                                                                             FILED
                            NOT FOR PUBLICATION                               JUL 27 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 11-10357

               Plaintiff - Appellee,              DC No. Cr. 2:09-0057 RLH

  v.                                              MEMORANDUM *

WILLIE ALLEN DILLARD,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                   Roger L. Hunt, Senior District Judge, Presiding

                              Submitted July 20, 2012 **
                              San Francisco, California

Before:        TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.

       Willie Allen Dillard challenges the district court’s decision to apply the

Armed Career Criminal Act (“ACCA”) enhancement at his sentencing on his




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
conviction of felon-in-possession of a firearm. We have jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), and we affirm.

      Dillard’s basic contention is that one of the predicate convictions supporting

the district court’s application of the ACCA enhancement – a conviction obtained

when Dillard was seventeen years old after a Nevada juvenile court had certified

him to be tried as an adult – is not a “prior conviction” within the meaning of

Apprendi v. New Jersey, 530 U.S. 466 (2000). We disagree. Dillard does not deny

that this conviction was obtained in state-court criminal proceedings that afforded

him every necessary procedural protection; the conviction is therefore subject to

the exception to Apprendi’s general holding. See United States v.

Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir. 2000) (“Apprendi held that all prior

convictions – not just those admitted on the record – were exempt from Apprendi’s

general rule and . . . may continue to be treated as sentencing factors.”).

      True, the decision to try Dillard as an adult was made in juvenile court by a

judge (not a jury), in the exercise of discretion (not beyond a reasonable doubt).

But nothing in Apprendi or its Ninth Circuit progeny suggests that this certification

decision should affect whether Dillard’s prior conviction is treated as a “prior

conviction” under Apprendi. Dillard’s certification was not a final adjudication of

the charge against him; it was merely a decision about the forum in which to


                                           2
conduct that adjudication. See In re Three Minors, 684 P.2d 1121, 1124 (Nev.

1984) (“Transfer proceedings are essentially dispositional in nature and not

adjudicatory. No determination of guilt or innocence is made.”), disapproved of on

other grounds by In re William S., 132 P.3d 1015 (Nev. 2006); cf. United States v.

Mitchell H., 182 F.3d 1034, 1035 (9th Cir. 1999) (stating that a federal “juvenile

transfer hearing is not itself a criminal proceeding”). When Dillard’s case was

adjudicated in Nevada state court, the adjudication undoubtedly afforded him the

“crucial procedural protections,” United States v. Tighe, 266 F.3d 1187, 1194 (9th

Cir. 2001), that Apprendi “prior convictions” require.

      Dillard also argues that he was compelled to incriminate himself and “may

not have had” counsel during the certification proceedings, and that these

constitutional violations so tainted the ensuing conviction that it cannot properly

form the basis for a sentence enhancement under the ACCA. But Dillard failed to

meet his burden to show that he had actually been denied counsel. See United

States v. Mulloy, 3 F.3d 1337, 1339 (9th Cir. 1993). Moreover, Dillard’s self-

incrimination claim is exactly the kind of collateral attack Custis v. United States,

511 U.S. 485, 487 (1994), puts off-limits. In any event, by pleading guilty in state

court, Dillard waived both claims. See Harris v. Procunier, 498 F.2d 576, 579 (9th

Cir. 1974) (en banc) (holding that, even if the state failed to provide a defendant


                                           3
with counsel at the time of his juvenile court appearance, he waived any

constitutional objection by pleading guilty in an adult court “with all constitutional

safeguards present”).

      Finally, to the extent Dillard is contending that the fact of his certification is

itself an Apprendi fact – i.e., that because certification increased Dillard’s

maximum penalty, it should have been decided by a jury beyond a reasonable

doubt – his contention is unavailing. Cf. United States v. Miguel, 338 F.3d 995,

1004 (9th Cir. 2003) (“Apprendi does not require that a jury find the facts that

allow the transfer to district court. The transfer proceeding establishes the district

court’s jurisdiction over a defendant. . . . Thus, we have refused to view the

transfer statute as one that increases the potential penalties for a crime.”); see also

United States v. Juvenile, 228 F.3d 987, 990 (9th Cir. 2000) (“The transfer statute

does not per se increase punishment; it merely establishes a basis for district court

jurisdiction of prosecutions to which it applies.” (internal quotation marks

omitted)).

AFFIRMED.




                                            4
