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SUPREME COURT OF THE UNITED STATES
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No. 92-8556
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KENNETH O. NICHOLS, PETITIONER v.
UNITED STATES
on writ of certiorari to the united states court
of appeals for the sixth circuit
[June 6, 1994]

  Justice Souter, concurring in the judgment.
  I write separately because I do not share the Court's
view that Baldasar v. Illinois, 446 U. S. 222 (1980), has
a holding that can be -overrule[d],- ante, at 11, and
because I wish to be clear about the narrow ground on
which I think this case is properly decided.  Baldasar is
an unusual case, not because no single opinion enlisted
a majority, but because no common ground united any
five Justices.  As I read the various opinions, eight
Members of the Baldasar Court divided, four to four,
over whether an uncounseled misdemeanor conviction
that is valid because no prison sentence was imposed,
see Scott v. Illinois, 440 U. S. 367 (1979), may be used
for automatic enhancement of the prison sentence at-
tached to a subsequent conviction.  See Baldasar, 446
U. S., at 224 (Stewart, J., concurring, joined by Brennan
and Stevens, JJ.); id., at 224-229 (Marshall, J., concur-
ring, joined by Brennan and Stevens, JJ.); id., at
230-235 (Powell, J., dissenting, joined by Burger, C. J.,
and White and Rehnquist, JJ.).  Instead of breaking the
tie, the ninth Justice, Justice Blackmun, declined to
accept the premise on which the others proceeded (that
the prior uncounseled conviction was valid under Scott),
adhering to his earlier position that an uncounseled
conviction of the sort involved in Baldasar was not valid
for any purpose.  See 446 U. S., at 229-230 (Blackmun,
J., concurring) (discussing Scott, supra, at 389-390
(Blackmun, J., dissenting)).  Significantly for present
purposes, Justice Blackmun gave no indication of his
view on whether an uncounseled conviction, if valid
under Scott, could subsequently be used for automatic
sentence enhancement.  On the question addressed by
the other eight Justices, then, the Baldasar Court was
in equipoise, leaving a decision in the same posture as
an affirmance by an equally divided Court, entitled to no
precedential value, see United States v. Pink, 315 U. S.
210, 216 (1942).  Compare Waters v. Churchill, __ U. S.
__ (1994); id., at __ (slip op., at 4) (Souter, J., concur-
ring); Book Named -John Cleland's Memoirs of a Woman
of Pleasure- v. Attorney General of Mass., 383 U. S. 413
(1966) (discussed in Marks v. United States, 430 U. S.
188, 193-194 (1977)).
  Setting Baldasar aside as controlling precedent (but
retaining the case's even split as evidence), it seems safe
to say that the question debated there is a difficult one.
The Court in Scott, relying on Argersinger v. Hamlin,
407 U. S. 25 (1972), drew a bright line between impris-
onment and lesser criminal penalties, on the theory, as
I understand it, that the concern over reliability raised
by the absence of counsel is tolerable when a defendant
does not face the deprivation of his liberty.  See Scott,
supra, at 372-373; see also Argersinger, 407 U. S., at
34-37 (discussing studies showing that -the volume of
misdemeanor cases . . . may create an obsession for
speedy dispositions, regardless of the fairness of the
result-).  There is an obvious and serious argument that
the line drawn in Scott is crossed when, as Justice
Stewart put it in Baldasar, a defendant is -sentenced to
an increased term of imprisonment only because he had
been convicted in a previous prosecution in which he
had not had the assistance of appointed counsel in his
defense.-  446 U. S., at 224 (concurring opinion) (empha-
sis in original); see also id., at 227 (Marshall, J.,
concurring) (petitioner's prison sentence -was imposed as
a direct consequence of [the previous] uncounseled
conviction and is therefore forbidden under Scott and
Argersinger-).
  Fortunately, the difficult constitutional question that
argument raises need not be answered in deciding this
case, cf. Ashwander v. TVA, 297 U. S. 288, 346-347
(1936) (Brandeis, J., concurring), for unlike the sentence-
enhancement scheme involved in Baldasar, the Sentenc-
ing Guidelines do not provide for automatic enhancement
based on prior uncounseled convictions.  Prior convic-
tions, as the Court explains, serve under the Guidelines
to place the defendant in one of six -criminal history-
categories; the greater the number of prior convictions,
the higher the category.  See ante, at 2, and n. 2.  But
the Guidelines seek to punish those who exhibit a
pattern of -criminal conduct,- not a pattern of prior
convictions as such, see USSG Ch. 4, pt. A (Nov. 1993)
(Introductory Commentary), and accordingly do not bind
a district court to the category into which simple
addition places the defendant.  Thus while the Guide-
lines require that -uncounseled misdemeanor sentences
where imprisonment was not imposed- are -to be
counted in the criminal history score,- United States
Sentencing Commission, Guidelines Manual App. C,
amend. 353 (Nov. 1993), they also expressly empower
the district court to depart from the range of sentences
prescribed for a criminal-history category that inaccu-
rately captures the defendant's actual history of criminal
conduct.  See id., 4A1.3  In particular, the Guidelines
authorize downward departure -where the court con-
cludes that a defendant's criminal history category
significantly over-represents the seriousness of a defen-
dant's criminal history or the likelihood that the defen-
dant will commit further crimes.-  Ibid.
  Under the Guidelines, then, the role prior convictions
play in sentencing is presumptive, not conclusive, and a
defendant has the chance to convince the sentencing
court of the unreliability of any prior valid but uncoun-
seled convictions in reflecting the seriousness of his past
criminal conduct or predicting the likelihood of recidi-
vism.  A defendant may show, for example, that his
prior conviction resulted from railroading an unsophis-
ticated indigent, from a frugal preference for a low fine
with no counsel fee, or from a desire to put the matter
behind him instead of investing the time to fight the
charges.
  Because the Guidelines allow a defendant to rebut the
negative implication to which a prior uncounseled
conviction gives rise, they do not ignore the risk of
unreliability associated with such a conviction.  More-
over, as the Court observes, permitting a court to
consider (in contrast to giving conclusive weight to) a
prior uncounseled conviction is -consistent with the
traditional understanding of the sentencing process,-
under which a -judge `may appropriately conduct an
inquiry broad in scope, largely unlimited either as to the
kind of information he may consider, or the source from
which it may come,'- at least as long as the defendant
is given a reasonable opportunity to disprove the
accuracy of information on which the judge may rely,
and to contest the relevancy of that information to
sentencing.  Ante, at 9 (quoting United States v. Tucker,
404 U. S. 443, 446 (1972)).  Where concern for reliability
is accommodated, as it is under the Sentencing Guide-
lines, nothing in the Sixth Amendment or our cases re-
quires a sentencing court to ignore the fact of a valid
uncounseled conviction, even if that conviction is a less
confident indicator of guilt than a counseled one would
be.  Cf. United States Sentencing Commission, Sentenc-
ing Guidelines for United States Courts, 55 Fed. Reg.
5741 (1990) (explaining that valid, uncounseled convic-
tions should be counted in determining a defendant's
criminal history category because the alternative would
-deprive the [sentencing] court of significant information
relevant to the purposes of sentencing-).
  I therefore agree with the Court that it is -constitu-
tionally permissible- for a federal court to -consider a
prior uncounseled misdemeanor conviction- in sentencing
a defendant under the Sentencing Guidelines.  Ante, at
10; see also ante, at 1.  That is enough to answer the
constitutional question this case presents, whether -[t]he
District Court should . . . have considered [petitioner's]
previous uncounseled misdemeanor in computing [his]
criminal history score- under the Sentencing Guidelines.
Pet. for Cert. i; see also Brief for United States I
(stating question presented as -[w]hether it violated the
Constitution for the sentencing court to consider peti-
tioner's prior uncounseled misdemeanor conviction in
determining his criminal history score under the Sen-
tencing Guidelines-).  And because petitioner did not
below, and does not here, contend that counting his 1983
uncounseled conviction for driving under the influence
placed him in a criminal-history category that -signifi-
cantly over-represents the seriousness of [his] criminal
history or the likelihood that [he] will commit further
crimes,- USSG 4A1.3, the Court properly rejects
petitioner's challenge to his sentence.
  I am shy, however, of endorsing language in the
Court's opinion that may be taken as addressing the
constitutional validity of a sentencing scheme that
automatically requires enhancement for prior uncoun-
seled convictions, a scheme not now before us.  Because
I prefer not to risk offending the principle that -[t]he
Court will not `anticipate a question of constitutional law
in advance of the necessity of deciding it,'- Ashwander,
supra, at 346 (citation omitted), I concur only in the
judgment.