United States v. Cavanaugh

as a this comment should be construed continue,

motion court’s decision to trial was not or

proceed unreasonable of discretion. The case been abuse had months, many

pending for and Bonilla- ample organize

Siciliano had time colloquy morning

defense. on the trial, he identified no potential witnesses expected testimony gave no other justify delay.

reason The court did

allow Bonilla-Siciliano to make an offer

proof through testimony his own and ex- circumstances,

hibits. Under these egre-

conclude the court’s conduct was not

gious fundamentally unfair. judgment of the district court is

affirmed. America,

UNITED STATES

Plaintiff-Appellant, CAVANAUGH, Jr.,

Roman

Defendant-Appellee.

No. 10-1154. Appeals,

United States Court of

Eighth Circuit.

Submitted: Oct. 2010. July

Filed: 2011.

Rehearing Rehearing En Banc Aug.

Denied Friedman, argued, Washing- A.

Richard ton, Reisenauer, AUSA, DC, Keith W. brief, Morley, Fargo, on Janice Mae ND, appellant. Reichert, argued, F.

Alexander Grand Forks, ND, for appellee. RILEY, Judge, Chief MELLOY

Before BYE, Judges. Circuit MELLOY, Judge. Circuit Jr., charged Cavanaugh, Roman by a the offense of domestic assault habit- offender, § ual 117. 18 U.S.C. As ele- government must ments of prove Cavanaugh received “a final convic- least 2 separate prior tion on at occasions Federal, State, or Indian tribal court proceedings” for certain abuse offenses. 117(a). Below, § district court dis- because, although missed the indictment had Cavanaugh received misdemean- or abuse convictions tribal court on occasions, Cavanaugh separate had three appointed coun- received the benefit sel in the that resulted in the convictions. presented appeal in this are

The issues whether the Fifth or Sixth Amendments pre- Constitution the United States the use of these tribal-court clude predicate con- misdemeanor convictions as the habitual-offender victions to establish Cavanaugh’s prior elements of in actual incarceration convictions resulted that, pursuant Wainwright, to Gideon v. 792, 9 L.Ed.2d 799 Illinois, (1963), and Scott v. unconstitutional viola- would have been ap- tion the Sixth Amendment had if the convictions pointed counsel or federal court. originated a state court, recognizing pense, alleges The district but he did not so. do He imposes duty no In- indigent Sixth Amendment case that he was indigent counsel for the time provide Impor- dian tribes to convictions.1 defendants, tantly, Cavanaugh noted convic- ir- allege does regularities at inception were their and in tions valid that led to prior prior of were beyond that the terms incarceration his tribal-court convictions not in violation of the United Con- of Spirit States counsel. The Lake stitution, law, tribal or the Indian Civil Tribal provides proce- an appeal Act, court, dure, § Rights 25 U.S.C. 1302. The but Cavanaugh did not appeal his nevertheless, held that the uncounseled tribal-court convictions. Neither Cava- naugh convictions infirm of purpose government were nor the state whether habitual-offender, proving predicate- actually Cavanaugh officials advised of his § of conviction elements 117 offense right appeal his tribal-court convictions. in pro- however, subsequent Cavanaugh, these federal court does not assert de- ceedings. privation of tribal appellate rights as an irregularity infirmity surrounding his government appeals, The and we re- prior convictions. so, In doing apparent verse. we note an inconsistency giving in The conduct rise dealing several cases with offense arguably Cavanaugh’s the use of infirm involved of prior judgments assault his guilt, to establish common-law wife who is trigger a en- also the mother of sentencing hancement, his child. night or determine a for a On the sentence however, Cavanaugh Ultimately, together offense. and the victim were children, in a car persuaded we are with Cavanaugh this case that convictions, intoxicated, predicate driving, both incep- valid their adults were and tion, Cavanaugh and not and the alleged began fighting. be otherwise unre- victim may In the liable, prove fight, be course of Cavanaugh used the elements head, § grabbed of 117. jerked the victim’s it back forth, and and slammed it into the dash- I. Background board. also He threatened to kill her. Cavanaugh pulled field, then the car into Cavanaugh is an enrolled member of the where the victim jumped from the vehicle Spirit Lake repeat Sioux Tribe and a do- Cavanaugh eventually and hid. drove mestic-abuse offender. He was convicted away. subsequently Authorities arrested Spirit Lake Tribal Court of misde- Cavanaugh him charged pres- and with the meanor domestic abuse offenses March ent offense. (two counts), April January and cases, 2008. In all three he was reaching advised In its decision that Cava- his right to retain naugh’s his own ex- prior tribal-court convictions could case, regarding The record is devoid of evidence tion of the we need not address this Cavanaugh's indigency. The district court as- question may indigency. and assume his indigent sumed he was convictions, at the time of addition, although the record before the dis- and will do same. Cavanaugh trict court failed to had government argued below its brief to convictions, been incarcerated for his question Cavanaugh's our court that the Cavanaugh asserted that he had been incar- indigency at the time of his offenses cerated, the district court assumed Cava- need if addressed it is determined that incarcerated, naugh appeal, had been and on anof uncounseled tribal-court conviction government point. concedes this impermissible. would be our Given resolu- criminal offense because the satisfy the elements elements used not be relevant courts applies § district court reviewed to counsel federal would, the permissible regarding caselaw of such convictions and because use convic- impermissible uses essentially, give rise anew to a Sixth addressed at some The court also tions. by imposing federal Amendment violation heightened vio- the conditions of length upon based the un- punishment, part, Indi- drug alcohol abuse on lence and counseled conviction. to national aver- compared

an lands when legislative ages. The court reviewed the II. Discussion with history of and noted concern Validity Cavanaugh’s A. Prior Con- with level of recidivism associated high the victions as well as the often- domestic abusers sub- increasing severity of such offenders’ not Although the district court did The violent acts. court concluded sequent Cavanaugh’s find tribal-court convictions 117, § Congress passed part, in as ar inception, Cavanaugh invalid from their capture repeat mis- measure to gap-filling they inception from their gues were invalid in a domestic-abuse offenders demeanor provide the court did not because tribal that, generally, recidivist federal scheme court-appointed argument is counsel. This applied only persons convicted had merit. citi Although Indians are without the The court’s review of felonies. district of the United States entitled to the zens it clear that situ- history makes legislative protections against same constitutional alleged in involving facts like those ations citizens, as all the federal state action precisely type Cavanaugh’s case are apply does not to restrict Constitution bring intended to Congress situations separate, quasi- actions of Indian tribes as § 117. within the bounds of Pueblo sovereign bodies. See Santa Clara length The court also noted some Martinez, 49, 56, 1670, 98 S.Ct. justice systems shortcomings of tribal (“As (1978) separate L.Ed.2d sover 106 resources, ongoing by a lack of caused Constitution, pre-existing the tribes eigns these short- resources to overcome lack of regarded as uncon historically been relationship between comings, evolving by provisions those constitutional strained ju- tribal jurisdiction federal specifically as limitations on feder framed risdiction, in changes general and the authority.”); Chip Twin al or state Cities towards tribal policies of United States Chippewa Tribal v. Minn. pewa Council justice systems the decades. The over Cir.1967) (8th Tribe, 529, 533 370 F.2d that, ultimately although concluded (“The Process guarantees of Due convic- misdemeanor uncounseled tribal solely by relate to action a state clause result in actual incarceration tions could application have no government and facilities, incarceration involved tribal such such.”) Tribes, acting of Indian actions of the States Constitu- no violation United omitted). (internal citations Rights Bill of tion because the however, Congress, enjoys broad apply do not Fourteenth Amendment regulate and limit or tribal affairs power the Indian Civil tribes and because Indian In sovereignty through the expand tribal tribes a impose upon Act does not Rights Const, I, Clause, art. dian Commerce misde- provide indigent duty II, Clause, Treaty art. held, § cl. and the nev- The court defendants. meanor Lara, § cl. 2. See States v. ertheless, United convictions could such L.Ed.2d prove the U.S. used federal courts to (2004). authority, Pursuant to this at the time of a conviction unless a defen- Rights Congress passed Indian Civil received, validly dant waived the Act, some, all, selectively applying but to, counsel. the Bill of to situ-

protections Rights that, government argues because govern- where an Indian tribe is the ations Cavanaugh’s prior convictions were valid 90-284, Pub. L. mental actor. See No. from their inception, the convictions should (codified II, § Stat. 77 Title be valid for federal court to 1302). § part currently at 25 As U.S.C. § the elements of the 117 viola- by amended Tribal Law and Act Order 111-211, II, that, Pub. L. No. Title Cavanaugh argues tion. because 234(a), the Indian Stat. convictions would have been ob- invalid if Rights requires appoint- Civil Act court, tained state or federal where the indigent ment of counsel for criminal de- apply, Sixth Amendment does we should prosecutions fendants in tribal court for treat convictions as infirm for use result in a term of incarceration arguments court. These raise year. greater than one See 25 U.S.C. First, separate two issues. whether Cava- (c)(2).2 1302(a)(6),(b), § & Accordingly, if is naugh correct that state or federal con- provide right a tribe elects not for the victions, themselves, in and of would have laws, appointed through its own been invalid for a purpose proving Indian defendants tribal court have no subsequent § they 117 violation had arisen statutory right ap- Constitutional or in these circumstances whether such pointed counsel unless to a term sentenced state federal convictions would be valid greater of incarceration than year. one (with for purposes such The tension inherent in the incarceration, terms rather than the case arises when such a conviction—valid themselves, convictions being unconstitu- inception at its aas matter of federal and tional). States, See v. Lewis United 445 tribal statutory law and as a matter of 55, 66-67, 915, U.S. L.Ed.2d brought Constitutional law—is into federal (“We course, recognize, an or state court in effort to establish or under Sixth Amendment an uncoun- enhance term of federal or incar state felony seled conviction cannot for be used ceration. This tension exists because the Court, however, purposes.... certain The ability tribal-court to impose a term of never suggested has that an uncounseled year incarceration of to up upon one based (in- conviction is all purposes.” invalid for an uncounseled conviction is inconsistent omitted)). Second, ternal citations assum- Waimuright, 335, with Gideon v. 372 U.S. ing such state or federal convictions would 792, (1963), 83 S.Ct. 9 L.Ed.2d 799 and § be infirm as predicates, whether Illinois, 367, v. Scott 440 U.S. 99 S.Ct. similar, but otherwise valid tribal convic- 1158, (1979). cases, 59 L.Ed.2d 383 These tion should be treated as infirm for explained below, such fully as more hold that purposes federal and even it though technically state courts cannot constitu tionally impose term of incarceration not unconstitutional. Cavanaugh's offenses).

2. At the years time of convic- tribal for individual 25 U.S.C. tions, preceded 1302(b). which the Tribal Law and § Law The Tribal and Order Act of 2010, Order Act of tribal 2010, courts were restrict- however, appoint- now mandates court impose ed to no sentences of incarceration imposes great- ed counsel if a tribe a sentence Now, greater year. than one courts tribal 1302(c)(2). year. er one than may impose longer (up sentences to three knowledge adequately skill it is we believe both question, the first As to defense, Supreme though relevant even he prepare to address helpful involv- Eighth precedent perfect requires He Circuit one. Court Sixth Amendment scope every step of the hand ing guiding of counsel cases ad- counsel and also those right proceedings against hiin. Without argu- on the uses of dressing limitations it, though guilty, he be not he faces for recidivist prior judgments infirm ably of conviction because he does danger review, purposes. This or enhancement how his innocence.” know to establish however, an- does conclusive provide Gideon, 345, 372 U.S. at 83 S.Ct. un- question of whether an swer Alabama, 45, Powell v. 287 U.S. (quoting conviction could state or federal counseled (1932)). 77 L.Ed. 158 53 S.Ct. § 117 the elements of be used This review violation this situation. in a cases Subsequently, line of does, view, guidance provide in our Argersinger culminated with v. Ham answering the of whether question lin, 32 L.Ed.2d 92 S.Ct. valid tribal-court treat otherwise should (1972), the limita explained present purposes. invalid circuits, however, right. of this tions unclear, to be Argersinger found Right to Counsel B. Sixth Amendment Illinois, Scott of Un- and Limitations on Use the Court counseled or Federal Convic- State issue, clarifying Argersinger revisited tions. unambiguously holding and that the interpreted Supreme The Court counsel is when a is to violated defendant requiring court- Amendment as the Sixth it any to term of incarceration: sentenced indigent de counsel for appointed deprivation liberty, the actual of not the is Zerbst, v. 304 U.S. fendants Johnson liberty, of a of not jeopardy deprivation 463, 1019, 458, 82 L.Ed. 1461 58 S.Ct. punishment, form and not some lesser of (1938). 455, Brady, U.S. Betts v. of any particular length incarceration 1252, 471-72, 86 L.Ed. S.Ct. the of the Sixth triggers protections (1942), the held that this Sixth Court Scott, 373-74, 99 440 U.S. at Amendment. right apply against not Amendment did an con (affirming uncounseled the reconsidered the states. Court imprisonment not and resulting viction Betts, however, in v. holding of Gideon hold that the Sixth stating, “We therefore 335, 345, Wainwright, 372 U.S. Amendments to the Unit and Fourteenth (1963), 792, held that 9 L.Ed.2d 799 no require only that ed States Constitution right to counsel this Sixth Amendment criminal defendant sentenced indigent be against through states the applies as imprisonment a term of unless the State de Amendment. Gideon Fourteenth right to of has afforded him the assistance this the fundamental nature of scribed defense”); in his see appointed counsel of by explaining how right States, v. 531 U.S. also Glover United question called into counsel 121 S.Ct. 148 L.Ed.2d 604 any resulting of conviction: jail has actual time (“[A]ny amount of may of he “Left without the aid significance.”). Sixth Amendment charge, proper put be on trial without court, courts, put and other evi- Our upon incompetent and convicted sentences, by dence, practice vacating into irrelevant to the issue Scott or evidence intact, leaving where He lacks but convictions or otherwise inadmissible. Also, Beto, convictions sen- government gime. Loper obtained v. without providing of incarceration tences White, See, e.g.,

counsel. United States v. prosecutors held could (8th (“Al- Cir.1976) 1390, 1394 529 F.2d prior, not impeach defendant with a un- valid, the conviction is we cannot though felony counseled These conviction. cases 90-day suspended prison affirm his term seem to have reflected a general belief clearly did appellant since waive his it necessary prevent erosion Therefore, right counsel.... we vacate “principle” and that the Gideon 90-day affirm suspended sentence but counsel, deprivation essentially, earlier fíne.”); the conviction and also see $50 through subsequent pro- flowed Ortega, United States v. 94 F.3d 770 ceeding to make punishment future (2d Cir.1996) (“At outset, reject punishment enhancement of obtained defendants-appellants’ contention in reliance on the earlier conviction a new their state court convictions are invalid. example, violation of For Gideon. Scott, pro- Under the Sixth Amendment Burgett Court in stated: tects uncounseled misdemeanor defen- permit To conviction obtained viola- judgment not from dant conviction but tion Wainwright Gideon used from the of certain imposition types of against person guilt to support either appropriate for a remedy sentences. The punishment or enhance for another of- therefore, violation, is Scott vacatur fense principle is to erode the of that sentence, portion invalid of the yet, case. Worse since the defect itself.”). reversal of the conviction This conviction was denial of the Scott, however, treatment of an- fails to counsel, accused effect suffers the question swer of whether or how a anew the deprivation of that Sixth might be able to make right. Amendment use of such a conviction for enhancement Burgett, 88 S.Ct. 258 purposes elements (internal omitted) citation (emphasis add- recidivist offense. ed). Gideon, Scott, After and before the Su- penultimate in case this line of cases preme initially Court determined that Illinois, arguably was Baldasar v. 446 several different uses of infirm prior con- 222, 227-28, 1585, U.S. 64 impermissible victions were during subse- (1980), L.Ed.2d in 169 which the Court quent proceedings if the earlier convic- held, post-Scott, that an uncounseled mis- tions were obtained in violation of the demeanor conviction that resulted in no Texas, Burgett In counsel. v. (and therefore, term of incarceration 115, S.Ct. 88 19 Scott, per deprivation involved no of consti- (1967), L.Ed.2d 319 example, for the tutional rights) nevertheless could not be an Court held that uncounseled prior felo- used to a subsequent enhance Illinois ny conviction mis- could not be used to en- demeanor into a felony hance under the state’s punishment pursuant defendant’s Baldasar, however, to a enhancement statute. recidivist statute. In United States Tucker, opinion v. was a fractured within U.S. which the S.Ct. plurality opinion merely the Court held a referenced the ra- concurrence, sentencing could tionale of the in judge pri- not consider a but which felony separate uncounseled conviction in set- there were concurrences without ting pursuant wholly a federal sentence explanations to the consistent for their re- then-prevailing, sentencing federal re- sults. One of concurrences based its States, 738, 748-49, concerns, U.S. reliability part in conclusion (according L.Ed.2d 745 sight not lose noting, “We should history points pursuant criminal Argersinger, underlying rationale then-mandatory Sentencing United States guiding has hand of an accused unless Guidelines for earlier uncounseled mis step in the every counsel demeanor DUI conviction to determine a him, not sufficient- his conviction is against range for a Guideline sanction support the severe ly reliable drug shifting mandatory Baldasar, 446 imprisonment.” range upward by approximately Guidelines (Marshall, J., concur- years, stating, “Today we two adhere omitted). (internal citation ring) ... Illinois and overrule Balda Scott v. been last word on If had Baldasar ”). Nichols, prior sar the uncounseled would, subject, Cavanaugh’s position this conviction, in like conviction Bal indeed, in this Baldasar strong appeal. dasar not resulted in a constitutional had un- actually precluded it in a violation because had not resulted though even counseled conviction important term of An ratio incarceration. not involve a constitutional conviction did Nichols, seemingly nale from cannot violation; similarly, Cavanaugh, seeks to language quoted be reconciled with the his prior use of uncounseled preclude the Burgett, above that the subse though even conviction quent use of the conviction enhance not involve a constitutional violation. did change penalty ment did purposes Further, the extent Baldasar rested on rather, conviction; for the prior subse concerns, the only the quent punished sentence subse type result the same arguably would Nichols, 511 quent offense.3 See U.S. at regardless of whether reliability concern (“Enhancement 746-47, 114 S.Ct. 1921 state, occurred the denial of counsel statutes, whether the nature criminal federal, actually court or resulted or tribal history provisions such as those contained violation. in a constitutional Guidelines, Sentencing recidivist word, not the howev- commonplace Baldasar was last statutes that are in state laws, er, change penalty held that an because Court do used imposed conviction could be for the earlier conviction. As uncounseled dissenting opinion in the purposes, expressly pointed overrul- out enhancement Baldasar, consistently has ing ‘[t]his See Nichols United Baldasar. 757-58, Nichols, sufficiently Compare seled misdemeanor conviction 3. J., (Blackmun, dissenting): justify jail S.Ct. 1921 additional time im- reliable imprison- posed statute? Be- actual under enhancement The Court skirts Scott's by asserting punishment ment that enhance- imprisonment standard a “dif- cause is change penalty “do not the ment statutes the in kind” fines or threat of ferent from conviction,” imposed the earlier ... be- for imprisonment, consistently ... we punish only later they cause the offense. require read the Sixth Amendment that Although is undeniable that recidivist it unreliability, of courts decrease the risk impose punish- statutes do not a second counsel, through provision the of where ment first offense in violation of the for the imprisonment. results That ..., Jeopardy is Double Clause it also unde- imposed in the the in Scott was sentence directly niable Nichols' DUI conviction here was the first instance the sentence imprison- years' in more than two resulted an enhancement statute is a dis- result of event, any concern here is ment. In our difference. tinction without constitutional punishments, multiple but with not with (internal omitted). citations prior reliability. Specifically, is a uncoun- guished arising laws as a repeat-offender penaliz Nichols case the sustained by the ing only the last offense committed sentencing context. Id. at S.Ct. ” Baldasar, (quoting 446 U.S. defendant.’ rejected argu- 1764. The Court a broad 1585)). 232, 100 sequential proceedings ment must al- ways analyzed separately for Sixth Further, only reject not Nichols did purposes only im- theory portion subsequent that some Amendment such punishment having could be viewed as mediate Sixth incarceration raises Amend- conviction, by been “caused” ment Id. at concerns. S.Ct. 1764. reject- to have majority appears in Nichols Rather, the Court stated that the Sixth one arguments ed that formed of the foun- applies at time a Amendment defen- arguments based on dations Gideon— adjudicated guilty dant is of an about concerns convictions’ reliabili- imposed whether actual incarceration is ty. reach this conclusion because the We contemporaneously with finding majority express no Nichols made refer- guilt, following or later some reliability only ence to concerns and argu- 663-64, triggering event. Id. at by ably distinguishing addressed issue 1764. rejected argu- also sentencing guilt context from determi- provision ment that of counsel at a Meanwhile, separate nations. concur- subsequent hearing surrounding the revo- by rence Justice discussing Souter such suspended cation of the sentence and im- garnered support concerns no position of a term of incarceration could Justices,4 other dissent make up for absence of counsel at the primarily upon Nichols rested reliability guilt phase. The Court stated: concerns.5 plain hearing We think it that a so timed subsequently The Court made reference compensate and structured cannot concerns, again this time counsel, the absence of trial for it does Shelton, Alabama key even address the Sixth Amend- (2002). L.Ed.2d adjudication ment inquiry: whether the Shelton, the court that an held uncoun- guilt corresponding prison sen- seled conviction in a resulting suspended sufficiently tence permit term of incarceration is reliable to violated the Sixth There, Amendment. the Court Deprived distin- incarceration. of counsel 752-53, (Souter, J., allowing Id. at 114 S.Ct. 1921 tion and future incarceration based concurring judgment) (downplaying in the re upon uncounseled conviction was a because, liability pursuant even concerns meaning without distinction and that Guidelines, then-mandatory Sentencing complete by ban incarceration "caused” sentencing possessed courts some discretion logically pre- uncounseled convictions could departures, stating, in the form of downward serve the rule Gideon. The dissent stated: then, Guidelines, "Under the the role utility [misdemean- Given the of counsel in play sentencing presumptive, convictions is cases, the conclusive, unreliability or] inherent risk and a defendant has the counsel, in the the severe sentencing chance to convince the court of unreliability any prior of valid sanction of incarceration that can result but un reflecting directly indirectly counseled convictions in the seri or from an uncounseled past misdemeanor, of his pre ousness criminal conduct or there in law is no reason recidivism.”). dicting the likelihood of policy to construe the Sixth Amendment to guarantee exclude the of where dissent, Blacltmun, joined by In the Justice subsequently in an conviction results in- Ginsburg, argued Justices Stevens and that of creased term incarceration. allowing distinction between direct incar- added). (emphasis Id. at 114 S.Ct. 1921 ceration at the time of an uncounseled convic- sentenced, tried, convicted, impris- The to future tence. references when in were challenge original to onment Shelton references to and unable sentence, probation original rev- of judgment subsequent at a activation not hearing, a to to defendant Shelton’s references conviction de- ocation a faces incarceration on guilt punishment circumstances termine or assess subjected has conviction that never been different crime. Nichols a some was meaningful “the adversari- to crucible sentencing pursuant case then- Guidelines, al The Sixth Amendment testing[.]” mandatory permitted which countenance this result. and, does not a at least modicum discretion therefore, differed from the ease (internal 667, 122 S.Ct. 1764 citations Id. government’s present attempt and the added). to omitted) Although (emphasis prove the a actual elements of subse- concerns, it emphasized Shelton quent regard, federal offense. In this emphasized the of an actual presence also relied, emphasize that Nichols a violation, and the incar Sixth Amendment extent, fact large on the that the subse- was incarceration for the ceration at issue quent prior use of the conviction was underlying offense. a merely pursuant determine sentence Subsequently, our court to the Guidelines rather than to estab- government rejected argument by the an Nichols, guilt. lish would the use of a permit that Nichols (“Reliance such convic- pur conviction for the prior uncounseled is also with the tion consistent tradition- history points pose assigning sentencing of the understanding pro- al then-mandatory re under the Guidelines cess, recognized often which we have re gime conviction had where exacting process less than the of estab- incarceration violation of sulted actual lishing guilt.”). Supreme The spe- Charles, See United States Scott. that, cifically traditionally, noted (8th Cir.2004) (“The govern F.3d sentencing process, judges considered ment, however, misreads Nichols. only but convictions “a defendant’s was holding Court’s limited the use behavior, past criminal even if no convic- conviction, an uncounseled misdemeanor behavior,” that tion resulted from prison valid Scott because no term under upheld previously the Court had imposed. disputes use of was Charles (citing such facts. consideration of jail convictions as which term York, v. New Williams had a imposed, and as which he thus (1949)). L.Ed. 1337 to counsel under constitutional omitted). Scott.”) (internal By em citation Tost-Nichols, then, arguable it is distinction, we our phasizing this believe the fact of an actual constitutional violation that, regardless recognized circuit is, important factor perhaps, not exist, it reliability-based concerns whether determining when is the fact of a constitutional violation sentence enhancement may be used for using con triggers a limitation on required controlling purposes, but subsequent proceedings. viction that, It clear where factor. also seems Shelton, however, the actual use is ele- do Nichols of a criminal Nichols is of necessarily questions regard- answer all ments applicability, given that questionable uses of convictions. ing permissible emphasis on the differences be- involving the appeal a direct Court’s Shelton was sentencing guilt and determinations. suspended sen- tween imposition original of 602 Nichols, developing, incomplete weight prior but carried

Added to this in cases authority, Tucker, there body of exists another line Burgett, Beto), such as and of prior of cases that address the use stated, court Lewis “The federal gun prior adjudications civil convictions or laws, however, reliability focus not on but establish actual elements subse- conviction, on the mere fact of or even quent cases, however, offenses. These indictment, in keep away order to firearms difficult, reach that are if not im- results potentially dangerous persons.” from Id. possible, another, to reconcile with one 67, 100 at S.Ct. 915.6 just much less the cases discussed. with an Reaching outcome difficult to recon- cases, Among government these relies Lewis, cile with the Court United States States, in particular on Lewis v. United 828, Mendoza-Lopez, U.S. 107 S.Ct. 67, 915, 100 S.Ct. U.S. 63 L.Ed.2d (1987), later held predated a case that Nichols that, prosecution in a illegal re-entry for permitted use of a uncoun- following deportation, a where the “prior prove seled conviction to of an element crime,” deportation is an element id. though offense even the prior conviction added), at (emphasis had resulted in incarceration in violation of may, defendant during later criminal specifically Scott. Lewis held a prior proceedings, attack the adjudi- civil felony uncounseled conviction could be deportation. cation led to the at Id. used support subsequent, con- 841-42, 107 S.Ct. The alleged 2148. con- viction possession by for of a firearm infirmity stitutional the prior with civil ad- (pursuant felon to a felon-in-possession judication in Mendozar-Lopez was a due- predecessor statute that was a to 18 process violation any based a denial of 922). U.S.C. Id. The Court held such a meaningful procedure appellate review use permissible because the later federal deportation ruling. of the The Court stat- prosecution merely criminal served as the ed, statute “[a] envisions ... a [that] enforcement mechanism for a “civil” fire- impose may penalty reentry arms Id. (stating pri- restriction. that the any deportation, regardless after of how being conviction was used to en- violative of “essentially rights force an of the civil alien the disability through been, deportation proceeding may criminal sanction” ‘support and “not [to] ” guilt or ... punishment’ comport enhance does not with (quoting the constitu- 258)). Burgett, requirement tional process.” of due (that Discussing “reliability” rational Mendoza-Lopez 2148. dis- majori- A dissent in Lewis characterized the include convicted felons within the class ty's regard unconvincing: distinction in this prohibited as persons possessing fire- rationally supported only arms can if the attempt distinguish Burgett, The Court's historical fact of conviction is indeed a reli- Tucker, Loper ground on the that the potential dangerousness. able indicator of validity of the convictions or said, we have As so often denial of the depended those sentences in cases on the impeaches very integrity to counsel "the reliability felony uncounseled fact-finding process.” convictions, And the absence while in the case the impairs felony of counsel law focuses on the mere of the fact conviction, just conviction as much when used to unconvincing. is The funda- potential dangerousness as when mental rationale used behind those decisions proof guilt. direct was the according concern that credi- Lewis, (Bren- bility felony to an 445 U.S. at uncounseled S.Ct. 915 J., nan, seriously would protections dissenting, joined by erode the of the Justices Marshall Powell) (internal Congress' omitted). Sixth Amendment. decision to citations punish only subsequent incarceration the language from Lewis based tinguished (rather punishment for that “a convicted felon acts than alter the recognizing Leiuis offense). validity Finally, of a con- Lewis and earlier Men- may challenge the viction, disability, his it is dozar-Lopez remove fall short because or otherwise firearm,” Lewis, § clear if more akin to the obtaining before 117 is firearms (for broadly, Read 100 S.Ct. 915. in Lewis restriction involved which however, for the Mendozar-Lopez stands “status” and the fact of conviction were all infir- that certain constitutional proposition that infirmities in the mattered and under- make use underlying proceedings mities in lying conviction were held to be immateri- proceeding such a al) of the judgment reentry following deporta- or the illegal proving (for an ele- purpose infirm for the Mendozar-Lopez involved tion which subsequent charge. ment underlying judgment civil infirmities in the read, propo- Broadly Lewis stands the proof subsequent precluded of the all that matters and sition that “status” is but which the violation at issue was not questions surrounding of the case). analogous present jus- that status cannot imposing conviction Cavanaugh’s C. Use of Tribal Convic- that

tify the use of conviction barring tion of- prove subsequent the elements

fense. question the pres ultimate case, however, whether a prior ent is not up these to and together, Taken cases— involving may a Scott violation Mendozar-Lopez— including Nichols used to 117 violation. It prove as be is provide fail to clear direction to whether whether uncounseled conviction result misdemeanor conviction an uncounseled ing in a incarceration that in violation of Scott could be used tribal involved obtained may §a no actual violation7 elements of 117 offense. constitutional be In this answering ques- regard, used later in court. Nichols falls short previously involve a we note that none of the dis guilt-phase tion it did not because cussed cases the use of precluded because there was no determination and in the any purpose conviction for actual violation at issue Nichols. Scott actual Further, of an violation of United States opinion Shelton demon- as Nichols, then, strates, theory per limits to Constitution.8 As may there be it is accord necessary of believe substantial impositions that terms (2005) (refusing into a statute an perhaps appropriate more to read It would be proceedings foreign Cava- juris- refer led to intent convictions from naugh's lying dictions). Further, convictions as “outside a not a case this is involv- the United States Constitution” bounds of allegations irregularities ing gross of other involving a rather than as "not violation undoubtedly Cavanaugh abuses as intended to re- States Constitution.” In this United suggest present in the courts of the would be Cavanaugh gard, states in his we note Here, foreign Cavanaugh's cited coun- state. present using would brief that convictions clearly argument sel stated at oral Cava- accepting prior convictions from akin to naugh alleges irregularities with his no tribal- Although presented with rhetorical Iran. than the denial other flare, panel. point is not lost on this As (which any was not a violation of however, matter, practical even without law). tribal or federal questions, it is reaching constitutional language statute clear exception 8. Baldasar as the to this serves convictions, it would the use of such not allow statement, noted, but, already federal, state, and tribal con- references expressly Nichols. Baldasar in overruled States, v. United victions. See Small prior Cavanaugh’s weight Cavanaugh’s to the fact case is akin to Mendoza-Lo- pez, deprivation where the court held a no actual constitution- convictions involved rights preclude appellate subsequent could assuming the cases dis- al violation. Even adjudication a civil guilt, use of to establish preclude collectively cussed above would Cavanaugh allege any does not irregulari- or federal conviction in prior use state related deprivation ties to a of appellate circumstances, not present the we do be- and, event, in rights, any we do not view preclude lieve we are free to the Mendoza-Lopez fully as reconcilable with it merely because would prior conviction Lewis. had it have been invalid arisen from state federal court.

or disagreed courts to Other have as prior proceedings whether tribal is, approach admittedly, categorical Our involving should be treated as constitution- firmly than in in nature rather rooted the al violations similar where a expressed reliability concerns in Gideon. would violated have the Sixth Further, special to any it fails accord Amendment had it in occurred unique weight why reason for there court. Compare Spotted state State v. Ea- no was constitutional violation in Cava- gle, Mont. 71 P.3d 1245-46 naugh’s prior proceedings “gap” in —the (refusing to treat tribal proceed- by incomplete the to counsel caused ing though as it involved Sixth Amend- extension of coverage Sixth Amendment to violation) Ant, ment with United States v. Indian through tribes the Indian Civil (9th Cir.1989) (treat- F.2d Still, Rights Act. we believe the Court’s ing proceeding a tribal as though it had emphasis in Nichols existence violation). a Sixth involved Amendment In absence of a prior constitutional violation Ant, the Ninth Circuit held that it was clear, and, was as we in recognized impermissible prior, uncounseled, to use a Charles, we believe the Court held the guilty plea tribal-court to the under- validity technical of a conviction was a facts for lying federal man- important more factor than the Gideon- Ant, slaughter charge. 882 F.2d at 1395. type reliability always concerns that arise present Ant differed from the case in that when counsel is absent. the federal proceedings Ant arose out of Also, although we do not believe Lewis alleged the same incident the tribal or Mendoza-Lopez directly control Also, in the issue case. context, present we do not read either case government sought Ant to use the guilty as precluding prior the use of Cavanaugh’s plea from tribal proceedings prove, convictions. To the extent conviction, fact of a but rather Lewis, situation is akin in which the the truth the matters asserted emphasized that the defendant could plea. ultimately court in Ant it held moved to vacate his convictions necessary suppress guilty was plea committing latter we note because, from tribal court although Cavanaugh does allege he at- guilty plea was not obtained violation tempted vacate convictions at Act, law tribal or the Civil Rights Indian any time proceedings. to these plea “the tribal court guilty was made fact, he does allege pursued not even he under circumstances which would have vio- appeal, alleges and he he neither that lated United States Constitution were innocent of the tribal charges nor applicable it proceedings....” tribal Id. there were irregularities other at 1390. The court also noted that its Further, tribal proceedings. holding “unduly prejudice” to the extent would not a later date in government punishment could reliance on government because that earlier conviction. by other means. prove the facts still event, any In the most we take from case, sought the state to In the Montana Supreme two that these cases is Court tribal-court convic- use the fact unclear; authority area is this reason- to charge to enhance a state DUI tion may able decision-makers differ their Eagle, 71 felony Spotted status. P.3d to whether conclusions as Sixth Supreme Court ex- 1241. The Montana precludes Amendment a federal court’s “interfering avoid with pressed the need to that subsequent use of convictions are val- respective and the tribe’s the tribal courts only they id because and because arose that the tribal-court sovereignty,” stressed a court where Sixth Amendment did inception, from its conviction was valid apply. Accordingly, as a matter of that, “Nothing of record indicates noted that, in impression, first we hold ab- fundamentally that were proceedings irregulari- allegations sence of other Eagle in fact Spotted unfair that actual innocence ties claims of sur- charges.” innocent the tribal Id. at convictions, rounding we cannot to treat tribal 1245. The court refused preclude the of such a conviction in because, merely invalid “had convictions as actual constitutional an viola- in a federal [they] obtained or state been tion. court, invalid at they [have been] would to pursuant their Scott.” Id. at inception Equal D. Protection seemingly is 1243. This determination Cavanaugh presents equal an pro- also consistent with our conclusion and Nichols. argument fully tection that is not fleshed that, argues out in his He brief. because discussing In interference with tribal may only arise issue relation however, Spotted the court in sovereignty, Indians, by to committed offenses only one Eagle points, made two of which § 117 as in this situation applied imper- convincing. we find The court that noted missibly out Indians singles because of comity required general principles of only race permits their Indians to be Supreme Montana to full “give Court of convicted of 117 violations based upon judgments to foreign effect the valid prior, uncounseled convictions. jurisdiction according sovereign’s laws, not the Sixth Amendment standard Antelope, United States applies Montana.” U.S. 51 L.Ed.2d 701 court, however, Id. at The also dis- (1977), the held that federal crimi “imposing inappropriate- cussed the risk of “equal pro nal statutes not violate the did ly upon diverse tribal sweeping standards requirements in the implicit tection Due institutions, and governments, cultures” Process Fifth Clause of the Amendment” financial imposing “an insurmountable upon because distinctions based tribal af many governments.” burden on tribal Id. filiation were not invidious race-based dis statement, tinctions; this latter see no Regarding they were distinctions based “ Cavanaugh’s position. such risk inherent in ‘the status of upon quasi-sovereign [Indi ” of an Precluding the use uncounseled trib- law.’ tribes] an under federal al conviction in federal court would in no Fisher v. (quoting 97 S.Ct. 1395 Dis Court, own manner a tribe’s use of that trict restrict (1976)). noted, conviction; As simply it would restrict a fed- issue, this impose Cavanaugh fully argued ability eral court’s additional has such, presented likely and as he has no mean- reasonable decision-makers are ingful opportunity equal they for us to address differ on the conclusions reach with protection respect allowing issues this case. We note or prohibiting such use that, Supreme when the Court issues of an uncounseled tribal court conviction. reasoning appears disagree with I with opinion by the conclusion reached decision, however, majority, undercut an earlier lower courts and therefore re- apply ruling spectfully must continue to the earlier dissent. analogous in factual contexts earlier requires Sixth Amendment courts Supreme case until such time that to furnish indigent counsel for criminal the earlier Court itself overturns case. they defendants whenever face possi Felton, 203, 237, Agostini See v. 521 U.S. bility deprivation liberty; the fail (1997) 1997, 138 L.Ed.2d provide ure to counsel in such situations (“We precedent reaffirm of this ‘[i]f violates the Due Process Clause. See Gid case, application yet Court has direct 335, 339-45, Wainwright, eon v. 372 U.S. appears rejected to rest on reasons (1963) 792, (requir L.Ed.2d 799 decisions, some other line the Court of ing indigent counsel for facing defendants Appeals should follow the case which di- felony charges); Hamlin, Argersinger v. controls, rectly leaving to this Court the 2006, 407 U.S. 92 S.Ct. 32 L.Ed.2d prerogative overruling its own deci- (1972) (extending rule Gideon to ”) (quoting Rodriguez Quijas sions.’ de charge actually which leads to Inc., 477, Exp., 490 U.S.

Shearson/Am. time). imprisonment any period In 484, 1917, 109 S.Ct. 104 L.Ed.2d 526 Texas, 109, Burgett v. 389 U.S. 88 S.Ct. (1989)). Here the rule of Antelope ap- 258, (1967), 19 L.Ed.2d 319 Supreme pears directly point, to be on and as such permit Court said “[t]o conviction ob it would seem that we must apply Ante- tained in violation of Gideon v. Wain lope unless and until the Court decides wright to against person be used either that certain distinctions related to Indians support guilt punishment enhance are greater scrutiny. race-based and merit another offense ... is to princi- erode the 115, ple of that case.” Id. at 88 S.Ct. 258. III. Conclusion Burgett, Supreme After Court none- judgment We reverse the of the district by allowing theless eroded Gideon uncoun- court. seled convictions to be used to enhance a

sentence in a subsequent conviction. See BYE, Judge, Circuit dissenting. States, Nichols v. United 114 S.Ct. 128 L.Ed.2d 745 agree I my panel colleagues’ with obser- (“Reliance on such a conviction is also vation Supreme as to the jurispru- Court’s consistent with the traditional understand- failing provide dence clear direction in ing of the sentencing process, which we determining whether the Sixth Amend- recognized often as less than exacting precludes ment a federal court from using the process establishing guilt.”). an uncounseled tribal court misdemeanor believe, conviction to however, elements of a sub- I do not the Supreme sequent Gideon, federal offense. majority’s Court has eroded the other half of opinion exhaustively subject is, covers the prohibition using uncoun- aptly matter and describes the tension in support guilt seled conviction to for anoth- States, the decisions which we must consider. I er offense. In Lewis v. United can also agree the lack of clarity means U.S. 100 S.Ct. a use under which would Supreme Court held such made circumstances uncoun- have violated the United Constitu- because the States permissible applicable proceed- were it support tion to tribal being conviction was used

seled case, ings.” Id. at 1390. this the dis- an “essen- characterized as what Court correctly observed, trict court issue disability,” i.e., “[t]he prohibition tially civil is question before not to possession of a firearm. on a felon’s validity of the tribal justified The Court justice system, the tribal in- question but impose of an uncounseled conviction to evaluate stead whether the convictions a civil dis- a criminal sanction enforce satisfy constitutional for use requirements could ra- ability by explaining Congress prosecution in a federal in federal court.” fel- tionally include uncounseled convicted v. Cavanaugh, United States who “among persons the class of ons (D.N.D.2009). 1062, 1075 I am F.Supp.2d pos- in or dealing be disabled should by the majority opinion’s not convinced sessing potential firearms because of dan- attempts distinguish ground to Ant on the gerousness.” prosecution manslaughter the federal 117 of Title charac- Section 18 cannot be involved therein arose out of the same merely disability imposing a civil terized incident alleged involved tribal court. potentially dangerous class of on a certain view, key my both cases involves clearly aimed at statute is persons —the prior proceeding prove the use of the recidivist criminal behavior where subsequent offense. element federal integral are ele- necessary offenses Burgett, 389 U.S. S.Ct. 258 See subsequent offense. In ments of a federal the use of ob- (prohibiting a “conviction situation, submit, I such in violation of tained v. Wain- Gideon conviction matters. See United against be used ... urright person Mendoza-Lopez, States v. offense”). ... support guilt another L.Ed.2d 772 respectfully I dissent. the use uncounseled de- (prohibiting of an proceeding prove “an element portation subsequent in a

of the crime”

prosecution). an un- problem

There remains the conviction ob- counseled misdemeanor KINGMAN; Kingman, Paula Calvin directly in tribal tained court does Plaintiffs-Appellees, the Sixth I none- implicate Amendment. v. such a should be theless believe DILLARD’S, INC., Defendant- viola- involving treated as constitutional Appellant. it is used to an element prove tion where No. 10-2636. in a federal court subsequent of an offense where the Amendment is proceeding Sixth Appeals, United States Court of I implicated. proposition, As such a Eighth Circuit. Ant, persuasive

find United States April 14, 2011. Submitted: (9th Cir.1989), the Ninth F.2d 1389 where July Filed: 2011. of an uncoun- prohibited Circuit the use Rehearing Aug. Denied guilty plea tribal court seled charge elements of guilty plea “the tribal

because

Case Details

Case Name: United States v. Cavanaugh

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jul 6, 2011

Citation: 643 F.3d 592

Docket Number: 10-1154

Court Abbreviation: 8th Cir.