                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.             OPINION


     Appeal from the United States District Court
             for the District of Montana
  Jack D. Shanstrom, Senior District Judge, Presiding

                Argued and Submitted
           July 10, 2014—Portland, Oregon

               Filed September 30, 2014

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

               Opinion by Judge Paez;
            Concurrence by Judge Watford
2                  UNITED STATES V. BRYANT

                           SUMMARY*


                          Criminal Law

    The panel reversed the district court’s denial of a motion
to dismiss an indictment charging the defendant, an Indian,
with two counts of domestic assault by a habitual offender, in
violation of 18 U.S.C. § 117(a).

    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 is constitutionally impermissible to use
them to establish an element of the offense in a subsequent
prosecution under § 117(a), which is an ordinary recidivist
statute and not a criminal enforcement scheme for a civil
disability.

   Concurring, Judge Watford wrote separately to highlight
why Ant warrants reexamination.




  *
    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

                             COUNSEL

Steven C. Babcock (argued), Assistant Federal Defender, and
Anthony R. Gallagher, Federal Defender, Federal Defenders
of Montana, Billings, Montana, for Defendant-Appellant.

Leif Johnson (argued), Assistant United States Attorney,
Michael W. Cotter, United States Attorney, and Michael S.
Shin, Assistant United States Attorney, United States
Attorney’s Office, Billings, Montana, for Plaintiff-Appellee.


                              OPINION

PAEZ, Circuit Judge:

    Michael Bryant, Jr., an Indian, was indicted on two counts
of domestic assault by a habitual offender, in violation of
18 U.S.C. § 117(a).1 In support of the charges, the
government relied on two prior tribal court convictions for
domestic abuse. These convictions were uncounseled and at
least one resulted in a term of imprisonment. The Sixth
Amendment guarantees indigent defendants in state and
federal criminal proceedings appointed counsel in any case
where a term of imprisonment is imposed. Scott v. Illinois,
440 U.S. 367, 369, 373–74 (1979). But the Sixth Amendment
does not apply to tribal court proceedings. United States v.
First, 731 F.3d 998, 1002 (9th Cir. 2013), petition for cert.


   1
      Although we are mindful that the term “Native American” or
“American Indian” may be preferable, we use the term “Indian”
throughout this opinion because that is the term used throughout the
United States Code. We also use the term “tribal,” as that is the term used
in 18 U.S.C. § 117(a).
4                 UNITED STATES V. BRYANT

filed, ___ U.S.L.W. ___ (U.S. Mar. 20, 2014) (No. 13-9435).
In this case, we must decide whether, in a prosecution under
§ 117(a), the government may use prior tribal court
convictions that, although not obtained in violation of the
Constitution, do not comport with the Sixth Amendment right
to counsel to prove an element of the offense. We hold that
United States v. Ant, 882 F.2d 1389, 1395 (9th Cir. 1989),
prohibits the use of such convictions in a § 117(a)
prosecution. We therefore reverse the district court’s denial
of Bryant’s motion to dismiss the indictment.

                      I. BACKGROUND

    In June 2011, Michael Bryant, Jr. was indicted on two
counts of domestic assault by a habitual offender, in violation
of 18 U.S.C. § 117(a). Section 117(a) criminalizes the
commission of “domestic assault within . . . Indian country”
by any person “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[,] . . . assault . . . against a spouse or
intimate partner.” Count I charged that in February 2011,
Bryant assaulted C.L.O., his previous girlfriend, “after having
been convicted of at least two separate prior domestic
assaults.” Count II charged that in May 2011, Bryant
assaulted his new live-in girlfriend, D.E., “after having been
convicted of at least two separate prior domestic assaults.”2
The prior domestic assaults the government relied upon were
domestic abuse convictions obtained in the Northern
Cheyenne Tribal Court.


    2
    The February 2011 and May 2011 assaults both occurred at Bryant’s
residence, which was located within the Northern Cheyenne Indian
Reservation.
                 UNITED STATES V. BRYANT                       5

    Bryant filed a motion to dismiss the indictment. He
argued that using his tribal court convictions to satisfy an
element of § 117(a) violates his Fifth and Sixth Amendment
rights because (1) he was not appointed counsel during his
tribal court proceedings and (2) only Indians may be
prosecuted under § 117(a) on the basis of a prior conviction
that does not comport with the Sixth Amendment. The
government did not contest Bryant’s representation that he
lacked the assistance of counsel during his prior tribal court
proceedings and that his convictions would have violated the
Sixth Amendment had they been obtained in state or federal
court. The district court denied the motion in a brief oral
ruling. Bryant then entered a guilty plea pursuant to a
conditional plea agreement that preserved his right to appeal
the district court’s ruling on the motion to dismiss. The
district court sentenced Bryant to forty-six months’
imprisonment on each count, to run concurrently.

 II. JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction to review a final judgment of the
district court pursuant to 28 U.S.C. § 1291. We review de
novo a district court’s denial of a motion to dismiss an
indictment on constitutional grounds. 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

    Bryant argues that using his prior tribal court convictions
as the predicate offenses in a § 117(a) prosecution violates the
Sixth Amendment right to counsel and the Fifth Amendment
guarantee of due process because these convictions were
obtained through procedures that, if utilized in state or federal
6                   UNITED STATES V. BRYANT

court, would violate the Sixth Amendment. As an initial
matter, the government argues that Bryant failed to make an
evidentiary showing that his tribal court convictions were
uncounseled. The government also argues that tribal court
proceedings are not governed by the Sixth Amendment and
convictions that were not obtained in actual violation of the
Constitution may be used in subsequent prosecutions.3

    We may easily dispose of the government’s first
argument. In district court, Bryant repeatedly represented
that he lacked counsel during the relevant tribal court
proceedings. Yet, the government never objected that Bryant
had not met his evidentiary burden on this point, even when
Bryant characterized the issue as “undisputed.” Accordingly,
the issue is waived, United States v. Carlson, 900 F.2d 1346,
1349–50 (9th Cir. 1990), and we assume that Bryant did not
have the benefit of counsel during his prior tribal court
domestic abuse proceedings.4

   The merits of this case pose a more difficult question.
The United States Constitution guarantees criminal

 3
   In its supplemental brief addressing the impact of First on this case, the
government argued that it could rely on Bryant’s tribal court convictions
for another reason: at least two of his tribal court domestic abuse
convictions did not result in a term of imprisonment, and therefore, did
comport with the Sixth Amendment. The government has since conceded
that Bryant does not have two prior tribal court domestic abuse
convictions that did not result in a sentence of incarceration.
     4
    Moreover, there is no serious doubt that Bryant was not appointed
counsel during his tribal court domestic abuse proceedings. The Law and
Order Code of the Northern Cheyenne Tribe, Title 5, Chapter III, Rule 22
provides that a defendant in a criminal case has the right to “defend
himself . . . by . . . [an] attorney at his own expense.” The Tribe does not
guarantee a right to appointed counsel in any case.
                 UNITED STATES V. BRYANT                      7

defendants the right to assistance of counsel for their defense.
U.S. Const. amend. VI; see also Gideon v. Wainwright,
372 U.S. 335, 342–45 (1963). The right to appointed counsel
for indigent criminal defendants is a “logical corollary” of
this guarantee. Powell v. Alabama, 287 U.S. 45, 72 (1932).

    In a line of cases beginning with Powell, the Supreme
Court has set forth when the right to appointed counsel is
triggered. See id. at 68–69, 71–72 (holding that the
Fourteenth Amendment provides capital defendants with a
right to appointed counsel because the due process right to be
heard encompasses a right to be heard by counsel). In
Johnson v. Zerbst, 304 U.S. 458, 463 (1938), the Court
recognized that the Sixth Amendment guarantees indigent
criminal defendants the right to appointed counsel in federal
proceedings. The Court subsequently held that the Sixth
Amendment right to appointed counsel applies to the states as
well through the Fourteenth Amendment. Gideon, 372 U.S.
at 342–45.

    Johnson and Gideon involved felony prosecutions, but the
Court later clarified that the right to appointed counsel for
indigent defendants attaches in all criminal cases “where loss
of liberty is . . . involved,” regardless of how a crime is
classified. Argersinger v. Hamlin, 407 U.S. 25, 37 (1972).
In Scott, the Court further refined the right, holding that
indigent defendants are entitled to appointed counsel only in
those cases where a term of imprisonment is actually
imposed, and not in every case where a term of imprisonment
could be imposed. 440 U.S. at 369, 373–74. Finally, in
Alabama v. Shelton, 535 U.S. 654, 658, 662, 674 (2002), the
Court concluded that imposition of a suspended sentence
constitutes a term of imprisonment that triggers the Sixth
Amendment right to appointed counsel.
8                   UNITED STATES V. BRYANT

     However, the Sixth Amendment right to appointed
counsel does not apply in tribal court proceedings, First,
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 generally inapplicable
to tribal courts, Santa Clara Pueblo v. Martinez, 436 U.S. 49,
56 (1978); Talton v. Mayes, 163 U.S. 376, 382–83 (1896).5
Consequently, Bryant’s prior uncounseled tribal court
convictions that resulted in terms of imprisonment are not
unconstitutional, and Bryant does not contend otherwise.
Rather, Bryant argues that, because his convictions would
have been unconstitutional had they been obtained in state or
federal court, they may not be used to prove his guilt in a
§ 117(a) prosecution.

    We agree that Bryant’s prior tribal court domestic abuse
convictions would have violated the Sixth Amendment had
they been obtained in state or federal court. Under
Argersinger and Scott, indigent criminal defendants have a
right to appointed counsel in any state or federal case where
a term of imprisonment is imposed. Scott, 440 U.S. at 369,

    5
     “As separate sovereigns pre-existing the Constitution, tribes have
historically been regarded as unconstrained by those constitutional
provisions framed specifically as limitations on federal or state authority.”
Santa Clara Pueblo, 436 U.S. at 56. Congress nonetheless has plenary
authority to impose limits on tribal self-government. Id. Acting under its
plenary authority, Congress has required tribal courts to provide a limited
right to counsel in criminal tribal court proceedings through the Indian
Civil Rights Act (“ICRA”), which mandates that criminal defendants in
tribal court be permitted to retain counsel at their own expense, and the
Tribal Law and Order Act of 2010, which requires tribes to provide
indigent defendants with appointed counsel in those cases where the tribal
court imposes a term of imprisonment that exceeds one year. See First,
731 F.3d at 1002 & n.3. Indian tribes are, or course, free to grant
additional rights through their own laws. See id. at 1003 & n.4.
                UNITED STATES V. BRYANT                     9

373–74; Argersinger, 407 U.S. at 37. We must examine
another line of cases, however, to determine whether
convictions arising from proceedings that neither violate the
Sixth Amendment nor provide an equivalent right to counsel
may be used to prove an element of the offense in a later
federal prosecution.

    In a series of cases following Gideon, the Supreme Court
addressed whether prior convictions obtained in violation of
the Sixth Amendment right to counsel may be used in
subsequent proceedings. In the first few such cases, the Court
consistently held that uncounseled convictions obtained in
violation of Gideon could not be used in subsequent
proceedings to (1) prove the prior felony conviction element
of a recidivist statute, Burgett v. Texas, 389 U.S. 109, 111,
114–16 (1967), (2) impose a higher sentence based on a prior
conviction, United States v. Tucker, 404 U.S. 443, 447, 449
(1972), or (3) impeach a defendant’s credibility, Loper v.
Beto, 405 U.S. 473, 476, 482–83 (1972) (plurality opinion).

    In Lewis v. United States, 445 U.S. 55, 66–67 (1980), the
Court held, for the first time, that a prior conviction that
violated the Sixth Amendment could be used in a subsequent
prosecution. In Lewis, the defendant was convicted under a
predecessor felon-in-possession-of-a-firearm statute. Id. at
57–58. He challenged the government’s use of a prior
conviction obtained in violation of Gideon to prove he was a
felon. Id. The Court acknowledged Burgett, Tucker, and
Loper, but did not read those cases to stand for the
proposition that “an uncounseled conviction is invalid for all
purposes.” Id. at 66–67. It concluded that Lewis’s prior
uncounseled conviction could be used in a subsequent
prosecution because the conviction was providing a basis for
imposing only a firearms prohibition—an “essentially civil
10              UNITED STATES V. BRYANT

disability,” albeit one that was “enforceable by a criminal
sanction.” Id. at 67.

    Not long after Lewis, the Court considered whether an
uncounseled conviction that did not result in
imprisonment—and therefore did not run afoul of the Sixth
Amendment—could be used in a subsequent prosecution
under a recidivist statute. See Baldasar v. Illinois, 446 U.S.
222, 223–24 (1980), overruled by Nichols v. United States,
511 U.S. 738 (1994). In a splintered decision, five justices,
in three separate opinions, ruled that it could not. Lower
courts struggled to interpret and apply Baldasar, see Nichols,
511 U.S. at 745, and, ultimately, the Court revisited a similar
question in Nichols. In Nichols, the defendant pled guilty to
conspiracy to possess cocaine with intent to distribute, in
violation of 21 U.S.C. § 846. Id. at 740. When calculating
Nichols’s criminal history points during sentencing, the
district court considered a prior uncounseled state court
conviction for which Nichols received a fine but was not
incarcerated. Id. The Court held that an uncounseled prior
conviction valid under Scott—as Nichols’s was—“may be
relied upon to enhance the sentence for a subsequent offense,
even though that sentence entails imprisonment.” Id. at
746–47.

    The Supreme Court has never addressed whether a
conviction obtained in a forum not governed by the
Constitution under procedures that do not comport with the
Sixth Amendment right to counsel may be used in a
subsequent prosecution. Our court, however, has twice
addressed this issue. In Ant, we considered whether an
uncounseled tribal court guilty plea to charges of assault and
battery, which resulted in a six-month term of imprisonment,
could be introduced as evidence of guilt in a subsequent
                 UNITED STATES V. BRYANT                     11

federal prosecution for manslaughter arising out of the same
incident. 882 F.2d at 1390–91. We held that it could not,
reasoning 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 absent a knowing and
intelligent waiver” of his right to counsel. Id. at 1394. This
fact rendered the plea “constitutionally infirm” and
inadmissible in a later federal prosecution. Id. at 1395.

    More recently, in First, we considered whether a prior
uncounseled tribal court conviction that resulted in a term of
imprisonment could be used as the predicate offense in a
prosecution under 18 U.S.C. § 922(g)(9). 731 F.3d at
1000–01, 1003. Section 922(g)(9) makes it unlawful for a
person convicted of a misdemeanor domestic violence
offense to possess a firearm. Noting the similarity between
§ 922(g)(9) and the statute in Lewis, we concluded that “it is
of no moment that First’s misdemeanor conviction was
obtained without complying with the Sixth Amendment,”
because the government sought to use the conviction only to
enforce a civil firearms disability. Id. at 1008–09. In so
holding, we discussed Ant, stating as follows:

       We do not question Ant’s continued vitality.
       Ant stands for the general proposition that
       even when tribal court proceedings comply
       with ICRA and tribal law, if the denial of
       counsel in that proceeding violates federal
       constitutional law, the resulting conviction
       may not be used to support a subsequent
       federal prosecution.      Lewis, however,
12               UNITED STATES V. BRYANT

        demonstrates that the federal firearms statute
        is an exception from this general rule.

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

    We agree that, as a general rule, Ant holds that a
conviction obtained in a tribal court that did not afford a right
to counsel equivalent to the Sixth Amendment right may not
be used in a subsequent federal prosecution. Accordingly, we
hold that, subject to the narrow exception recognized in Lewis
and First 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. Section 117(a) is an
ordinary recidivist statute and not a criminal enforcement
scheme for a civil disability. Accordingly, the general rule
announced in Ant applies. Because Bryant’s tribal court
domestic abuse convictions would have violated the Sixth
Amendment right to counsel had they been obtained in
federal or state court, using them to establish an element of
the offense in a subsequent § 117(a) prosecution is
constitutionally impermissible. See Ant, 882 F.2d at
1394–95.

    We reject the government’s arguments to the contrary.
The government contends this case is controlled by Nichols,
not Ant. But Nichols involved a prior conviction that did
comport with the Sixth Amendment, 511 U.S. at 740, 746–47,
whereas this case involves prior convictions obtained under
procedures that, if utilized in state or federal court, would
have violated the Sixth Amendment. Ant is the relevant
authority.
                UNITED STATES V. BRYANT                     13

    The government also argues that Ant is no longer good
law because it relied on Baldasar, which Nichols overruled.
Ant cited Baldasar only once, and for the general proposition
that an uncounseled conviction could not be used to prove an
element of a recidivist statute. Ant, 882 F.2d at 1394.
Nichols did overrule Baldasar’s holding that an uncounseled
conviction valid under Scott could not be used in a
subsequent prosecution. Nichols, 511 U.S. at 746–47. But
even after Nichols, uncounseled convictions that resulted in
imprisonment generally could not be used in subsequent
prosecutions. See id. But see Lewis, 445 U.S. at 66–67.
Because Ant involved the latter scenario, see 882 F.2d at
1390–91, it remains good law notwithstanding its citation to
Baldasar.

    Moreover, for us to overrule our own precedent, a
Supreme Court decision “must have undercut the theory or
reasoning underlying the prior circuit precedent in such a way
that the cases are clearly irreconcilable.” Miller v. Gammie,
335 F.3d 889, 900 (9th Cir. 2003) (en banc); see also
Gonzales v. Dep’t of Homeland Sec., 508 F.3d 1227, 1235
(9th Cir. 2007) (explaining that where a Supreme Court case
did not actually address the issue raised in a prior Ninth
Circuit case, a three-judge panel remained bound by circuit
precedent notwithstanding the implications of the subsequent
Supreme Court case). Nichols and Ant are easily reconcilable
because Nichols involved an uncounseled conviction valid
under the Sixth Amendment, whereas Ant involved prior
tribal court proceedings that, in state or federal court, would
not have been valid under the Sixth Amendment.
Accordingly, we read Nichols and Ant to stand for the
proposition that, subject to the limited exception recognized
in Lewis and First, the Sixth Amendment permits using a
prior conviction in a later prosecution only if, in the prior
14                  UNITED STATES V. BRYANT

proceeding, the defendant was afforded, at a minimum, the
same right to counsel as guaranteed by the Sixth Amendment.
Nothing in Nichols mandates adopting the government’s
position that, as long as the conviction does not violate the
Constitution, it may be used in a later prosecution.

    We recognize 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). Shavanaux and Cavanaugh held that a
prior uncounseled tribal court conviction could be used as a
predicate offense for a § 117(a) prosecution. Shavanaux,
647 F.3d at 997; Cavanaugh, 643 F.3d at 603–04. The
Shavanaux court reasoned that, because the Sixth
Amendment does not apply in tribal court, using a tribal court
conviction in a subsequent prosecution cannot violate the
Sixth Amendment. 647 F.3d at 996–98. The Cavanaugh
court read Nichols as establishing a bright-line rule that so
long as a conviction did not violate the Constitution, it could
be used in a subsequent proceeding. 643 F.3d at 603–04.
Shavanaux and Cavanaugh cannot be reconciled with Ant,
and we are bound by Ant.6

  6
    In fact, both the Eighth Circuit and the Tenth Circuit recognized that
their holdings were at odds with Ant. Shavanaux, 647 F.3d at 997–98;
Cavanaugh, 643 F.3d at 604–05.

     The Shavanaux court rejected Ant as wrongly decided. 647 F.3d at
997–98. It disagreed with Ant’s “threshold determination that an
uncounseled tribal conviction is constitutionally infirm,” believing that
this determination was a consequence of having “overlook[ed]” the Talton
line of cases establishing that tribal courts are not governed by the
Constitution. Id. But Ant did not overlook this case law. Although Ant
did not cite Talton, it recognized repeatedly that tribal court proceedings
are limited only by the ICRA and tribal law. See 882 F.2d at 1391–92,
1395. In describing Ant’s guilty plea as “constitutionally infirm,” the Ant
                    UNITED STATES V. BRYANT                              15

    As we did in First, we reiterate Ant’s continued vitality.
See 731 F.3d at 1008 n.9. Under Ant, 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. See 882 F.2d at 1394–95.
Bryant’s relevant tribal court convictions do not meet this
standard. Consequently, the charges against him must be
dismissed.7




court used a convenient shorthand term to refer to the fact that Ant’s guilty
plea, although not obtained in violation of the Constitution, was obtained
through procedures that, had they been employed in state or federal court,
would have been unconstitutional. Read in context, the term does not
suggest that Ant’s holding is based on the faulty premise that the
Constitution applies to tribal court proceedings.

     The Cavanaugh court distinguished Ant, because in Ant, the
subsequent federal proceeding arose out of the same incident as the tribal
court proceeding and the government sought to use a guilty plea that did
not comport with the Sixth Amendment to prove, not merely the fact of a
prior conviction, but the truth of the matter asserted in the plea. See
643 F.3d at 604–05. This is a distinction without a difference. As the
Cavanaugh dissent explained, the key factor in both Ant and Cavanaugh
was the government’s reliance on prior tribal court proceedings, that, if
governed by the Constitution, would have violated the Sixth Amendment
right to counsel to prove an element of the offense. Id. at 607 (Bye, J.,
dissenting).
  7
   Bryant also argues that using his tribal court convictions as predicate
offenses is a violation of the Fifth Amendment’s guarantee of equal
protection because only Indians are subject to prosecution based on prior
convictions that do not comport with the Sixth Amendment right to
counsel. Given the result we reach, we need not address Bryant’s equal
protection argument.
16              UNITED STATES V. BRYANT

                    IV. CONCLUSION

    We hold that the § 117(a) charges against Bryant must be
dismissed because at least one of his predicate tribal court
domestic abuse convictions was uncounseled and resulted in
a term of imprisonment.

     REVERSED.



WATFORD, Circuit Judge, concurring:

    I agree with the majority that United States v. Ant,
882 F.2d 1389 (9th Cir. 1989), remains binding and controls
the outcome of this case. I write separately to highlight three
reasons why, in my view, Ant warrants reexamination.

    1. The Supreme Court’s decision in Nichols v. United
States, 511 U.S. 738 (1994), doesn’t squarely overrule Ant,
but it does call Ant’s reasoning into question. Nichols held
that an uncounseled misdemeanor conviction valid under
Scott v. Illinois, 440 U.S. 367 (1979)—because no term of
imprisonment was imposed—may be used “to enhance the
sentence for a subsequent offense, even though that sentence
entails imprisonment.” 511 U.S. at 746–47. The Court’s
holding undermines the notion that uncounseled convictions
are, as a categorical matter, too unreliable to be used as a
basis for imposing a prison sentence in a subsequent case.
Nichols suggests that so long as a prior conviction isn’t
tainted by a constitutional violation, nothing in the Sixth
Amendment bars its use in subsequent criminal proceedings.
                UNITED STATES V. BRYANT                    17

    That principle is hard to square with the result we reach
today by applying Ant. It’s true that Michael Bryant’s prior
domestic abuse convictions would have been obtained in
violation of the Sixth Amendment had he been tried in state
or federal court, since he lacked appointed counsel and
appears to have received a term of imprisonment following
those convictions. See Scott, 440 U.S. at 373–74. But the
fact remains that his prior convictions were not obtained in
violation of the Sixth Amendment because they occurred in
tribal court, where the Sixth Amendment doesn’t apply.
United States v. Percy, 250 F.3d 720, 725 (9th Cir. 2001). It
seems odd to say that a conviction untainted by a violation of
the Sixth Amendment triggers a violation of that same
amendment when it’s used in a subsequent case where the
defendant’s right to appointed counsel is fully respected. As
the Tenth Circuit stated, “Use of tribal convictions in a
subsequent prosecution cannot violate ‘anew’ the Sixth
Amendment, because the Sixth Amendment was never
violated in the first instance.” United States v. Shavanaux,
647 F.3d 993, 998 (10th Cir. 2011) (citation omitted). The
contrary rule we adopted in Ant would make sense if
uncounseled convictions were deemed insufficiently reliable
to warrant giving them any weight in subsequent criminal
proceedings. But, as I’ve noted, Nichols undercuts the
proposition that uncounseled convictions are categorically
unreliable.

    Further doubt is cast on Ant’s vitality when we consider
the exception carved out in Lewis v. United States, 445 U.S.
55 (1980), and United States v. First, 731 F.3d 998 (9th Cir.
2013). In Lewis, the Supreme Court held that a felony
conviction obtained in violation of the Sixth Amendment
could nevertheless be used as a predicate for a
felon-in-possession charge. 445 U.S. at 67. The Court
18              UNITED STATES V. BRYANT

reasoned that the firearms prohibition relied “on the mere fact
of conviction,” not the reliability of that conviction, to
enforce through 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 conviction that would have violated the Sixth
Amendment if obtained in state or federal court could also be
used as a predicate for a similar firearms possession statute.
731 F.3d at 1008–09.

    The resulting asymmetry is striking. In Lewis and First,
the “mere fact of conviction,” even if unreliable and
unconstitutionally obtained, could be used to criminalize an
act that might otherwise 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 violence conviction
cannot be used to support punishment for an act that is
already criminal—domestic violence. That seems illogical.
If anything, we would want to be more cautious about the use
of uncounseled prior convictions in prohibiting firearms
possession, because that prohibition impinges upon what
would otherwise be a fundamental right. We aren’t
impinging upon anyone’s rights when we prohibit (or
enhance penalties for) domestic violence, since no one has the
right to abuse a spouse or intimate partner to begin with. The
reason for holding that the Sixth Amendment is violated in
this case but not in Lewis and First isn’t easy to grasp.

    2. So why are we refusing to recognize the validity of
Bryant’s prior domestic abuse convictions in this case, given
that the convictions themselves aren’t constitutionally infirm?
Presumably it’s because of concerns over the reliability of
those convictions. As discussed above, though, that concern
apparently doesn’t exist across the board with respect to
                 UNITED STATES V. BRYANT                      19

uncounseled convictions obtained in state or federal courts.
So aren’t we really saying that the right to appointed counsel
is necessary to ensure the reliability of all tribal court
convictions? If that’s true, we seem to be denigrating the
integrity of tribal courts, as discussed in the dissent in Ant.
See 882 F.2d at 1397–98 (O’Scannlain, J., dissenting). The
implication is that, if the defendant lacks counsel, tribal court
convictions are inherently suspect and unworthy of the
federal courts’ respect. While in our adversarial system
we’ve concluded that the lack of counsel detracts from the
accuracy and fairness of a criminal proceeding, see Gideon v.
Wainwright, 372 U.S. 335, 342–44 (1963), respect for the
integrity of an independent sovereign’s courts should
preclude such quick judgment. See Wilson v. Marchington,
127 F.3d 805, 811 (9th Cir. 1997).

    3. It’s perhaps unsurprising that our decision in this case
conflicts with decisions from two of our sister circuits. Faced
with almost identical scenarios—prior, uncounseled tribal
court convictions that would have violated the Sixth
Amendment in state or federal court and that were used as
predicate offenses under 18 U.S.C. § 117—the Eighth and
Tenth Circuits pointedly disagreed with us. See United States
v. Cavanaugh, 643 F.3d 592, 595, 604 (8th Cir. 2011); United
States v. Shavanaux, 647 F.3d 993, 995–98 (10th Cir. 2011).
As our colleagues on the Eighth Circuit noted, “Supreme
Court authority in this area is unclear; reasonable decision-
makers may differ in their conclusions as to whether the Sixth
Amendment precludes a federal court’s subsequent use of
convictions that are valid because and only because they
arose in a court where the Sixth Amendment did not apply.”
Cavanaugh, 643 F.3d at 605. Given this circuit split and the
lack of clarity in this area of Sixth Amendment law, the
Supreme Court’s intervention seems warranted.
