United States v. W. Avery Wilson , 954 F.2d 374 ( 1992 )

NATHANIEL R. JONES,

concurring in the result.

Because this circuit’s precedent dictates that we affirm the district court in this case, I am constrained to concur in the result reached by the majority. I write separately, however, to register my vigorous disagreement with this circuit’s — and, for that matter, the majority of the circuits’ — treatment of the issue that this case presents.

The defendant argues that the district court erred in using the “relevant conduct” provision to increase his sentence based' on statements he made to the probation officer during presentencing interviews. The judge instructed him to cooperate fully and truthfully with the probation officer, who would complete his presentence report. Although the judge also urged him to follow the advice of his lawyer until after sentencing, his lawyer was not present at either of the two interviews with the probation officer, for reasons that are not explained in the record. Thus, without the advice of counsel, he candidly answered all of the officer’s questions, and, in the process, made self-incriminating statements.

As the majority correctly points out, this court’s precedent does not support the defendant’s position. The facts of the instant case are for the most part on all fours with those in United States v. Miller, 910 F.2d 1321 (6th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). In Miller, the defendant, having been instructed by the court to answer truthfully, was interviewed by a probation officer who was to recommend a sentence to the court. Id. at 1323. He participated in the meeting without the benefit of counsel, and he truthfully gave the officer information about his drug-related activities for which- he had not been convicted. This information was used against him in sentencing, as in the instant case, and raised the minimum sentence he could receive by four years. Id.

The result reached in Miller was mandated by Sixth Circuit precedent as well; we previously held that the sentencing guidelines allow a district court to “consider conduct not charged in an indictment for the purpose of determining the base offense level for a defendant’s sentence.” Miller, 910 F.2d at 1329 (Martin, J., concurring) (citing United States v. Smith, 887 F.2d 104 (6th Cir.1989), and United States v. Sailes, 872 F.2d 735 (6th Cir.1989)); cf. United States Sentencing Commission, Guidelines Manual, § 1B1.3(a)(1) (Nov. 1991) (for language of the relevant conduct provision upon which the court’s decisions have been based). Thus, in the instant case, the defendant’s admission to having sold, in the same course of action, a specific amount of cocaine over the amount for which he was convicted, may properly be considered in determining his sentence, in this circuit. Under this court’s interpretation of section 1B1.3, the district court did not commit clear error.

It is my position, however, that this court jumped the tracks on this issue as long ago as the Sailes decision, and has since been hurtling in a direction in which it should never have gone. Judge Merritt’s dissent in Miller fully addresses the problems inherent in the current interpretation of this sentencing guidelines provision, which I will reemphasize here briefly.

First, while our decisions have correctly interpreted the language of the sentencing guidelines as written, they have failed to recognize that the Commission, in formulating the Guidelines, has gone further than Congress authorized it to go. The enabling statute for the Guidelines Commission, 28 U.S.C. § 994(i )(1) (1988), allows the Commission to aggregate penalties in instances in which the defendant has been convicted of multiple offenses. Nothing in the statute authorizes the Commission to permit probation officers or sentencing judges to tack on unconvicted crimes, thereby substantially increasing a defendant’s sentence. These unconvicted crimes that a defendant has allegedly committed are not introduced to influence the sentencing court in its discretion to sentence him or her at the higher end of a particular range, but rather to force the court to upwardly readjust the entire sentencing range. Due process is meaningless in a system that allows the government to bypass the safeguards embedded in securing an indictment and conviction or a valid guilty plea simply because the accused has already been convicted of a “related” crime.

Second, under the current law of this circuit, defendants will be deprived of their Fifth and Sixth Amendment rights to have notice of what crime they are accused of committing. See Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948). This notice requirement is violently breached when a defendant is sentenced for a crime of which he or she was never accused prior to sentencing. At that hearing, he or she is not allowed to confront his or her accusers, and is not innocent until proven guilty beyond a reasonable doubt. Cf. United States v. Davis, 919 F.2d 1181, 1188 (6th Cir.1990) (Jones, J., dissenting) (noting that standard for proof used in calculating the base offense level is preponderance of the evidence). Without the advice of an attorney, as in the instant case and in Miller, a defendant may not know that one can invoke one’s Fifth Amendment right to remain silent during a presentence interview, thereby following the court’s instruction to be truthful without incriminating oneself.

* Finally, this interpretation of § 1B1.3(a)(1) will effectively decrease judicial efficiency, a result we can ill afford. First, the potential for being sentenced for unconvicted crimes will be an incentive for defendants to lie, or at least, to not be forthcoming, eventually making fruitless the government’s efforts to plea bargain for cooperation from defendants in its related investigations. Second, the number of trials will increase as the chance of a jury acquittal becomes more attractive. Third, the number of habeas petitions might well increase, should this circuit continue to interpret § 1B1.3 in this manner, if and when “the Supreme Court begins to realize the multiple constitutional violations that the current Guidelines procedure raises.” Miller, 910 F.2d at 1333 (Merritt, C.J., dissenting). This concurrence presents only a brief summary of the dangers to defendants’ rights that are involvéd in this case. It is with an eye on these problems that I am compelled to write separately— even as I, with reluctance, concur.