arguments first this morning in case fifteen for twenty united states versus bryant misprogrammed mr chief justice and may it please the court congress enacted section one seventeen in response to the epidemic of domestic violence in indian country the ninth circuit was wrong to strike down the statute as applied to offenders like respondent who have abused and battered their intimate partners again and again but whose prior tribal court misdemeanor convictions were i'm coun and resulted in a sentence of imprisonment the ninth circuit's constitutional analysis disconnects the validity of the underline prior convictions from the permissibility of relying on those convictions to prove the defendant's recidivist status if he commits additional criminal conduct and that runs counter to this court's precedents in nichols versus united states this court held that a conviction that that was was valid at the time it was obtained remains valid when it's used in a subsequent prosecution to classify the defendant as a receipt of this as i understand the court's logic in that opinion the rationale was that in the absence of an actual sixth amendment violation in the underlying proceeding there's no proceeding in which the defendant had  right to counsel he didn't he has a right to counsel in the subsequent federal prosecution and here respondent had that right and it was respected he was he was represented by appointed counsel at every critical stage but when a defendant doesn't have a right to counsel in the prior proceedings that resulted in that conviction then there's no defect no constitutional defect in those underlying convictions that can possibly be carried over or exacerbated through reliance on those convictions in the subsequent proceeding now the ninth circuit reasoned and respondents arguing here that that might apply when the conviction is is valid under the court's rationale and scott there of course the court held that there is no right to appointed counsel in a proceeding that doesn't result in prison meant and respondent urges the court to limit nichols to that situation where you have a defendant who who wasn't imprisoned in the prior proceeding but i don't think that makes sense as a matter of the logic under this court's decision and in nichols nor do i think it makes sense as a matter of practical reality here for example respondent says that if only his tribal court had sentenced him to a fine rather than to imprisonment there would be no constitutional infirmity with relying on those convictions in his section one seventeen prosecution but i can't fathom why it is that the tribal court sentencing determination would make any difference with respect to the validity of those convictions or the permissibility of using them to identify the defendant as among those class of process i think it would i think that it would raise a more serious due process issue but i think that there are blameless through it because i think well i think that that it would be incumbent on a defendant in that situation to try to come forward and make a showing  whether there should be a right to have a collateral challenge to a particular conviction do foreign judgments on foreign conditions i thought it had to be a federal state or tribal or i'm assuming the statute  correct so just to clarify it's true justice ginsburg that section one seventeen doesn't cover foreign convictions and i understood justice kennedy to be asking whether there would be a constitutional problem if it did to the extent of this court would perceive the need to recognize an as applied  process challenge to a foreign conviction i think tribal convictions are very differently situated and here's why tribal convictions are rendered wholly outside the auspices of our federal system or for federal review congress has plenty authority in this area and it's constitution it's true that the constitution doesn't govern tribal court proceedings but congress has plenty areas already and those proceedings are governed by federal law through the indian civil rights act so this case would come out differently of congress and not an act of the indian civil rights act i think that if congress had an act of the indian civil rights act it's possible that it wouldn't have made tribal court convictions predicates because it wouldn't have the same confidence that there's a baseline level of what is going on and what if they had in other words bible or do count as predicates and there is no indian civil rights act in that circumstance that i think the inquiry would focus on what level of procedural fairness is being applied in trouble courts in the absence of that kind of federal oversight and i think that that would i think that in that situation there would be no grounds to say that the concert that the constitution categorically prohibits congress from defining the elements of the crime in that way so i think that it would be required for the defendant to try to raise some kind of specific individual ised objection to that kind of conviction but just to be clear respondents not attempting to make that kind of argument here and the ninth circuit's rule is a categorical rule that says that all tribal court convictions that are on council can result in improvement we already do we in know that there are a number of federal statutes that do the drug statutes for example so that we already put in play the issue of whether an individual person foreign proceeding follows through process or down that's right i think this co anything wrong with his prior trouble core convictions he has acknowledged at every stage that those convictions were obtained in compliance with the indian civil rights act he's never suggested that he didn't actually commit those repeated acts of domestic violence that resulted in some five assaulting his intimate partners and i don't understand him to be trying to raise any kind of collateral challenge in this case so i don't think that it's properly presented here and i urge the court to reserve judgment on that issue which i think raises a number of complexities and because respondent has never sought it at any stage of the proceedings to make this kind of claim that there was any unfairness in his tribal court proceedings or that he was wrongfully convicted in tribal court and i should emphasize to justice ginsburg that if he had that kind of  so i just don't know i'm not aware i'm not aware of any case in which someone has tried to make this kind of as applied to process challenge that that we've been discussing and so i don't of the section one seventeen prosecution that presents that issue obviously in some press it he doesn't think there was anything wrong with his tribal court convictions rather what he's arguing is that all of those convictions should be categorically treated is that they don't exist when you're determining whether the defendant is a receipt of asst for purposes of prosecution under the statute i thought the national association of criminal defense lawyers had discussion of a few prosecutions where those claims were raised yes so so those are hey b s cases though where the defendant following the channels that congress prescribe to catch those kinds of errors stop federal court review from the tribal court judgments and i think that that actually shows that behavior as remedy is a meaningful safety valve in this context obviously i think that the presumption should be that tribal courts are applying complying with the indian civil rights act and i think that this the studies that have comprehensive looked at this bear that out and show that there isn't any rampant unfairness occurring in this criminal prosecutions but to the extent that a case slips through the cracks congress said in twenty five u s c section thirteen zero three that a defendant in that circumstance can come to a federal court and get his conviction overturned if he has a valid claim when a defendant doesn't exercise that channel of review and doesn't seek to in any way dispute the validity convictions well how would that work in a case like this i mean let's say there are procedural deficiencies in one of the predicate prosecutions and the defendant says ok well it was a misdemeanor you don't seem to be terribly troubled by convictions anyway but so he says i'm not going to seek review of that but then lead iran one seventeen prosecution comes along to see just sort of stuck with the fired allegedly deficient prosecution because he didn't bring every challenge he possibly could have at that time yes i think he is stuck with the decision he made and of course the same argument could have been made in the nichols case that the defendant there because it was just a misdemeanor caught conviction and because he was incarcerated wouldn't have had any reason to challenge that conviction or maybe he didn't have any or maybe didn't have any reason to challenge it i mean might my hypothetical assumes a predicate offense conviction that the defendant may not have challenged for  whatever reason and yet when the one seventeen forgot the numbers right action comes up turns out that it's a lot more serious as often happens in these multiple offenders you know it's three three strikes and you get with you don't necessarily know that the first strike was that that big a deal which only when it's humiliated with the others that it is well that's absolutely the case but i think is this court has recognized in a number of decisions in nichols and in daniels although the stakes might be higher when that spend and commits additional criminal conduct and although that might mean that he's exposed to those more severe penalties that there's nothing unfair in that process and as well there's nothing to suggest that those more severe penalties are being imposed for the prior acts rather the court as has a reason and a long line of precedents that in those kinds of recidivist situations the penalty is one hundred percent for the most recent act of violence or for the most recent act of crime and so there's there's no constitutional problem with with permitting the defendant to be classified as a receipt of best and the court also noted in daniel's that even if the defendant thinks that there was something unfair about the original proceedings but lacked the incentive to challenge it or for whatever reason didn't seek review at that time he knows those convictions are on his record and it's a basic principle in our criminal justice system that if you do it again you're going to be treated more harshly i don't i'm a straw man argument in your brief and i'm not sure i  well i'm not sure i agree with that i mean the idea you're saying is that with your three offenses and on the third one you get this much enhanced penalty but that's only for the third one it doesn't it's not being imposed for the prior to i mean i understand that that you're already been convicted and sentenced on the part two but it seems to me as a practical matter it's fair to say that the enhancement is based on those prior to you can't just ignore the prior to and say no no it's all just about this third offense that might be true as a practical matter but i think this court has recognized that as a legal matter and as a constitutional matter the sentence is imposed only for the latest offense and the court made this particularly clear i think in nichols where it said that although obviously the defendant was exposed to additional punishment based on the fact that he had the prior conviction still the penalty in the recidivist prosecution was wholly attributable to that instant offense and not to anything that came before it and i think a contrary ruling would call into question some of the in the double jeopardy context or ex post facto laws there's a long line of this court's precedents that recognize that principle that the recidivist prosecution is solely for the the most recent act but it's an aggravated act because the defendant falls within that category of offenders who have done it before who have that criminal history and should therefore be treated more harshly if they don't learn from their prior misconduct in their prior punishment brian may make a distinction between  argument was yes so i understand that respondents making the claim that nickel should be limited to the sentencing context because it was a sentencing case and of course that has happened to involve a sentencing enhanced meant but i don't think that there's any logical difference between the use of the conviction when it's an enhancement in that way and the use of the conviction when it's made an element of a crime in either instance the substantive purpose of relying on that prior conviction is simply to establish that the defendant has that criminal history and that he's therefore properly classified as among those offenders who should be treated as recidivists if they commit additional misconduct and i don't think that the placement whether in a sentencing enhanced meant or or as an element of a crime should make any difference with respect to the purpose to which that conviction is being put now it's certainly the case that different standards of review apply and that the conviction as a sentencing enhanced meant needs to be proved only by a preponderance whereas at the guilt stage you would have to be proven beyond a reasonable doubt but in either circumstances it's the fact of the conviction that matters and actually the proof would be simply that if the meaning is i suppose a certified copy of the judgment of conviction that's correct i think what's relevant is whether in the nickel situation or in under section one seventeen as is that the defendant in fact was previously committed of that domestic violence offense should there be distinctions between  convictions that in one case resulted in the commission of a crime and in another case just enhanced the sentence should there be a yes i think that's right and i don't think that anything in the cost of very extensive damage very extensive argument you're making well there are i think that the reason why that's not constitutionally problematic is because those civil adjudications are valid they're entitled to the same presumption of regularity and validity as any other valid adjudication that's obtained and in fact a number of states have laws the function somewhat like that in the drunk driving context where the first infraction the first drunk driving incident is prosecuted as a civil  i think this reflects too that the states and jurisdictions have broad leeway to structure the recidivist statutes whether they make them elements whether they make them sentencing factors recidivism is a large problem and the court has recognized in a variety of cont the states have a lot of leeway in choosing how to deal with that problem but i don't think that there's any inherent problem with the use of a valid conviction and again just focusing back on the logic of this court's decision and nichols what the court was looking at was whether there had been an actual violation because if you don't have a right to counsel defect in that prior adjudication whether it's civil whether it's criminal and on counsel because it's a misdemeanor that can result in imprisonment whatever the reason the range of was sensitive to balancing autonomy for tribes and tribal sovereignty against individual rights and i think the congress must have made the judgment that given the other protections in the indian civil rights act tribal court defendants could be fairly and reliably adjudicated guilty without the assistance of counsel and that's actually something that's echoed in this court's precedents because of course in scott in an arguer singer this court recognized that the assistance of counsel under the federal constitution isn't required in order to valid adjudicate the guilt of in this to mean are defending it in that circumstance i think the court what underlies that decision has to be a recognition that there's something fundamentally different about misdemeanor prosecutions and that the assistance of counsel isn't essential in the sixth amendment even where it applies it doesn't preclude adjudicating the guilt of a defendant in state or federal court this court's decision and scott recognizes there's nothing wrong with that and actually i think that the on the ground practical realities bear out that judgment because even those defendants who aren't indigent and aren't in entitled to appointed counsel generally in a large number of cases declined to hire counsel to represent them in misdemeanor cases whereas when you look at felony prosecutions almost everybody hires him look they're not entitled to appointed counsel so i think that the nature of the proceeding here really is critical in helping to understand why congress his judgment was rational why the why the indian civil rights act represents a reasonable baseline level of  procedural fairness that's guaranteed to tribal court defendants and why there's nothing wrong then with giving effect to those tribal court judgments if the defense didn't they else to learn from his past behavior and his past punishment these are offenders who have been repeatedly punished by their tribal courts it requires at least two prior convictions and the problem is that the tribal courts for the most part are limited to misdemeanor punishment and that for this class of offenders has proven to be an ineffective remedy it hasn't occurred to the additional think it was originally one year originally i believe it was six months and it was lengthened to one year and it was one year at the point that respondent was convicted one year and then now it's three years that's correct yes actually i think this is notable because i think it shows the congress in recent years every time it's looked at how travel courts are functioning and has made a determination about the rights and and what to recognise in those tribal court proceedings it's acted to recognise expanded authority or tribal courts both with their sentencing authority with respect to their jurisdiction so i do think that that reflects legislative judgment that tribal courts are sufficiently protective of individual rights and that there's no fundamental unfairness that's occurring in those proceedings that would cause i think this court to question the reliability of those determinations and i would point again to respondents concession that if he had simply been fined in tribal court and have not received a sentence of imprisonment then there would be no problem with giving effect to those tribal court convictions that shows i think that respondent suggestion that there might be some kind of reliability concern with this conviction is really unmoored from the constitutional analysis that he's asking the court to adopt in this case mr chief justice and be it please the court the right to counsel is fundamental and essential in our country and that is something that needs to be it here to using the tribal court convictions in which mr bryant was not afforded counsel then turning them into an essential element of a one seventeen a prosecution runs afoul of what what this court has stated as a fundamental right for fifty three years if we take a look at the cases that deal with the sixteen men analysis from johnson to get in the burgh eight to tucker total perk reliability has been the core concern prosecution correct in the reason that we've stated that and we don't believe that does anything besides strengthen our argument in this case because the reason why there is no violation of the sixth amendment is simply because the sixth amendment doesn't exist if this case would have been in a state or federal court the only court in the united states in which you would not want to follow the sixth amendment is tribal court mr bryant is not only a tribal member he of course is a united states citizen but in taking a look at the nichols case which relied upon scott in scott specifically stated that they drew a bright line with incarceration in dealing with the adjudication of guilt mr bryant was incarcerated for his underlying tribal court convictions the defendant in nichols the un counsel do you why would she was convicted of and the exact holding in nichols i think is extremely important in this case where this court stated that the sixteen fourteenth amendment are not violated when in fact there is in the hearings to scott in other words there is no incarceration and they are valid to enhance punishment in a subsequent proceeding efficacy of the clear learning but it is more formalistic than functional it does seem to me well and i think is the way that we take a look at it and i think it's important if we take a look at what justice scalia stated in the crawford case and that of course had to do with the conference confrontation clause issue but it specifically dealt with the sixth amendment analysis based upon reliability his statement was it's not whether or not it's reliable but how reliability is  the tribal court convictions in this case were not subject to the crucible of meaningful adversarial testing and that goes right back to what justice ginsburg stated in shelton in two thousand and two that element in it is an element of the offense it is being used to establish justice ginsburg pointed out you could make the same argument if it had been just the fine and and no sixth amendment exactly but what we're asking this court i don't understand why one is reliable on the other not reliable other than the formalistic argument which i can understand and we are certainly not saying and i'm counsel misdemeanor conviction is reliable and neither does nichols if we take a look at justice souter's concurren rule strictly what's being stated here is that because if there is no deprivation of liberty that the unreliability is essentially tolerate but in this particular case mr bryant was incarcerated honor you have heard you say that in your brief as they say you didn't i of course i filed a motion to dismiss on you know i'm saying in your brief in this court have use claim that the sentence th proceeding in the indian court violated the federal constitution we have not ok well then you i take it for purposes here you can see that i don't see how you can get around the fact you haven't complained so if it's a valid conviction couldn't you could raise the sentence if it was a civil it was a civil case and and there was a judgment in favor of the wife i take it so why can't you raise the sentence on the ground that there was a valid conviction period end of the case which is i think what nichols said well nichols also dealt with an underlying conviction in which the sixteen men did exist and in this particular case it once when you go but you have told me that you have not come i don't see how you could send a person to prison on the basis of the lack of were there is no counsel if the indian tribes can do that then i don't see why the federal government can't later use it if that's valid well i think the reason why is because in the united states district court and certainly in this court the sixty minute does exist and the only time we should hold that i guess that all of the convictions and all the tribes that are using going to jail where people might go to prison for more than six months or at all for a day all those are invalid if they're getting a lot of congress is unconstitutional is that is that but no one test is to hold that so i don't know that we should hold out in this case challenging the constitutionality of the indian civil rights act but we are so that's the question which is standing alone was that earlier confection violative of the constitution it was dot because it was in tribal court any idea what it would be and so you're not challenging that the bill of rights do not apply as we've long held that don't apply to indian courts correct correct they don't apply to english courts correct and other foreign fo struck and there are plenty of foreign courts like england for a time i think it's changing it now where they would convict people after a magisterial inquisition where the defendant didn't have you're not saying that process violates the constitution no i'm not saying that process violates the constitution or saying simply because we're using back conviction we now violated  nicolette as i understand it had to rationales one that says using a prior constitutional conviction one that doesn't violate the constitution is not enhancing a sentence is not changing that earlier conviction it's not enhancing a sentence for that earlier conviction so you can use it because it's just setting the platform for the current punishment for the conduct now how does the argument why does your argument change that rationale i think a bigger reason why is a fundamental difference between guilt phase in sentencing phase and certainly if we take a look at the are from the police nichols itself said in henson statute whether in the nature of criminal history provisions such as those contained in the element of the crime but the but chief justice rehnquist also went on to talk about the less exacting standard that is attached to a sentencing proceeding then at the guilt phase to also writes the  is and in talking about that if you're taking a look at the less exacting standard of course what we have to do is rely upon the preponderance of the evidence in the sentencing scheme if we take you look at the determination at the guilt  brought out in shelton the big difference is that has to be proven beyond a reasonable doubt and if it was not subjected to the meaningful adversarial system that this court holds as a fundamental right since giddy the entire split isn't attitude process or i believe that the due process and the sixth amendment argument are certainly intertwined in this case and if there is a procedural due process air we have been stating the entire time that's because mr bryant is having an un counsel conviction being used as an essential element in a subsequent federal prosecution i call that he distinction between if you made reasonable that i think that this court in taking a look at convictions themselves if you want to take a look at cases such as tucker and has a lit enough the actual process and how those convictions were attained in whether or not the procedural safeguards of the sixty minute right to counsel was it here too was of the utmost importance if we take a look at the case in purposes and i do understand that the difference is that it has to deal with the felony conviction this is a misdemeanor conviction but even for impeachment purposes it wasn't enough for the trial judge to be able to just take a look at the conviction and let that in this court held that that impermissibly went to far with the sixth amendment right to counsel and went to the determination of guilt clearly this is more than a sentencing enhanced situation the offer of proof itself sets forth what needs to occur and one of the elements asked to be a conviction at least to a more convictions from tribal court we certainly know petitioners conceded since day one that the indian civil rights act is not afford native americans the right to counsel so if we take it look at the waivers that we would now have for an un counsel mr meehan your conviction we would have actually waiving the right to counsel certainly mr bryant didn't do that you can't waive a right he didn't possess a second he is not indigent while there is no reason to do a financial affidavit because there is no right to counsel so you don't have to determine that eligibility third whether or not he was incarcerated based upon an adjudication of guilt as set forth by scott and now first we would have one final exception she went on counsel mr meir conviction and that would be if it came from tribal court because there is no other court in the united states mr mineralize or not that individual is not afforded a fundamental right to coun safeguards that we deem his fundamental in this country and a lot of countries of course do not deem the right to counsel as fundamental or essential we certainly do and if we take a look at the right to counsel case from two thousand and six in the dissent justice alito stated that the complete lack of counsel is the epitome of unfairness that would be triggered essentially as structural air so if we take a look in this situation the only reason why the conviction doesn't run afoul reliability can't be based upon nonexistence if you're appointing a company you never show up to work they don't deem you reliable and that's exactly what's happened in this situation the only reason why it does not run afoul is because the sixth amendment doesn't exist if we take a look at what counsel is talked about as a remedy this to fix this situation which should be federal hate b s it is my opinion that federal hate b s has provides no assistance whatsoever to an individual like mr brian first of all you have to catch you have to challenge the legality of your detention how can you challenge the legality of his detention based upon a lack of counsel when he possesses no such right also there has to be detention at the time or there has to be a filing of the hague b s at that crime we know that the prior conviction the last one was from two thousand and seven he certainly did not file a havey this petition back then and there extremely uncommon and there at least have to be some type of detention that is completely moot in this case he has no way to challenge this and we know only taking a look at this supreme court case in custody in custis which was decided just two weeks before nichols and now has to do with on career criminal analysis and they said that the lack of counsel is a fundamental right you have the ability to challenge a predicate for an actor in handsome and based upon the lack of counsel that's what we're doing here but we have believe that in taking all look at the difference between sentencing and the guilt phase it's taken on a different trend in this court when we take a look at the apprentice a line of cases and certainly we know that there is an exception based upon a prior conviction based upon element is taurus but that kindness is based upon once again that the procedural safeguards that we hold important in this country are here to in those particular case specifically in blakely the reliance that the judge had to do wasn't enough they essentially turned those elm turn those situations in the elements and in this case we don't have to do anything such as that this is an element we don't have to say that this is increasing in mandatory minimum we do not have to say that it's putting something on the guidelines more essentially what we're doing is we're saying we have an uncountable conviction that has never been subjected to a fundamental right the crucible of adversarial testing that this country mandates we're just going to let that slide because congress itself has to rock upon native americans that didn't adopt the if there is nothing further thank you thank you counsel minutes thank you mr chief justice of like to begin by responding to respondents point that there is a less exacting standards that's applied at sentencing nichols did include that language but as i read read the court's opinion there nicholas was actually drawing a contrast between trying to relive a gauge the underlying facts that led to that prior conviction versus relying on the prior conviction itself and nichols observed that the defendant is in some respects better off when you look at just the fact of the prior conviction because that conviction represents an adjudication of guilt beyond a reasonable doubt well that's the same representation that the prior conviction has when it's used at the guilt stage there too that prior misconduct had to be proven beyond a reasonable doubt the kind of distinction that respondent would have this court draw  prevailed under this court's decision and ball the saar where you would have a hybrid conviction that would be good for its own purposes and valid and constitutional in the original proceeding but would lapse into unconstitutionality and become invalid when you try to use it subsequently the court obviously overruled bell the star nichols and we urge the court not to return to that kind of hybrid conviction and finally i don't understand respondent himself to actually be adhering to the sentencing versus elements line because again he's conceded if the tribal court had find him it would be perfectly fine to use those prior tribal court convictions as an element of a section one seventeen offense i'd also like to respond to respondents suggestion that all on council misdemeanor convictions are unreliable i think that that's wholly at odds with the line this court room and scott an arguer singer it just cannot be the case that this court was willing to interpret the sixth amendment to tolerate wholly unreliable convictions in that context rather i think that the scott argersinger line reflects that the assistance of counsel is not essential to an accurate and reliable determination of guilt in that context and to the extent that that was left in any doubt i think nichols confirms the point because a nichols the argument was made that although those prior  counsel convictions might have been sufficiently reliable when there was less at stake they should not be relied upon in a subsequent proceeding where the stakes are much higher but this court wasn't persuaded by that and i think rightly accepted the line that if the conviction was  a proceeding that was sufficiently reliable to adjudicate the defendant's guilt in the first instance then there's no way to say that that proceeding suddenly becomes fundamentally unfair and unreliable when you're giving effect to that valid constitutional prior conviction subsequently and then the final thing i would note is that although there's been a lot of talk about fairness here i think it is important to recognize that respondent had it entirely within his power to not have a federal court consider these prior tribal court convictions if he didn't want that to occur and what he should have done is stop abusing his domestic partners but because he didn't learn from this prior trouble convictions because he kept a battering women in indian country and contributed to that epidemic of domestic violence i don't think he should be heard to complain that he's being prosecuted under section one seventeen there are no further questions we would ask the court to reverse thank you cases submitted