                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                               APR 8 1998
                    UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                           PATRICK FISHER
                                                                                   Clerk


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                        No. 97-3035
          v.                                                (D. Kansas)
 ELLIOTT SYLVESTER                                 (D.C. No. 96-40052-01-DES)
 THURMOND,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON, McKAY, and BRISCOE, Circuit Judges.




      Defendant Elliott Sylvester Thurmond pleaded guilty to two counts of

armed robbery, in violation of 18 U.S.C. § 2113(d), and one count of use of a

firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1).

Enhancing his offense level for obstruction of justice, see U.S.S.G. § 3C1.1, the

district court sentenced Mr. Thurmond to a prison term of 157 months.



      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Mr. Thurmond appeals his sentence, contending that the evidence supporting the

enhancement for obstruction of justice was obtained in violation of his Sixth

Amendment right to counsel.

      The facts are not disputed. On April 5, 1996, Mr. Thurmond was arrested

pursuant to an indictment charging him with two firearms violations (the

“firearms charges”). At his detention hearing, defense counsel learned that

Mr. Thurmond was being investigated in connection with the bank robberies that

are the subject of the convictions in this appeal (which, for simplicity, we will

refer to as the “bank robbery charges” even though this group of charges also

included other charges related to firearms). The firearms and bank robbery

charges did not arise out of the same or related conduct.

      Sometime after the detention hearing, it became clear that Mr. Thurmond

would be indicted on the bank robbery charges; so, on May 1, he instructed

counsel to initiate plea negotiations relating to the as-yet-uncharged bank

robberies. On May 3, defense counsel began plea negotiations on the bank

robbery charges, although no formal agreement was worked out. Defense counsel

next met with Mr. Thurmond on May 6, to discuss the plea negotiations, plea

colloquy, and sentencing guidelines. However, at the May 6 meeting, Mr.

Thurmond instructed counsel to discontinue plea negotiations on the bank robbery

charges. Mr. Thurmond was indicted on these charges on July 24, 1996, and


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eventually pleaded guilty pursuant to a plea agreement in which the government

agreed to dismiss the firearms charges. The district court accepted the plea.

      The reason Mr. Thurmond originally canceled plea negotiations was that he

was planning to hire illegal aliens to perjure themselves by confessing to both the

firearms charges and the bank robbery charges. As the Presentence Report

(“PSR”) notes, while Mr. Thurmond was in custody on the firearms charge, he

discussed this plan with his cellmate, who became a government informant and

who arranged several phone calls between Mr. Thurmond and an undercover

Kansas Bureau of Investigation (“KBI”) agent to discuss the plan. R. Vol. IV at

7. Mr. Thurmond also sent money on two occasions to the KBI agent to facilitate

the plan. Id. The PSR recommended that Mr. Thurmond’s plan to hire the illegal

aliens be considered obstruction of justice and that his offense level be increased

by two levels as a result. Over Mr. Thurmond’s objection, the district court

agreed.

      On appeal, Mr. Thurmond does not challenge the court’s determination that

his conduct amounted to obstruction of justice. He contends instead that by

obtaining evidence of the obstruction through the informant, the government

violated his Sixth Amendment right to counsel. Arguing that his right to counsel

had clearly attached with regard to the firearms charges on which he had been

indicted, and for which he had been taken into custody, he claims that his right to


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counsel also attached to any uncharged misconduct—i.e., the bank robbery

charges—which could affect his sentence. He further argues that his right to

counsel on the bank robbery charges had attached because he had already begun

plea negotiations on these charges, even though he had not yet been indicted on

them. Implicit in both arguments is his claim that the government deliberately

elicited incriminating information from him through the informant, see, e.g.,

United States v. Henry, 447 U.S. 264, 270-75 (1980); United States v. Johnson,

4 F.3d 904, 910 (10th Cir. 1993), a claim the government does not dispute. 1 Both

arguments raise a legal issue that we review de novo. See United States v.

Shumway, 112 F.3d 1413, 1426 (10th Cir. 1997).

      The Sixth Amendment right to counsel generally attaches “at or after the

initiation of adversary judicial criminal proceedings—whether by way of formal

charge, preliminary hearing, indictment, information, or arraignment.” McNeil v.

Wisconsin, 501 U.S. 171, 175 (1991) (quotations omitted); see also United States

v. Baez-Acuna, 54 F.3d 634, 637 (10th Cir. 1995). Once this right attaches and

the defendant properly invokes the right by retaining or requesting counsel, see

id., the government may not “knowingly circumvent[] the accused’s right to have

counsel present in a confrontation between the accused and a state agent.” Maine




      1
       We note, however, that Mr. Thurmond makes no entrapment argument.

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v. Moulton, 474 U.S. 159, 176 (1985); see also Michigan v. Jackson, 475 U.S.

625, 636 (1986).

      Ordinarily, the remedy for a violation of a defendant’s Sixth Amendment

right to counsel is the exclusion at trial of any improperly obtained evidence.

See, e.g., Massiah v. United States, 377 U.S. 201, 207 (1964). Here, however, the

evidence was used not at trial, but at sentencing. Consistent with other circuits,

we have held that the exclusionary rule generally does not apply to exclude

improperly obtained evidence at sentencing, at least so long as there is no

indication the evidence was illegally obtained to secure an increased sentence.

See United States v. Jessup, 966 F.2d 1354, 1356-57 (10th Cir. 1992); United

States v. Graves, 785 F.2d 870, 873-76 (10th Cir. 1986); accord United States v.

Jenkins, 4 F.3d 1338, 1344-45 (6th Cir. 1993); United States v. Tejada, 956 F.2d

1256, 1260-63 (2d Cir. 1992).

      Mr. Thurmond does not contend that the government obtained the evidence

to enhance his sentence, nor does he question the government’s explanation that

its purpose for using the informant was to discover the identities of two other

suspects in the bank robberies and the location of the proceeds. See Appellant’s

Br. at 4. Therefore, even if we assumed, arguendo, that Mr. Thurmond’s Sixth

Amendment right to counsel on the bank robbery charges is one which applies to

the use of uncharged conduct at sentencing, and that such right had attached, and


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that the government’s conduct therefore violated that right (issues which we find

unnecessary to resolve in this case), we would still find no basis to exclude the

resulting evidence at sentencing. Accordingly, we conclude that the district court

did not err in enhancing Mr. Thurmond’s sentence for obstruction of justice based

on the information obtained through the informant.

      The judgment of the district court is AFFIRMED.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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