United States v. Nichols ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 04-5020
JAMES DAVID NICHOLS,
Defendant-Appellee.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 04-5021
JAMES DAVID NICHOLS,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-03-54-MU)
Argued: October 28, 2005
Decided: February 28, 2006
Before WILKINS, Chief Judge, and MICHAEL and
TRAXLER, Circuit Judges.
Vacated and remanded by published opinion. Chief Judge Wilkins
wrote the opinion, in which Judge Michael and Judge Traxler joined.
2 UNITED STATES v. NICHOLS
COUNSEL
ARGUED: Matthew Theodore Martens, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Char-
lotte, North Carolina, for Appellant/Cross-Appellee. Randolph Mar-
shall Lee, Charlotte, North Carolina, for Appellee/Cross-Appellant.
ON BRIEF: Gretchen C. F. Shappert, United States Attorney, Char-
lotte, North Carolina, for Appellant/Cross-Appellee.
OPINION
WILKINS, Chief Judge:
The United States appeals James David Nichols’ sentence for bank
robbery, see 18 U.S.C.A. § 2113(a) (West 2000), arguing that the dis-
trict court improperly refused to consider at sentencing a statement
obtained from Nichols in violation of Miranda v. Arizona, 384 U.S.
436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981). Because
the Fifth Amendment does not prohibit the district court from consid-
ering this statement at sentencing, we vacate Nichols’ sentence and
remand for resentencing.1
I.
On March 13, 2003, Nichols entered a branch of First Citizens
Bank in Charlotte, North Carolina, and handed a bank teller a note
stating, "This is A Robbery Give up the money or I shoot." J.A. 355.
The teller gave Nichols approximately $5,000. Shortly after the bank
robbery, Nichols’ father telephoned authorities to report that his son
may have committed the robbery. A few days later, Detective James
1
On cross-appeal, Nichols argues that the district court violated the
Sixth Amendment by applying a sentencing enhancement based on
judge-found facts and by treating the sentencing guidelines as manda-
tory. See United States v. Booker, 125 S. Ct. 738, 757, 769 (2005).
Because we are remanding for resentencing on other grounds, we need
not consider Nichols’ Booker claims; on remand, the district court should
resentence Nichols in accordance with Booker. See United States v.
Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).
UNITED STATES v. NICHOLS 3
Michael Sanders of the Charlotte-Mecklenburg Police Department
telephoned Nichols, who was then with his father, to arrange for
Nichols to surrender to police. According to Nichols and his father,
during this conversation Nichols informed Detective Sanders that he
wanted an attorney, and Sanders assured Nichols he would receive
one. Nichols and his father then met Detective Sanders at an agreed-
upon location, and Nichols voluntarily returned what was left of the
money obtained in the bank robbery. According to Nichols and his
father, Nichols again informed Detective Sanders that he wanted an
attorney, and Sanders again responded that Nichols would receive
one.
Nichols was then taken into custody and transported to the police
station. Although Nichols did not initiate further contact with police,
Detective Sanders took Nichols to an interview room and reviewed
with him an "Adult Waiver of Rights" form, id. at 94, which Nichols
initialed in several places and signed at the bottom. In particular,
Nichols initialed statements acknowledging that he had the rights to
consult with an attorney, to have an attorney present during question-
ing, and to stop answering questions until he spoke with an attorney.
Nichols also circled, initialed, and signed a portion of the form indi-
cating that he voluntarily agreed to answer questions without an attor-
ney present. Detective Sanders then interviewed Nichols, who
confessed to robbing the bank and to carrying a .45-caliber pistol in
his pants pocket during the robbery.
Nichols was indicted by a federal grand jury on charges of bank
robbery, see 18 U.S.C.A. § 2113(a); armed bank robbery, see 18
U.S.C.A. § 2113(d) (West 2000); and using or carrying a firearm dur-
ing and in relation to a crime of violence, see 18 U.S.C.A.
§ 924(c)(1)(A) (West Supp. 2005). Nichols moved to suppress his
confession—specifically, his admission to carrying a firearm during
the robbery. He claimed that before he made any statements to police,
he had requested an attorney and had been assured—despite his sign-
ing of the "Adult Waiver of Rights" form—that counsel would be
made available to him. Thus, Nichols argued that the statements he
gave in response to police questioning after he requested counsel were
inadmissible. See Edwards, 451 U.S. at 484-85; Miranda, 384 U.S.
at 474-76.
4 UNITED STATES v. NICHOLS
A magistrate judge conducted a hearing on Nichols’ suppression
motion. Nichols and his father testified (as described above) that
Nichols twice requested counsel before his confession. Detective
Sanders, however, testified that Nichols never requested an attorney
prior to questioning. Noting that the resolution of Nichols’ motion
"comes down to a single factual question: namely, whether [Nichols]
asked for an attorney before he was interrogated," J.A. 76, the magis-
trate judge found that the testimony of Nichols and his father "credi-
bly establishes that an attorney was requested not once but twice," id.
at 80. Because Nichols did not initiate the further communications
with police after requesting an attorney, the magistrate judge recom-
mended that Nichols’ confession be suppressed.
The Government filed objections to the magistrate judge’s recom-
mended decision, arguing primarily that Nichols had not, in fact,
requested counsel before police questioned him. Following a hearing,
the district court adopted the findings and conclusions of the magis-
trate judge, including the finding that Nichols twice requested an
attorney. The district court therefore granted Nichols’ motion to sup-
press. Due to the suppression of Nichols’ statement that he carried a
firearm during the robbery—the only direct evidence that a firearm
was present—the Government dismissed the armed bank robbery and
firearm charges.
Nichols pleaded guilty to the bank robbery charge. In the presen-
tence report (PSR), the probation officer did not recommend an
enhancement for possession of a firearm during the robbery, see U.S.
Sentencing Guidelines Manual § 2B3.1(b)(2)(C) (2004). The Govern-
ment objected to this omission, arguing that Nichols had admitted to
possessing a firearm during the robbery and that this statement,
though suppressed for purposes of conviction, could be considered at
sentencing. The probation officer rejected the Government’s argu-
ment, stating that because "one of [Nichols’] fundamental rights
under the United States Constitution was violated in securing this
statement," enhancing Nichols’ sentence based on that statement
"would only compound the violation." J.A. 375. At sentencing, the
district court adopted the probation officer’s recommendation not to
apply a firearm enhancement. The district court sentenced Nichols to
46 months imprisonment.
UNITED STATES v. NICHOLS 5
II.
The Government contends that the district court erroneously
excluded from consideration at sentencing Nichols’ statement that he
possessed a firearm during the robbery. The Government argues that
although this statement is inadmissible for purposes of conviction,
there is no constitutional impediment to considering the statement in
determining Nichols’ sentence. We review this legal issue de novo.
See United States v. Acosta, 303 F.3d 78, 84 (1st Cir. 2002).
District courts traditionally have been "given wide latitude as to the
information they may consider in passing sentence after a convic-
tion." United States v. Howard-Arias, 679 F.2d 363, 367 (4th Cir.
1982); see United States v. Tucker, 404 U.S. 443, 446 (1972)
("[B]efore making [the sentencing] determination, a judge may appro-
priately 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."); Williams v. New York, 337 U.S. 241, 246 (1949)
(explaining that courts have traditionally "exercise[d] a wide discre-
tion in the sources and types of evidence used to assist [them] in
determining the kind and extent of punishment to be imposed within
limits fixed by law"); see also Nichols v. United States, 511 U.S. 738,
747 (1994) (noting that "the sentencing process . . . [is] less exacting
than the process of establishing guilt"). That is because it is "[h]ighly
relevant—if not essential—to [the] selection of an appropriate sen-
tence" for the sentencing court to "possess[ ] . . . the fullest informa-
tion possible concerning the defendant’s life and characteristics."
Williams, 337 U.S. at 247.
This broad discretion has been preserved under the sentencing
guidelines. In resolving any dispute concerning a factor pertinent to
the sentencing decision, "the court may consider relevant information
without regard to its admissibility under the rules of evidence applica-
ble at trial, provided that the information has sufficient indicia of reli-
ability to support its probable accuracy." U.S.S.G. § 6A1.3(a), p.s.
And, in selecting a particular sentence within the guideline range (or
deciding whether to depart from that range), a district court "may con-
sider, without limitation, any information concerning the background,
character and conduct of the defendant, unless otherwise prohibited
by law." Id. § 1B1.4; see 18 U.S.C.A. § 3661 (West 2000) ("No limi-
6 UNITED STATES v. NICHOLS
tation shall be placed on the information concerning the background,
character, and conduct of a person convicted of an offense which a
court of the United States may receive and consider for the purpose
of imposing an appropriate sentence.").
Nevertheless, we have recognized that "[t]here are . . . constitu-
tional limitations" on the generally broad scope of information a court
may consider at sentencing. United States v. Lee, 540 F.2d 1205, 1210
(4th Cir. 1976). In particular, we have construed various Supreme
Court decisions as "recogniz[ing] a due process right to be sentenced
only on information which is accurate." Id. at 1211. For example, in
Tucker, the Supreme Court held that it was improper for a sentencing
court to consider a defendant’s prior felony convictions that had been
obtained without affording the defendant the right to counsel. See
Tucker, 404 U.S. at 447-49. The Court emphasized that the sentence
was "founded at least in part upon misinformation of constitutional
magnitude," in that the defendant "was sentenced on the basis of
assumptions concerning his criminal record which were materially
untrue." Id. at 447 (internal quotation marks omitted); see Lee, 540
F.2d at 1211 ("[A]s the Court explained [in Tucker], the absence of
counsel impugns the integrity of the fact-finding process so that a
conviction obtained in the absence of counsel is unreliable.").
In Lee, however, we held that "reliable but illegally- obtained evi-
dence may generally be considered" at sentencing. Lee, 540 F.2d at
1207. There, the defendant (Lee) was convicted of illegally possess-
ing a firearm. See id. In determining Lee’s sentence, the district court
considered a prior state court conviction for narcotics possession; that
conviction, however, had been reversed on appeal because law
enforcement officers had lacked probable cause to arrest Lee, render-
ing the subsequent search that yielded the narcotics invalid. See id. at
1210. In rejecting Lee’s argument that the district court should not
have considered the conviction, we recognized that "[m]ost illegally-
obtained evidence . . . is not inherently unreliable; it is excluded at
trial on the theory that exclusion will deter the making of illegal
searches." Id. at 1211. We therefore explained that to determine
whether illegally obtained evidence must be excluded at sentencing,
the court must "evaluate the degree of deterrence which might be pro-
moted by exclusion of such evidence . . . and weigh that degree of
deterrence against the concomitant limitation of the right of the sen-
UNITED STATES v. NICHOLS 7
tencing judge to impose sentence in the light of all relevant facts." Id.(citing United States v. Calandra, 414 U.S. 338, 349 (1974)).2 We
noted that in most cases the additional deterrent effect of excluding
from sentencing illegally obtained evidence already inadmissible for
purposes of conviction "would be so minimal as to be insignificant."
Id.We thus concluded in Lee that "the disadvantages of applying the
exclusionary rule at sentencing are large, the benefits small or non-
existent, and . . . the rule should therefore not be extended." Id. at
1212. We noted, however, that we might reach the opposite conclu-
sion if "it appeared that the government had illegally seized additional
evidence with a view toward enhancing the defendant’s sentence; for
there, as long as the exclusionary rule persists, its rationale can be
served only by excluding illegally-seized evidence from consideration
at sentencing." Id.
Although Lee was a pre-guidelines decision, every other circuit has
concluded that courts imposing sentences under the guidelines may
generally consider evidence obtained in violation of the Fourth
Amendment. See Acosta, 303 F.3d at 84-86 (collecting cases and
reaching same conclusion).3 These courts have relied largely on the
same reasoning we articulated in Lee—namely, that "the deterrent
effect of the exclusionary rule does not outweigh the detrimental
effects of excluding reliable evidence on the court’s ability to meet its
goal of proper sentencing." Acosta, 303 F.3d at 85. These courts have
further "recognized that the sentencing court needs to have the fullest
information available to fashion an appropriate remedy and that the
Sentencing Guidelines allow the sentencing court to consider" a broad
range of information concerning the defendant. Id.2
Calandra relied on a similar balancing test in holding that the Fourth
Amendment does not prohibit consideration, during grand jury proceed-
ings, of testimony concerning illegally seized evidence. See Calandra,
414 U.S. at 349-52.
3
As in Lee, most of these courts have suggested that illegally seized
evidence might be excluded from consideration at sentencing "if there is
an indication that the police violated the defendant’s Fourth Amendment
rights with the intent to secure an increased sentence." Acosta, 303 F.3d
at 85 (citing cases).
8 UNITED STATES v. NICHOLS
Here, the Government argues that we should extend the reasoning
of Lee to permit consideration at sentencing of a statement obtained
in violation of Miranda and Edwards. In Miranda, the Supreme Court
held that to protect the Fifth Amendment privilege against compelled
self-incrimination,4 a criminal suspect must be advised before custo-
dial interrogation that, inter alia, he has the right to the presence of
an attorney during questioning. See Miranda, 384 U.S. at 478-79. If
the suspect requests counsel, "the interrogation must cease until an
attorney is present." Id. at 474. In Edwards, the Supreme Court "re-
confirm[ed]" the Miranda principles regarding the right to counsel
during custodial interrogation and held that once a suspect invokes
that right, police may not interrogate the suspect further "until counsel
has been made available to him, unless the accused himself initiates
further communication, exchanges, or conversations with the police."
Edwards, 451 U.S. at 484-85. Any statements obtained by police in
violation of Miranda and Edwards—including statements that would
otherwise be considered voluntary—are presumed involuntary and are
inadmissible in the government’s case-in-chief at trial. See Oregon v.
Elstad, 470 U.S. 298, 307 (1985); see also McNeil v. Wisconsin, 501
U.S. 171, 177 (1991).
Only one federal appellate court, the Seventh Circuit, has specifi-
cally addressed whether statements obtained by police in violation of
Miranda are admissible at sentencing. See Del Vecchio v. Ill. Dep’t
of Corr., 31 F.3d 1363, 1388 (7th Cir. 1994) (en banc). In Del Vec-
chio, a state habeas petitioner challenged the admission, at the sen-
tencing phase of his capital murder trial, of a 14-year-old confession
to an earlier murder that he claimed was obtained in violation of
Miranda. See id. The Seventh Circuit rejected this argument, holding
that even if a Miranda violation were established, "that violation
would not require exclusion of the confession during the sentencing
proceedings" because "[t]he exclusionary rule is generally inapplica-
ble during sentencing." Id. (citing Fourth Amendment cases); see also
id. (explaining that "evidence which might be inadmissible at the guilt
phase of a trial can be admitted at the sentencing phase, as long as the
evidence is reliable"). The court further observed that "there was
really no deterrent effect in applying the [exclusionary] rule; any
4
See U.S. Const. amend. V ("No person . . . shall be compelled in any
criminal case to be a witness against himself . . . .").
UNITED STATES v. NICHOLS 9
police misconduct would have occurred fourteen years before the
confession was introduced." Id.We agree with the Seventh Circuit that statements obtained in vio-
lation of Miranda, if they are otherwise voluntary, may generally be
considered at sentencing. The Supreme Court has repeatedly held that
although statements obtained in violation of Miranda are inadmissible
in the government’s case-in-chief at trial, such statements, if reliable,
may be used for other purposes and in other ways. See, e.g., Elstad,
470 U.S. at 307 ("[T]he Miranda presumption, though irrebuttable for
purposes of the prosecution’s case in chief, does not require that the
statements and their fruits be discarded as inherently tainted."). For
example, the Court has held that in the absence of actual coercion,
statements obtained without warning a defendant of his right to coun-
sel under Miranda may be used to impeach the defendant’s testimony
at trial. See Harris v. New York, 401 U.S. 222, 224-26 (1971). The
Court has similarly upheld the introduction, for impeachment pur-
poses, of otherwise voluntary statements obtained after a suspect had
invoked his Miranda right to counsel but before counsel was pro-
vided. See Oregon v. Hass, 420 U.S. 714, 722-24 (1975). Further, the
Court has held that the Fifth Amendment does not bar the admission
at trial of the testimony of witnesses discovered through a defendant’s
unwarned but otherwise voluntary statements, see Michigan v.
Tucker, 417 U.S. 433, 446-52 (1974), nor does it bar the introduction
of physical evidence discovered as a result of such statements, see
United States v. Patane, 124 S. Ct. 2620, 2626 (2004) (plurality opin-
ion); id. at 2631 (Kennedy, J., concurring in the judgment). Moreover,
the Court has held that when a defendant makes unwarned but other-
wise voluntary statements, the Fifth Amendment normally does not
require suppression of subsequent statements made after Miranda
warnings are given. See Elstad, 470 U.S. at 318.
These decisions have relied on the same rationale as cases permit-
ting the consideration of illegally seized evidence at sentencing—
namely, a balancing of the deterrent effect expected to be achieved by
extending the Miranda exclusionary rule against the harm resulting
from the exclusion of reliable evidence from the truth-finding process.
See id. at 308 ("[T]he absence of any coercion or improper tactics
undercuts the twin rationales—trustworthiness and deterrence—for a
broader rule."); Hass, 420 U.S. at 722 (explaining that voluntary
10 UNITED STATES v. NICHOLS
statements to be used for impeachment "would provide valuable aid
to the jury in assessing the defendant’s credibility" and that "there is
sufficient deterrence when the evidence in question is made unavail-
able to the prosecution in its case in chief"); Harris, 401 U.S. at 225(similar); Tucker, 417 U.S. at 447-50 (holding that neither deterrence
nor trustworthiness rationales of Fifth Amendment exclusionary rule
supported exclusion of evidence at issue; emphasizing the need to
"weigh the strong interest under any system of justice of making
available to the trier of fact all concededly relevant and trustworthy
evidence"); see also Missouri v. Seibert, 124 S. Ct. 2601, 2614 (2004)
(Kennedy, J., concurring in the judgment) ("Evidence [obtained in
violation of Miranda] is admissible when the central concerns of
Miranda are not likely to be implicated and when other objectives of
the criminal justice system are best served by its introduction.");
United States v. Havens, 446 U.S. 620, 627 (1980) (indicating that
similar policies underlie Fourth and Fifth Amendment exclusionary
rules).
Applying these principles here, we conclude that the policies
underlying the Miranda exclusionary rule normally will not justify
the exclusion of illegally obtained but reliable evidence from a sen-
tencing proceeding. We believe that in most cases, the exclusion of
evidence obtained in violation of Miranda from the government’s
case-in-chief at trial will provide ample deterrence against police mis-
conduct. See Hass, 420 U.S. at 722; Harris, 401 U.S. at 225; cf. Lee,
540 F.2d at 1211. For example, as a result of the Miranda-Edwards
violations here, the Government was required to dismiss two of the
three charges against Nichols—including a firearm charge that carried
a mandatory minimum sentence of five years imprisonment, required
to be served consecutively to any other sentence, see 18 U.S.C.A.
§ 924(c)(1)(A)(i), (D)(ii) (West 2000). As we recognized in Lee, and
as other circuits have noted, the additional deterrent effect of exclud-
ing illegally obtained evidence from sentencing usually would be
minimal. See Lee, 540 F.2d at 1211; Acosta, 303 F.3d at 85; cf. Hass,
420 U.S. at 723 (characterizing as "speculative" the possibility that
police may continue to question a suspect despite his request for
counsel in order to obtain evidence for impeachment).5
5
As in Lee, however, we note that illegally obtained evidence might be
subject to exclusion if there were some indication that the government
obtained that evidence for the purpose of enhancing the defendant’s sen-
tence. See Lee, 540 F.2d at 1212. There is no such indication here.
UNITED STATES v. NICHOLS 11
In addition, absent coercive tactics by police, there is nothing
inherently unreliable about otherwise voluntary statements obtained
in violation of Miranda and Edwards. See, e.g., Hass, 420 U.S. at
722-23 (finding, in case in which police failed to honor defendant’s
request for counsel, no indication that defendant’s subsequent state-
ments were involuntary or coerced); see also Dickerson v. United
States, 530 U.S. 428, 433-34 (2000) (discussing traditional standards
for determining whether a confession was involuntary). Here, for
instance, there is no claim that Nichols’ confession—though obtained
improperly after he requested counsel—was coerced or otherwise
involuntary, nor could the record support such a claim. Nichols
described his questioning, which lasted approximately four hours, as
being conversational. During the interview, Nichols was not hand-
cuffed or otherwise physically restrained. The door to Nichols’ inter-
view room was open, and he was allowed to smoke. Further, Nichols
testified that he spoke with police because he believed it would bene-
fit him to cooperate. During the telephone conversation with Nichols
before his surrender, Detective Sanders indicated that if Nichols
turned himself in, it would benefit him in connection with other state
charges. At no time, however, did Detective Sanders make any spe-
cific promises or inducements in exchange for Nichols answering
questions. See United States v. Mashburn, 406 F.3d 303, 309-10 (4th
Cir. 2005).
By contrast, the exclusion of reliable evidence hampers the ability
of sentencing courts to consider all relevant information about the
defendant in selecting an appropriate sentence. See Lee, 540 F.2d at
1211-12; Acosta, 303 F.3d at 85. Here, for example, the exclusion of
Nichols’ confession at sentencing prevented the district court from
taking into account a significant aggravating factor in the bank
robbery—Nichols’ possession of a firearm.
In sum, we conclude that in cases such as this one—where there
is no evidence that an illegally obtained statement was actually
coerced or otherwise involuntary—the substantial burden on the sen-
tencing process resulting from exclusion of that statement outweighs
any countervailing concerns about police deterrence or unreliable evi-
dence. As with evidence obtained in violation of the Fourth Amend-
ment, "the disadvantages of applying the [Miranda] exclusionary rule
at sentencing are large, [and] the benefits small or non-existent." Lee,
12 UNITED STATES v. NICHOLS
540 F.2d at 1212. We therefore conclude that in most cases, including
this one, a district court may consider at sentencing statements
obtained in violation of Miranda and Edwards.6
6
Nichols relies on Estelle v. Smith, 451 U.S. 454 (1981), in which the
Supreme Court held that the admission, during the penalty phase of a
capital murder trial, of statements obtained from the defendant in a court-
ordered psychiatric examination violated the Fifth Amendment because
the defendant was not warned, prior to the examination, that he had the
right to remain silent and that any statements could be used against him
at sentencing. See Estelle, 451 U.S. at 467-69. However, the Supreme
Court has limited Estelle’s Fifth Amendment holding to the "distinct cir-
cumstances" of that capital case and has "never extended [that] holding
beyond its particular facts." Penry v. Johnson, 532 U.S. 782, 795 (2001)
(internal quotation marks omitted). We recognize that in Mitchell v.
United States, 526 U.S. 314 (1999)—also cited by Nichols—the
Supreme Court relied on certain language from Estelle in holding that the
privilege against self-incrimination applies during sentencing proceed-
ings, even in non-capital cases. See Mitchell, 526 U.S. at 325-27. But,
while Mitchell recognized the core principle that a defendant cannot be
compelled to incriminate himself at sentencing, that case did not address
whether the Miranda-Edwards exclusionary rule should be extended to
preclude the introduction at sentencing of voluntary (though illegally
obtained) prior statements. See Patane, 124 S. Ct. at 2627 (plurality
opinion) (emphasizing that "any further extension" of Miranda and other
rules protecting the privilege against self-incrimination "must be justified
by its necessity for the protection of the actual right against compelled
self-incrimination").
Nor does our decision in Mashburn compel a different result.
Although Mashburn involved a defendant’s claim that the consideration
at sentencing of certain statements he made in response to police ques-
tioning violated his Miranda rights, see Mashburn, 406 F.3d at 305, we
were not called upon there to decide whether the Miranda exclusionary
rule applied to sentencing proceedings, as neither party contested that
issue, see id. at 306 (noting that "the parties agree that [Mashburn’s] ini-
tial [unwarned] statements are irrebuttably presumed involuntary," and
proceeding to consider whether subsequent warned statements should
also be presumed involuntary).
UNITED STATES v. NICHOLS 13
III.
For the reasons set forth above, we conclude that the district court
erroneously excluded from consideration at sentencing Nichols’ state-
ment that he carried a firearm during the robbery. We thus vacate
Nichols’ sentence and remand for resentencing consistent with this
opinion.
VACATED AND REMANDED