                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                             File Name: 14a0130p.06

                       UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


 ADAM JEROME KENNEDY,                                             ┐
                                      Petitioner-Appellant,       │
                                                                  │
                                                                  │         No. 13-3820
 v.                                                               │
                                                                   >
                                                                  │
 UNITED STATES OF AMERICA,                                        │
                                     Respondent-Appellee.         │
                                                                  ┘
                              Appeal from the United States District Court
                             for the Southern District of Ohio at Columbus.
                                  Nos. 2:10-cr-00095-1; 2:12-cv-00365;
                                 Edmund A. Sargus, Jr., District Judge..
                                     Decided and Filed: June 24, 2014

             Before: ROGERS and COOK, District Judges; MURPHY, District Judge.*
                                  _________________

                                                  COUNSEL

ON BRIEF: Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for
Appellant. Benjamin C. Glassman, UNITED STATES ATTORNEY’S OFFICE, Cincinnati,
Ohio, for Appellee.
                                 _________________

                                                   OPINION
                                            _________________

        MURPHY, District Judge. While being investigated for drug trafficking, Adam Jerome
Kennedy learned from his attorney that he might be able to reduce his sentencing exposure by
pleading guilty to an information. Unsure of what to do, he sought the advice of a second


        *
           The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District of Michigan,
sitting by designation.




                                                        1
No. 13-3820            Kennedy v. United States                                 Page 2

attorney. This second attorney promised to beat the government’s case. Kennedy accordingly
switched attorneys, heard from his new attorney the government might be bluffing, and decided
not to negotiate a guilty plea.

       Unfortunately for Kennedy, the government was not bluffing. It soon indicted him on
multiple drug-trafficking, firearms, and money-laundering charges and then caught him
accepting a marijuana shipment. After changing attorneys twice more, Kennedy pleaded guilty
and received a below-guidelines sentence of 180 months.

       Kennedy later moved to vacate his sentence under 28 U.S.C. § 2255. He argued that he
would have negotiated a preindictment plea agreement and received a lower sentence but for the
ineffective assistance of his second attorney. The district court denied the motion because
United States v. Moody, 206 F.3d 609 (6th Cir. 2000), held that there is no Sixth Amendment
right to counsel in preindictment plea negotiations. We affirm.

       The Sixth Amendment guarantees a right to counsel at critical stages of a criminal
proceeding. Montejo v. Louisiana, 556 U.S. 778, 786 (2009). Those critical stages include some
pretrial proceedings, such as postindictment interrogations, postindictment identifications, and
postindictment plea negotiations.      See Massiah v. United States, 377 U.S. 201 (1964)
(postindictment interrogations); United States v. Wade, 388 U.S. 218 (1967) (postindictment
lineups); Missouri v. Frye, 132 S. Ct. 1399 (2012) (postindictment plea negotiations). But not all
pretrial events are included. Guided by the “plain language” of the Sixth Amendment and its
purpose of protecting individuals in adversarial proceedings, the Supreme Court has held that the
right to counsel “does not attach until the initiation of adversary judicial proceedings.” United
States v. Gouveia, 467 U.S. 180, 187–90 (1984); see also Moran v. Burbine, 475 U.S. 412, 428–
31 (1986) (no right to counsel in preindictment interrogations); Kirby v. Illinois, 406 U.S. 682,
688–90 (1972) (plurality opinion) (no right to counsel at preindictment identifications).

       Although the Moody panel thought applying this rule to preindictment plea negotiations
was unfair, the panel applied it nonetheless. See Moody, 206 F.3d at 612–16. Binding decisions
of the Supreme Court and of prior panels of this court prevented it from reaching a contrary
result. See id. (citing, among other decisions, Moran, Gouveia, Kirby, United States v. Latouf,
132 F.3d 320 (6th Cir. 1997), and United States v. Myers, 123 F.3d 350 (6th Cir. 1997)). And
No. 13-3820           Kennedy v. United States                                  Page 3

these same decisions—along with Moody itself—constrain us unless and until they are overruled.
See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985).

       Recognizing this difficulty, Kennedy argues that Missouri v. Frye, 132 S. Ct. 1399
(2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), reopen the question of when the right to
counsel attaches in plea negotiations.        To be sure, Frye and Lafler recognize that plea
negotiations are central to the American system of criminal justice. See Frye, 132 S. Ct. at
1405–08; Lafler, 132 S. Ct. at 1385–86. And together the decisions make clear that the right to
counsel applies in postindictment plea negotiations even if the negotiations have no effect on the
fairness of a conviction. See Lafler, 132 S. Ct. at 1385–88 (rejecting arguments that the Sixth
Amendment is designed only to guarantee a fair trial and reliable conviction); see also id. at
1391–95 (Scalia, J., dissenting); Frye, 132 S. Ct. at 1412 (Scalia, J., dissenting). But in neither
case did the Supreme Court consider the question of whether the right to counsel attached in
preindictment plea negotiations.

       If anything, Frye and Lafler accept the rule that the right to counsel does not attach until
the initiation of adversary judicial proceedings.      Neither decision expressly abrogates or
questions the rule. It would be highly unusual for the Supreme Court to discard or sharply limit
a longstanding rule without comment, especially when the rule supposedly abrogated comes
from the text of the Sixth Amendment. See Shalala v. Ill. Council on Long Term Care, Inc.,
529 U.S. 1, 18 (2000). Additionally, the dissenting justices did not read the majority opinions as
creating a new right to counsel in preindictment plea negotiations. See Lafler, 132 S. Ct. at 1392
(Scalia, J., dissenting) (“Today’s opinions deal with only two aspects of counsel’s plea-
bargaining inadequacy . . . . ”). And finally, recognizing that the Sixth Amendment guarantees a
right to counsel at “all critical stages of [a] criminal proceeding[],” Frye explained that those
critical stages include “arraignments, postindictment interrogations, postindictment lineups, and
the entry of a guilty plea.” Frye, 132 S. Ct. at 1405 (internal quotations omitted) (emphasis
added). Had the Supreme Court erased the line between preindictment and postindictment
proceedings for plea negotiations, it surely would have said so given its careful attention to the
distinction for interrogations and lineups.
No. 13-3820           Kennedy v. United States                                    Page 4

       Because Moody has not been abrogated or overruled, it remains good law. Kennedy, of
course, may be correct that the Supreme Court will eventually extend the right to counsel to
preindictment plea negotiations. But a prediction of what the law might (or might not) become
does not permit us to disregard binding precedent. See United States v. Talley, 275 F.3d 560,
565 (6th Cir. 2001) (“[T]he Supreme Court has recently reminded us that lower courts should
not overrule its decisions, even if later opinions cast doubt on such precedent.”).

       We accordingly AFFIRM.
