Defendant may challenge state court conviction in sentencing proceeding on Sixth Amendment grounds to qualify for “safety valve” consideration

SEARCH & SEIZURE/SENTENCING United States v. Tolase-Cousins, No. 04-2218, ___ F.3d ___ (10th Cir. Mar. 16, 2006)(New Mexico). Appeal of conviction and sentence for conspiracy to manufacture marijuana plants and maintaining a place to manufacture and distribute marijuana in violation of 21 U.S.C. § 846 and § 856(a)(1) and (b). HELD: (1) Sideyard of house with paved walkway that was only partially enclosed and known by defendant to be frequented by utility meter reader who might be expected to report observed illegal activity to police was not protected curtilage. Thus, police officers who had been tipped off by utility worker that he saw marijuana growing in defendant’s backyard did not violate Fourth Amendment by observing backyard through hole in sideyard fence. (2) Defendant may collaterally attack constitutionality of state court conviction on Sixth Amendment right to counsel grounds in federal sentencing proceeding where purpose of challenge is to establish eligibility for “safety valve” sentencing consideration under 18 U.S.C. § 3553(f). Read the opinion here.