dissenting:
In Alabama v. Shelton, 535 U.S. 654, 662 (2002) the Supreme Court, applying the “actual imprisonment” rule of Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), found that “a suspended sentence that may ‘end up in the actual deprivation of a person’s liberty’ may not be imposed unless the defendant was accorded ‘the guiding hand of counsel’ in the prosecution for the crime charged.” Shelton, 535 U.S. at 662, 122 S.Ct. 1764 (quoting Argersinger v. Hamlin, 407 U.S. 25, 40, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)). The Court further concluded that “Shelton is entitled to appointed counsel at the critical stage when his guilt or innocence of the charged crime is decided and his vulnerability to imprisonment is determined [.]” Id. at 674, 122 S.Ct. 1764 (emphasis added). The Government urges this Court to find a material distinction of constitutional dimension between a suspended jail sentence with probation in a state proceeding of the type in Shelton and a federal stand-alone sentence of probation as here. Respectfully, I am unable to agree with my brothers that the differences are sufficiently material to avoid application of Shelton to this case. Accordingly, I would reverse.
In both the state and federal systems utilizing, on the one hand suspended sentences with probation and, on the other, stand-alone sentences of probation, the judicial machinery necessary to authorize actual imprisonment (or “vulnerability to imprisonment”) and the attendant deprivation of liberty is complete and irrevocable and cannot be revisited in a later proceeding involving an alleged violation of a term of probation. Thus, the distinction between a system that announces a specific sentence that may result if the person does not perform in accordance with probationary terms, as opposed to one that authorizes later imposition of imprisonment upon proof only of violation of probationary terms, is illusory for Sixth Amendment purposes. Indeed, a sentence of stand-alone probation under the federal system may present more, not less, troubling consequences than a suspended jail sentence with probation because of the broader latitude and discretion of a federal jurist to impose a harsher punishment than otherwise might have seemed appropriate at an earlier time when the probationer’s good behavior was assumed.
I.
The Government’s contention is that the “actual imprisonment” rule means that the Sixth Amendment right to counsel attaches only if a specific sentence, although suspended, is imposed, regardless of whether the defendant is then or ever physically incarcerated. The argument thus posited is that suspended sentences with probation can be distinguished from stand-alone sentences of probation because, regarding the latter, no specific term of imprisonment is determined at the original hearing. This is certainly a distinction, but considering the reasoning in *107Shelton, it is one without any material difference. As the Court stated in its holding, “a suspended sentence that may ‘end up in the actual deprivation of a person’s liberty’ may not be imposed unless the defendant was accorded ‘the guiding hand of counsel’ in the prosecution for the crime charged.” Shelton, 535 U.S. at 658, 122 S.Ct. 1764 (quoting Argersinger v. Hamlin, 407 U.S. at 40, 92 S.Ct. 2006).
How, one must ask, does' a state court suspended sentence “end up in the actual deprivation of a person’s liberty?” Deprivation of liberty occurs, if at all, only if that person later violates a condition of the probation, thus resulting in the lifting of the suspension and incarceration for the original crime. A federal sentence of “stand alone” probation equally may “end up in the actual deprivation of a person’s liberty” in identical fashion: a defendant who has been found only to have violated a term of his probation is at the mercy of the court for imprisonment for conviction of the original crime, which was adjudicated without counsel.1 In both cases, the “vulnerability” determination is irretrievably made at the time of conviction and original sentencing.
Indeed, the absence of counsel when a federal defendant is sentenced to a standalone period of probation is arguably more prejudicial to a defendant than the imposition of a suspended state sentence without the assistance of counsel because in some states the length of the suspended term of imprisonment acts as a ceiling, limiting the judge’s discretion to impose later a harsher sentence that may be more compatible with the defendant’s recidivism. For example, the court in Donaldson v. State, 62 Md.App. 651, 653-54, 490 A.2d 1319, 1320 (1985) (quoting Brown v. State, 62 Md.App. 74, 77, 488 A.2d 502, 503-04 (1985)), observed that in Maryland “the sentencing court ... [is in] the same position it occupied at the original sentencing of the defendant with one exception; the court may not impose a sentence greater than that which was originally imposed and suspended.”2
“Deprived of counsel when tried, convicted, and sentenced, and unable to challenge the original judgment at. a subsequent probation revocation hearing, a defendant ... faces incarceration on a conviction that has never been subjected to ‘the crucible of meaningful adversarial testing[.]’” Shelton, 535 U.S. at 667, 122 S.Ct. 1764 (quoting United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). Applying this standard, I fail to see how a set term of potential imprisonment differs, other than in form, from exposure to a variable term of potentially harsher imprisonment. In both systems, the die is cast; the vulnerability of the defendant to imprisonment is set in concrete, and this original determination may not be revisited.
*108II.
The issue presently on appeal was recently raised in the Fifth Circuit. Our sister circuit found the distinction between the potential future activation of a set sentence and the potential future imposition of “any punishment” to be material. United States v. Perez-Macias, 335 F.3d 421, 426 (5th Cir.2003), cert. denied 540 U.S. 994, 124 S.Ct. 495, 157 L.Ed.2d 394 (2003) (“A suspended sentence is conceptually different from a sentence of probation.”). Moreover, the Fifth Circuit did “not believe that the logic of Shelton compels extension of the right to counsel to cases where the defendant receives a sentence of probation uncoupled with a suspended sentence.” Id. at 427. According to the Fifth Circuit, the actual imprisonment rule from Scott was, in reality, an actual receipt of a sentence of imprisonment rule. See id. (citing, inter alia, Scott, 440 U.S. at 374, 99 S.Ct. 1158). Because the imposition of a stand-alone sentence of probation is not a sentence of imprisonment, the Fifth Circuit was able to “find the answer clear.” Id. at 428, 99 S.Ct. 1158.
Unfortunately, I am not able to find the answer to be so clear. A careful reading of the phrase “actual imprisonment” as applied in Shelton leads to the conclusion that the Sixth Amendment protection is triggered whenever a sentence is imposed that leaves a defendant vulnerable to “actual imprisonment.” The Government rejects this second interpretation of “actual imprisonment” by pointing to language in Scott where the Court states that “the central premise of Argersinger — -that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment —is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel.” Scott, 440 U.S. at 373, 99 S.Ct. 1158 (emphasis added). My disagreement with the reliance on this language is twofold.
First, the Shelton decision, although applying that standard, did not remain true to the literal meaning of those words, instead engrafting a “vulnerability” qualifier on the “actual imprisonment” rule. See Shelton, 535 U.S. at 674, 122 S.Ct. 1764 (“Satisfied that Shelton is entitled to appointed counsel at the critical stage when his guilt or innocence of the charged crime is decided and his vulnerability to imprisonment is determined, we affirm the judgment of the Supreme Court of Alabama.”). In fact, four members of the Court concluded that the Shelton majority had abandoned the “actual imprisonment” rule altogether and “extend[ed] the misdemeanor right to counsel to cases bearing the mere threat of imprisonment.” Shelton, 535 U.S. at 675, 122 S.Ct. 1764 (Scalia, J. dissenting).
Second, the issue in Scott was whether the Sixth Amendment right to counsel attaches when a defendant has violated a state statute “for which imprisonment upon conviction is authorized but not actually imposed[.]” Scott, 440 U.S. at 369, 99 S.Ct. 1158 (citing People v. Scott, 68 Ill.2d 269, 272, 12 Ill.Dec. 174, 369 N.E.2d 881 (1977)). The “threat of imprisonment” in Scott evaporated once the judge sentenced the defendant to a mere $50 fine. In stark contrast, the “threat of imprisonment” in cases where stand-alone probation sentences are imposed continues until the termination of the probation period. Thus, interpolating the language regarding the threat of imprisonment from Scott into the current controversy as a means of distinguishing suspended sentences from standalone sentences of probation is not persuasive. More significant to me is the inescapable reality that perpetuating this distinction, in light of the Supreme Court’s *109underlying rationale, would result in a triumph of form over substance.
The Court’s actual reasoning in Shelton militates against the Government’s view that the distinction between suspended sentences and stand-alone sentences is material. The rationale for Shelton was that the Sixth Amendment guarantees the right to counsel to a defendant whose original sentence can, at some future date and upon violation of a condition of probation, result in incarceration; not immediate incarceration, but potential future incarceration. Applying this rationale to the current case, Pollard’s original sentence of probation, upon violation of a condition of probation, could land him in jail. Therefore, regardless of the semantic differences between state suspended sentences and federal stand-alone sentences of probation, the underlying rationale of Shelton convinces me that the differences are not enough to justify drawing such a bright constitutional line. Vulnerability to actual imprisonment is finally determined under both schemes at the time of the original sentence.
III.
The Majority notes its recognition of the potential- Sixth Amendment violation that could result upon imposition of a prison sentence at a probation revocation proceeding. Op. at 105-06. However, my colleagues decline to consider the Sixth Amendment issue because “Pollard was not sentenced to imprisonment after violating probation[.]” Id. Although I agree that this Court is obliged to consider solely the facts of the case presently before it, I respectfully cannot agree that the magistrate judge’s decision to continue probation, J.A. 180, allows this Court to avoid deciding the constitutional issue. Indeed, a review of Alabama’s unsuccessful argument in Shelton explains why the magistrate judge’s decision not to incarcerate Pollard when he violated terms of his probation does not prevent this Court from resolving the constitutional question.
In Shelton, the Court noted that “Alabama now concedes that the Sixth Amendment bars activation of a suspended sentence for an uncounseled conviction, but maintains that the Constitution does not prohibit imposition of such a sentence as a method of effectuating probationary punishment.” Shelton, 535 U.S. at 660-61, 122 S.Ct. 1764. Presumably, Alabama Attorney General (now Circuit Judge) Pryor made this concession to better his chances of success on the narrow issue before the Court. The Court, however, rejected the argument that the Sixth Amendment is triggered only upon activation of the suspended sentence. See id. at 667, 122 S.Ct. 1764 (“Severing the analysis in this manner makes little sense. One cannot assess the constitutionality of imposing a suspended sentence while simultaneously walling off the procedures that will precede its activation.”).
The dissenting opinion in Shelton, in line with the Majority opinion in this case, argued, as did Alabama, that the Sixth Amendment right is triggered only upon activation of a suspended sentence. See Shelton, 535 U.S. at 676, 122 S.Ct. 1764 (Scalia, J. dissenting)( “In the future, if and when the State of Alabama seeks to imprison respondent on the previously suspended sentence, we can ask whether the procedural safeguards attending the imposition of that sentence comply with the Constitution.”). We are bound to follow the majority opinion of the Supreme Court in Shelton, and I fail to understand how the rejected rationale of the dissenters in that case can serve as a basis for our avoidance of the issue that we all agree would be unavoidable if Pollard had been imprisoned. The issue was not avoided in *110Shelton when he was not imprisoned, nor should it be here.
There is no reason why the Court’s logic in Shelton should not control the outcome of this case. The Supreme Court was unconvinced that Shelton’s Sixth Amendment right to counsel would be triggered only when his sentence evolved from suspended to activated. In the current case, the federal sentence of stand-alone probation subjected the defendant to potential imprisonment contingent only on the occurrence of a future event, ie. an act in violation of probation. It is the imposition of the original sentence of probation leaving the Defendant vulnerable to future actual incarceration that triggers Pollard’s Sixth Amendment right to counsel. Shelton ’s determination, that the Sixth Amendment protects defendants when a judicial determination is made that could end up in the deprivation of that person’s liberty, applies to the current situation just as it applies to the situation in Shelton. That determination also forecloses the Majority’s argument that there is only a Sixth Amendment concern when a Court places the defendant behind bars after a probation revocation proceeding. Succinctly stated, an argument rejected by the Supreme Court in Shelton cannot be resuscitated here.
IV.
As Shelton clearly holds, the Sixth Amendment right to counsel attaches not upon activation of a suspended prison sentence, but rather upon the original imposition of a sentence which could result in the deprivation of liberty. Put another way, Shelton teaches that it is the final determination of vulnerability to imprisonment that triggers the Sixth Amendment protection.
In the case presently before this Court, the defendant never spent time in prison, although upon violation of his probation it was within the magistrate judge’s discretion to send Pollard to prison. The stated reason for the magistrate judge’s conclusion that prison time was not an option brings to light an additional policy rationale for reversing the lower court’s decision on the basis of the holding in Shelton.3
At a hearing on the Defendant’s Motion to Dismiss on January 28, 2003, the magistrate judge immediately stated that “the Court cannot send Mr. Pollard to jail for violating his probation because he was not represented and did not waive his right to counsel at the plea[.]” J.A. 154. This statement epitomizes the undesirable consequences for the criminal justice system that could result from continuing to permit the imposition of probationary sentences without counsel: magistrate and district judges may be constrained from doing that which a rational system dictates should be done, namely revoking probation and imposing, where appropriate, a prison term because of the defendant’s violation of the trust placed in him in the original probationary disposition.
In some instances, a defendant’s probationary violation may not be sufficiently severe to make appropriate a term of imprisonment. However, under the regime that will result if we affirm, even if a defendant’s violation of probation is egregious, courts will be hesitant, and rightly so, to sentence that person to prison when the stand-alone sentence of probation was *111imposed without the benefit of counsel. If the defendant is provided counsel at the original hearing when that defendant is convicted and receives a sentence of probation, then the magistrate or district judge, without fear of a Sixth Amendment violation, will be free to determine the appropriate penalty at a probation revocation proceeding consistent with rational sentencing practices.
Concern has been expressed that requiring counsel for defendants who face any penalty other than a fine would place insurmountable burdens on the court system. As a district judge, I believe that the justice system is harmed considerably more by effectively eliminating magistrate and district judge discretion to impose prison terms on wayward probationers, than the detriment that would occur if we were to conclude that counsel must be appointed to represent indigent defendants who face sentences of probation. Moreover, the predicted harm to the judicial system can be avoided in numerous ways discussed in Shelton, e.g. legislation and/or rules changes that would permit pre-trial probation4 or automatic de novo review at a probation revocation proceeding where there has been an uncounseled conviction.
When assessing the consequences of a judicial determination that the Sixth Amendment right to counsel applies to indigent federal defendants sentenced to stand-alone probation, I conclude that the benefits far outweigh the putative detriments. Permitting a court to freely exercise its discretion (ostensibly granted to it by 18 U.S.C. § 3565) to incarcerate defendants who have violated the conditions of their probation advances the goals of the federal criminal justice system. Judges will no longer fear a constitutional violation for exercising their judgment in a manner consistent with the laws of the United States. See 18 U.S.C. § 3565 (“If the defendant violates a condition of probation at any time prior to the expiration or termination of the term of probation, the court may ... revoke the sentence of probation and resentence the defendant under sub-chapter A.”). The alleged negative impact on the judiciary can be alleviated through the means discussed above. Thus, while the benefits of applying the Sixth Amendment right to counsel to sentences of probation cannot be overstated, the detriments can be avoided through relatively simple legislative and rules changes.
. Federal Rule of Criminal Procedure 32.1(a)(6) authorizes a Magistrate Judge to "release or detain the [defendant alleged to have violated a condition of probation] under 18 U.S.C. § 3143(a) pending further proceedings [and][t]he burden of establishing that the person will not flee or pose a danger to any other person or to the community rests with the person.” Fed.R.Crim.P. 32.1(a)(6)(empha-sis added) Thus, considering this burden on a defendant, a mere allegation of a violation of the conditions of a stand-alone sentence of probation may result in the immediate deprivation of that defendant’s liberty.
. The Maryland Code provides that”[i]f a defendant is brought before a circuit court to be sentenced on the original charge or for violating a condition of probation ... the judge may sentence the defendant to (i) all or any part of the period of imprisonment imposed in the original sentence; or (ii) any sentence allowed by law, if a sentence was not imposed before [.]” Md.Code Ann.Crim. Law § 6-224(b) (2002) (emphasis added).
. A consideration of the policy ramifications of this decision is necessary in this case, as it is apparent that such considerations also affected the decision-making process in Shelton. See Shelton, 535 U.S. at 665-72, 122 S.Ct. 1764 (considering the effect that the decision will have on state criminal systems and also indicating options consistent with the Constitution).
. Under such an arrangement, the prosecutor and defendant agree to the defendant’s participation in a pretrial rehabilitation program, which includes conditions typical of post-trial probation. The adjudication of guilt and imposition of sentence for the underlying offense then occur only if and when the defendant breaches those conditions.” Shelton, 535 U.S. at 671, 122 S.Ct. 1764. As to this option, the Court "entertain[s] no constitutional doubt.” Id. at 668 n. 5, 122 S.Ct. 1764.