                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 03-4761
JESSE B. POLLARD,
               Defendant-Appellant.
                                       
           Appeal from the United States District Court
        for the Eastern District of Virginia, at Alexandria.
                 Gerald Bruce Lee, District Judge.
                           (CR-03-122)

                       Argued: October 1, 2004

                      Decided: November 9, 2004

    Before WILKINS, Chief Judge, TRAXLER, Circuit Judge,
       and Roger W. TITUS, United States District Judge
       for the District of Maryland, sitting by designation.



Affirmed by published opinion. Chief Judge Wilkins wrote the opin-
ion, in which Judge Traxler joined. Judge Titus wrote a dissenting
opinion.


                             COUNSEL

ARGUED: Michael William Lieberman, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Jennifer Ann Dominguez, Spe-
cial Assistant United States Attorney, OFFICE OF THE UNITED
2                     UNITED STATES v. POLLARD
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Frank W. Dunham, Jr., Federal Public Defender, Nia Ayanna
Vidal, Assistant Federal Public Defender, Alexandria, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Michael J. Els-
ton, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.


                              OPINION

WILKINS, Chief Judge:

   Jesse B. Pollard appeals a decision of the district court affirming
a magistrate judge’s denial of his motion to dismiss a petition on pro-
bation filed against him and to vacate the underlying sentence of pro-
bation. Pollard argues that his sentence of probation is invalid under
Alabama v. Shelton, 535 U.S. 654 (2002), because he was not
appointed counsel before he pleaded guilty. Finding that Pollard’s
right to counsel has not been violated, we affirm.

                                   I.

   A thorough recitation of the facts appears in the opinion of the dis-
trict court. See United States v. Wilson, 281 F. Supp. 2d 827, 829-30
(E.D. Va. 2003). We recount them briefly here.

   Pollard was arrested on May 5, 2002, at the Marine Corps Base in
Quantico, Virginia. He was charged with driving while intoxicated,
driving under the influence, and reckless driving, in violation of 18
U.S.C.A. § 13 (West 2000) (assimilating state-law crimes committed
on federal property). He appeared without counsel before a United
States Magistrate Judge and pleaded guilty to one count of driving
under the influence. He was sentenced to one year of supervised pro-
bation with conditions and ordered to pay a $250 fine and a $25 spe-
cial assessment. At no point in the proceedings did Pollard waive his
right to appointed counsel.

   Eleven days later, on September 20, 2002, Pollard was again
arrested for driving under the influence, an event that violated the
                       UNITED STATES v. POLLARD                        3
conditions of his probation. His probation officer filed a petition on
probation with the magistrate judge, who issued a warrant for Pol-
lard’s arrest. Counsel was appointed to represent Pollard in his revo-
cation hearing. Pollard moved to dismiss the petition and to vacate the
underlying sentence of probation on the ground that he had not been
appointed counsel before he pleaded guilty to the first driving under
the influence charge. The magistrate judge denied the motion. Instead
of revoking Pollard’s probation and sentencing him to prison for the
violation, the magistrate judge ordered that Pollard’s probation be
continued.

   On appeal to the district court, Pollard argued that his uncounseled
guilty plea and subsequent sentence of probation violated his Sixth
Amendment right to counsel. In support of his argument, Pollard
relied upon Shelton, 535 U.S. at 658, which held that a suspended
sentence of imprisonment may not be imposed unless the defendant
has been appointed counsel or has waived his right to have counsel
appointed. The district court, refusing to equate suspended sentences
of imprisonment with stand-alone sentences of probation, rejected
Pollard’s argument. Noting that "[t]he Sentencing Reform Act of
1984 abolished suspended sentences within the federal court system
and established probation as an independent sentence," the court held
that "the imposition of probation under the federal system does not
equate to the imposition of a sentence of imprisonment and suspen-
sion of that sentence: probation does not involve the imposition of
any term of incarceration." Wilson, 281 F. Supp. 2d at 831. The dis-
trict court therefore concluded that Pollard’s Sixth Amendment right
to counsel was not implicated by his stand-alone sentence of proba-
tion.

                                   II.

   The Sixth Amendment provides that "[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence." U.S. Const. amend. VI. The Supreme Court has
made clear that the contours of the right to counsel depend upon the
nature of the charged offense and, in some cases, the actual sentence
imposed. In felony prosecutions, a defendant has a right to counsel
regardless of the sentence imposed. See Gideon v. Wainwright, 372
U.S. 335, 339-45 (1963); Johnson v. Zerbst, 304 U.S. 458, 463
4                      UNITED STATES v. POLLARD
(1938). By contrast, in misdemeanor and petty offense prosecutions,
the right to counsel is triggered only if the defendant is actually sen-
tenced to a term of imprisonment. See Argersinger v. Hamlin, 407
U.S. 25, 37 (1972) ("[A]bsent a knowing and intelligent waiver, no
person may be imprisoned for any offense, whether classified as
petty, misdemeanor, or felony, unless he was represented by counsel
at his trial."); see also Scott v. Illinois, 440 U.S. 367, 373-74 (1979)
(holding that "actual imprisonment," not "the mere threat of imprison-
ment," triggers the right to counsel).

   In Shelton, the Court applied the "actual imprisonment" standard of
Argersinger and Scott, holding that a defendant sentenced to a term
of imprisonment has a right to counsel even if the sentence is immedi-
ately suspended and coupled with probation. See Shelton, 535 U.S. at
658 (noting that the Court was interpreting "the Sixth Amendment
right to appointed counsel, as delineated in Argersinger and Scott").
The Court refused to distinguish between a prison sentence that the
defendant begins to serve immediately and one that is suspended,
coupled with probation, and triggered only upon a probation viola-
tion. "A suspended sentence is a prison term imposed for the offense
of conviction," the Court explained. Id. at 662. "Once the prison term
is triggered, the defendant is incarcerated not for the probation viola-
tion, but for the underlying offense." Id.

   Pollard argues that Shelton should control here because suspended
sentences of imprisonment coupled with probation are, according to
Pollard, "functionally equivalent" to stand-alone sentences of proba-
tion. Consol. Br. of Appellants at 6. "[I]n both cases," Pollard asserts,
"a defendant is released into the community under conditions and
subject to imprisonment if found in violation of these conditions." Id.
Pollard would have us distill a very broad rule from Shelton: that the
right to counsel attaches whenever a defendant would be vulnerable
to imprisonment as a result of a sentence.1

  In support of his argument, Pollard notes a number of similarities
between the Alabama sentencing regime at issue in Shelton and the
    1
   More precisely, Pollard’s counsel submitted at oral argument that the
only sentence that may be imposed upon an uncounseled defendant under
Shelton is a fine.
                      UNITED STATES v. POLLARD                        5
federal sentencing regime at issue here. For example, if a defendant
receives a suspended prison sentence coupled with probation under
the Alabama regime, the defendant is subject to conditions which, if
violated, could lead to imprisonment. The same is true for defendants
sentenced to stand-alone probation under the federal regime. Addi-
tionally, under the Alabama regime, the court is not required to acti-
vate a suspended prison sentence if the defendant violates the
conditions of his probation; the relevant statute provides the court
with a number of options upon receiving notice of a violation, includ-
ing continuing the suspension, issuing warnings, conferencing with
the probationer, modifying the conditions of probation, or activating
the prison sentence. See Ala. Code § 15-22-54(d)(1) (2003) (listing
options); accord Shelton, 535 U.S. at 675-76 (Scalia, J., dissenting)
(noting that imprisonment under the Alabama regime is contingent on
the court selection among the various available options). Similarly,
under the federal regime, "if the court finds that a defendant violated
a condition of probation, the court may continue probation, with or
without extending the term or modifying the conditions, or revoke
probation and impose any other sentence that initially could have
been imposed." United States Sentencing Guidelines Manual ch. 7, pt.
A, § 2(a) (2003).

   Notwithstanding these general similarities, we do not believe that
the constitutionality of Pollard’s sentence is controlled by Shelton.
First, Shelton expressly reserved the question of whether uncounseled
defendants may receive stand-alone sentences of probation. See Shel-
ton, 535 U.S. at 672-73 (declining to consider whether "probation
uncoupled from a prison sentence should trigger no immediate right
to appointed counsel" because there was "not so much as a hint . . .
in the decision of the Supreme Court of Alabama, that Shelton’s pro-
bation term is separable from the prison term to which it was teth-
ered"). Second, Shelton made very clear that it was applying—not
abandoning—the bright-line, "actual imprisonment" rule of Arger-
singer and Scott. The Shelton Court characterized "the Argersinger-
Scott ‘actual imprisonment’ standard" as "the controlling rule" and
stated that it was "[a]pplying the ‘actual imprisonment’ rule to the
case before [it]." Id. at 662. We believe that in order to adopt the
broad interpretation of Shelton that Pollard presses upon us, we would
have to conclude that the Supreme Court, when it decided Shelton,
implicitly abandoned the principles that animated its decision in Scott.
6                       UNITED STATES v. POLLARD
   In Scott, the defendant was charged with shoplifting merchandise
valued at less than $150. Under applicable Illinois law, the maximum
penalty for that offense was "a $500 fine or one year in jail, or both."
Scott, 440 U.S. at 368. Scott, who had not been appointed counsel and
therefore represented himself at trial, was convicted and sentenced to
pay a $50 fine. He appealed, arguing that his right to counsel had
been violated because the statute under which he was charged autho-
rized imprisonment. The Supreme Court rejected his argument, draw-
ing a bright line between "fines or the mere threat of imprisonment"
and "actual imprisonment." Id. at 373.

   Although not expressly raised in Scott, we note that the defendant
there would have been "vulnerable to imprisonment" as a result of the
fine imposed upon him. When Scott was decided, Illinois judges were
authorized by statute to imprison defendants who willfully failed to
pay fines imposed by the court. See Ill. Rev. Stat. ch. 38, ¶ 1005-9-
3(a) (1977) ("An offender who defaults in the payment of a fine or
in any installment may be held in contempt and imprisoned for non-
payment."); see also People v. Harris, 354 N.E.2d 648, 649-50 (Ill.
App. Ct. 1976) (discussing the power of courts to imprison defendants
for failure to pay fines). Should Scott have refused to obey the condi-
tions imposed upon him by the court—i.e., refused to pay the fine—
he would have been vulnerable to imprisonment under Illinois law.2

   Indeed, whenever a court orders a defendant to take or refrain from
action, the defendant becomes subject to conditions that render him
vulnerable to imprisonment should he disobey those conditions. To
adopt a broad rule that the right to counsel is triggered whenever such
conditions are imposed would require us to ignore the limiting princi-
ples of Scott. See Scott, 440 U.S. at 373 (dismissing "the mere threat
of imprisonment" as insufficient to trigger the right to counsel). As
Shelton intended to apply Argersinger and Scott, not to overrule them,
we decline to adopt the broad rule advocated by Pollard.3
    2
    The dissent overlooks this possibility. See post, at 12 ("The ‘threat of
imprisonment’ in Scott evaporated once the judge sentenced the defen-
dant to a mere $50 fine.").
  3
    The dissent would also have us adopt this broad rule, but as the dis-
sent acknowledges, to adopt such a rule would require us to conclude
                      UNITED STATES v. POLLARD                       7
   For his original conviction, Pollard was sentenced to probation
with certain conditions and ordered to pay monetary penalties. Unlike
the defendant in Shelton, Pollard was not sentenced to a suspended
term of imprisonment coupled with probation. Pollard’s stand-alone
sentence of probation highlights an essential difference between the
federal sentencing regime at issue here and the Alabama regime at
issue in Shelton. "Prior to the implementation of the federal sentenc-
ing guidelines, a court could stay the imposition or execution of [a]
sentence and place a defendant on probation." U.S.S.G. ch. 7, pt. A,
§ 2(a). However, "[t]he statutory authority to ‘suspend’ the imposition
or execution of [a] sentence in order to impose a term of probation
was abolished upon implementation of the sentencing guidelines.
Instead, the Sentencing Reform Act recognized probation as a sen-
tence in itself." Id. (citing 18 U.S.C.A. § 3561 (West 2000)); accord
United States v. Granderson, 511 U.S. 39, 43 n.3 (1994) ("The Sen-
tencing Reform Act of 1984, for the first time, classified probation as
a sentence; before 1984, probation had been considered an alternative
to a sentence.").

   According to the bright-line, "actual imprisonment" rule of Arger-
singer and Scott, Pollard’s right to counsel was not violated here
because he received a stand-alone sentence of probation, rather than
a suspended prison term coupled with probation. See Scott, 440 U.S.
at 373-74 (holding that the Sixth Amendment "require[s] only that no
[uncounseled] indigent criminal defendant be sentenced to a term of
imprisonment"). Shelton does not compel a different result.

   We note that the same conclusion has been reached by the Fifth
Circuit. See United States v. Perez-Macias, 335 F.3d 421, 427 (5th
Cir.) ("[W]e do not believe that the logic of Shelton compels exten-
sion of the right to counsel to cases where the defendant receives a
sentence of probation uncoupled with a suspended sentence."), cert.
denied, 124 S. Ct. 495 (2003). We also acknowledge, as did the Fifth

that the Supreme Court "did not remain true to the literal meaning" of
Argersinger and Scott when it decided Shelton. Post, at 12. We find no
indication in Shelton that the Court intended its decision to apply to
defendants who do not receive sentences of imprisonment, and absent
such indication we decline to take that step ourselves.
8                     UNITED STATES v. POLLARD
Circuit, that the actual imposition of a prison term upon revocation of
probation may pose Sixth Amendment problems if the defendant was
uncounseled for the underlying conviction that led to probation. See
id. at 428; cf. Shelton, 535 U.S. at 667 (indicating that provision of
counsel at probation revocation hearing alone does not alleviate the
fact that defendant’s underlying, uncounseled conviction was not
"subjected to the crucible of meaningful adversarial testing" (internal
quotation marks omitted)). However, because Pollard was not sen-
tenced to imprisonment after violating probation, we leave resolution
of that question for another day.

                                 III.

  For the reasons stated above, we affirm the judgment of the district
court.

                                                          AFFIRMED

TITUS, District Judge, dissenting:

   In Alabama v. Shelton, 535 U.S. 546, 662 (2002) the Supreme
Court, applying the "actual imprisonment" rule of Scott v. Illinois,
440 U.S. 367 (1979), found that "a suspended sentence that may ‘end
up in the actual deprivation of a person’s liberty’ may not be imposed
unless the defendant was accorded ‘the guiding hand of counsel’ in
the prosecution for the crime charged." Shelton, 535 U.S. at 662
(quoting Argersinger v. Hamlin, 407 U.S. 25, 40 (1972)). The Court
further concluded that "Shelton is entitled to appointed counsel at the
critical stage when his guilt or innocence of the charged crime is
decided and his vulnerability to imprisonment is determined[.]" Id. at
674 (emphasis added). The Government urges this Court to find a
material distinction of constitutional dimension between a suspended
jail sentence with probation in a state proceeding of the type in Shel-
ton and a federal stand-alone sentence of probation as here. Respect-
fully, I am unable to agree with my brothers that the differences are
sufficiently material to avoid application of Shelton to this case.
Accordingly, I would reverse.

  In both the state and federal systems utilizing, on the one hand sus-
pended sentences with probation and, on the other, stand-alone sen-
                       UNITED STATES v. POLLARD                        9
tences of probation, the judicial machinery necessary to authorize
actual imprisonment (or "vulnerability to imprisonment") and the
attendant deprivation of liberty is complete and irrevocable and can-
not be revisited in a later proceeding involving an alleged violation
of a term of probation. Thus, the distinction between a system that
announces a specific sentence that may result if the person does not
perform in accordance with probationary terms, as opposed to one
that authorizes later imposition of imprisonment upon proof only of
violation of probationary terms, is illusory for Sixth Amendment pur-
poses. Indeed, a sentence of stand-alone probation under the federal
system may present more, not less, troubling consequences than a sus-
pended jail sentence with probation because of the broader latitude
and discretion of a federal jurist to impose a harsher punishment than
otherwise might have seemed appropriate at an earlier time when the
probationer’s good behavior was assumed.

                                   I.

   The Government’s contention is that the "actual imprisonment"
rule means that the Sixth Amendment right to counsel attaches only
if a specific sentence, although suspended, is imposed, regardless of
whether the defendant is then or ever physically incarcerated. The
argument thus posited is that suspended sentences with probation can
be distinguished from stand-alone sentences of probation because,
regarding the latter, no specific term of imprisonment is determined
at the original hearing. This is certainly a distinction, but considering
the reasoning in Shelton, it is one without any material difference. As
the Court stated in its holding, "a suspended sentence that may ‘end
up in the actual deprivation of a person’s liberty’ may not be imposed
unless the defendant was accorded ‘the guiding hand of counsel’ in
the prosecution for the crime charged." Shelton, 535 U.S. at 658
(quoting Argersinger v. Hamlin, 407 U.S. at 40).

   How, one must ask, does a state court suspended sentence "end up
in the actual deprivation of a person’s liberty?" Deprivation of liberty
occurs, if at all, only if that person later violates a condition of the
probation, thus resulting in the lifting of the suspension and incarcera-
tion for the original crime. A federal sentence of "stand alone" proba-
tion equally may "end up in the actual deprivation of a person’s
liberty" in identical fashion: a defendant who has been found only to
10                     UNITED STATES v. POLLARD
have violated a term of his probation is at the mercy of the court for
imprisonment for conviction of the original crime, which was adjudi-
cated without counsel.1 In both cases, the "vulnerability" determina-
tion is irretrievably made at the time of conviction and original
sentencing.

   Indeed, the absence of counsel when a federal defendant is sen-
tenced to a stand-alone period of probation is arguably more prejudi-
cial to a defendant than the imposition of a suspended state sentence
without the assistance of counsel because in some states the length of
the suspended term of imprisonment acts as a ceiling, limiting the
judge’s discretion to impose later a harsher sentence that may be more
compatible with the defendant’s recidivism. For example, the court in
Donaldson v. State, 62 Md. App. 651, 653-54; 490 A.2d 1319, 1320
(Md. Ct. Spec. App. 1985) (quoting Brown v. State, 62 Md. App. 74,
77; 488 A.2d 502, 503-04 (1985)), observed that in Maryland "the
sentencing court . . . [is in] the same position it occupied at the origi-
nal sentencing of the defendant with one exception; the court may not
impose a sentence greater than that which was originally imposed and
suspended."2

   "Deprived of counsel when tried, convicted, and sentenced, and
unable to challenge the original judgment at a subsequent probation
revocation hearing, a defendant . . . faces incarceration on a convic-
  1
     Federal Rule of Criminal Procedure 32.1(a)(6) authorizes a Magistrate
Judge to "release or detain the [defendant alleged to have violated a con-
dition of probation] under 18 U.S.C. § 3143(a) pending further proceed-
ings [and] [t]he burden of establishing that the person will not flee or
pose a danger to any other person or to the community rests with the per-
son." Fed. R. Crim. P. 32.1(a)(6)(emphasis added) Thus, considering this
burden on a defendant, a mere allegation of a violation of the conditions
of a stand-alone sentence of probation may result in the immediate depri-
vation of that defendant’s liberty.
   2
     The Maryland Code provides that "[i]f a defendant is brought before
a circuit court to be sentenced on the original charge or for violating a
condition of probation . . . the judge may sentence the defendant to (i)
all or any part of the period of imprisonment imposed in the original sen-
tence; or (ii) any sentence allowed by law, if a sentence was not imposed
before[.]" Md. Code Ann. Crim. Law §6-224(b) (2002) (emphasis
added).
                      UNITED STATES v. POLLARD                       11
tion that has never been subjected to ‘the crucible of meaningful
adversarial testing[.]’" Shelton, 535 U.S. at 667 (quoting United
States v. Cronic, 466 U.S. 648, 656 (1984)). Applying this standard,
I fail to see how a set term of potential imprisonment differs, other
than in form, from exposure to a variable term of potentially harsher
imprisonment. In both systems, the die is cast; the vulnerability of the
defendant to imprisonment is set in concrete, and this original deter-
mination may not be revisited.

                                  II.

   The issue presently on appeal was recently raised in the Fifth Cir-
cuit. Our sister circuit found the distinction between the potential
future activation of a set sentence and the potential future imposition
of "any punishment" to be material. United States v. Perez-Macias,
335 F.3d 421, 426 (5th Cir. 2003), cert. denied 124 S. Ct. 495 (2003)
("A suspended sentence is conceptually different from a sentence of
probation."). Moreover, the Fifth Circuit did "not believe that the
logic of Shelton compels extension of the right to counsel to cases
where the defendant receives a sentence of probation uncoupled with
a suspended sentence." Id. at 427. According to the Fifth Circuit, the
actual imprisonment rule from Scott was, in reality, an actual receipt
of a sentence of imprisonment rule. See id. (citing, inter alia, Scott,
440 U.S. at 374). Because the imposition of a stand-alone sentence of
probation is not a sentence of imprisonment, the Fifth Circuit was
able to "find the answer clear." Id. at 428.

   Unfortunately, I am not able to find the answer to be so clear. A
careful reading of the phrase "actual imprisonment" as applied in
Shelton leads to the conclusion that the Sixth Amendment protection
is triggered whenever a sentence is imposed that leaves a defendant
vulnerable to "actual imprisonment." The Government rejects this
second interpretation of "actual imprisonment" by pointing to lan-
guage in Scott where the Court states that "the central premise of
Argersinger—that actual imprisonment is a penalty different in kind
from fines or the mere threat of imprisonment—is eminently sound
and warrants adoption of actual imprisonment as the line defining the
constitutional right to appointment of counsel." Scott, 440 U.S. at 373
(emphasis added). My disagreement with the reliance on this lan-
guage is twofold.
12                    UNITED STATES v. POLLARD
   First, the Shelton decision, although applying that standard, did not
remain true to the literal meaning of those words, instead engrafting
a "vulnerability" qualifier on the "actual imprisonment" rule. See
Shelton, 535 U.S. at 674 ("Satisfied that Shelton is entitled to
appointed counsel at the critical stage when his guilt or innocence of
the charged crime is decided and his vulnerability to imprisonment is
determined, we affirm the judgment of the Supreme Court of Ala-
bama."). In fact, four members of the Court concluded that the Shel-
ton majority had abandoned the "actual imprisonment" rule altogether
and "extend[ed] the misdemeanor right to counsel to cases bearing the
mere threat of imprisonment." Shelton, 535 U.S. at 675 (Scalia, J. dis-
senting).

   Second, the issue in Scott was whether the Sixth Amendment right
to counsel attaches when a defendant has violated a state statute "for
which imprisonment upon conviction is authorized but not actually
imposed[.]" Scott, 440 U.S. at 369 (citing People v. Scott, 68 Ill. 2d
269, 272 (1977)). The "threat of imprisonment" in Scott evaporated
once the judge sentenced the defendant to a mere $50 fine. In stark
contrast, the "threat of imprisonment" in cases where stand-alone pro-
bation sentences are imposed continues until the termination of the
probation period. Thus, interpolating the language regarding the threat
of imprisonment from Scott into the current controversy as a means
of distinguishing suspended sentences from stand-alone sentences of
probation is not persuasive. More significant to me is the inescapable
reality that perpetuating this distinction, in light of the Supreme
Court’s underlying rationale, would result in a triumph of form over
substance.

   The Court’s actual reasoning in Shelton militates against the Gov-
ernment’s view that the distinction between suspended sentences and
stand-alone sentences is material. The rationale for Shelton was that
the Sixth Amendment guarantees the right to counsel to a defendant
whose original sentence can, at some future date and upon violation
of a condition of probation, result in incarceration; not immediate
incarceration, but potential future incarceration. Applying this ratio-
nale to the current case, Pollard’s original sentence of probation, upon
violation of a condition of probation, could land him in jail. There-
fore, regardless of the semantic differences between state suspended
sentences and federal stand-alone sentences of probation, the underly-
                      UNITED STATES v. POLLARD                       13
ing rationale of Shelton convinces me that the differences are not
enough to justify drawing such a bright constitutional line. Vulnera-
bility to actual imprisonment is finally determined under both
schemes at the time of the original sentence.

                                  III.

   The Majority notes its recognition of the potential Sixth Amend-
ment violation that could result upon imposition of a prison sentence
at a probation revocation proceeding. Maj. Op. at 7-8. However, my
colleagues decline to consider the Sixth Amendment issue because
"Pollard was not sentenced to imprisonment after violating proba-
tion[.]" Id. Although I agree that this Court is obliged to consider
solely the facts of the case presently before it, I respectfully cannot
agree that the magistrate judge’s decision to continue probation, J.A.
180, allows this Court to avoid deciding the constitutional issue.
Indeed, a review of Alabama’s unsuccessful argument in Shelton
explains why the magistrate judge’s decision not to incarcerate Pol-
lard when he violated terms of his probation does not prevent this
Court from resolving the constitutional question.

   In Shelton, the Court noted that "Alabama now concedes that the
Sixth Amendment bars activation of a suspended sentence for an
uncounseled conviction, but maintains that the Constitution does not
prohibit imposition of such a sentence as a method of effectuating
probationary punishment." Shelton, 535 U.S. at 660-61. Presumably,
Alabama Attorney General (now Circuit Judge) Pryor made this con-
cession to better his chances of success on the narrow issue before the
Court. The Court, however, rejected the argument that the Sixth
Amendment is triggered only upon activation of the suspended sen-
tence. See id. at 667 ("Severing the analysis in this manner makes lit-
tle sense. One cannot assess the constitutionality of imposing a
suspended sentence while simultaneously walling off the procedures
that will precede its activation.").

   The dissenting opinion in Shelton, in line with the Majority opinion
in this case, argued, as did Alabama, that the Sixth Amendment right
is triggered only upon activation of a suspended sentence. See Shel-
ton, 535 U.S. at 676 (Scalia, J. dissenting)("In the future, if and when
the State of Alabama seeks to imprison respondent on the previously
14                     UNITED STATES v. POLLARD
suspended sentence, we can ask whether the procedural safeguards
attending the imposition of that sentence comply with the Constitu-
tion."). We are bound to follow the majority opinion of the Supreme
Court in Shelton, and I fail to understand how the rejected rationale
of the dissenters in that case can serve as a basis for our avoidance
of the issue that we all agree would be unavoidable if Pollard had
been imprisoned. The issue was not avoided in Shelton when he was
not imprisoned, nor should it be here.

   There is no reason why the Court’s logic in Shelton should not con-
trol the outcome of this case. The Supreme Court was unconvinced
that Shelton’s Sixth Amendment right to counsel would be triggered
only when his sentence evolved from suspended to activated. In the
current case, the federal sentence of stand-alone probation subjected
the defendant to potential imprisonment contingent only on the occur-
rence of a future event, i.e. an act in violation of probation. It is the
imposition of the original sentence of probation leaving the Defendant
vulnerable to future actual incarceration that triggers Pollard’s Sixth
Amendment right to counsel. Shelton’s determination, that the Sixth
Amendment protects defendants when a judicial determination is
made that could end up in the deprivation of that person’s liberty,
applies to the current situation just as it applies to the situation in
Shelton. That determination also forecloses the Majority’s argument
that there is only a Sixth Amendment concern when a Court places
the defendant behind bars after a probation revocation proceeding.
Succinctly stated, an argument rejected by the Supreme Court in Shel-
ton cannot be resuscitated here.

                                  IV.

   As Shelton clearly holds, the Sixth Amendment right to counsel
attaches not upon activation of a suspended prison sentence, but
rather upon the original imposition of a sentence which could result
in the deprivation of liberty. Put another way, Shelton teaches that it
is the final determination of vulnerability to imprisonment that trig-
gers the Sixth Amendment protection.

   In the case presently before this Court, the defendant never spent
time in prison, although upon violation of his probation it was within
the magistrate judge’s discretion to send Pollard to prison. The stated
                       UNITED STATES v. POLLARD                         15
reason for the magistrate judge’s conclusion that prison time was not
an option brings to light an additional policy rationale for reversing
the lower court’s decision on the basis of the holding in Shelton.3

   At a hearing on the Defendant’s Motion to Dismiss on January 28,
2003, the magistrate judge immediately stated that "the Court cannot
send Mr. Pollard to jail for violating his probation because he was not
represented and did not waive his right to counsel at the plea[.]" J.A.
154. This statement epitomizes the undesirable consequences for the
criminal justice system that could result from continuing to permit the
imposition of probationary sentences without counsel: magistrate and
district judges may be constrained from doing that which a rational
system dictates should be done, namely revoking probation and
imposing, where appropriate, a prison term because of the defendant’s
violation of the trust placed in him in the original probationary dispo-
sition.

   In some instances, a defendant’s probationary violation may not be
sufficiently severe to make appropriate a term of imprisonment. How-
ever, under the regime that will result if we affirm, even if a defen-
dant’s violation of probation is egregious, courts will be hesitant, and
rightly so, to sentence that person to prison when the stand-alone sen-
tence of probation was imposed without the benefit of counsel. If the
defendant is provided counsel at the original hearing when that defen-
dant is convicted and receives a sentence of probation, then the mag-
istrate or district judge, without fear of a Sixth Amendment violation,
will be free to determine the appropriate penalty at a probation revo-
cation proceeding consistent with rational sentencing practices.

   Concern has been expressed that requiring counsel for defendants
who face any penalty other than a fine would place insurmountable
burdens on the court system. As a district judge, I believe that the jus-
tice system is harmed considerably more by effectively eliminating
magistrate and district judge discretion to impose prison terms on
  3
   A consideration of the policy ramifications of this decision is neces-
sary in this case, as it is apparent that such considerations also affected
the decision-making process in Shelton. See Shelton, 535 U.S. at 665-72
(considering the effect that the decision will have on state criminal sys-
tems and also indicating options consistent with the Constitution).
16                     UNITED STATES v. POLLARD
wayward probationers, than the detriment that would occur if we were
to conclude that counsel must be appointed to represent indigent
defendants who face sentences of probation. Moreover, the predicted
harm to the judicial system can be avoided in numerous ways dis-
cussed in Shelton, e.g. legislation and/or rules changes that would per-
mit pre-trial probation4 or automatic de novo review at a probation
revocation proceeding where there has been an uncounseled convic-
tion.

   When assessing the consequences of a judicial determination that
the Sixth Amendment right to counsel applies to indigent federal
defendants sentenced to stand-alone probation, I conclude that the
benefits far outweigh the putative detriments. Permitting a court to
freely exercise its discretion (ostensibly granted to it by 18 U.S.C.
§ 3565) to incarcerate defendants who have violated the conditions of
their probation advances the goals of the federal criminal justice sys-
tem. Judges will no longer fear a constitutional violation for exercis-
ing their judgment in a manner consistent with the laws of the United
States. See 18 U.S.C. § 3565 ("If the defendant violates a condition
of probation at any time prior to the expiration or termination of the
term of probation, the court may . . . revoke the sentence of probation
and resentence the defendant under subchapter A."). The alleged neg-
ative impact on the judiciary can be alleviated through the means dis-
cussed above. Thus, while the benefits of applying the Sixth
Amendment right to counsel to sentences of probation cannot be over-
stated, the detriments can be avoided through relatively simple legis-
lative and rules changes.

  4
   Under such an arrangement, the prosecutor and defendant agree to the
defendant’s participation in a pretrial rehabilitation program, which
includes conditions typical of post-trial probation. The adjudication of
guilt and imposition of sentence for the underlying offense then occur
only if and when the defendant breaches those conditions." Shelton, 535
U.S. at 671. As to this option, the Court "entertain[s] no constitutional
doubt." Id. at 668 n.5.
