F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , P laintiff-Appellee
,

v.

M I C H A E L B R

Y A N T , J R ., Defendant-Appellant

. No. 12-30177

D.C. No. 1:11-cr-00070-J DS-1

OPI NI ON

A ppeal from the United States District Court for the District of Montana J ack D. Shanstrom, Senior District J udg e, Presiding

Arg ued and Submitted J uly 10, 2014—Portland, Oreg on

F iled September 30, 2014

B efore: Harry Preg erson, Richard A. Paez
, and Paul J . W atford, Circuit J udg es.

Opinion by

J u d g e Paez ; Concurrence by J udg e W atfordU N I T E D S T A T E S V

. B R

Y A N T 2

SUMMARY *

Crim inal Law

The panel reversed the district court’s denial o f a motion
to dismiss an indictment charg ing the defendant, an I n dian, with two c ounts o f domestic a ssault b y a habitual offender, in violation of 18 U.S.C. § 117(a).

Apply ing United States v. Ant
, 8 82 F .2d 1389 ( 9th Cir. 1989), the p a n e l held that, subject to the narrow ex c eption
recog niz ed in case law for s t a t u tes that serve merely a s enfor c e m e nt mechanisms for civil disabilities, tribal court convictions may be used in subsequent prosecutions o n l y if the tribal court g uarantees a r ig ht to counsel th a t i s , at

m inimum, coex tensive with the Six th Amendment ri gh t

. B ecause the defen d an t’s tribal court domestic abuse convictions would have violated the Six th A mendme n t h ad
t h e y b een obtained in federal or state court, the pane l concluded that it is constitutionally imperm i s s ible to use them to establish a

n element of the offe n s e i n a subsequent prosecution under § 117(a), which is a n ordinary recidivist
statute and not a criminal enforcement scheme f o r a c ivil disability

. Concurring
, J udg e W atford wrote separately to hig h lig ht why Ant warrants reex amination.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. B R

Y A N T 3

COUNSEL

Steven C. B abcock (arg

ued), Assistant F ederal Defender, a nd Anthony R. Gallag her, F e d eral Defender, F ederal Defenders of Montana, B illing s, Montana, for Defendant-Appellant.

L ei f J ohnson (arg

u ed), Assistant United States Attorney
, Michael W

. Cotter, U nited S t at e s Attorney
, and Michael S. Shin, Assistant U n i t e d States Attorney
, United States Attorney ’s O ffice, B illing s, Montana, f or Plaintiff-Appellee.

OP INION

PAEZ , Circuit J udg e:

Michael B ry a

nt, J r., an I ndian, was indicted on two c ounts of domestic assault by a habitual o ffender, in violation o f 1 8 U

. S

. C

. § 117(a). 1 I n support of the charg es, the
g overnment relied on two prior tribal court co n v i c tions for domestic abuse. These convictions were uncounseled and at least one resulted in a term of imprisonment. The Six th Amendment g uarantees indig ent d efendants in s t a t e a nd federal criminal proceeding s appointed co u n s el in any case where a term of imprison m ent is imposed. Scott v. Illinois
, 440 U.S. 367, 3 69, 373–74 ( 1979). B ut the Six th A mendment does not apply to tribal c ourt proceeding s. United States v

. First
, 731 F .3d 9 98, 1002 (9th Cir. 2013), petition for cert.

1 A lth o u g h w e are m in d f u l t h at th e t e r m “N a t iv e A m erican ” or

“ A m erican In dian ” m ay b e p ref erab l e, w e u se th e term “ In d ian ” th ro u g h ou t th is o p in io n b ecau se th at is th e term u sed th ro u g h o u t t h e Un i ted States Co d e. W e also u se th e t erm “ trib al,” as th at is th e term u s ed in 1 8 U.S.C. § 1 1 7 (a).U N I T E D S T A T E S V

. B R

Y A N T 4

filed
, ___ U.S.L .W

. ___ (U.S. Mar. 20, 2014) (No. 13-9435). I n this case, w e must decide whether, in a prosecution under § 117(a), the g over n m ent may use prior tribal court convictions that, althoug h not obtained in violation of the Constitution, do n ot comport with the Six th Amendment rig ht
to counsel to prove an element of the offense. W e hold that U n ited States v. Ant
, 882 F .2d 1389, 1395 (9th Cir. 1 9 8 9 ), prohibits the use o f such convictions in a § 117(a) prosecution. W e therefore reverse the district court’s denial of B ry ant’s motion to dismiss the indictment.

I. BACK G ROUND

I n J une 2011, Michael B ry ant, J r. was indicted on two counts of domestic assault by a habitual offender, in violation of 18 U.S.C. § 117(a). Section 117(a) criminaliz es the commission of “domestic assault within . . . I ndian country ” by any p erson “who h as a final convic t i o n o n at least 2 separate prior occasions in F ederal, State, o r I n d i an tribal
court proceeding s f

or offenses that wou ld be, if subject to F ederal jurisdiction[ ,]

. . . a ssault

. . . ag ainst a s p o use o r intimate partner.” Count I charg ed t h a t i n F ebruary 2011, B ry ant assaulted C.L .O., h is previous g irlfriend, “after h aving been convicted of at least t w o s e p a rate prior domestic

as s a ults.” Count I I charg ed that in May 2011, B ry ant assaulted his new live-in g irlfriend, D.E., “after having been convicted of a t least two separate prior domestic assaults.” 2 The p rior domestic assaults the g overnment relied upon were d o mestic abuse convictions obtained in the Northern Chey enne Tribal Court.

2 T h e Feb ru ary 2 0 1 1 an d May 2 01 1 assau lts b o th o ccu rred at B ry an t’ s resid en ce, w

h ich w as lo cated w i th in t h e No rth ern Ch ey en n e I n d ian Reserv atio n

.U N I T E D S T A T E S V

. B R

Y A N T 5

B r y ant filed a motion t o dismiss the indictment. He
arg ued that u s i n g his tribal court convictions to satisfy an element of § 117(a) violates his F ifth a nd Six th A mendment rig hts because (1) he was not appointed counsel during his tribal court p roceeding s a nd (2) only I ndians may be prosecuted under § 117(a) on the basis of a prior co n v i c t ion that does not comport w ith the Six t h A m endment. The
g overnment did not contest B ry ant’s representation t h a t he lacked the assistance of coun sel during his prior tribal court proceeding s and that his convictions would have violated the Six th Amendment had they been obtained in state or federal
court. The district c o u r t d e n i ed the motion in a brief oral ruling

. B ry ant then e n t e r e d a g uilty plea pursuant to a conditional plea ag reement that preserved his rig ht to appeal the district court’s ruling on the motion to dismiss. The district court sentenced B r y an t t o forty -six months’ imprisonment on each count, to run concurrently

.

II. JURISDICTION AND STANDARD OF REVIEW

W e have j urisdiction to review a final judg ment of the district court p ursuant to 28 U.S.C. § 1 291. W e review de

novo a d istrict court’s denial o f a motion to d ismi s s an indictment o n constitutional g rounds. United States v

. Chovan , 735 F .3d 1127, 1131 (9th Cir. 2013); United States v. McCalla , 545 F .3d 750, 753 (9th Cir. 2008).

III. DISCUSSION

B r y ant arg ues that using his prior tribal court convictions

as the predicate offenses in a § 117(a) prosecution violates the Six th Amendment rig ht to counsel and the F ifth A mendment
g u a r a n t e e of d

ue p rocess because these convictions were obtained throug h procedures that, if utiliz ed in state or federalU N I T E D S T A T E S V

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Y A N T 6

court, would violate the Six th Amendment. A s an initial matter, the g overnment arg ues that B r y ant failed to make an

e v i dentiary showing that his tribal court convictions we r e uncounseled. The g overnment a lso arg ues that tribal c o u rt proceeding s are not g overne d b y the Six th Amendment a nd convictions that were n o t o btained in actual violation of the Constitution may

be used in subsequent prosecutions. 3

W e may easily d ispose of the g overnment’s first
arg ument. I n district court, B ry ant repeatedly represented that he lacked counsel during the relevant tribal court proceeding s. Yet, the g overnment never objected that B ry ant had n ot met his evidentiary burden on this point, even when B ry ant characteriz ed the issue as “undisputed.” A c cording ly
, the issue is w aived, United States v

. Carlson
, 900 F .2d 1346, 1349–50 (9th Cir. 1990), and we assume that B r y ant did not have the benefit of counsel d uring h i s p r ior tribal court domestic abuse proceeding s. 4

The merits of this case pose a more difficult q u e s tion. The U nited States Constitution g uarantees criminal

3 In its su p p lem en tal b rief ad d ressin g t h e im p act o f First o n th is case, th e g o v ern m en t arg u ed th at it co u ld rely o n Bry an t’ s trib al co u rt co n v ictio n s f o r an o th er reas o n : a t l e ast tw o o f h is trib al co u rt d o m estic ab u s e

co n v ictio n s d i d n o t r e s u l t i n a term of im p riso n m en t, an d th eref

o re, did

co m po rt w ith th e S ix th A m en d m en t. T h e g o v ern m en t h as sin ce co n ced ed th at B ry an t d o es n o t h av e tw o p r i o r trib al co u rt d o m estic ab u s e

co n v ictio n s th at d id n o t resu lt in a sen ten ce o f

in carceratio n

.

4 Mo reo v er, th ere is n o serio u s d o u b t th at B ry an t w a s n o t ap p o in ted

co u n sel du rin g h is trib al co u rt d o m estic ab u se pro ceed in g s. T h e L aw an d Ord er Co d e o f th e No rth ern Ch ey en n e T rib e, T itle 5
, Ch ap ter III, Ru le 2 2
p ro v id es th at a d ef

en dan t in a crim in al case h as th e rig h t to “d e f en d h im self

. . . b y

. . . [an ] atto rn ey at h is o w n ex pen se.” T h e T rib e d oes n o t g u aran tee a rig h t to ap p o in ted co u n sel in an y case.U N I T E D S T A T E S V

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defendants the rig ht to assistance of counsel for their defense. U.S. Co n s t

. amend. VI ; see also Gideon v. W ainwright
, 372 U.S. 3 35, 342–45 (1963). T h e rig ht to appointed counsel fo r indig ent criminal defendants is a “log ical corollary ” o f this g uarantee. Powell v. Alabama , 287 U.S. 45, 72 (1932).

I n a line of c ases beg inning with Powell
, the Suprem e Court h as set forth when the rig ht to appointed co u n s el is trig g ered. See i d

. at 68–69, 7 1–72 (holding that the F ourteenth Amendment provides capital defendants w ith a rig ht to appointed counsel b ecause the due process rig ht to be heard e ncompasses a rig ht to be h eard by counsel). I n Johnson v. Zerbst
, 304 U.S. 458, 463 (1938), the Court
recog niz ed that t h e Six th Amendment g uarantees indig ent criminal defendants the rig ht to appointed c ounsel in federal proceeding s. The Court subseq u e n t l y held that the Six th Amendment rig ht to appointed counsel applies to the states a s well throug h the F o urteenth Amendment. Gideon , 372 U.S. at 342–45.

Johnson and Gideon involved felony prosecutio n s , b u t t he Court later clarified that the ri gh t to appointed counsel for indig ent defendants attaches in all criminal cases “where loss of liberty is

. . . involve d
, ” re ga r d less of how a crime is classified. Argersinger v

. H a m lin
, 407 U.S. 25, 3 7 (1972). I n Scott
, the Court f

u r t h er refined the rig h t, holding that indig ent defendants a

re e ntitled to appointed counsel only in those c ases w here a term of imprisonment is actually imposed, and not in e very c ase where a term o f imprisonment could be imposed

. 4 4 0 U.S. at 369, 373–74. F inally
, in Alabama v. S

helton
, 535 U.S. 654, 658, 662, 674 (2002), the Court c oncluded that imposition of a suspended sente n c e constitutes a term of imp ri s o n ment that trig g ers the Six th Amendment rig ht to appointed counsel.U N I T E D S T A T E S V

. B R

Y A N T 8

However, the Six th A mendment rig ht to appo i n t e d counsel does not apply in tribal court proceeding s, Firs t , 731 F .3d at 1002; United States v. Percy
, 250 F .3d 720, 725 (9th Cir. 2001); Tom v. Sutton
, 533 F .2d 1101, 1102–03 (9th Cir. 1976), because the Constitution is g enerally inapplicable
to tribal c ourts, Santa Clara P ueblo v. Martinez
, 436 U .S. 49, 56 (1978); Talton v

. M

a yes , 163 U .S. 376, 382–83 (1896). 5 Conseque n t l y , B ry ant’s prior uncounseled tribal court convictions that resulted in terms o f imprisonmen t a r e not unconstituti o nal, and B ry ant does not contend otherwise. Rather, B ry ant arg ues that, be c a u s e his convictions would have been unconstitutional had they been obtained in state o r f e d e ral court, they may not be used to prove his g uilt in a § 117(a) prosecution.

W e ag ree that B ry a

nt’s prior t r ibal court domestic abuse convictions would have violated t h e Six th Amendment h ad
t h e y been obtained in state or federal court. Under Argersinger and Scott
, indig ent criminal defendants have a rig ht to appointed counsel in any state or federal case where

a term of imprisonment is imposed. S c o t t , 440 U.S. at 369,

5 “ A s sep arate so v ereig n s p re- ex istin g th e Co n stitu tio n , t rib es h av e h isto rically been reg ard ed as u n co n strain ed b y th o se co n stitu tio n al
p ro v isio n s f

ram ed sp ecif

ically as lim itatio n s o n f

ed eral o r state au th o rity .” S a n ta Cla ra Pu eb lo
, 43 6 U .S. at 56

. Co n g ress n o n eth eless h as p len ary

au th ority to im

p o se l im its o n t

rib al self

- g o v ern m en t. Id

. A ctin g u n d er its
p len ary au th o rity
, Co n g ress h as req u ired trib al co u rts to p ro v id e a lim ited rig h t t o co u n sel in cr i m i n a l trib al co u rt p ro ceed in g s th ro u g h th e In d ian Civ il R ig h ts A ct (“ ICRA ”)
, w h ich m an d ates th at crim i n al d ef en d an ts in trib al c o u r t b e p erm itted to retain co u n sel at th eir o w n ex p en se, an d th e T rib al L aw an d Ord er A ct of 2 0 1 0, w h ich req u ires trib es to p ro v id e in d ig en t d ef

en dan ts w ith ap p o i n ted co u n sel i n th ose cases w h ere th e trib al

c o u r t im p o s es a term o f im

p riso n m en t th at ex ceed s o n e y ear. S ee F i rs t , 7 3 1 F.3 d at 1 0 02 & n .3

. I nd i a n trib es are, o r co u rse, f ree t o g ran t ad d itio n al rig h ts th ro u g h

th eir o w n law s. S ee id

. at 1 00 3 & n .4

.U N I T E D S T A T E S V

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3 7 3

– 74; A rgersinger
, 407 U.S. at 3 7. W e must ex ami n e another line of cases, however, t o d etermine whether convictions arising from proceeding s that neither violate the Six th Amendment nor provide an equivalent rig ht to counsel
may be used to prove an e l e m e n t o f the offense in a later federal prosecution.

I n a series of cases following Gideon
, the Supreme Court addressed whether prior convictions obtained in violation of the Six t h Am e n d ment rig ht to counsel may be used in subsequent proceeding s. I n the first few such cases, the Court consistently held that uncounseled c o nvictions o b t ained in

v i olation of Gideon could not be used in subseq u e n t proceeding s to (1) prove the prior felony conviction element of a r e cidivist statute, Burgett v

. Texas
, 389 U.S. 109, 111, 114–16 ( 1967), (2) impose a hig her sentence based on a prior conviction, United States v

. Tucker
, 404 U.S. 443, 447, 449 (1972), or ( 3) impeach a defendant’s cre d ibility
, Loper v

. Beto , 405 U.S. 473, 476, 482–83 (1972) (plurality opinion).

I n Lewis v. United States
, 445 U.S. 55, 66–67 ( 1980), the Court held, for the first time, t h at a p rior conviction that violated the Six th Amendment could be used in a subsequent prosecution. I n Lewis
, the d e f endant w as convicted under a predecessor f

e lon-in-possession-of-a-firearm statute. Id. at 57–58. He c h a lleng e d the g overnment’s use o f a prior conviction obtained in violation of Gideon to prove he was a felon. I d. The Court acknowledg ed Burgett
, Tucker
, a nd Loper
, but did n o t r ead those cases to stand for the proposition that “an u ncounseled conviction is invalid f or all purposes.” Id. at 66–67. I t c o ncluded that L ewis’s prior uncounseled conviction c ould be used in a subseque nt prosecution because the conviction w as providing a basis for imposing only a firearms p r o h ibition—an “essentially civilU N I T E D S T A T E S V

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disability ,” albeit one that w as “enf o r ceable by a criminal sanction.” Id. at 67.

Not long after Lewis
, the C o u rt considered whether an

u n c o u n s e l e d c o n v i c t i o n t h a t d i d n o t r e s u l t i n imprisonment—and therefor e d i d not run a foul of the Six th Amendment—could be u s e d in a subsequent prosecution under a recidivist statute. See Baldasar v. Illinois
, 446 U.S. 222, 223–24 (1980), overruled by Nichols v. Unite d States
, 511 U.S. 738 (1994). I n a splintered d ecision, five justices, in thre e separate opinions, r uled that it could not. L ower courts strug g led to interpret a nd a p p ly Baldasar
, see Nichols
, 511 U.S. at 745, a

nd, ultimately
, the Court revisited a similar question in Nichols

. I n Nichols
, the defendant pled g u ilty to conspiracy to possess cocaine w ith intent to distribut e , in vi o l a t i o n o f 21 U.S.C. § 846. Id. at 740. W hen calculating Nichols’s criminal h istory points during sentencing
, the district court considered a prior unc o u nseled state court conviction for which Nichols received a fine but was not incarcerated. Id. The Court held that an u n c o u n s eled prior conviction valid un der Scott —as Nichols’s was—“may be relied upon to enhance the sentence for a subsequent offense,

even thoug h that sentence entails imprisonment.” Id. at 746–47.

The Supreme Court has never addressed whether a convict i o n o b tained in a forum not g overned by the Constitution under procedures t h a t do not comport with the Six th Amendment rig ht to co u n s e l may be used in a subsequent p r ose c u t i o n. Our court, however, has twice addressed this issue. I n Ant
, w e considered wh et h er an uncounseled tribal c o urt g uilty plea to charg es of assault a nd battery
, which resulted in a six

- month term of imprisonment, could be introduced as evide n ce of g u ilt in a subsequentU N I T E D S T A T E S V

. B R

Y A N T 11

federal prosecution f

or manslaug hter arising out of the same incident. 882 F .2d at 1390–91. W e held that it c ould not, reasoning that “if Ant’s earlier g uilty plea had been made in

a court o ther than in a tribal c ourt, it would not be admissible i n the subsequent federal prosecution absent a knowin g a n d intellig ent waiver” of his rig ht to counsel. Id. at 1394. This fact rendered the plea “constitutio n a lly infirm” a nd inadmissible in a later federal prosecution. Id. at 1395.

More r ecently
, in First
, we considered w h e t her a prior uncounseled tribal court conviction that resulted in a term o f imprisonment could be used a s the predicate offense in a p rosecution under 18 U.S.C. § 922(g )(9). 731 F .3d a t 1000–01, 1 003. Section 922(g )(9) m a k es it unlawful for a person convicted of a m i s d emeanor domestic violence of f e nse to possess a firearm. Noting the similarity b etween § 922(g )(9) and the statute in Lewis
, we concluded that “it is

o f n o moment that F irst’s misdemeanor conviction was

o b t a ined without comply ing w ith the Six th Amendment,” because the g overnment soug ht to use the conviction only to enforce a civil f

irearms disability

. Id

. a t 1 008–09. I n so holding , we discussed Ant , stating as follows:

W e do not question A nt ’s continued v itality

. Ant stands for the g e n e r a l proposition that

even when tribal court proceeding s comply with I CRA and t r i b al law, if the d enial o f counsel in that proce ed ing violates federal constitutional law, the resul ting conviction
may not be used t o support a subsequent federal p ro s e c ution. Lewis
, however,U N I T E D S T A T E S V

. B R

Y A N T 12

d emonstrates that the federal firearms statut e is an ex ception from this g eneral rule.

Id. at 1008 n.9 (internal citations omitted).

W e ag ree that, as a g eneral rule, Ant hold s that a conviction o btained in a tribal court that d id not afford a rig ht
to c ounsel equivalent to the Six th Amendment rig h t may not be used in a subsequent federal prosecution. According ly
, we hold that, subject to the narrow ex ception recog niz ed in Lewis

an d F i r st for statutes that serve merely as enforcement mechanisms for civil disabilities, tribal court convictions may b e u s ed in subsequent prosecutions only if the tribal court g uarantees a rig ht to counsel that is, at minimum, coex tensive with the Six th Amendment rig ht. Section 117(a) is an ordinary recidivist statute and not a crim i n a l enforcement scheme for a civil disability

. According ly
, the g eneral rule announced in Ant applies. B ecause Br y a nt’s tribal court domestic abuse convictions would have v i o l ated the Six th Amendment r ig ht to cou n s e l had they been obtained in federal or state court, using them to es tablish an element o f the offense in a subsequent § 117(a) prosecution is constitutionally impermissible. S ee Ant
, 882 F .2d at 1394–95.

W e reject t h e go vernment’s arg uments to the contrary

. The g o vernment contends this case is controlled by Nichols
, not Ant

. B ut Nichols involved a prior conviction that did comport with the Six th Amendment, 5 11 U.S. at 740, 746–47, whereas t h i s c ase involves prior convictions obtained under procedures that, if utiliz ed in state or federal court, would have violated the Six th Amendment. Ant is the relevant authority

.U N I T E D S T A T E S V

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Y A N T 13

The g overnment also arg ues that Ant is no long er g o o d law b ecause it relied on Baldasar
, which Nichols o verruled. Ant cited B aldasar only once, a nd for the g eneral proposition that an uncounseled conviction could not be used to prove an

e l e m e nt of a recidivist statute. Ant
, 882 F .2d at 13 9 4

. Nichols did o verrule Baldasar ’ s holding that an uncounseled conviction v alid und e r S co t t could not be used in a subsequent prosecution. Nichols
, 511 U.S. a t 746– 4 7

. B ut

even after Nichols
, uncounseled convi c t i o n s that r esulted in imprisonment g enerally c ould n ot be us e d i n subsequent prosecutions. See id. But see Lewis
, 445 U.S. at 66–67. B ecause Ant involved the latter s c e n a rio, see 8 82 F

. 2d at 1390–91, it remains g ood law notwithstanding its citation to Baldasar

.
Moreover, for us to overrule our own precedent, a Supreme Court decision “must have u ndercut the theory o r reasoning underly ing the prior c ircuit precedent in such a way that the cases are clearly irreconcilable.” Miller v. Gammie
, 335 F

. 3d 8 8 9
, 9 0 0 (9th Cir. 2003) (en banc); see also G o n z ales v. Dep’t of Homeland Sec.
, 508 F .3d 1227, 1 2 3 5 (9th Cir. 2007) (ex plaining that where a Supreme Court case did n ot actually address the issue r ai s e d in a prior Ninth Circuit case, a three-judg e panel remained bound by circuit precedent notwithstanding the implications of the subsequent Supreme Court case). Nichols a n d Ant are easily reconcilable because N

i chols involved an uncounseled conviction valid under the Six th Amendment, w h e reas Ant involved prior tribal court proceeding s that, in state or federal court, would

n o t have been valid under the Six th Amendmen t

. According ly
, we read Nichols and Ant to stand for the proposition that, subject to the limited ex ception recog niz ed in Lewis and First
, the Six th Amendment permits using a prior conv i ct ion in a later prosecution only if, in the priorU N I T E D S T A T E S V

. B R

Y A N T 14

proceeding
, the defendant was afforded, at a minimum, the

same r ig h t to c ounsel as g uaranteed by the Six th Amendment. Nothing in Nicho l

s m andates adopting the g overnment’s position that, as long a s the conviction does not violate the Constitution, it may

be used in a later prosecution.

W e r e c og niz e that our holding places us in conflict with
two other circuits. See United States v. Shavanaux
, 647 F .3d 993 (10th Cir. 2011); United States v. Cavanaugh , 643 F .3d 592 ( 8th Cir. 2011). Shavana u x a n d C avanaugh held that a prior uncounseled tribal court conviction could be used as a predicate offense for a § 117(a ) p r o secution. Shavanaux
, 647 F .3d a t 997; Cavanaugh
, 643 F .3d at 603–04. T he Shavanaux court reasoned that, because the Six th Amendment does not apply in tribal court, using a tribal court conviction in a subsequent prosecut i o n c annot v iolate the Six th Amendment. 6 47 F .3d at 996–98. Th e Cavanaugh

c ourt read Nichols as establishing a brig ht-line rule that so long as a c onviction did not v iolate the Constitution, it could be used in a subsequent proceeding

. 643 F. 3 d at 603–04. Shavana ux and Cavanaugh cannot be reconciled with Ant
, and we are bound by Ant. 6

6 In f act, b o th th e Eig h th Circu it an d th e T en th Circu it reco g n ized th at th eir h o ld in g s w ere at o d d s w i t h An t

. S h a va n a u x , 6 4 7 F.3 d at 9 97

– 98 ; Ca va na u g h , 6 43 F.3 d at 6 0 4

– 0 5

.

T h e S h a va n a u x co u rt rej ected An t as w ro n g ly d ecid ed

. 6 4 7 F .3 d at 9 9 7

– 9 8

. It d isag reed w ith An t ’ s “ th resh old d eterm i n atio n t h a t a n

u n co u n seled t

rib al co n v i ctio n is co n stitu tio n ally in f

irm ,” b eliev i n g th at th is d eterm in atio n w as a co n s eq u en ce o f h av i n g “ o v erlo o k [ed ]” t h e Ta lto n lin e o f c a s e s estab lish in g th at trib al co u rts are n o t g o v ern ed b y th e Co n stitu tio n

. Id

. B u t An t

d id n o t o v erlo o k th is case l aw

. A lth o u g h An t d id n o t cite Ta lto n , it reco g n ized rep eated ly th at trib al co u rt p ro ceed in g s

are lim ited o n ly b y t h e I C R A an d trib al law

. See 8 8 2 F.2 d at 1 3 9 1

– 9 2
, 1 3 9 5

. In d escrib in g A n t’ s g u ilty p l ea as “ co n stitu tio n ally in f

irm ,” th e An tU N I T E D S T A T E S V

. B R

Y A N T 15

As we did in First
, we reiterate Ant ’s continued vitality

. See 731 F .3d at 1008 n.9. Under Ant
, the g overnment may not rely on tribal c ourt convictions as p red i c a t e offenses in § 1 1 7(a) prosecutions unless the tribal court afforded the

same rig ht to counsel as g uaranteed b y the Six th A mendment in federal and state prosecutions. See 882 F .2d at 1 3 9 4–95. B ry ant’s relevant t r i b a l court convictions do not meet this standa rd. Consequently
, the charg es ag ainst him must be dismissed. 7

co u rt u sed a co n v en ien t sh o rth an d term to ref er to th e f act th at A n t’ s g u ilty
p lea, alth o u g h n o t o btain ed i n v io latio n o f th e Co n stitu tio n , w as o b tain ed th ro u g h p ro ced u res th at, h ad th ey b een em p lo y ed in state o r f

ed eral co u rt,

w o u ld h av e b een u n co n stitu tio n al. Re a d i n c o n tex t, t h e term d o es n o t

s ug g e s t t h at An t ’ s h old in g is b ased o n th e f au lty p rem ise t

h at th e Co n stitu tio n ap p l ies to trib al co u rt p ro ceed in g s.

T h e C a va n a u gh co u rt d istin g u i sh ed A n t , b ecau se in An t , th e

su b seq u en t f

ed eral p ro ceed in g aro se o u t o f t h e sam e in cid en t as t

h e trib al

co u rt p ro ceed in g an d th e g o v ern m en t so u g h t to u se a g u ilty p l ea th at d id

n o t co m p o rt w ith th e Six th A m en d m en t to p ro v e, n o t m erely th e f act o f a p rio r co n v ictio n , b u t t h e t r u t h o f th e m atter asserted in th e p lea. S ee 6 4 3 F.3 d at 6 04

– 0 5

. T h i s i s a d istin ctio n w i t h o u t a d i ff eren ce. A s th e Ca va na u g h d i s sen t ex p lain ed
, th e k ey f acto r i n b o th An t an d Ca va n a u g h

w as th e g o v ern m en t’ s relian ce o n p r i o r t rib al co u rt p ro ceed in g s, t h at, if
g o v ern ed b y th e Co n stitu

t io n , w o u ld h av e v io l ated th e Six th A m en d m en t rig h t to co u n sel to p r o v e an elem en t of th e o f f en se. Id

. at 6 0 7 (B y e, J
., d issen tin g ).

7 B ry an t also arg u es th at u sin g h is trib al co u rt co n v ictio n s as p red icate

o f f en ses is a v io latio n o f th e Fif th A m en d m en t’ s g u aran t ee o f eq u al
p ro tectio n b ecau se o n ly In d ian s are su b j ect to p ro secu tio n b ased o n p rio r

co n v ictio n s t

h at d o n o t co m

po rt w ith t

h e Six th A m en d m en t rig h t to

co u n sel. Giv en t h e r e s u lt w e reach
, w e n eed n o t ad d ress B ry an t ’ s eq u al
p ro tectio n

arg u m en t.U N I T E D S T A T E S V

. B R

Y A N T 16

IV. CONCLUSION

W e hold that the § 1 17(a) charg es ag ainst B ry ant must be di s m i ssed because at least one o f his predicate tribal court domestic abuse c onvictions was uncounseled and resulted in a term of imprisonment.

REVERSED.

W A TF ORD, Circuit J udg e, concurring :

I ag r ee with the majori t y t h a t United States v. Ant
, 882 F .2d 1389 (9th Cir. 1989), remains b inding and c ontrols the outcome of this case. I write separately to hig hlig h t three reasons why , in my

view, Ant

warrants reex amination.

1. The Supreme Court’s decision in Nichols v. United States
, 511 U.S. 738 (1994), doesn’t squarely overrule Ant
, but it does c all Ant ’s reasoning into question. Nichol s h eld that a n uncounseled misdemeanor conviction valid under Scott v. Illinois
, 440 U.S. 367 (1979)—because no term o f imprisonment was imposed—may b e used “to enhance the
sentence for a subsequent offense, even thoug h that sentence entails imprisonmen t.” 511 U.S. at 746–47. The Court’s holding undermines the notion that uncounseled convictions
are, a s a categ or i c a l matter, too u nreliable to be used as a basis for imposing a prison sentence in a su b s e q u e n t c ase. Nichols s u ggests that so long as a prior c onviction isn’t tainted by a constitu t i o n a l v iolation, nothing in the Six th Amendment b ars its u se in subsequent criminal proceeding s.U N I T E D S T A T E S V

. B R

Y A N T 17

That principle is ha r d t o square with the r esult we reach today by apply ing Ant

. I t’s true that Michael B ry a n t ’ s p r ior domestic abuse convictions would have been o btained in violation of the Six th Amend m e nt had he been tried in state

or federal court, since he lacked appointed counsel a nd
appears to have received a t er m o f imprisonment following those convictions. S

e e S c ott , 440 U.S. at 373–74. B ut the fact remains that his prior convictions were not obtained in violation of the Six th A mend m e n t b ecause they occurred in tribal court, where the Six th A mendmen t d o e sn’t apply

. United States v. Percy
, 250 F .3d 720, 725 (9th Cir. 2001). I t

seems odd to say that a conviction untainted by a violation o f
t h e S ix th Amendment trig g ers a violation of that same amendment when it ’ s u s e d in a subsequent case where the defendant’s rig ht to appointed c o unsel is fully respected. A s the T enth Circuit stated, “Use of t ribal convictions in a subsequent prosecution cannot v io l a t e ‘anew’ the Six th Amen dment, because the Six th Amendment was never

v iolated in the first instance.” United States v

. Sha v a n a ux , 647 F .3d 993, 998 (10th Cir. 2011) (cit a t i o n omitted). The contrary rule we adopted in Ant would make sense i f uncounseled convictions were deemed insufficiently reliable
to warrant g iving them any weig ht in subsequent cri minal proceeding s. Bu t, as I ’ve noted, Nichols undercuts the proposition that uncounseled conv i ctions are categ orically unreliable.

F urther d o u bt is c a st on Ant ’ s vitality when we consider the ex ception carved out in Lewis v. United States , 445 U.S. 55 (1980), and United States v. First , 731 F .3d 998 (9th Cir. 2013). I n Lewis
, the S u p re m e C o urt held that a felony conviction obtained in violation of the Six th Amendm ent could nev e r t heless be used as a predicate for a felon-i n

- possession charg e. 445 U .S. at 67. The CourtU N I T E D S T A T E S V

. B R

Y A N T 18

reasoned that the firearms p rohibition r elied “on the mere fact of conviction,” not the reliability of that conviction, to enforce throug h criminal sanctions what amounted to only “a civil disability .” Id. We felt compelled to follow this precedent in First
, where we held that an uncounseled tribal
court c o n viction that would have violated the Six th Amendment if obtained in state or federal court could also be used as a predicate for a similar fire a r m s p ossession statute. 731 F .3d at 1008–09.

The resulting asy

mmetry is striking

. I n Lewis and F irst
, the “mere f

act o f conviction,” even if unreliable a nd unconstitutionall y obtained, could be used to c riminaliz e an act that mig ht ot h e rwise be lawful—firearms possession. Lewis
, 445 U.S. at 67; First
, 731 F.3d at 1008–09. Here, however, the “mere fact” of a domestic vio l e nce conviction
cannot be used to support punish m e n t f o r an act that is already criminal—domestic violence. That seems illog ical. I f any thing
, we would want to be more cautious about the use of uncounseled prior convictions in prohib i t ing f irearms possession, because that prohibition imping es upon what would otherwise be a f undamental r i ght. W e aren’t imping ing upon any o ne’s rig hts when we p rohibit (or enhance penalties for) domestic violence, since no one h as the rig ht to abuse a spouse or intimate partner to beg in with. The

reason for holding that the Six t h Amendment is violated in this case but not in Lewis and F irst isn’t easy

to g rasp.

2. So why are we refusing to r ecog niz e the validity o f B ry ant’s prior domestic abuse convictions in this case, g iven that t h e c o n v i c t i o n s t

hemselves aren’t constitutionally infirm? Pre s u mably it’s because of concerns over the reliability o f those convictions. As d iscussed above, thoug h, that concern apparently doesn’t e x ist across the board with r espec t toU N I T E D S T A T E S V

. B R

Y A N T 19

uncounseled convi ct i ons obtained in state or federal courts. So aren’t we really say ing that the rig ht to appointed counsel i s necessary to ensure the r eliability of all tribal co u r t convictions? I f that’s true , w e s e em to be denig rating the integ rity o f tribal courts, as discusse d i n the dissent in Ant

. See 882 F .2d at 1397–9 8 ( O’Scannlain, J
., dissenting ). The implication is that, if the d efendant lacks counsel, tribal court convictions a

re inherent ly suspect a

nd unworthy o f the federal courts’ respect. Wh i l e in our adversarial sy stem we’ve concluded that the lack of counsel detract s f r o m the
accuracy and fairness of a criminal proceeding
, see Gideon v

. W ainwright
, 372 U. S

. 335, 342–44 (1963), respect for the i n t eg rity of a

n independent sovereig n’s c ourts should preclude such quick judg ment. Se e W ilson v. Marchington
, 127 F .3d 805, 811 (9th Cir. 1997).

3. I t’s perhaps unsurprising that our decision in this case conflicts with d ecisions from two o f o ur sister circuits. F a ced with almost identical scenarios—prior, uncounseled tribal
court convictions that w o u l d have violated the Six th Amendment in state or federal court and t h at w e r e u sed a s pr e dicate o ffenses under 18 U.S.C. § 117—the E ig hth a nd Tenth Circuits pointedly d isag reed with u s. See United States

v. Cavanaugh
, 643 F

. 3d 592, 595, 604 (8th Cir. 2011); United States v. Shavanaux
, 647 F

. 3 d 993, 995–98 (10th Cir. 2011). As our colleag ues on t h e E ig hth Circuit noted, “Supreme C o u rt authority in this area is unclear; r easonable decisio n

makers may differ in their conclusions as to whether the Six th Amendment precludes a f ederal court’s subsequent use o f convictions that a r e valid because and only because they arose in a court where the Six th Amendment did not apply

. ” Cavanaugh
, 643 F .3d at 605. G iven this circuit split and the lack of clarity in this area of Six th Amendment law, the Supreme Court’s intervention seems warranted.