On August 1, 2003, a federal grand jury returned a three-count indictment against Defendants. Count I accused Defendants of conspiring to manufacture more than 100 marijuana plants, in violation of 21 U.S.C. § 846. Count II accused Defendants of maintaining a place to manufacture and distribute marijuana, in violation of 21 U.S.C. § 856(a)(1) and (b). Count III sought the criminal forfeiture of Defendants' residence in the event they were convicted of either crime alleged in the previous counts, pursuant to 21 U.S.C. § 853.

On January 30, 2004, Defendants filed a joint motion to suppress all evidence discovered at their residence when officers executed the search warrant. They had two primary arguments: First, Defendants claimed that officers violated the Fourth Amendment by entering upon the curtilage of their house without a warrant. Second, they claimed the affidavit in support of the warrant contained false statements which rendered the warrant invalid under Franks v. Delaware, 438 U.S. 154 (1978).

The district court denied the motions to suppress as well as a subsequent motion to reconsider. Subsequently, pursuant to a plea agreement, Bukola agreed to plead guilty to Count II (maintaining a place to manufacture marijuana) of the indictment while reserving the right to appeal the district court's suppression ruling. The Government, in turn, agreed to dismiss Count I. The district court accepted the plea and sentenced Bukola to five months' imprisonment and three years' supervised release, in accordance with the recommendations made in her presentence report ("PSR").

Kurt Cousins also entered into a plea agreement whereby he agreed to plead guilty to Count I of the indictment (conspiracy) in exchange for the Government's agreement to drop Count II.⁽²⁾ The probation office then prepared a PSR and recommended a level II criminal history category for Kurt and an offense level of 18. Based on these recommendations, Kurt would have been eligible under the sentencing guidelines for a sentence of between 30 and 37 months. However, the crime for which Kurt was convicted carried a five-year mandatory minimum sentence. See 21 U.S.C. § 841(b)(1)(B). The only way around this mandatory minimum sentence was to qualify for a safety valve reduction, see 18 U.S.C. § 3553(f), which requires, among other things, a level I criminal history category.

Therefore, at sentencing, Kurt objected to the PSR's criminal history recommendation. He argued that one of the two criminal history points accorded to him was due to a 1996 South Carolina misdemeanor conviction during which Kurt alleges he was deprived the right to counsel. Without this criminal history point, Kurt would have been eligible for the safety valve reduction and therefore for the lower sentencing guidelines range. After holding a hearing, the district court overruled Kurt's objection, adopted the findings of the PSR, and sentenced Kurt to the statutory mandatory minimum, five years' imprisonment.

Kurt and Bukola each filed appeals regarding the district court's denial of their motion to suppress.⁽³⁾ In addition, Kurt filed an appeal challenging the legality of his sentence. Kurt's and Bukola's appeals have been consolidated before this panel.

DISCUSSION

Under 21 U.S.C. § 841(b)(1)(B)(vii), a conviction under 21 U.S.C. § 841(a) involving more than 100 marijuana plants is subject to a five-year mandatory minimum sentence. However, a defendant can exempt himself from the mandatory minimum sentence if he meets the following safety valve requirements:

(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;

(2) the defendant did not use violence . . . or possess a firearm or other dangerous weapon . . . in connection with the offense;

(3) the offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense . . . and was not engaged in a continuing criminal enterprise . . . ; and

(5) . . . the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense . . . .

18 U.S.C. § 3553(f)(1)-(5). If the district court makes these five findings, the defendant is eligible instead for the range proscribed by the United States Sentencing Guidelines.

Here, the district court sentenced Kurt Cousins to five years in prison, pursuant to the statutory mandatory minimum. If, however, Kurt's criminal history category had been level I instead of level II, he may have been eligible for a safety-valve reduction. See id. Kurt's criminal history category classification was due, in part, to a 1996 South Carolina misdemeanor conviction for receiving stolen goods where he was sentenced to a $500 fine or, in the alternative, to 30 days in prison.⁽⁵⁾ Kurt contends that he was deprived of the right to counsel at these state court proceedings and that therefore the district court in the instant case should not have included the conviction in his criminal history category calculation.

In its answer brief, the Government asserts that it is improper for Kurt to challenge the constitutionality of his prior state court conviction in a federal sentencing proceeding. The proper route, according to the Government, would have been to challenge the conviction within the South Carolina state court system.

The Supreme Court has held that a defendant may not generally challenge the constitutionality of his prior state court conviction by objecting at a federal sentencing hearing to the use of that prior conviction as part of a sentencing enhancement. Custis v. United States, 511 U.S. 485, 487 (1994). However, an exception to this general rule is that challenges to the constitutionality of a conviction based upon a violation of the right to counsel are permitted in sentencing proceedings, even though the defendant is attacking the prior state conviction collaterally in federal court. Id. Thus, on its face, the Government's argument appears to be meritless.

However, there is a slight distinction between the instant case and Custis. In Custis, the defendant raised his constitutional challenge to the prior state conviction as part of his objections to a sentence enhancement. 511 U.S. at 487. Here, by contrast, the objection is to the non-application of the safety-valve provision. That provision does not enhance a sentence; rather, it makes a defendant eligible for exemption from the statutory mandatory minimum.

Thus, while it is clear that a defendant may challenge his state conviction in federal court when it is used to enhance his sentence, the question before us is whether he may do so when he seeks a safety valve exemption from the statutory mandatory minimum to reduce his likely sentence. In Lewis v. United States, the Court stated: "We recognize, of course, that under the Sixth Amendment an uncounseled felony conviction cannot be used for certain purposes. The Court, however, has never suggested that an uncounseled conviction is invalid for all purposes." 445 U.S. 55, 66-67 (1980) (citations omitted). With this in mind, the Court in Lewis held that it was permissible to use an uncounseled conviction for the purposes of imposing a civil restriction against owning a firearm, even though the conviction could not be used to enhance a criminal sentence. Id. at 67. This was because prohibiting the use of uncounseled convictions in sentencing enhancements is based on a concern about the reliability of an uncounseled conviction. Id. The federal gun laws, by contrast, focus on the mere fact of conviction (or even indictment) in order to keep firearms away from potentially dangerous people. Id.

The instant case is closer to Custis than it is to Lewis. Whether or not we are enhancing a sentence based on a conviction or determining on the basis of that prior conviction that a defendant is not eligible for a safety-valve reduction, the principle concern is whether the prior conviction being used against him is accurate and reliable. There is no principled reason that the Sixth Amendment would protect someone from a sentence enhancement yet deny that person the benefit of an exemption from a mandatory minimum on the basis of the same prior conviction, particularly since both challenges seek to reduce the amount of prison time a defendant has to serve.

Thus, we hold that Kurt may challenge the constitutionality of his state court conviction on Sixth Amendment grounds in a federal sentencing proceeding where the purpose of the challenge is to establish eligibility for safety valve consideration under § 3553(f).

1. Whether the South Carolina conviction violated the Sixth Amendment

In Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963), the Supreme Court held that the Sixth Amendment's guarantee of the right to appointed counsel applies to state criminal prosecutions through the Fourteenth Amendment. Clarifying the scope of Gideon, the Court later held that an indigent defendant must be appointed counsel in any criminal prosecution, regardless of its classification as a misdemeanor or a felony, "that actually leads to imprisonment even for a brief period . . . ." Argersinger v. Hamlin, 407 U.S. 25, 33 (1972). Seven years later, in Scott v. Illinois, 440 U.S. 367 (1979), the Court established the outer limit of the right first enunciated in Argersinger. Id. at 373. Although the statute under which the defendant in Scott was charged authorized up to a one-year jail term, the Court held that the defendant had no right to state-appointed counsel because the sole sentence imposed on him was a $50 fine. Id. at 368, 373-74.

The next major development in this area of law was Alabama v. Shelton, 535 U.S. 654 (2002). The defendant in Shelton was sentenced to 30 days' imprisonment after a conviction for misdemeanor assault. Id. at 658. The trial court suspended that sentence, however, and placed the defendant on two years' unsupervised probation. Id. If the defendant violated his terms of probation, he would be subject to the 30 days' imprisonment. Id. The Court held that a suspended sentence that may end up in actual deprivation of a person's liberty fit under the Argersinger-Scott "actual imprisonment" rule and thus entitled the defendant to the benefit of counsel. Id. at 674.

The instant case is analogous to Shelton in the sense that the sentence imposed by the South Carolina court was essentially a suspended sentence: either Defendant paid the $500 fine or he went to jail for 30 days. Therefore, by depriving Kurt of the benefit of counsel, South Carolina appears to have violated Kurt's Sixth Amendment rights.

The Government on appeal contends that Shelton does not apply to Kurt's South Carolina conviction because the Supreme Court issued Shelton after Kurt's state court conviction had taken effect and Shelton did not apply retroactively to that conviction. See Teague v. Lane, 489 U.S. 288, 310 (1989) (holding that a "new rule" does not retroactively apply to cases on collateral review unless it falls within one of a narrowly-defined set of exceptions).⁽⁶⁾ Thus, argues the government, since the conviction was valid at the time it was made, it could be used for the purposes of denying a safety-valve exemption. See Nichols v. United States, 511 U.S. 738, 748-49 (1994).

However, the Teague bar is not jurisdictional and it may be waived. See Schiro v. Farley, 510 U.S. 222, 228 (1994). In reviewing the record, it appears that the Government did not raise a Teague-style objection to the application of Shelton below. Therefore, we decline to address this issue. See Duckett v. Godinez, 67 F.3d 734, 746, n.6 (9th Cir. 1995); Hanrahan v. Greer, 896 F.2d 241, 245 (7th Cir. 1990).

Having concluded that the South Carolina conviction violated Kurt's Sixth Amendment rights, we must also conclude that it was error for the district court to use this conviction in calculating Kurt's criminal history category.⁽⁷⁾

CONCLUSION

For the reasons outlined above, we AFFIRM the district court's decision to deny Defendants' motion to suppress. However, we REVERSE Defendant Kurt Cousins's sentence and REMAND for resentencing.

^*.At the suppression hearing, Bryant stated that he was "positive" that the gate was open when he saw the marijuana plants in the back yard. However, when police officers arrived at the scene, the gate was closed.

^2.As part of their plea agreements, both Defendants agreed to forfeit their property as outlined in Count III of the indictment.

^3.As noted above, the original suppression motion argued both that the officers invaded the house's protected curtilage and the accuracy of statements in the warrant affidavit. However, on appeal, Defendants only challenge the curtilage aspect of the district court's decision denying the motion to suppress.

^4.We have circulated this portion of our opinion to the en banc court, which has unanimously agreed that the ultimate curtilage determination is a legal question to be reviewed de novo and that findings of historic facts are reviewed for clear error. To the extent that any holdings in our prior cases are to the contrary, such holdings are therefore overruled. See, e.g., United States v. Long, 176 F.3d 1304, 1308 (10th Cir. 1999) (stating, post-Ornelas, that "[t]he district court's factual determination that the bags were located outside the curtilage is subject to a clearly erroneous standard of review"); United States v. Knapp, 1 F.3d 1026, 1029 (10th Cir. 1993); United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir. 1993).

^5.On February 26, 1996, in Greenville County, South Carolina, Kurt was convicted of the misdemeanor offense of receiving stolen goods, pursuant to a guilty plea. The written judgment reflects a sentence of 30 days in jail or a $500 fine. The word "suspended" is circled. A provision for one month unsupervised probation is crossed out. The Government stipulated that the South Carolina court effectively imposed a suspended sentence requiring Kurt to pay the $500 fine or, if he did not, to spend 30 days in jail. There is also no dispute that Kurt was not represented by an attorney during these proceedings.

^6.In Schriro v. Summerlin, 542 U.S. 348 (2004), the Supreme Court recently summarized the types of cases that fall outside the Teague retroactivity bar. Generally speaking, new substantive rules apply retroactively. Id. at 351. "This includes decisions that narrow the scope of a criminal statute by interpreting its terms as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish." Id. at 351­52 (citations omitted). New rules of procedure, on the other hand, generally do not apply retroactively, unless they fall into the small set of "watershed rules of criminal procedure," implicating the fundamental fairness and accuracy of the criminal proceeding. Id. at 352.

^7.This is not to say, of course, that Kurt Cousins necessarily qualifies for a safety valve exception. 18 U.S.C. § 3553(f) presents a five part test. The district court did not address the other four parts given the ruling on Defendant's criminal history. Consequently, we must remand for the district court to consider the other four requirements under § 3553(f) to determine whether Kurt Cousins qualifies for safety valve relief.

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