                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               No. 12-30177
          Plaintiff-Appellee,
                                        D.C. No.
             v.                   1:11-cr-00070-JDS-1

MICHAEL BRYANT, JR.,
      Defendant-Appellant.                ORDER


                   Filed July 6, 2015

       Before: Harry Pregerson, Richard A. Paez,
          and Paul J. Watford, Circuit Judges.

                         Order;
              Concurrence by Judge Paez;
               Dissent by Judge Owens;
             Dissent by Judge O’Scannlain
2                  UNITED STATES V. BRYANT

                           SUMMARY*


                          Criminal Law

    The panel issued an order denying a petition for rehearing
en banc on behalf of the court in an appeal from the denial of
a motion to dismiss an indictment charging the defendant, an
Indian, with domestic assault by a habitual offender, in
violation of 8 U.S.C. § 117(a).

    In its opinion, the panel reversed the district court’s denial
of the motion to dismiss the indictment. Applying United
States v. Ant, 882 F.2d 1389 (9th Cir. 1989), the panel held
that, subject to the narrow exception recognized in case law
for statutes that serve merely as enforcement mechanisms for
civil disabilities, tribal court convictions may be used in
subsequent prosecutions only if the tribal court guarantees a
right to counsel that is, at minimum, coextensive with the
Sixth Amendment right. Because the defendant’s tribal court
domestic abuse convictions would have violated the Sixth
Amendment had they been obtained in federal or state court,
the panel concluded that it was constitutionally impermissible
to use them to establish an element of the offense in a
subsequent prosecution under § 117(a).

    Concurring in the denial of rehearing en banc, Judge
Paez, joined by Judge Pregerson, wrote that the conflict
presented was how to apply Nichols v. United States, 511
U.S. 738 (1994), which permits the use of a prior
uncounseled misdemeanor conviction to enhance a sentence,

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V. BRYANT                      3

so long as the conviction does not violate the Sixth
Amendment. Judge Paez explained that the opinion did not
apply a bright line reading of Nichols, permitting the use of
such convictions as long as they do not violate the Sixth
Amendment (which tribal court convictions, by definition,
never do), because Nichols is a sentencing case and does not
sanction the use of a prior uncounseled misdemeanor
conviction to establish an element of a § 117(a) felony
prosecution.

    Dissenting from the denial of rehearing en banc, Judge
Owens, joined by Judges O’Scannlain, Gould, Tallman,
Bybee, Callahan, Bea, and M. Smith, wrote that the panel’s
opinion allowed serial domestic violence offenders to operate
with virtual impunity, created a split with the Eighth and
Tenth Circuits, and wrongly invalidated an unquestionably
valid misdemeanor conviction.

    Dissenting from the denial of rehearing en banc, Judge
O’Scannlain, joined by Judges by Gould, Tallman, Bybee,
Callahan, Bea, M. Smith, and Owens, wrote that the panel’s
opinion and Ant were incorrectly decided because the Indian
Civil Rights Act, and not the Sixth Amendment, governs
tribal court proceedings. Judge O’Scannlain wrote that the
panel’s opinion contravened Nichols and stood in direct
conflict with the only two other circuit courts to consider the
issue presented.
4                       UNITED STATES V. BRYANT

                                    ORDER

    The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35.

         The petition for rehearing en banc is DENIED.

    Judge McKeown did not participate in the deliberations
or vote in this case.



PAEZ, Circuit Judge, joined by PREGERSON, Circuit Judge,
concurring in the denial of rehearing en banc:

    The conflict that presents itself again and again in this
case is how to apply Nichols v. United States, 511 U.S. 738
(1994), to cases like Bryant, where the government seeks to
use uncounseled tribal court misdemeanor convictions as an
essential element of a felony prosecution under 18 U.S.C.
§ 117(a).1 The dissents from denial of rehearing en banc,



    1
        The full text of § 117(a) reads:

             Any person who commits a domestic assault within the
             special maritime and territorial jurisdiction of the
             United States or Indian country and who has a final
             conviction on at least 2 separate prior occasions in
             Federal, State, or Indian tribal court proceedings for
             offenses that would be, if subject to Federal
             jurisdiction–
                  UNITED STATES V. BRYANT                           5

along with two other circuits, urge a bright-line reading of
Nichols that permits the use of these convictions as long as
they do not violate the Sixth Amendment (which tribal court
convictions, by definition, never do). We write to explain
why Bryant does not apply this bright-line rule, while
recognizing that only the Supreme Court can clarify the
meaning and scope of its decision in Nichols.

                                   I

    Nichols permits the use of a prior uncounseled
misdemeanor conviction to enhance a sentence, so long as the
conviction does not violate the Sixth Amendment. Nichols,
511 U.S. at 746–47 (citing Scott v. Illinois, 440 U.S. 367
(1979)). That Nichols is a sentencing case is significant. The
most salient difference between the guilt and punishment
phases of criminal adjudication is that prosecutors must prove
each element of an offense beyond a reasonable doubt, In re
Winship, 397 U.S. 358, 364 (1970), while they generally need
only prove the existence of a sentence enhancement factor by
a preponderance of the evidence, see Nichols, 511 U.S. at
748. Nothing in Nichols purports to sanction the use of an



            (1) any assault, sexual abuse, or serious violent
       felony against a spouse or intimate partner, or against
       a child of or in the care of the person committing the
       domestic assault; or

           (2) an offense under chapter 110A,

       shall be fined under this title, imprisoned for a term of
       not more than 5 years, or both, except that if substantial
       bodily injury results from violation under this section,
       the offender shall be imprisoned for a term of not more
       than 10 years.
6               UNITED STATES V. BRYANT

uncounseled conviction for Winship purposes. Indeed, to
permit the use of those misdemeanor convictions to establish
an essential element of a § 117(a) felony prosecution would
conflict with our long-held axiom that we hold the
government to a higher burden when it seeks to prove an
essential element of an offense. See, e.g., Medley v. Runnels,
506 F.3d 857, 862 (9th Cir. 2007) (citing Winship, 397 U.S.
at 364, and Middleton v. McNeil, 541 U.S. 433, 437 (2004)).

    The Court in Nichols acknowledged the reliability
concerns that inhere in the Sixth Amendment right to counsel.
Critically, the Court affirmed the sentencing court’s
assessment of criminal history points under the United States
Sentencing Guidelines because the sentencing court used the
predicate uncounseled conviction during the sentencing
phase, rather than the guilt phase. The Court concluded that
the sentencing scheme in that case “accommodated” its
reliability concerns because (1) under the Sentencing
Guidelines, a defendant may “convince the sentencing court
of the unreliability of any prior valid but uncounseled
convictions”; and (2) the preponderance of the evidence
standard used at sentencing necessarily connotes a less
stringent reliability requirement. Nichols, 511 U.S. at
747–48; id. at 752 (Souter, J., concurring).

    Nichols does not hold that an uncounseled conviction is
sufficiently reliable to support a conviction in a future
prosecution where, as in Bryant and United States v. Ant,
882 F.2d 1389 (9th Cir. 1989), these accommodations are
absent. It follows that Nichols does not invalidate the
reliability concerns that underpin this court’s precedent in
Ant. Rather, Nichols leaves open the question of whether a
potentially unreliable uncounseled misdemeanor conviction
passes muster at the guilt phase. Ant fills this gap by holding
                   UNITED STATES V. BRYANT                              7

that the government may not use prior tribal court
misdemeanor convictions that do not provide an equivalent
right of counsel as evidence of guilt in a subsequent federal
prosecution. See Ant, 882 F.2d at 1396. This approach
adheres to the Sixth Amendment’s core interest in reliability.

                                    II

     Further complicating our reading of Nichols is the unique
reason why Bryant’s uncounseled convictions were
constitutionally valid: the predicate convictions all occurred
in tribal court, where the Sixth Amendment does not apply.2
Statutes like § 117(a) affect both tribal and federal
enforcement of serious crimes and raise difficult questions of
tribal sovereignty. Compare United States v. Wheeler,
435 U.S. 313, 323–24 (1978) (affirming “the sovereign power
to punish tribal offenders” as “the continued exercise of
retained tribal sovereignty”), with United States v. Lara, 541
U.S. 193, 200 (2004) (describing Congress’s plenary power


 2
   Notably, Nichols involved the use of prior uncounseled convictions in
the sentencing court’s assessment of additional criminal history points
under section 4A.1.1 of the Sentencing Guidelines. However, sentencing
courts cannot consider tribal court convictions to compute a defendant’s
criminal history category. U.S.S.G. § 4A1.2(i). A sentencing court may
depart from a defendant’s criminal history category “[i]f reliable
information indicates that the defendant’s criminal history categorically
substantially under-represents the seriousness of the defendant’s criminal
history or the likelihood that the defendant will commit other crimes[.]”
Id. § 4A1.3(a)(1). The court must specify in writing the reasons why an
upward departure is warranted under this standard. Id. § 4A1.3(c)(1).
Only then may the court consider “sentences for foreign and tribal
offenses.” Id. § 4A1.3(a)(2)(A). Nothing in Nichols contemplates
extending its holding to uncounseled tribal court convictions, however,
because the Court affirmed the use of Nichols’s uncounseled convictions
under section 4A1.1, not section 4A1.3.
8               UNITED STATES V. BRYANT

to pass legislation affecting Indian tribes). In enacting
§ 117(a), Congress exercised its plenary power to permit
more vigorous federal prosecution of serious crimes against
women that tribes may not have the resources to address. The
importance and urgency of these efforts, as emphasized by
amicus curiae the National Congress of American Indians, are
beyond dispute.

    Congress, however, has readily coupled expanded tribal
court jurisdiction with a commensurate right to counsel when
due process so dictates. The Indian Civil Rights Act
(“ICRA”), 25 U.S.C. §§ 1301–1303, does not provide a right
to counsel that is coextensive with the Constitution. Yet, as
Congress has endeavored to curb domestic violence in Indian
territory more aggressively, it also has moved toward
expanding the right to counsel for tribal court defendants.
See id. § 1302(a)–(c) (codifying the Tribal Law and Order
Act of 2010, which allows tribal courts to prosecute felonies
and increases tribal courts’ sentencing authority, but also
requires tribal courts to provide procedural safeguards,
including an equivalent right to counsel, when they prosecute
cases under such expanded jurisdiction); id. § 1304
(establishing a new “special domestic violence jurisdiction”
to allow tribes to prosecute non-Indians who commit acts of
domestic violence within the tribe’s jurisdiction and requiring
tribal courts to provide counsel to those defendants).

    No part of the decision in Bryant is intended to express
contempt for tribal courts. Nor does our decision frustrate the
purpose of § 117(a) simply because it conditions the use of
prior tribal court misdemeanor convictions that result in
imprisonment on the provision of counsel. Rather, it is
consistent with Congress’s dual interest in respecting tribal
courts and ensuring due process for tribal court defendants.
                UNITED STATES V. BRYANT                      9

    For the reasons explained in the opinion and here, we
concur in the decision not to take the case en banc. That said,
given the sharp division over the important issues at stake in
this case, Supreme Court review may be unavoidable.



OWENS, Circuit Judge, joined by O’SCANNLAIN,
GOULD, TALLMAN, BYBEE, CALLAHAN, BEA, and M.
SMITH, Circuit Judges, dissenting from the denial of
rehearing en banc:

    Michael Bryant likes to beat women. Sometimes he kicks
them. Sometimes he punches them. Sometimes he drags
them by their hair. He punched and kicked one girlfriend
repeatedly, threw her to the floor, and even bit her. When he
could not find his keys, he choked another woman to the
verge of passing out. Although his violence varies, his
punishment never does. Despite Bryant’s brutality—resulting
in seven convictions for domestic violence—his worst
sentence was a slap on the wrist: one year imprisonment, or
what someone who “borrows” a neighbor’s People magazine
from the mailbox on two separate occasions could face. See
18 U.S.C. § 1701 (retarding the passage of mail).

    There are many, many men like Michael Bryant. And
there are even more victims of men like Michael Bryant.
American Indian and Alaska Native women are 2.5 times
more likely to be raped or sexually assaulted than women in
the United States in general. Att’y Gen.’s Advisory Comm.
on Am. Indian/Alaska Native Children Exposed to Violence,
Ending Violence so Children Can Thrive 38 (2014). In light
of the grave problem of domestic violence on tribal lands,
Congress stepped up by passing the Violence Against Women
10                UNITED STATES V. BRYANT

and Department of Justice Reauthorization Act of 2005, Pub.
L. No. 109-162, tit. IX, § 909, 119 Stat. 2960, 3084 (codified
at 18 U.S.C. § 117). Tailored to the unique problems and
scenarios that American Indian and Alaska Native Tribes
face, § 117(a) provides felony-level punishment for serial
domestic violence offenders, and it represents the first true
effort to remove these recidivists from the communities that
they repeatedly terrorize.

     Yet a panel has wiped this important statute off the books.
It interprets the Sixth Amendment as prohibiting the use of an
uncounseled misdemeanor conviction in a recidivist statute.
The panel acknowledges the split it creates with the Eighth
and Tenth Circuits.1 The result is to cut the Navajo Nation in
half when it comes to combating this plague, as the border
between the Ninth and Tenth Circuits divides its land. The
Michael Bryants in Utah and New Mexico face the music of
§ 117(a), while the Bryants in Arizona play musical chairs,
moving from one brutal beating to the next with virtual
impunity. This decision has torn a massive gap in the fragile
network that protects tribal women and their children from
generations of abuse.

    This decision creates another even larger split that the
panel does not acknowledge.          By holding that an
unquestionably valid misdemeanor conviction is invalidated
by the imposition of a prison sentence, the panel splits with
every circuit to seriously consider this issue. The panel’s
decision is clearly wrong, as the Supreme Court showed in
Alabama v. Shelton: A prison sentence in these circumstances



 1
   United States v. Shavanaux, 647 F.3d 993, 997–98 (10th Cir. 2011);
United States v. Cavanaugh, 643 F.3d 592, 595, 604 (8th Cir. 2011).
                   UNITED STATES V. BRYANT                           11

may be invalid, but the underlying misdemeanor conviction
surely is not.2

    Our justification for this legal and practical mess? United
States v. Ant, 882 F.2d 1389 (9th Cir. 1989), a case that my
colleagues have described as “odd,” “illogical,” United States
v. Bryant, 769 F.3d 671, 680–81 (9th Cir. 2014) (Watford, J.,
concurring), and “regrettabl[e],” Ant, 882 F.2d at 1397
(O’Scannlain, J., dissenting). It was wrong when decided,
and it is really wrong now.

    Bryant’s victims are vulnerable enough, but this decision
leaves them even worse off. It has stripped Congress and the
American Indian and Alaska Native Tribes of the power to
meaningfully punish the Bryants of the world and protect
their victims from another beating (or worse). As our court
has refused to take this case en banc, only the Supreme Court
can rectify this terrible situation. I urge the Court to do so as
soon as possible, before Michael Bryant, and the many more
men like him, terrorize more women and their families.

    For these reasons, I respectfully dissent from the denial of
rehearing en banc in this case.



  2
    Alabama v. Shelton, 535 U.S. 654, 661-62 (2002); see also United
States v. Acuna-Reyna, 677 F.3d 1282, 1284-85 (11th Cir. 2012) (noting
that Shelton “affirmed in entirety” the decision of the Alabama Supreme
Court to invalidate part of Shelton’s sentence, but leave his misdemeanor
conviction intact); United States v. Ortega, 94 F.3d 764, 769 (2d Cir.
1996); United States v. Moskovits, 86 F.3d 1303, 1309 (3d Cir. 1996);
United States v. White, 529 F.2d 1390, 1394 & n.4 (8th Cir. 1976). But
see United States v. Eckford, 910 F.2d 216, 218 (5th Cir. 1990) (holding
otherwise without the benefit of Nichols or Shelton); Bryant, 769 F.3d at
677.
12                UNITED STATES V. BRYANT

O’SCANNLAIN, Circuit Judge, joined by GOULD,
TALLMAN, BYBEE, CALLAHAN, BEA, M. SMITH, and
OWENS, Circuit Judges, dissenting from the denial of
rehearing en banc:

    Judge Owens passionately reveals this opinion’s
pernicious impact on domestic violence victims, and I share
his concern. I also write to explain why the legal errors that
corrupt this opinion, and its predecessor United States v. Ant,
882 F.2d 1389 (9th Cir. 1989), should have been corrected by
our court sitting en banc.

    Following Ant, the court decides that indisputably valid
tribal court proceedings are “constitutionally infirm” because
they do not afford the right to appointed counsel required by
the Sixth Amendment. United States v. Bryant, 769 F.3d 671,
677 (9th Cir. 2014) (citing Ant, 882 F.2d at 1394–95). A
sensible result, perhaps, were it not for the fact that the Indian
Civil Rights Act (“ICRA”)—not the Sixth
Amendment—governs tribal court proceedings. The court
grudgingly acknowledges this fact.                 Id. at 675.
Yet—undeterred in its quest to punish the tribal court for
complying with the procedures that govern it—the court
concludes that convictions procured in that venue are so
defective that the federal government is barred from even
proving the mere existence of such convictions in a later
prosecution.

   Such a decision cries out for review—indeed, with the
concurral,1 every member of the panel has acknowledged that



  1
    As explained by another member of this Court, the term “concurral”
refers to a concurrence from denial of rehearing en banc. See Alex
                   UNITED STATES V. BRYANT                           13

this case requires the Supreme Court’s attention.2 It
contravenes the Supreme Court’s decision in Nichols v.
United States, 511 U.S. 738 (1994), stands in direct conflict
with the only two other circuit courts to consider the issue
presented, and, ultimately, holds tribal courts in contempt for
having the audacity to follow the law as it is, rather than the
law as we think it should be.

                                   I

   To summarize briefly the necessary facts: Bryant, a
Native American, was convicted of domestic assault in
several uncounseled tribal court proceedings. Bryant,
769 F.3d at 673. Because the Sixth Amendment right to
counsel does not apply to tribal courts, the resulting
convictions under tribal law were indisputably valid. Id. at
675.

    Later, after Bryant again assaulted two women in 2011,
the federal government sought to prosecute Bryant for these
new assaults under 18 U.S.C. § 117, which criminalizes
“domestic assault by an habitual offender.”             Under
section 117, the prosecution not only had to prove Bryant had
“commit[ted] a domestic assault” in 2011, but also that he
had been convicted of domestic assault “on at least 2 separate


Kozinski & James Burnham, I Say Dissental, You Say Concurral,
121 Yale L.J. Online 601, 626 n.57 (2012).
 2
   First, Judge Watford—who concluded that Ant afforded him no choice
but to concur—wrote persuasively that Ant warrants reexamination and
pleaded for “the Supreme Court’s intervention.” Bryant, 769 F.3d at 679,
681 (Watford, J., concurring). Now, the other two panel members also
admit that “Supreme Court review may be unavoidable.” Concurrence in
Denial of Rehearing En Banc at 9.
14               UNITED STATES V. BRYANT

prior occasions in Federal, State, or Indian tribal court.”
18 U.S.C § 117. To satisfy this recidivism element, the
government sought to rely on Bryant’s prior tribal court
convictions. Bryant, 769 F.3d at 673–74.

    Bryant conceded such convictions were valid and
obtained in compliance with the ICRA, but argued that they
could not be used to satisfy an element of section 117 because
they would have violated the Sixth Amendment if they had
been obtained in state or federal court. Id. at 674–75. The
district court rejected Bryant’s argument, and he appealed.
Id. at 673–74.

                               A

    Our Court was not the first to consider the use of an
uncounseled tribal court conviction in a section 117
prosecution. Exactly the same question was posed to the
Eighth and Tenth Circuits, and they concluded that using the
prior convictions posed no constitutional difficulty. See
United States v. Shavanaux, 647 F.3d 993 (10th Cir. 2011);
United States v. Cavanaugh, 643 F.3d 592 (8th Cir. 2011).

    Yet the court flatly disagreed with our sister circuits, and
held that the government could not rely on tribal court
convictions unless they afforded the same right to counsel
required by the Sixth Amendment—notwithstanding the
inapplicability of the Sixth Amendment to tribal courts.
Bryant, 769 F.3d at 679.

    Why did the court toss aside the reasoning of our sister
circuits and turn up its nose at completely valid tribal court
proceedings? Because of Ant. In that case we derided a tribal
court guilty plea as “constitutionally infirm” because it
                UNITED STATES V. BRYANT                    15

merely “was made in compliance with tribal law and with the
ICRA,” rather than the Sixth Amendment. Ant, 882 F.2d at
1395. We considered it but a trifle that the Sixth Amendment
does not in fact apply to tribal proceedings—because the
uncounseled plea would have been invalid in our Court, we
ordered it be suppressed. Id. at 1396.

                              B

    Relying on Ant, the court here held that “the government
may not rely on tribal court convictions as predicate offenses
in § 117(a) prosecutions unless the tribal court afforded the
same right to counsel as guaranteed by the Sixth Amendment
in federal and state prosecutions.” Bryant, 769 F.3d 671, 679
(9th Cir. 2014) (citing Ant, 882 F.2d at 1394–95). As in Ant,
it was apparently of little consequence to the court that
imposing the Sixth Amendment’s requirements on tribal
courts conflicts with the procedures Congress laid out in the
ICRA.

    The court reinforces and repeats Ant’s error in trampling
on tribal court proceedings and in disregarding the ICRA.
But that is not all. Its error in applying Ant is magnified by
the fact that Nichols—which post-dated Ant—stripped Ant of
any legitimacy and exposed it as a naked assault on tribal
courts and the ICRA.

                              II

    At the time of Ant, we tried to conceal our contempt for
tribal courts in the tangled thicket of Baldasar v. Illinois,
446 U.S. 222 (1980) (per curiam), in which a hopelessly
16                  UNITED STATES V. BRYANT

fractured3 Court held that a valid but uncounseled state
misdemeanor conviction could not be used in a subsequent
federal prosecution. See Ant, 882 F.2d at 1394 (relying on
Baldasar for the proposition “that if Ant’s earlier guilty plea
had been made in a court other than in a tribal court, it would
not be admissible in the subsequent federal prosecution”).
Baldasar appeared to provide us with some cover—if state
court proceedings that were valid but uncounseled could not
be used in subsequent federal proceedings, then perhaps valid
but uncounseled tribal court proceedings could not be so used
either.

    Fortunately, Nichols cleared out the underbrush of
Baldasar and overruled it. Adopting the reasoning of the
Baldasar dissenters, Nichols held that “an uncounseled
conviction valid under Scott [v. Illinois]4 may be relied upon
to enhance the sentence for a subsequent offense, even though
that sentence entails imprisonment.” Nichols, 511 U.S. at
746–47.




  3
    Baldasar was a mess—providing no rationale for its result, the per
curiam opinion instead rested on the varying “reasons stated in [its] [three]
concurring opinions.” Nichols, 511 U.S. at 743–44 (quoting Baldasar,
446 U.S. at 224). With nothing resembling a clear holding, Baldasar
“baffled and divided the lower courts that [] considered it.” Id. at 746.
  4
   Under Scott, the Sixth Amendment right to counsel does not apply to
uncounseled state or federal proceedings in which a sentence of
imprisonment is not imposed. Scott v. Illinois, 440 U.S. 367, 372 (1979).
Scott was relevant to Nichols because Nichols challenged a sentencing
enhancement that was based on a prior uncounseled misdemeanor DUI
conviction—and, under Scott, because Nichols’s conviction did not
include a sentence of imprisonment, “the Sixth Amendment right to
counsel did not obtain.” Nichols, 511 U.S. at 741, 746.
                 UNITED STATES V. BRYANT                     17

                               A

    Unfortunately, at least for our Court, Nichols’s overruling
of Baldasar exposes our decision in Ant—and now this
opinion—as based on nothing more than a persistent distrust
for tribal courts and a failure to accept that the Sixth
Amendment does not apply to tribal proceedings. Viewing
Ant in light of Nichols, one is immediately faced with a
puzzling conundrum: If an uncounseled but valid state court
conviction can support a later federal prosecution under a
recidivist statute, then why is it that an uncounseled but valid
tribal court conviction cannot do the same?

                               B

   The court struggles to explain this anomaly without
success.

     Its arguments are but slightly rephrased repetitions of a
common theme: that “Nichols involved a prior conviction that
did comport with the Sixth Amendment, whereas this case
involves prior convictions obtained under procedures that, if
utilized in state or federal court, would have violated the
Sixth Amendment.” Bryant, 769 F.3d at 677 (internal
citations omitted).

    Yet the court’s argument is illogical. Both Nichols’s and
Bryant’s uncounseled convictions “comport” with the Sixth
Amendment, and for the same reason: the Sixth Amendment
right to appointed counsel did not apply to either conviction.
18                 UNITED STATES V. BRYANT

                                   C

    Further, the fact that the prior tribal court proceedings
“would have violated the Sixth Amendment” if they were “in
state or federal court” is irrelevant—using a federal recidivist
statute to prosecute Bryant does not transform his prior, valid,
tribal court convictions into new, invalid, federal ones.
Bryant, 769 F.3d at 678.5

    Of course, Bryant could not be punished for recidivism if
his prior convictions actually contravened the Sixth
Amendment, because he then would “in effect suffer[] anew
from the deprivation of that Sixth Amendment right.”
Burgett v. Texas, 389 U.S. 109, 115 (1967). But here there is
no Sixth Amendment violation for Bryant to “suffer anew.”
See Bryant, 769 F.3d at 679 (Watford, J., concurring) (citing
United States v. Shavanaux, 647 F.3d 993, 998 (10th Cir.
2011)).

    Just like Nichols—whose state proceedings were valid but
uncounseled, and certainly did not “afford” him the right to
appointed counsel guaranteed by the Sixth
Amendment—Bryant has never suffered through any
constitutionally deficient proceeding, and thus, just like
Nichols, his uncounseled but valid convictions can be used to
satisfy a federal statute’s recidivism element.

 5
   Indeed, as the Supreme Court has “consistently” made clear, recidivist
statutes “penaliz[e] only the last offense committed by the
defendant”—here, Bryant’s 2011 offenses, not the prior abuses for which
he was tried in tribal court. Nichols, 511 U.S. at 747; see also United
States v. Rodriquez, 553 U.S. 377, 386 (2008) (“When a defendant is
given a higher sentence under a recidivism statute . . . 100% of the
punishment is for the offense of conviction. None is for the prior
convictions or the defendant’s ‘status as a recidivist.’”).
                UNITED STATES V. BRYANT                     19

                              III

    It seems that this should have been an easy case. After
Nichols, an uncounseled but valid conviction can be used in
a subsequent prosecution under a recidivist statute. Bryant’s
uncounseled tribal convictions are valid, and the government
is seeking to use them in a subsequent prosecution under a
recidivist statute.

    Why then, does the court refuse to allow the government
to rely on the tribal court convictions?

                              A

   There can only be one answer—the court is
uncomfortable with tribal court procedures and the ICRA.

     If, as Nichols holds, uncounseled convictions in general
are not unreliable, then Ant’s outcome—and this
opinion’s—must rest on an assumption that tribal court
convictions are inherently unreliable. Such an assumption
runs directly counter to the Supreme Court’s command to
respect Indian tribes as “distinct, independent political
communities,” Worcester v. State of Georgia, 31 U.S. 515,
559 (1832), whose judicial systems must be assessed based
on their compliance with the ICRA, not the federal
constitution. See Plains Commerce Bank v. Long Family
Land & Cattle Co., 554 U.S. 316, 337 (2008) (explaining that
it is beyond dispute that the “Bill of Rights does not apply to
Indian tribes”).
20              UNITED STATES V. BRYANT

                              B

    By concluding that tribal court decisions are inherently
suspect even when they comply with the ICRA, Ant and this
opinion trample upon the principles of comity and respect
that undergird federal court recognition of tribal court
judgments. See Wilson v. Marchington, 127 F.3d 805, 810
(9th Cir. 1997); see also Iowa Mut. Ins. Co. v. LaPlante,
480 U.S. 9, 15 (1987) (extending comity to tribal courts).

     As Wilson observed:

        Comity does not require that a tribe utilize
        judicial procedures identical to those used in
        the United States Courts. Foreign-law notions
        are not per se disharmonious with due process
        by reason of their divergence from the
        common-law notions of procedure. . . .
        Federal courts must also be careful to respect
        tribal jurisprudence along with the special
        customs and practical limitations of tribal
        court systems. Extending comity to tribal
        judgments is not an invitation for the federal
        courts to exercise unnecessary judicial
        paternalism in derogation of tribal
        self-governance.

Id. at 811 (citing Hilton v. Guyot, 159 U.S. 113, 205 (1895))
(internal quotation marks omitted).

   Yet, here the court holds that “tribal court convictions
may be used in subsequent prosecutions only if the tribal
court guarantees a right to counsel that is, at minimum,
coextensive with the Sixth Amendment right,” Bryant,
                UNITED STATES V. BRYANT                     21

769 F.3d at 677 (emphasis added), imposing “judicial
procedures identical to those used in the United States
Courts.” Wilson, 127 F.3d at 810. The court exercises the
very judicial paternalism warned against in Wilson, and acts
in derogation of tribal self-governance.

    Sadly, distaste for the ICRA and contempt for tribal
courts has led the court to disregard the critical comity
interest that undergirds respect for tribal courts and their
criminal procedures and, contrary to the dictates of Congress,
the court “intrude[s] needlessly on tribal self-government.”
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 71 (1978).
This we cannot do.

                              IV

    Both this opinion and Ant are contrary to Supreme Court
precedent, invent a Sixth Amendment violation where none
exists, erode tribal sovereignty, and disregard the ICRA. If
that were not enough, this opinion creates a circuit split by
disagreeing with all other circuit courts which have addressed
the very issue presented. The concurrence and the concurral
ask for Supreme Court intervention. It appears we need it.

    I respectfully dissent from our regrettable decision not to
rehear this case en banc.
