United States v. Jesse B. Pollard

389 F.3d 101, 2004 U.S. App. LEXIS 23404, 2004 WL 2521276

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 9, 2004
• Docket: 03-4761
• Status: Published

Opinions

Affirmed by published opinion. Chief Judge WILKINS wrote the opinion, in which Judge TRAXLER joined. Judge TITUS wrote a dissenting opinion.

OPINION

WILKINS, Chief Judge:

Jesse B. Pollard appeals a decision of the district court affirming a magistrate judge’s denial of his motion to dismiss a petition on probation filed against him and to vacate the underlying sentence of probation. Pollard argues that his sentence of probation is invalid under Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002), because he was not appointed counsel before he pleaded guilty. Finding that Pollard’s right to counsel has not been violated, we affirm.

I.

A thorough recitation of the facts appears in the opinion of the district court. See United States v. Wilson, 281 F.Supp.2d 827, 829-30 (E.D.Va.2003). We recount them briefly here.

Pollard was arrested on May 5, 2002, at the Marine Corps Base in Quantico, Virginia. He was charged with driving while intoxicated, driving under the influence, and reckless driving, in violation of 18 U.S.C.A. § 13 (West 2000) (assimilating state-law crimes committed on federal property). He appeared without counsel before a United States Magistrate Judge and pleaded guilty to one count of driving under the influence. He was sentenced to one year of supervised probation with conditions and ordered to pay a $250 fine and a $25 special assessment. At no point in the proceedings did Pollard waive his right to appointed counsel.

Eleven days later, on September 20, 2002, Pollard was again arrested for driving under the influence, an event that violated the conditions of his probation. His probation officer filed a petition on probation with the magistrate judge, who issued a warrant for Pollard’s arrest. Counsel was appointed to represent Pollard in his revocation hearing. Pollard moved to dismiss the petition and to vacate the underlying sentence of probation on the ground that he had not been appointed counsel before he pleaded guilty to the first driving under the influence charge. The magistrate judge denied the motion. Instead of revoking Pollard’s probation and sentencing him to prison for the violation, the magistrate judge ordered that Pollard’s probation be continued.

On appeal to the district court, Pollard argued that his uncounseled guilty plea and subsequent sentence of probation violated his Sixth Amendment right to counsel. In support of his argument, Pollard relied upon Shelton, 535 U.S. at 658, 122 S.Ct. 1764, which held that a suspended sentence of imprisonment may not be imposed unless the defendant has been appointed counsel or has waived his right to have counsel appointed. The district court, refusing to equate suspended sentences of imprisonment with stand-alone sentences of probation, rejected Pollard’s argument. Noting that “[t]he Sentencing Reform Act of 1984 abolished suspended sentences within the federal court system and established probation as an independent sentence,” the court held that “the imposition of probation under the federal system does not equate to the imposition of a sentence of imprisonment and suspension of that sentence: probation does not involve the imposition of any term of incarceration.” Wilson, 281 F.Supp.2d at 831. The district court therefore concluded that Pollard’s Sixth Amendment right to counsel was not implicated by his stand-alone sentence of probation.

II.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI. The Supreme Court has made clear that the contours of the right to counsel depend upon the nature of the charged offense and, in some cases, the actual sentence imposed. In felony prosecutions, a defendant has a right to counsel regardless of the sentence imposed. See Gideon v. Wainwright, 372 U.S. 335, 339-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). By contrast, in misdemeanor and petty offense prosecutions, the right to counsel is triggered only if the defendant is actually sentenced to a term of imprisonment. See Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (“[Ajbsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”); see also Scott v. Illinois, 440 U.S. 367, 373-74, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) (holding that “actual imprisonment,” not “the mere threat of imprisonment,” triggers the right to counsel).

In Shelton, the Court applied the “actual imprisonment” standard of Argersinger and Scott, holding that a defendant sentenced to a term of imprisonment has a right to counsel even if the sentence is immediately suspended and coupled with probation. See Shelton, 535 U.S. at 658, 122 S.Ct. 1764 (noting that the Court was interpreting “the Sixth Amendment right to appointed counsel, as delineated in Argersinger and Scott ”). The Court refused to distinguish between a prison sentence that the defendant begins to serve immediately and one that is suspended, coupled with probation, and triggered only upon a probation violation. “A suspended sentence is a prison term imposed for the offense of conviction,” the Court explained. Id. at 662, 122 S.Ct. 1764. “Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense.” Id.

Pollard argues that Shelton should control here because suspended sentences of imprisonment coupled with probation are, according to Pollard, “functionally equivalent” to stand-alone sentences of probation. Consol. Br. of Appellants at 6. “[Ijn both cases,” Pollard asserts, “a defendant is released into the community under conditions and subject to imprisonment if found in violation of these conditions.” Id. Pollard would have us distill a very broad rule from Shelton: that the right to counsel attaches whenever a defendant would be vulnerable to imprisonment as a result of a sentence.¹

In support of his argument, Pollard notes a number of similarities between the Alabama sentencing regime at issue in Shelton and the federal sentencing regime at issue here. For example, if a defendant receives a suspended prison sentence coupled with probation under the Alabama regime, the defendant is subject to conditions which, if violated, could lead to imprisonment. The same is true for defendants sentenced to stand-alone probation under the federal regime. Additionally, under the Alabama regime, the court is not required to activate a suspended prison sentence if the defendant violates the conditions of his probation; the relevant statute provides the court with a number of options upon receiving notice of a violation, including continuing the suspension, issuing warnings, conferencing with the probationer, modifying the conditions of probation, or activating the prison sentence. See Ala.Code § 15-22-54(d)(l) (2003) (listing options); accord Shelton, 535 U.S. at 675-76, 122 S.Ct. 1764 (Scalia, J., dissenting) (noting that imprisonment under the Alabama regime is contingent on the court selection among the various available options). Similarly, under the federal regime, “if the court finds that a defendant violated a condition of probation, the court may continue probation, with or without extending the term or modifying the conditions, or revoke probation and impose any other sentence that initially could have been imposed.” United States Sentencing Guidelines Manual ch. 7, pt. A, § 2(a) (2003).

Notwithstanding these general similarities, we do not believe that the constitutionality of Pollard’s sentence is controlled by Shelton. First, Shelton expressly reserved the question of whether uncounseled defendants may receive stand-alone sentences of probation. See Shelton, 535 U.S. at 672-73, 122 S.Ct. 1764 (declining to consider whether “probation uncoupled from a prison sentence should trigger no immediate right to appointed counsel” because there was “not so much as a hint ... in the decision of the Supreme Court of Alabama, that Shelton’s probation term is separable from the prison term to which it was tethered”). Second, Shelton made very clear that it was applying — not abandoning' — ’the bright-line, “actual imprisonment” rule of Argersinger and Scott. The Shelton Court characterized “the Argersinger-Scott ‘actual imprisonment’ standard” as “the controlling rule” and stated that it was “[a]pplying the ‘actual imprisonment’ rule to the case before [it].” Id. at 662, 122 S.Ct. 1764. We believe that in order to adopt the broad interpretation of Shelton that Pollard presses upon us, we would have to conclude that the Supreme Court, when it decided Shelton, implicitly abandoned the principles that animated its decision in Scott.

In Scott, the defendant was charged with shoplifting merchandise valued at less than $150. Under applicable Illinois law, the maximum penalty for that offense was “a $500 fine or one year in jail, or both.” Scott, 440 U.S. at 368, 99 S.Ct. 1158. Scott, who had not been appointed counsel and therefore represented himself at trial, was convicted and sentenced to pay a $50 fine. He appealed, arguing that his right to counsel had been violated because the statute under which he was charged authorized imprisonment. The Supreme Court rejected his argument, drawing a bright line between “fines or the mere threat of imprisonment” and “actual imprisonment.” Id. at 373, 99 S.Ct. 1158.

Although not expressly raised in Scott, we note that the defendant there would have been “vulnerable to imprisonment” as a result of the fine imposed upon him. When Scott was decided, Illinois judges were authorized by statute to imprison defendants who willfully failed to pay fines imposed by the court. See Ill.Rev.Stat. ch. 38, ¶ 1005-9-3(a) (1977) (“An offender who defaults in the payment of a fine or in any installment may be held in contempt and imprisoned for non-payment.”); see also People v. Harris, 41 Ill.App.3d 690, 354 N.E.2d 648, 649-50 (1976) (discussing the power of courts to imprison defendants for failure to pay fines). Should Scott have refused to obey the conditions imposed upon him by the court — ie., refused to pay the fíne — he would have been vulnerable to imprisonment under Illinois law.²

Indeed, whenever a court orders a defendant to take or refrain from action, the defendant becomes subject to conditions that render him vulnerable to imprisonment should he disobey those conditions. To adopt a broad rule that the right to counsel is triggered whenever such conditions are imposed would require us to ignore the limiting principles of Scott. See Scott, 440 U.S. at 373, 99 S.Ct. 1158 (dismissing “the mere threat of imprisonment” as insufficient to trigger the right to counsel). As Shelton intended to apply Argersinger and Scott, not to overrule them, we decline to adopt the broad rule advocated by Pollard.³

For his original conviction, Pollard was sentenced to probation with certain conditions and ordered to pay monetary penalties. Unlike the defendant in Shelton, Pollard was not sentenced to a suspended term of imprisonment coupled with probation. Pollard’s stand-alone sentence of probation highlights an essential difference between the federal sentencing regime at issue here and the Alabama regime at issue in Shelton. “Prior to the implementation of the federal sentencing guidelines, a court could stay the imposition or execution of [a] sentence and place a defendant on probation.” U.S.S.G. ch. 7, pt. A, § 2(a). However, “[t]he statutory authority to ‘suspend’ the imposition or execution of [a] sentence in order to impose a term of probation was abolished upon implementation of the sentencing guidelines. Instead, the Sentencing Reform Act recognized probation as a sentence in itself.” Id. (citing 18 U.S.C.A. § 3561 (West 2000)); accord United States v. Granderson, 511 U.S. 39, 43 n. 3, 114 S.Ct. 1259, 127 L.Ed.2d 611 (1994) (“The Sentencing Reform Act of 1984, for the first time, classified probation as a sentence; before 1984, probation had been considered an alternative to a sentence.”).

According to the bright-line, “actual imprisonment” rule of Argersinger and Scott, Pollard’s right to counsel was not violated here because he received a standalone sentence of probation, rather than a suspended prison term coupled with probation. See Scott, 440 U.S. at 373-74, 99 S.Ct. 1158 (holding that the Sixth Amendment “require[s] only that no [uncoun-seled] indigent criminal defendant be sentenced to a term of imprisonment”). Shelton does not compel a different result.

We note that the same conclusion has been reached by the Fifth Circuit. See United States v. Perez-Macias, 335 F.3d 421, 427 (5th Cir.) (“[W]e do 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.”), cert. denied, 540 U.S. 994, 124 S.Ct. 495, 157 L.Ed.2d 394 (2003). We also acknowledge, as did the Fifth Circuit, that the actual imposition of a prison term upon revocation of probation may pose Sixth Amendment problems if the defendant was uncounseled for the underlying conviction that led to probation. See id. at 428, 124 S.Ct. 495; cf. Shelton, 535 U.S. at 667, 122 S.Ct. 1764 (indicating that provision of counsel at probation revocation hearing alone does not alleviate the fact that defendant’s underlying, uncounseled conviction was not “subjected to the crucible of meaningful adversarial testing” (internal quotation marks omitted)). However, because Pollard was not sentenced to imprisonment after violating probation, we leave resolution of that question for another day.

III.

For the reasons stated above, we affirm the judgment of the district court.

AFFIRMED

1 . More precisely, Pollard's counsel submitted at oral argument that the only sentence that may be imposed upon an uncounseled defendant under Shelton is a fine.

2 . The dissent overlooks this possibility. See post, at 108 ("The 'threat of imprisonment' in Scott evaporated once the judge sentenced the defendant to a mere $50 fine.”).

3 . The dissent would also have us adopt this broad rule, but as the dissent acknowledges, to adopt such a rule would require us to conclude that the Supreme Court "did not remain true to the literal meaning” of Argersinger and Scott when it decided Shelton. Post, at 108. We find no indication in Shelton that the Court intended its decision to apply to defendants who do not receive sentences of imprisonment, and absent such indication we decline to take that step ourselves.