors. Thus, I will limit my comments to how the Guidelines pressure the criminal procedural system towards preindictment plea bargaining.
Plea bargaining is central to federal criminal law. See, e.g., Kate Stith and Josi A. Cabranes, Fear of Judging 130 (1998). By extending the protections of the Sixth Amendment right to counsel to plea negotiations, federal courts have recognized such encounters as critical pretrial proceedings where the defendant is confronted by not only the procedural system but also a learned and experienced adversary, cf. United States v. Gouveia, 467 U.S. 180, 189, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984) (citing United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973)). In Hamilton v. Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), the Supreme Court noted that a defendant requires the presence of counsel to plead intelligently. In McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), the Court indicated that a defendant had the right to effective assistance of counsel in his decision to plead guilty. Similarly, in Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme Court indicated that a defendant had the right to effective assistance of counsel during the plea process. Finally, the Sixth Circuit made clear that Sixth Amendment protections also extend to defendants who decide to reject a plea agreement and stand trial. See Turner v. Tennessee, 858 F.2d 1201, 1205 (1988), vacated on other grounds, 492 U.S. 902, 109 S.Ct. 3208, 106 L.Ed.2d 559 (1989). Federal courts have left no doubt about the importance of plea bargaining in our system.
What precedent does not do and, thus, constrains us from doing is formally recognizing that preindictment plea bargains are just as critical as postindictment plea bargains. Yet, the Federal Sentencing Guidelines have substantially increased the importance of preindictment plea bargaining. In terms of percentages, the number of pleas continues to rise. Each year since 1990 the percentage of all convictions represented by pleas of guilty or nolo conten-dere has increased. See Kathleen Maguire and Ann L. Pastore, eds. (1999) Source-book of Criminal Justice Statistics 1998 [Online], Table 5.21(available at http://www.albany.edu/sourcebook) (visited 11 January 2000). In 1990, 40,452 people *617pleaded guilty or nolo contendere; in 1998, 56,256 people so pleaded. These numbers represent 86.575% and 93.940% of all convictions during those respective years. The vast majority of these pleas are the products of plea agreements. See Stith and Cabranes, supra, at 130.
The Guidelines may or may not have an effect on the trend of increasing pleas and the concomitant increase in importance of plea bargains.1 Certainly the percentage of pleas relative to the number of overall cases and the number of convictions has risen during the Guidelines era.2 The Guidelines’ role in this overarching trend, although not irrelevant, is immaterial. What is material, however, is the Guidelines’ role in pressuring prosecutors and defendants to engage in plea bargaining ever earlier in the criminal process. As early as 1992 commentators noted that the Guidelines provide an incentive to engage in pre-indictment plea bargaining. See David N. Yellen, Two Cheers for a Tale of Three Cities, 66 S. Cal. L.Rev. 567, 569-70 (1992); William L. Gardner, David S. Rif-kind, A Basic Guide to Plea Bargaining 7-SUM Crim. Just. 14, 16 (1992). Some studies indicate that a considerable amount of preindictment plea bargaining already occurs. See Yellen at 569.
Under the Guidelines, both defendants and prosecutors benefit from engaging in such bargaining. Preindictment plea bargaining over charges and facts provides Assistant United States Attorneys (“AU-SAs”) enormous discretion because such bargaining is much less susceptible to review by supervisors or courts. See Yellen, supra, at 569-70. Through such bargaining, AUSAs can more effectively determine the potential sentence for a defendant. See id.-, Gardner and Rif-kind, supra, at 16. By agreeing on the charges to be filed against the defendant, the prosecutors avoid having to draw both the court’s and the probation officer’s attention to facts relevant to other (potential) charges not pleaded to which might require higher sentencing levels under real offense sentencing. See Yel-len, supra, at 569-70. Defendants also favor preindictment plea negotiations for basically the same reasons — greater control over the eventual sentence. Gardner and Rifkind, supra, at 16. For example, plea bargains (pre and postindictment) can stipulate both the quantity of a controlled substance for which the defendant will be held accountable and the “relevant conduct” that the court may consider during sentencing. Both of these factors can play a major role in determining the eventual sentence of a defendant who, like Mr. Moody, is charged with conspiracy to distribute illegal drugs.
The incentives to bargain over charges and facts only add to the already abundant pressure to bargain with prosecutors as soon as possible in drug conspiracy cases. In practical terms, drug conspiracy cases have become a race to the courthouse. When a conspiracy is exposed by an arrest or execution of search warrants, soon-to-be defendants know that the first one to “belly up” and tell what he knows receives the best deal. The pressure is to bargain and bargain early, even if an indictment has not been filed.
To the extent that preindictment plea bargaining undermines the intent of Congress as expressed in the Guidelines, it is *618not to be condoned. Regardless of its virtue, such bargaining does occur and will likely continue due to its advantages for both prosecutors and defendants. While preindictment plea bargaining continues, it remains a perilous encounter for defendants. Defendants, or — more formally— potential defendants, are faced with the loss of liberty and property. They are faced with a complicated procedural system and a more knowledgeable adversary. Cf. Gouveia, 467 U.S. at 189, 104 S.Ct. 2292. In short, these defendants need and should be entitled to counsel in order to navigate these troubled waters.
The Sixth Amendment right to counsel historically has evolved to meet the challenges presented by a changing legal paradigm. See Ash, 413 U.S. at 310, 93 S.Ct. 2568 (noting that the extension of the Sixth Amendment right to counsel resulted from “changing patterns of criminal procedure and investigation that have tended to generate pretrial events that might appropriately be considered to be parts of the trial itself’). The criminal justice system has and is changing so that defendants now face critical stages of their prosecutions prior to indictment. The Sixth Amendment’s underlying purpose is to protect defendants in critical stages of their prosecution. Thus, the Sixth Amendment should guarantee the right to counsel during preindictment plea negotiations. Precedent, however, prevents me from endorsing this position which logic demands.
I would urge the Supreme Court to reconsider its bright line test for attachment of the Sixth Amendment right to counsel enunciated in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), and United States v. Gouveia, 467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984).
. It is worth noting that 1948-1952 and 1964-1965 are the only other consecutive years in which pleas accounted for more than 90% of convictions. Additionally, 1951 had the highest percentage of all cases decided by pleas at 83.411%. See Sourcebook [Online], Table 5.21. Thus, factors other than the Guidelines could (and probably do) favor plea bargaining.
. In 1988, 1989, and 1990 the percentage of convictions obtained by pleas did decrease each year from a high of 87.479 in 1987 to a low of 86.575 in 1990. As noted above, however, since 1990, the percentage of convictions obtained by pleas has increased every year. This eight year increase is the longest span of continual yearly increases in percentage of convictions by pleas since at least 1945. See Sourcebook [Online], Table 5.21.