United States v. Thomas

United States Court of Appeals for the Eighth Circuit · 1994 · Evidence

20 F.3d 817 (8th Cir. 1994)

Updated August 22, 2026

EvidenceSentencingSixth AmendmentRight to CounselCriminal Historyuncounseled misdemeanorvalid prior convictionSentencing Guidelines

Facts

After Thomas's firearm conviction, the Presentence Report assigned him one criminal history point for a 1985 misdemeanor conviction for carrying a concealed weapon, to which he had pleaded guilty and for which he paid a $20 fine. Thomas objected because he had not been represented by counsel in that misdemeanor case, but he conceded the conviction itself was constitutionally valid because no imprisonment had been imposed. Including that point gave him a criminal history score of 12, but excluding it would still have left him in criminal history category V with the same Guidelines range of 27 to 33 months. The district court overruled his objection and imposed a 33-month sentence.

Issue

May a district court, consistent with the Sixth Amendment, consider a constitutionally valid but uncounseled prior misdemeanor conviction when determining a defendant's sentence under the United States Sentencing Guidelines? Also, was Thomas's appeal reviewable even though the challenged conviction did not change his Guidelines range?

Rule

A district court may consider a constitutionally valid but uncounseled prior misdemeanor conviction in determining the sentence for a subsequent offense under the Sentencing Guidelines. Baldasar bars use of such a prior conviction to imprison a defendant when he otherwise would not be confined, but it does not bar using the conviction to help determine the length of imprisonment for a subsequent offense that already independently authorizes imprisonment.

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In Omaha, Marcus Velez is convicted in federal court of mail theft, a felony punishable by imprisonment regardless of his record. At sentencing, the judge adds one criminal-history point for a prior uncounseled city-ordinance misdemeanor from Lincoln for disorderly conduct, for which Marcus received only a $75 fine and no jail time.

Marcus argues the Sixth Amendment bars any consideration of that prior misdemeanor in fixing his federal sentence. How should the court rule?

Explanation. The majority held that a sentencing court may consider a constitutionally valid but uncounseled misdemeanor conviction when sentencing for a later offense that already independently authorizes imprisonment. Under the Argersinger-Scott line, the prior misdemeanor is constitutionally valid if no imprisonment was imposed. Baldasar is read narrowly to bar use of such a conviction only when it causes imprisonment where the defendant otherwise would not be confined.