nichols argued january decided june petitioner nichols pleaded guilty federal felony drug charges assessed criminal history points federal sentencing guidelines including one point state misdemeanor conviction driving influence dui fined incarcerated point increased maximum sentence imprisonment months petitioner objected inclusion dui conviction arguing represented counsel proceeding considering establishing sentence violate sixth amendment construed baldasar illinois however district reasoned baldasar lacked majority opinion thus stood proposition prior uncounseled misdemeanor conviction may used create felony prison term since petitioner offense already defined felony ruled baldasar inapplicable sentenced petitioner term imprisonment months longer dui conviction considered appeals affirmed held consistent sixth fourteenth amendments sentencing may consider defendant previous uncounseled misdemeanor conviction sentencing subsequent offense long previous uncounseled misdemeanor conviction result sentence imprisonment pp year decided defendant charged misdemeanor constitutional right counsel sentence imprisonment imposed scott illinois majority held baldasar prior uncounseled page ii misdemeanor conviction constitutional scott collaterally used convert second misdemeanor conviction felony applicable illinois sentencing enhancement statute however per curiam opinion provided rationale result referring instead three different concurring opinions support judgment splintered decision created great confusion lower courts pp five members baldasar expressed continued adherence scott adheres holding today agrees dissent baldasar logical consequence holding uncounseled conviction valid scott may relied upon enhance sentence subsequent offense even though sentence entails imprisonment enhancement statutes change penalty imposed earlier conviction reliance earlier conviction also consistent traditional understanding sentencing process less exacting process establishing guilt constitutional consider defendant past criminal conduct sentencing even conviction resulted behavior state need prove conduct preponderance evidence mcmillan pennsylvania thus must constitutionally permissible consider prior misdemeanor conviction based conduct conduct subject proof beyond reasonable doubt petitioner due process contention misdemeanor defendant must warned conviction might used future enhancement purposes rejected convictions often take place police justice courts courts record thus may way memorialize warning unclear expansive warning pp rehnquist delivered opinion scalia kennedy thomas joined souter filed opinion concurring judgment blackmun filed dissenting opinion stevens ginsburg joined ginsburg filed dissenting opinion nichols chief justice rehnquist delivered opinion case return issue splintered baldasar illinois whether constitution prohibits sentencing considering defendant previous uncounseled misdemeanor conviction sentencing subsequent offense petitioner nichols pleaded guilty conspiracy possess cocaine intent distribute violation pursuant federal sentencing guidelines sentencing guidelines petitioner assessed three criminal history points federal felony drug conviction additional criminal history point assessed petitioner state misdemeanor conviction driving influence dui petitioner fined incarcerated additional criminal history nichols point increased petitioner criminal history category category ii category iii result petitioner sentencing range sentencing guidelines increased months criminal history category ii months category iii petitioner objected inclusion dui misdemeanor conviction criminal history score represented counsel proceeding maintained consideration uncounseled misdemeanor conviction establishing sentence violate sixth amendment construed baldasar supra district eastern district tennessee found petitioner misdemeanor conviction uncounseled based record petitioner waived right counsel nichols district rejected petitioner baldasar argument explaining absence majority opinion baldasar stands proposition prior uncounseled misdemeanor conviction may used create felony prison term petitioner offense already defined felony district ruled baldasar inapplicable facts case thus petitioner constitutional rights violated using dui conviction enhance sentence sentenced petitioner maximum term allowed sentencing guidelines interpretation baldasar term months longer misdemeanor conviction considered calculating petitioner criminal history score divided panel appeals sixth circuit affirmed reviewing fractured decision baldasar opinions courts appeals considered issue held baldasar limits collateral use sentencing prior uncounseled misdemeanor conviction effect consideration convert misdemeanor felony dissent recognizing numerous courts questioned whether baldasar expresses single holding accordingly largely limited baldasar facts nichols nevertheless concluded baldasar proscribed use petitioner prior uncounseled dui conviction enhance sentence sentencing guidelines citations omitted granted certiorari address important question sixth amendment law thereby resolve conflict among state courts well federal courts appeals affirm scott illinois held sentence imprisonment imposed nichols defendant charged misdemeanor constitutional right counsel decision scott dictated argersinger hamlin stated ven matter res nova believe central premise argersinger actual imprisonment penalty different kind fines mere threat imprisonment eminently sound warrants adoption actual imprisonment line defining constitutional right appointment counsel scott supra one year later baldasar illinois majority held prior uncounseled misdemeanor conviction constitutional scott nevertheless collaterally used convert second misdemeanor conviction felony applicable illinois sentencing enhancement statute per curiam opinion baldasar provided rationale result instead referred reasons stated concurring opinions three different opinions supporting result justice stewart joined justices brennan stevens stated simply defendant sentenced increased term imprisonment convicted previous prosecution assistance appointed counsel defense prison sentence violated constitutional rule scott ibid justice marshall also joined justices nichols brennan stevens rested opinion proposition uncounseled misdemeanor conviction sufficiently reliable support imprisonment argersinger become reliable merely accused validly convicted subsequent offense justice blackmun provided fifth vote advanced rationale expressed dissent scott constitution requires appointment counsel indigent defendant whenever charged nonpetty offense offense punishable months imprisonment defendant actually sentenced imprisonment rationale baldasar prior misdemeanor conviction invalid used enhancement purposes initial misdemeanor punishable prison term six months justice powell authored dissent remaining three members joined dissent criticized majority holding one undermines rationale scott argersinger leaves coherent rationale place dissent opined majority result misapprehended nature enhancement statutes alter enlarge prior sentence ignored significance constitutional validity first conviction scott created hybrid conviction good punishment actually imposed available sentence enhancement later prosecution finally quite presciently dissent predicted decision create confusion lower courts marks stated hen fragmented decides case single rationale explaining result enjoys nichols assent five justices holding may viewed position taken members concurred judgments narrowest grounds quoting gregg georgia test easily stated applied various opinions supporting result baldasar number courts appeals decided lowest common denominator narrowest grounds represents holding see eckford schindler clerk circuit cert denied another appeals concluded holding baldasar justice blackmun rationale santillanes parole yet another concluded consensus baldasar concurrences roughly expressed justice marshall concurring opinion williams state courts similarly divided sentencing guidelines also reflected uncertainty baldasar nichols think useful pursue marks inquiry utmost logical possibility obviously baffled divided lower courts considered degree confusion following splintered decision baldasar reason reexamining decision payne tennessee slip miller california five members baldasar four dissenters justice stewart expressed continued adherence scott illinois defendant convicted shoplifting criminal statute provided penalty offense fine term one year jail defendant fact fined contended since imprisonment offense authorized statute sixth fourteenth amendments constitution required illinois provide trial counsel rejected contention holding long imprisonment actually imposed sixth amendment right counsel obtain reasoned number decisions already expanded language sixth amendment well beyond obvious meaning line drawn criminal proceedings resulted imprisonment adhere holding today agree dissent baldasar logical consequence holding uncounseled conviction valid scott may relied upon enhance sentence nichols subsequent offense even though sentence entails imprisonment enhancement statutes whether nature criminal history provisions contained sentencing guidelines recidivist statutes common place state criminal laws change penalty imposed earlier conviction pointed dissenting opinion baldasar consistently sustained repeat offender laws penalizing last offense committed defendant moore missouri oyler boles reliance conviction also consistent traditional understanding sentencing process often recognized less exacting process establishing guilt general proposition sentencing judge may appropriately conduct inquiry broad scope largely unlimited either kind information may consider source may come tucker traditionally sentencing judges considered wide variety factors addition evidence guilt determining sentence impose convicted defendant wisconsin mitchell slip one important factor recognized state recidivism statutes criminal history component sentencing guidelines defendant prior convictions sentencing courts taken consideration defendant prior convictions also considered defendant past criminal behavior even conviction resulted behavior upheld constitutionality considering previous conduct williams new york also upheld consideration conduct connection offense presently charged mcmillan pennsylvania nichols held state consider sentence enhancement factor visible possession firearm felonies defendant found guilty thus consistently due process petitioner present case sentenced severely based simply evidence underlying conduct gave rise previous dui offense state need prove conduct preponderance evidence surely must constitutionally permissible consider prior uncounseled misdemeanor conviction based conduct conduct must proven beyond reasonable doubt petitioner contends minimum due process requires misdemeanor defendant warned conviction might used enhancement purposes defendant later convicted another crime requirement suggested scott believe good reason first place large number misdemeanor convictions take place police justice courts courts record without drastic change procedures courts way memorialize warning clear exactly expansive warning georgia warn defendant permutations commutations recidivist statutes well criminal history provision sentencing guidelines applicable federal courts warning completely general level brought back another criminal charge defendant nichols treated harshly merely tell must surely already know nichols today adhere scott illinois supra overrule baldasar accordingly hold consistent sixth fourteenth amendments constitution uncounseled misdemeanor conviction valid scott prison term imposed also valid used enhance punishment subsequent conviction judgment appeals therefore affirmed footnotes nichols six criminal history categories sentencing guidelines sentencing commission guidelines manual ch pt sentencing table defendant criminal history category determined number criminal history points turn based prior criminal record ch sentencing table provides matrix sentencing ranges vertical axis matrix defendant offense level representing seriousness crime horizontal axis defendant criminal history category sentencing range determined identifying intersection defendant offense level criminal history category ch pt sentencing table respondent contends even baldasar prohibits using prior uncounseled misdemeanor conviction enhance petitioner sentence district applied wrong legal standard finding valid waiver right counsel based johnson zerbst parke raley slip respondent argues petitioner failed carry burden establish absence valid nichols waiver counsel need address contention due resolution baldasar issue petitioner instant felony conviction punishable statute less years imprisonment life imprisonment see also stated decision logically compelled charles foltz cert denied vidence prior uncounseled misdemeanor convictions imprisonment imposed may used impeachment purposes compare lovell state ark baldasar bars prior uncounseled misdemeanor conviction enhancing term imprisonment following second conviction state vares haw state laurick baldasar bars enhanced penalty greater authorized absence prior offense converts misdemeanor felony cert denied hlad state following approach justice blackmun thereby limiting enhancement situations prior uncounseled misdemeanor punishable six months imprisonment less aff sheffield pass christian miss baldasar establishes barrier collateral use valid uncounseled misdemeanor convictions sixth circuit expressly joined fifth second circuits essentially limiting baldasar facts see wilson estelle prior uncounseled misdemeanor conviction used sentence enhancement statute convert subsequent misdemeanor felony prison term cert denied baldasar apply used uncounseled misdemeanor conviction determine appropriate criminal history category crime already felony cert denied sub nom see brady baldasar sixth amendment bar imprisonment subsequent case imposed uncounseled conviction right counsel waived felony cases contrast misdemeanor charges constitution requires indigent defendant offered appointed counsel unless right intelligently competently waived gideon wainwright held convictions gained violation gideon used either support guilt enhance punishment another offense burgett texas subsequent sentence based part prior invalid conviction must set aside tucker see supra version sentencing guidelines stated determining defendant criminal history score uncounseled misdemeanor conviction excluded result imposition sentence imprisonment circumstances violate constitution ussg application note effective november commission amended deleting quoted phrase adding following statement background commentary prior sentences otherwise excluded counted criminal history score including uncounseled misdemeanor sentences imprisonment imposed ussg app amend commission initially published amendment notice comment included following explanation nichols commission believe inclusion sentences resulting constitutionally valid uncounseled misdemeanor convictions criminal history score foreclosed baldasar illinois course may decide based constitutions public policy counsel available indigent defendants charged misdemeanors indeed many majority guarantee right counsel whenever imprisonment authorized statute rather actually imposed see alaska serious crime means crime imprisonment authorized indigent defendant shall entitled attorney appointed criminal proceeding may result punishment loss liberty concludes appointment satisfies ends justice cal penal ann code west cal penal code ann west brunson state right counsel misdemeanor proceedings guaranteed ind art supp nichols justice souter concurring judgment write separately share view baldasar illinois holding overrule ante wish clear narrow ground think case properly decided baldasar unusual case single opinion enlisted majority common ground five justices read various opinions eight members baldasar divided four four whether uncounseled misdemeanor conviction valid prison sentence imposed see scott illinois may used automatic enhancement prison sentence attached subsequent conviction see baldasar stewart concurring joined brennan stevens jj marshall concurring joined brennan stevens jj powell dissenting joined burger white rehnquist instead breaking tie ninth justice justice blackmun declined accept premise others proceeded prior uncounseled conviction valid scott adhering earlier position uncounseled conviction sort involved baldasar valid nichols purpose see blackmun concurring discussing scott supra blackmun dissenting significantly present purposes justice blackmun gave indication view whether uncounseled conviction valid scott subsequently used automatic sentence enhancement question addressed eight justices baldasar equipoise leaving decision posture affirmance equally divided entitled precedential value see pink compare waters churchill slip souter concurring book named john cleland memoirs woman pleasure attorney general discussed marks setting baldasar aside controlling precedent retaining case even split evidence seems safe say question debated difficult one scott relying argersinger hamlin drew bright line imprisonment lesser criminal penalties theory understand concern reliability raised absence counsel tolerable defendant face deprivation liberty see scott supra see also argersinger discussing studies showing volume misdemeanor cases may create obsession speedy dispositions regardless fairness result obvious serious argument line drawn scott crossed justice stewart put baldasar defendant sentenced increased term imprisonment convicted previous prosecution assistance appointed counsel defense concurring opinion emphasis nichols original see also marshall concurring petitioner prison sentence imposed direct consequence previous uncounseled conviction therefore forbidden scott argersinger fortunately difficult constitutional question argument raises need answered deciding case cf ashwander tva brandeis concurring unlike sentence enhancement scheme involved baldasar sentencing guidelines provide automatic enhancement based prior uncounseled convictions prior convictions explains serve guidelines place defendant one six criminal history categories greater number prior convictions higher category see ante guidelines seek punish exhibit pattern criminal conduct pattern prior convictions see ussg ch pt introductory commentary accordingly bind district category simple addition places defendant thus guidelines require uncounseled misdemeanor sentences imprisonment imposed counted criminal history score sentencing commission guidelines manual app amend also expressly empower district depart range sentences prescribed criminal history category inaccurately captures defendant actual history criminal conduct see particular guidelines authorize downward departure concludes defendant criminal history category significantly overrepresents seriousness defendant nichols criminal history likelihood defendant commit crimes ibid guidelines role prior convictions play sentencing presumptive conclusive defendant chance convince sentencing unreliability prior valid uncounseled convictions reflecting seriousness past criminal conduct predicting likelihood recidivism defendant may show example prior conviction resulted railroading unsophisticated indigent frugal preference low fine counsel fee desire put matter behind instead investing time fight charges guidelines allow defendant rebut negative implication prior uncounseled conviction gives rise ignore risk unreliability associated conviction moreover observes permitting consider contrast giving conclusive weight prior uncounseled conviction consistent traditional understanding sentencing process nichols judge may appropriately conduct inquiry broad scope largely unlimited either kind information may consider source may come least long defendant given reasonable opportunity disprove accuracy information judge may rely contest relevancy information sentencing ante quoting tucker concern reliability accommodated sentencing guidelines nothing sixth amendment cases requires sentencing ignore fact valid uncounseled conviction even conviction less confident indicator guilt counseled one cf sentencing commission sentencing guidelines courts fed reg explaining valid uncounseled convictions counted determining defendant criminal history category alternative deprive sentencing significant information relevant purposes sentencing therefore agree constitutionally permissible federal consider prior uncounseled misdemeanor conviction sentencing defendant sentencing guidelines ante see also ante enough answer constitutional question case presents whether district considered petitioner previous uncounseled misdemeanor computing criminal history score sentencing guidelines pet cert see also brief stating question presented hether violated constitution sentencing consider petitioner prior uncounseled misdemeanor conviction determining criminal history score sentencing guidelines petitioner contend counting nichols uncounseled conviction driving influence placed criminal history category significantly overrepresents seriousness criminal history likelihood commit crimes ussg properly rejects petitioner challenge sentence shy however endorsing language opinion may taken addressing constitutional validity sentencing scheme automatically requires enhancement prior uncounseled convictions scheme us prefer risk offending principle anticipate question constitutional law advance necessity deciding ashwander supra citation omitted concur judgment congress gave sentencing commission authority maintai sufficient flexibility permit individualized sentences warranted mitigating aggravating factors taken account establishment general sentencing practices commission used authority adopting said designed recogniz criminal history score unlikely take account variations seriousness criminal history may occur ussg commentary beckham cadc see also shoupe guidelines commission specifically provided district courts flexibility adjust criminal history category calculated rigid formulae cf broderick wolf honoring judicial discretion sentencing reform act discussing congress desire leave substantial sentencing discretion hands sentencing judge nichols justice blackmun justice stevens justice ginsburg join dissenting petitioner kenneth nichols pleaded nolo contendere driving influence alcohol dui paid fine represented counsel scott illinois uncounseled misdemeanor used basis incarceration even jail sentence seven years later nichols pleaded guilty federal drug charge uncounseled misdemeanor used enhance sentence led directly imprisonment two years majority holding enhancement violate sixth amendment neither compelled scott faithful concern reliability lies heart sixth amendment cases since gideon wainwright accordingly dissent sixth amendment provides criminal prosecutions accused shall enjoy right assistance counsel defence gideon wainwright recognized sixth amendment guarantee counsel fundamental essential fair trial nichols ven intelligent educated layman requires guiding hand counsel every step proceedings quoting powell alabama plain wording amendment reasoning gideon support guarantee counsel criminal prosecutions petty serious whatever consequences see scott illinois brennan dissenting although never read guarantee counsel broadly one principle clear least today imprisonment may imposed basis uncounseled conviction thus argersinger hamlin rejected formalistic distinction petty nonpetty offenses applied gideon criminal trial accused deprived liberty burger concurring result deprivation liberty serious matter individual imprisoned unless represented counsel year later scott confirmed deprivation liberty matter brief triggers sixth amendment right counsel even matter res nova believe central premise argersinger actual imprisonment penalty different kind fines mere threat imprisonment eminently sound warrants adoption actual imprisonment line defining constitutional right appointment counsel therefore hold sixth fourteenth amendments constitution require indigent criminal defendant sentenced term imprisonment unless state afforded right assistance appointed counsel defense nichols nichols thus animating concern sixth amendment jurisprudence ensure indigent deprived liberty result proceeding lacked guiding hand counsel grappled sometimes divided extending constitutional guarantee beyond convictions lead actual incarceration never permitted uncounseled conviction serve basis jail time ii although expressly overrules baldasar illinois ante purports adhere scott describing holding logical consequence scott logic unassailable contrary justice marshall stated baldasar rule held conviction invalid imposing prison term directly valid imposing prison term collaterally illogical unworkable deviation previous cases concurring opinion logical consistent reasoning scott hold conviction invalid imposing sentence offense remains invalid increasing term imprisonment imposed subsequent conviction skirts scott actual imprisonment standard asserting enhancement statutes change penalty imposed earlier conviction ante punish later offense although nichols undeniable recidivist statutes impose second punishment first offense violation double jeopardy clause moore missouri also undeniable nichols dui conviction directly resulted two years imprisonment event concern multiple punishments reliability specifically prior uncounseled misdemeanor conviction sufficiently reliable justify additional jail time imposed enhancement statute imprisonment punishment different kind fines threat imprisonment scott consistently read sixth amendment require courts decrease risk unreliability provision counsel conviction results imprisonment sentence scott imposed first instance sentence result enhancement statute distinction without constitutional difference also defends position arguing process sentencing traditionally less exacting process establishing guilt ante may true general proposition nichols establish uncounseled conviction reliable enough sixth amendment purposes justify imposition imprisonment even sentencing context follow state may attempt prove sentencing conduct justifying greater punishment also may rely prior uncounseled conviction mcmillan pennsylvania nichols example state permitted prove sentencing defendant visibly possessed firearm commission felonies convicted mcmillan state sets prove actual conduct rather fact conviction sentencing proceeding defendant represented counsel counsel put state proof examining witnesses rebutting evidence testing reliability allegations see argersinger accused requires guiding hand counsel every step proceedings quoting powell alabama nichols emphasis added contrast state simply submits record conviction obtained proceeding defendant lacked assistance counsel lack similar confidence conviction reliably reflects defendant conduct moreover practical matter introduction record conviction generally carries greater weight evidence prior conduct indeed sentencing guidelines require district assess criminal history points prior convictions impose sentence within range authorized defendant criminal history unless concludes defendant criminal history category significantly overrepresents seriousness defendant criminal history likelihood defendant commit crimes sentencing commission guidelines manual realistically conclusion state may prove prior conduct sentencing proceeding defendant aided counsel support much less compel conclusion state may lieu proving directly prior conduct rely conviction obtained uncounseled defendant nichols iii contrary rule set forth rule uncounseled misdemeanor conviction never form basis term imprisonment faithful principle born gideon announced argersinger uncounseled misdemeanor like uncounseled felony reliable enough form basis severe sanction incarceration gideon stated reason reflection require us recognize adversary system nichols criminal justice person haled poor hire lawyer assured fair trial unless counsel provided gideon involved felony recognized argersinger counsel often requisite existence fair trial misdemeanor cases well absence assurance requisite fair trial confidence reliability conviction therefore impose prison term based reliability concerns prompted hold uncounseled felony conviction later used increase prison term state recidivist statute burgett texas even considered sentencing subsequent conviction tucker offers reason think none rules apply regard uncounseled misdemeanor convictions counsel profound effect misdemeanor cases volume cases pressure plead great see argersinger isdemeanants represented attorney five times likely emerge police charges dismissed defendants face similar charges without counsel quoting american civil liberties union legal counsel misdemeanants preliminary report baldasar marshall concurring recognizing misdemeanor convictions may less reliable felony convictions obtained assembly line justice jurors may less scrupulous applying reasonable doubt standard minor offense given utility counsel cases inherent risk unreliability absence counsel severe sanction incarceration result directly indirectly uncounseled misdemeanor nichols reason law policy construe sixth amendment exclude guarantee counsel conviction subsequently results increased term incarceration moreover rule uncounseled misdemeanor conviction never used increase prison term eminently logical justice marshall made clear baldasar uncounseled conviction become reliable merely accused validly convicted subsequent misdemeanor reason conviction invalid purposes imposing sentence offense remains invalid purposes increasing term imprisonment subsequent conviction statute concurring opinion nichols iv scant discussion sixth amendment case law principles today approves imposition two years incarceration consequence uncounseled misdemeanor conviction nichols uncounseled misdemeanor convictions lack reliability always considered prerequisite imposition term incarceration dissent dissented scott five members held sixth amendment required counsel convictions punished actual imprisonment offenses punishable imprisonment imprisonment imposed believing line drew protect indigent defendants adequately keep faith sixth amendment principles argued right counsel defendant convicted sentenced jail time also defendant convicted offense punishable six months imprisonment regardless punishment actually imposed year later decided baldasar illinois adhered position concurring per curiam opinion judgment uncounseled conviction used justify increasing baldasar jail time although based decision belief uncounseled conviction invalid first instance baldasar charged offense punishable six months prison expressed disagreement nichols indeed none premise uncounseled conviction valid scott invalid purposes imposing increased incarceration subsequent offense obviously logic dictates threat imprisonment enough trigger sixth amendment guarantee counsel actual imposition imprisonment enhancement statute also requires appointment counsel support position majority cites several cases refer sentencing judge traditional discretion cases provide scant support majority rule sanctioning use prior uncounseled convictions basis increased terms imprisonment none even addresses sixth amendment guarantee counsel mcmillan pennsylvania held state statute defining visible possession firearm sentencing consideration proved preponderance evidence rather element crime must proved beyond reasonable doubt violate due process mcmillan involve use prior conviction subsequent proceeding additionally mcmillan involved felony convictions defendants entitled counsel every step proceedings assist proving disproving facts relied sentencing nichols also noted risk error challenged proceeding comparatively slight visible possession simple straightforward issue susceptible objective proof said reliability prior uncounseled misdemeanors see argersinger observing volume misdemeanor cases may create obsession speedy dispositions regardless fairness result noting misdemeanor trial characterized insufficient frequently irresponsible preparation quoting hellerstein importance misdemeanor case trial appeal legal aid brief case moreover finding visible possession expose defendant greater additional punishment otherwise authorized mcmillan prior conviction issue exposed petitioner two additional years prison wisconsin mitchell rejected first amendment challenge state statute enhanced penalty based defendant motive helpful majority position simply observed defendant motive factor traditionally considered sentencing judges said nothing validity prior convictions even standard required prove motive similarly although tucker made passing reference sentencing judge broad inquiry held gideon required resentencing sentencing considered prior felony convictions later found uncounseled finally williams new york confrontation clause challenge sentencing judge consideration evidence obtained presentence investigation rely prior convictions defendant represented counsel challenge accuracy information judge considered ask judge disregard seek refute discredit consideration information expose defendant greater additional punishment mcmillan course due process case curiously appears rest holding much due process clause sixth amendment see ante even use prior uncounseled conviction violate due process conclusively resolve sixth amendment question compare betts brady holding right counsel required due process clause fourteenth amendment recognizing due process concept less rigid fluid envisaged specific particular provisions bill rights gideon wainwright holding sixth amendment requires counsel state felony prosecutions read majority reliance due process reflect understanding due process requires partial incorporation sixth amendment right counsel state courts long recognized sixth amendment guarantee counsel fundamental essential fair trial therefore made obligatory upon fourteenth amendment gideon wainwright see also johnson zerbst assistance counsel one safeguards sixth amendment deemed necessary insure fundamental human rights life liberty grosjean american press fundamental right accused aid counsel criminal prosecution safeguarded state action due process law clause fourteenth amendment decision even intimated sixth amendment right counsel somehow diluted truncated state proceedings justice souter concludes provision passes sixth amendment muster providing defendant reasonable opportunity disprove accuracy prior conviction ante even assuming guidelines permit sentencing depart downward response defendant claim conviction resulted lack sophistication calculation cheaper plead pay low fine retain counsel litigate charge safety valve still accommodate reliability concerns sufficiently chief justice burger recognized argersinger ppeal conviction uncounseled trial likely much help defendant since die usually cast judgment entered uncounseled trial record concurring opinion collateral proceeding holds forth greater promise relief uncounseled misdemeanor convictions considered inherently nichols unreliable argersinger scott presumptively valid sentence enhancement schemes see custis limiting defendant right attack unconstitutional prior conviction used enhance sentence armed career criminals act parke raley presumption validity attaches final judgments properly extended prior convictions used sentence enhancement state recidivism statute presumptively reflected defendant criminal history score sentence sentencing guidelines see sentencing commission guidelines manual app amend november rior sentences otherwise excluded counted criminal history score including uncounseled misdemeanor sentences imprisonment imposed moreover although might salutary courts consider sentencing guidelines defendant reasons culpability pleading nolo contendere prior misdemeanor conviction share justice souter confidence benevolent review defendant circumstances occurring even district probing review generally may depart downward atypical cases outside heartland carved guideline sentencing commission guidelines manual ch pt comment november alleviate concern argersinger typical misdemeanor case presents pressures plead guilty nolo contendere regardless fairness accuracy plea accordingly find district authority depart downward tenuous check use unreliable misdemeanor convictions salvage sentencing scheme view violation scott another perspective prior uncounseled conviction viewed hybrid conviction valid purpose imposing sentence invalid purpose depriving accused liberty see baldasar powell dissenting nothing intuitively offensive hybrid see baldasar marshall concurring noting accepting baldasar conviction valid purposes see also certain consent decrees consent judgments favor government civil criminal antitrust actions shall prima facie evidence subsequent proceeding brought another party district proceedings leading consent judgment proposed government inadmissible evidence subsequent proceedings von kalinowski antitrust laws trade regulation allegations based pleas nolo contendere government suits judgments entered thereon included complaint subsequent action nichols justice ginsburg dissenting custis held sole exception convictions obtained violation right counsel defendant federal sentencing proceeding right attack collaterally prior state conviction used enhance sentence armed career criminal act case dispositively different custis presented forum question issue whether defendant attack prior conviction constitutional infirmity see slip custis may attack state sentence maryland federal habeas review face uncounseled prior conviction tolerable sixth amendment assistance counsel guarantee expose defendant nichols prospect incarceration see scott illinois today decision enlarges impact uncounseled conviction turns disposition allowing jail time disposition made one day case alone judgment far heavier weight nichols attack prior uncounseled conviction seeking nichols confine conviction term incarceration rendered constitutional recognizing issue case like one presented custis join justice blackmun dissenting opinion page