United States v. Cavanaugh

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 10-1154
___________

United States of America, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Roman Cavanaugh, Jr., *
*
Defendant - Appellee. *
___________

Submitted: October 19, 2010
Filed: July 6, 2011
___________

Before RILEY, Chief Judge, MELLOY and BYE, Circuit Judges.
___________

MELLOY, Circuit Judge.

Roman Cavanaugh, Jr., was charged for the offense of domestic assault by a
habitual offender, 18 U.S.C. § 117. As elements of the offense, the government must
prove Cavanaugh received "a final conviction on at least 2 separate prior occasions
in Federal, State, or Indian tribal court proceedings" for certain abuse offenses. Id. §
117(a). Below, the district court dismissed the indictment because, although
Cavanaugh had received prior misdemeanor abuse convictions in tribal court on three
separate occasions, Cavanaugh had not received the benefit of appointed counsel in
the proceedings that resulted in the convictions.
 The issues presented in this appeal are whether the Fifth or Sixth Amendments
to the United States Constitution preclude the use of these prior tribal-court
misdemeanor convictions as predicate convictions to establish the habitual-offender
elements of § 117. Cavanaugh's prior convictions resulted in actual incarceration that,
pursuant to Gideon v. Wainwright, 372 U.S. 335 (1963), and Scott v. Illinois, 440
U.S. 367 (1979), would have been unconstitutional in violation of the Sixth
Amendment right to appointed counsel if the convictions had originated in a state or
federal court. The district court, recognizing that the Sixth Amendment imposes no
duty on Indian tribes to provide counsel for indigent defendants, noted that the prior
convictions were valid at their inception and that the prior terms of incarceration were
not in violation of the United States Constitution, tribal law, or the Indian Civil Rights
Act, 25 U.S.C. § 1302. The court, nevertheless, held that the uncounseled convictions
were infirm for the purpose of proving the habitual-offender, predicate-conviction
elements of the § 117 offense in these subsequent federal court proceedings.

The government appeals, and we reverse. In doing so, we note an apparent
inconsistency in several cases dealing with the use of arguably infirm prior judgments
to establish guilt, trigger a sentencing enhancement, or determine a sentence for a
subsequent offense. Ultimately, however, we are persuaded in this case that the
predicate convictions, valid at their inception, and not alleged to be otherwise
unreliable, may be used to prove the elements of § 117.

I. Background

Cavanaugh is an enrolled member of the Spirit Lake Sioux Tribe and a repeat
domestic-abuse offender. He was convicted in the Spirit Lake Tribal Court of
misdemeanor domestic abuse offenses in March 2005, April 2005 (two counts), and
January 2008. In all three cases, he was advised of his right to retain counsel at his
own expense, but he did not do so. He alleges in the present case that he was indigent

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at the time of his prior convictions.1 Importantly, Cavanaugh does not allege any
irregularities in the proceedings that led to his prior tribal-court convictions beyond
the absence of counsel. The Spirit Lake Tribal Court provides an appeal procedure,
but Cavanaugh did not appeal his tribal-court convictions. Neither Cavanaugh nor the
government state whether officials actually advised Cavanaugh of his right to appeal
his tribal-court convictions. Cavanaugh, however, does not assert deprivation of tribal
appellate rights as an irregularity or infirmity surrounding his prior convictions.

The conduct giving rise to the present offense involved Cavanaugh's assault of
his common-law wife who is also the mother of his child. On the night of the offense,
Cavanaugh and the victim were together in a car with children, Cavanaugh was
driving, both adults were intoxicated, and Cavanaugh and the victim began fighting.
In the course of the fight, Cavanaugh grabbed the victim's head, jerked it back and
forth, and slammed it into the dashboard. He also threatened to kill her. Cavanaugh
then pulled the car into a field, where the victim jumped from the vehicle and hid.
Cavanaugh eventually drove away. Authorities subsequently arrested Cavanaugh and
charged him with the present offense.

In reaching its decision that Cavanaugh's prior tribal-court convictions could
not be used to satisfy the elements of § 117, the district court reviewed relevant

1
The record is devoid of evidence regarding Cavanaugh's indigency. The
district court assumed he was indigent at the time of his prior convictions, and we will
do the same. The government argued below and in its brief to our court that the
question of Cavanaugh's indigency at the time of his prior offenses need only be
addressed if it is determined that use of an uncounseled tribal-court conviction would
be impermissible. Given our resolution of the case, we need not address this question
and may assume his indigency. In addition, although the record before the district
court failed to prove that Cavanaugh had been incarcerated for his prior convictions,
Cavanaugh asserted that he had been incarcerated, the district court assumed
Cavanaugh had been incarcerated, and on appeal, the government concedes this point.

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federal caselaw regarding the permissible and impermissible uses of prior convictions.
The court also addressed at some length the conditions of heightened violence and
drug and alcohol abuse on Indian lands when compared to national averages. The
court reviewed the legislative history of § 117, and noted concern with the high level
of recidivism associated with domestic abusers as well as the often-increasing severity
of such offenders' subsequent violent acts. The court concluded that Congress passed
§ 117, in part, as a gap-filling measure to capture repeat misdemeanor domestic-abuse
offenders in a federal recidivist scheme that, generally, had applied only to persons
convicted of felonies. The district court's review of the legislative history makes it
clear that situations involving facts like those alleged in Cavanaugh's case are
precisely the type of situations Congress intended to bring within the bounds of § 117.

The court also noted at some length the shortcomings of tribal justice systems
caused by a lack of resources, the ongoing lack of resources to overcome these
shortcomings, the evolving relationship between federal criminal jurisdiction and
tribal jurisdiction, and the changes in the general policies of the United States towards
tribal justice systems over the decades. The court ultimately concluded that, although
uncounseled tribal misdemeanor convictions could result in actual incarceration in
tribal facilities, such incarceration involved no violation of the United States
Constitution because the Bill of Rights and the Fourteenth Amendment do not apply
to Indian tribes and because the Indian Civil Rights Act does not impose upon tribes
a duty to provide counsel for indigent misdemeanor defendants. The court held,
nevertheless, that such convictions could not be used in federal courts to prove the
elements of a criminal offense because the right to counsel applies in federal courts
and because use of such convictions would, essentially, give rise anew to a Sixth
Amendment violation by imposing federal punishment, in part, based upon the
uncounseled conviction.

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II. Discussion

A. Validity of Cavanaugh's Prior Convictions

Although the district court did not find Cavanaugh's tribal-court convictions
invalid from their inception, Cavanaugh argues they were invalid from their inception
because the tribal court did not provide court-appointed counsel. This argument is
without merit. Although Indians are citizens of the United States entitled to the same
constitutional protections against federal and state action as all citizens, the
Constitution does not apply to restrict the actions of Indian tribes as separate, quasi-
sovereign bodies. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978) ("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."); Twin Cities Chippewa Tribal Council v.
Minn. Chippewa Tribe, 370 F.2d 529, 533 (8th Cir. 1967) ("The guarantees of the Due
Process clause relate solely to action by a state government and have no application
to actions of Indian Tribes, acting as such.") (internal citations omitted).

Congress, however, enjoys broad power to regulate tribal affairs and limit or
expand tribal sovereignty through the Indian Commerce Clause, U.S. Const. art. I, §
8, cl. 3, and the Treaty Clause, art. II, § 2, cl. 2. See United States v. Lara, 541 U.S.
193, 200 (2004). Pursuant to this authority, Congress passed the Indian Civil Rights
Act, selectively applying some, but not all, protections from the Bill of Rights to
situations where an Indian tribe is the governmental actor. See Pub. L. No. 90-284,
Title II, § 202, 82 Stat. 77 (1968) (codified in part at 25 U.S.C. § 1302). As currently
amended by the Tribal Law and Order Act of 2010, Pub. L. No. 111-211, Title II,
§ 234(a), 124 Stat. 2279 (2010), the Indian Civil Rights Act only requires the
appointment of counsel for indigent criminal defendants in tribal court for
prosecutions that result in a term of incarceration greater than one year. See 25 U.S.C.

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§ 1302(a)(6), (b), & (c)(2).2 Accordingly, if a tribe elects not to provide for the right
to appointed counsel through its own laws, Indian defendants in tribal court have no
Constitutional or statutory right to appointed counsel unless sentenced to a term of
incarceration greater than one year.

The tension inherent in the present case arises when such a conviction—valid
at its inception as a matter of federal and tribal statutory law and as a matter of
Constitutional law—is brought into federal or state court in an effort to establish or
enhance a term of federal or state incarceration. This tension exists because the tribal-
court ability to impose a term of incarceration of up to one year based upon an
uncounseled conviction is inconsistent with Gideon v. Wainwright, 372 U.S. 335
(1963), and Scott v. Illinois, 440 U.S. 367 (1979). These cases, as explained more
fully below, hold that federal and state courts cannot constitutionally impose any term
of incarceration at the time of a conviction unless a defendant received, or validly
waived the right to, counsel.

The government argues that, because Cavanaugh's prior convictions were valid
from their inception, the convictions should be valid for use in federal court to prove
the elements of the present § 117 violation. Cavanaugh argues that, because the
convictions would have been invalid if obtained in state or federal court, where the
Sixth Amendment does apply, we should treat his prior convictions as infirm for use
in federal court. These arguments raise two separate issues. First, whether Cavanaugh
is correct that state or federal convictions, in and of themselves, would have been
invalid for the purpose of proving a subsequent § 117 violation had they arisen in

2
At the time of Cavanaugh's tribal convictions, which preceded the Tribal Law
and Order Act of 2010, tribal courts were restricted to impose no sentences of
incarceration greater than one year. Now, tribal courts may impose longer sentences
(up to three years for individual offenses). 25 U.S.C. § 1302(b). The Tribal Law and
Order Act of 2010, however, now mandates court appointed counsel if a tribe imposes
a sentence greater than one year. Id. § 1302 (c)(2).

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these circumstances or whether such state or federal convictions would be valid for
such purposes (with only the prior terms of incarceration, rather than the convictions
themselves, being unconstitutional). See Lewis v. United States, 445 U.S. 55, 66–67
(1980) ("We recognize, of course, that under the Sixth Amendment an uncounseled
felony conviction cannot be used for certain purposes. . . . The Court, however, has
never suggested that an uncounseled conviction is invalid for all purposes." (internal
citations omitted)). Second, assuming such state or federal convictions would be
infirm as §117 predicates, whether a similar, but otherwise valid tribal conviction
should be treated as infirm for such purposes even though it technically was not
unconstitutional.

As to the first question, we believe it is helpful to address the relevant Supreme
Court and Eighth Circuit precedent involving the scope of the Sixth Amendment right
to counsel and also those cases addressing limitations on the uses of arguably infirm
prior judgments for recidivist or enhancement purposes. This review, however, does
not provide a conclusive answer to the question of whether an uncounseled state or
federal conviction could be used to prove the elements of a § 117 violation in this
situation. This review does, in our view, provide guidance for answering the question
of whether we should treat an otherwise valid tribal-court conviction as invalid for
present purposes.

B. Sixth Amendment Right to Counsel and Limitations on the Use of
Uncounseled State or Federal Convictions.

The Supreme Court interpreted the Sixth Amendment as requiring court-
appointed counsel for indigent federal defendants in Johnson v. Zerbst, 304 U.S. 458,
463 (1938). In Betts v. Brady, 316 U.S. 455, 471–72 (1942), the Court held that this
Sixth Amendment right did not apply as against the states. The Court reconsidered
the holding of Betts, however, in Gideon v. Wainwright, 372 U.S. 335, 345 (1963),
and held that this Sixth Amendment right to counsel applies as against the states

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through the Fourteenth Amendment. Gideon described the fundamental nature of this
right by explaining how the absence of counsel called into question the reliability of
any resulting conviction:

"Left without the aid of counsel he may be put on trial without a proper
charge, and convicted upon incompetent evidence, or evidence irrelevant
to the issue or otherwise inadmissible. He lacks both the skill and
knowledge adequately to prepare his defense, even though he have a
perfect one. He requires the guiding hand of counsel at every step in the
proceedings against him. Without it, though he be not guilty, he faces
the danger of conviction because he does not know how to establish his
innocence."

Gideon, 372 U.S. at 345 (quoting Powell v. Alabama, 287 U.S. 45, 69 (1932)).

Subsequently, in a line of cases that culminated with Argersinger v. Hamlin,
407 U.S. 25 (1972), the Court explained the limitations of this right. The circuits,
however, found Argersinger to be unclear, and in Scott v. Illinois, 440 U.S. 367
(1979), the Court revisited the issue, clarifying Argersinger and unambiguously
holding that the right to counsel is violated when a defendant is sentenced to any term
of incarceration: it is the actual deprivation of liberty, not the jeopardy of a
deprivation of liberty, not some lesser form of punishment, and not any particular
length of incarceration that triggers the protections of the Sixth Amendment. Scott,
440 U.S. at 373–74 (affirming an uncounseled conviction not resulting in
imprisonment and stating, "We therefore hold that the Sixth and Fourteenth
Amendments to the United States Constitution require only that no indigent criminal
defendant be sentenced to a term of imprisonment unless the State has afforded him
the right to assistance of appointed counsel in his defense"); see also Glover v. United
States, 531 U.S. 198, 203 (2001) ("[A]ny amount of actual jail time has Sixth
Amendment significance.").

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 Our court, and other courts, have put Scott into practice by vacating sentences,
but leaving convictions intact, where the government obtained convictions and
sentences of incarceration without providing counsel. See, e.g., United States v.
White, 529 F.2d 1390, 1394 (8th Cir. 1976) ("Although the conviction is valid, we
cannot affirm his 90-day suspended prison term since appellant did not clearly waive
his right to counsel. . . . Therefore, we vacate the 90-day suspended sentence but
affirm the conviction and $50 fine."); see also United States v. Ortega, 94 F.3d 764,
770 (2d Cir. 1996) ("At the outset, we reject defendants-appellants' contention that
their state court convictions are invalid. Under Scott, the Sixth Amendment protects
an uncounseled misdemeanor defendant not from a judgment of conviction but from
the imposition of certain types of sentences. The appropriate remedy for a Scott
violation, therefore, is vacatur of the invalid portion of the sentence, and not reversal
of the conviction itself."). This treatment of Scott, however, fails to answer the
question of whether or how a subsequent court might be able to make use of such a
conviction for enhancement purposes or to prove the elements of a recidivist offense.

After Gideon, and before Scott, the Supreme Court initially determined that
several different uses of infirm prior convictions were impermissible during
subsequent proceedings if the earlier convictions were obtained in violation of the
right to counsel. In Burgett v. Texas, 389 U.S. 109, 115 (1967), for example, the
Court held that an uncounseled prior felony conviction could not be used to enhance
a defendant's punishment pursuant to a recidivist statute. In United States v. Tucker,
404 U.S. 443, 444 (1972), the Court held a sentencing judge could not consider a prior
uncounseled felony conviction in setting a federal sentence pursuant to the then-
prevailing, federal sentencing regime. Also, in Loper v. Beto, 405 U.S. 473, 484
(1972), the Court held prosecutors could not impeach a defendant with a prior,
uncounseled felony conviction. These cases seem to have reflected a general belief
that it was necessary to prevent erosion of the "principle" of Gideon and that the
earlier deprivation of counsel, essentially, flowed through to the subsequent
proceeding to make any future punishment or enhancement of punishment obtained

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in reliance on the earlier conviction a new violation of Gideon. For example, the
Court in Burgett stated:

To permit a conviction obtained in violation of Gideon v. Wainwright to
be used against a person either to support guilt or enhance punishment
for another offense is to erode the principle of that case. Worse yet, since
the defect in the prior conviction was denial of the right to counsel, the
accused in effect suffers anew from the deprivation of that Sixth
Amendment right.

Burgett, 389 U.S. at 115 (internal citation omitted) (emphasis added).

The penultimate case in this line of cases arguably was Baldasar v. Illinois, 446
U.S. 222, 227–28 (1980), in which the Court held, post-Scott, that an uncounseled
misdemeanor conviction that resulted in no term of incarceration (and therefore, as per
Scott, involved no deprivation of constitutional rights) nevertheless could not be used
to enhance a subsequent Illinois misdemeanor into a felony under the state's
enhancement statute. Baldasar, however, was a fractured opinion within which the
plurality opinion merely referenced the rationale of the concurrence, but in which
there were separate concurrences without wholly consistent explanations for their
results. One of the concurrences based its conclusion in part on reliability concerns,
noting, "We should not lose sight of the underlying rationale of Argersinger, that
unless an accused has the guiding hand of counsel at every step in the proceedings
against him, his conviction is not sufficiently reliable to support the severe sanction
of imprisonment." Baldasar, 446 U.S. at 227 (Marshall, J., concurring) (internal
citation omitted).

If Baldasar had been the last word on this subject, Cavanaugh's position would,
indeed, be strong in this appeal. Baldasar actually precluded the use of a prior
uncounseled conviction even though the prior conviction did not involve a
constitutional violation; Cavanaugh, similarly, seeks to preclude the use of his prior

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uncounseled conviction even though his prior conviction did not involve a
constitutional violation. Further, to the extent Baldasar rested on reliability concerns,
the absence of counsel arguably would result in the same type of reliability concern
regardless of whether the denial of counsel occurred in state, federal, or tribal court
or actually resulted in a constitutional violation.

Baldasar was not the last word, however, because in 1994, the Court held that
an uncounseled conviction could be used for enhancement purposes, expressly
overruling Baldasar. See Nichols v. United States, 511 U.S. 738, 748–49 (1994)
(according criminal history points pursuant to the then-mandatory United States
Sentencing Guidelines for an earlier uncounseled misdemeanor DUI conviction to
determine a Guideline range for a subsequent federal drug offense, shifting the
mandatory Guidelines range upward by approximately two years, and stating, "Today
we adhere to Scott v. Illinois . . . and overrule Baldasar"). In Nichols, the uncounseled
prior conviction, like the prior conviction in Baldasar had not resulted in a
constitutional violation because it had not resulted in a term of incarceration. An
important rationale from Nichols, that seemingly cannot be reconciled with the
language quoted above from Burgett, was that the subsequent use of the conviction
for enhancement purposes did not change the penalty for the prior conviction; rather,
the subsequent sentence punished only the subsequent offense.3 See Nichols, 511 U.S.

3
Compare Nichols, 511 U.S. at 757–58 (Blackmun, J., dissenting):

The Court skirts Scott's actual imprisonment standard by asserting that
enhancement statutes "do not change the penalty imposed for the earlier
conviction," . . . because they punish only the later offense. Although it
is undeniable that recidivist statutes do not impose a second punishment
for the first offense in violation of the Double Jeopardy Clause . . . , it
also is undeniable that Nichols' DUI conviction directly resulted in more
than two years' imprisonment. In any event, our concern here is not with
multiple punishments, but with reliability. Specifically, is a prior
uncounseled misdemeanor conviction sufficiently reliable to justify

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at 746–47 ("Enhancement statutes, whether in the nature of criminal history provisions
such as those contained in the Sentencing Guidelines, or recidivist statutes that are
commonplace in state criminal laws, do not change the penalty imposed for the earlier
conviction. As pointed out in the dissenting opinion in Baldasar, '[t]his Court
consistently has sustained repeat-offender laws as penalizing only the last offense
committed by the defendant.'" (quoting Baldasar, 446 U.S. at 232)).

Further, not only did Nichols reject the theory that some portion of a subsequent
punishment could be viewed as having been "caused" by a prior conviction, the
majority in Nichols appears to have rejected arguments that formed one of the
foundations for Gideon—arguments based on concerns about prior convictions'
reliability. We reach this conclusion because the Nichols majority made no express
reference to reliability concerns and only arguably addressed the issue by
distinguishing the sentencing context from guilt determinations. Meanwhile, a
separate concurrence by Justice Souter discussing such concerns garnered no support

additional jail time imposed under an enhancement statute? Because
imprisonment is a punishment "different in kind" from fines or the threat
of imprisonment, . . . we consistently have read the Sixth Amendment to
require that courts decrease the risk of unreliability, through the
provision of counsel, where a conviction results in imprisonment. That
the sentence in Scott was imposed in the first instance and the sentence
here was the result of an enhancement statute is a distinction without a
constitutional difference.

Id. (internal citations omitted).

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from any of the other Justices,4 and the dissent in Nichols rested primarily upon
reliability concerns.5

The Court subsequently made reference again to reliability concerns, this time
in Alabama v. Shelton, 535 U.S. 654, 667 (2002). In Shelton, the court held that an
uncounseled conviction resulting in a suspended term of incarceration violated the
Sixth Amendment. There, the Court distinguished Nichols as a case arising in the
sentencing context. Id. at 665. The Court rejected a broad argument that sequential
proceedings must always be analyzed separately for Sixth Amendment purposes such
that only immediate incarceration raises Sixth Amendment concerns. Id. at 666.

4
Id. at 752–53 (Souter, J., concurring in the judgment) (downplaying reliability
concerns because, even pursuant to the then-mandatory Sentencing Guidelines,
sentencing courts possessed some discretion in the form of downward departures,
stating, "Under the Guidelines, then, the role prior convictions play in sentencing is
presumptive, not conclusive, and a defendant has the chance to convince the
sentencing court of the unreliability of any prior valid but uncounseled convictions in
reflecting the seriousness of his past criminal conduct or predicting the likelihood of
recidivism.").
5
In the dissent, Justice Blackmun, joined by Justices Stevens and Ginsburg,
argued that any distinction between allowing direct incarceration at the time of an
uncounseled conviction and allowing future incarceration based upon the prior
uncounseled conviction was a distinction without meaning and that only a complete
ban on incarceration "caused" by uncounseled convictions could logically preserve the
rule of Gideon. The dissent stated:

Given the utility of counsel in [misdemeanor] cases, the inherent risk of
unreliability in the absence of counsel, and the severe sanction of
incarceration that can result directly or indirectly from an uncounseled
misdemeanor, there is no reason in law or policy to construe the Sixth
Amendment to exclude the guarantee of counsel where the conviction
subsequently results in an increased term of incarceration.

Id. at 763 (emphasis added).

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Rather, the Court stated that the Sixth Amendment applies at the time a defendant is
adjudicated guilty of an offense, whether actual incarceration is imposed
contemporaneously with the finding of guilt, or later following some subsequent
triggering event. Id. at 663–64. The court also rejected the argument that the
provision of counsel at a subsequent hearing surrounding the revocation of the
suspended sentence and imposition of a term of incarceration could make up for the
absence of counsel at the guilt phase. The Court stated:

We think it plain that a hearing so timed and structured cannot
compensate for the absence of trial counsel, for it does not even address
the key Sixth Amendment inquiry: whether the adjudication of guilt
corresponding to the prison sentence is sufficiently reliable to permit
incarceration. Deprived of counsel when tried, convicted, and sentenced,
and unable to challenge the original judgment at a subsequent probation
revocation hearing, a defendant in Shelton's circumstances faces
incarceration on a conviction that has never been subjected to “the
crucible of meaningful adversarial testing[.]” The Sixth Amendment
does not countenance this result.

Id. at 667 (internal citations omitted) (emphasis added). Although Shelton
emphasized reliability concerns, it also emphasized the presence of an actual Sixth
Amendment violation, and the incarceration at issue was incarceration for the
underlying offense.

Subsequently, in 2004, our court rejected an argument by the government that
Nichols would permit the use of a prior uncounseled conviction for the purpose of
assigning criminal history points under the then-mandatory Guidelines regime where
the prior conviction had resulted in actual incarceration in violation of Scott. See
United States v. Charles, 389 F.3d 797, 799 (8th Cir. 2004) ("The government,
however, misreads Nichols. The Court's holding was limited to the use of an
uncounseled misdemeanor conviction, valid under Scott because no prison term was
imposed. Charles disputes the use of convictions as to which a jail term was imposed,

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and as to which he thus had a constitutional right to counsel under Scott.") (internal
citation omitted). By emphasizing this distinction, we believe our circuit recognized
that, regardless of whether reliability-based concerns exist, it is the fact of a
constitutional violation that triggers a limitation on using a prior conviction in
subsequent proceedings.

Nichols and Shelton, however, do not necessarily answer all questions
regarding permissible uses of prior convictions. Shelton was a direct appeal involving
the imposition of the original suspended sentence. The references to future
imprisonment in Shelton were references to activation of the original sentence, not
references to use of the conviction to determine guilt or assess punishment for some
different crime. Nichols was a sentencing case pursuant to the then-mandatory
Guidelines, which permitted at least a modicum of discretion and, therefore, differed
from the present case and the government's present attempt to prove the actual
elements of a subsequent federal offense. In this regard, we emphasize that Nichols
relied, to a large extent, on the fact that the subsequent use of the prior conviction was
merely to determine a sentence pursuant to the Guidelines rather than to establish
guilt. Nichols, 511 U.S. at 747 ("Reliance on such a conviction is also consistent with
the traditional understanding of the sentencing process, which we have often
recognized as less exacting than the process of establishing guilt."). The Supreme
Court specifically noted that, traditionally, in the sentencing process, judges
considered not only convictions but "a defendant's past criminal behavior, even if no
conviction resulted from that behavior," and that the Court previously had upheld
consideration of such facts. Id. (citing Williams v. New York, 337 U.S. 241 (1949)).

Post-Nichols, then, it is arguable that the fact of an actual constitutional
violation is, perhaps, not only an important factor for determining when a prior
conviction may be used for sentence enhancement purposes, but a required or
controlling factor. It also seems clear that, where the subsequent use is to prove the

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actual elements of a criminal offense, Nichols is of questionable applicability, given
that Court's emphasis on the differences between sentencing and guilt determinations.

Added to this developing, but incomplete body of authority, there exists another
line of cases that address the use of prior convictions or prior civil adjudications to
establish the actual elements of subsequent offenses. These cases, however, reach
results that are difficult, if not impossible, to reconcile with one another, much less
with the cases just discussed. Among these cases, the government relies in particular
on Lewis v. United States, 445 U.S. 55, 67 (1980), a case that predated Nichols and
permitted the use of a prior uncounseled conviction to prove an element of an offense
even though the prior conviction had resulted in incarceration in violation of Scott.
Lewis held specifically that a prior uncounseled felony conviction could be used to
support a subsequent, federal conviction for possession of a firearm by a felon
(pursuant to a felon-in-possession statute that was a predecessor to 18 U.S.C. § 922).
Id. The Court held such a use permissible because the later federal criminal
prosecution served merely as the enforcement mechanism for a "civil" firearms
restriction. Id. (stating that the prior conviction was being used only to enforce an
"essentially civil disability through a criminal sanction" and "not [to] 'support guilt or
enhance punishment'" (quoting Burgett, 389 U.S. at 115)). Discussing the "reliability"
rational (that carried weight prior to Nichols, in cases such as Burgett, Tucker, and
Beto), the court in Lewis stated, "The federal gun laws, however, focus not on
reliability but on the mere fact of conviction, or even indictment, in order to keep
firearms away from potentially dangerous persons." Id. at 67.6

6
A dissent in Lewis characterized the majority's distinction in this regard as
unconvincing:

The Court's attempt to distinguish Burgett, Tucker, and Loper on the
ground that the validity of the subsequent convictions or sentences in
those cases depended on the reliability of the prior uncounseled felony
convictions, while in the present case the law focuses on the mere fact
of the prior conviction, is unconvincing. The fundamental rationale

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 Reaching an outcome difficult to reconcile with Lewis, the Court in United
States v. Mendoza-Lopez, 481 U.S. 828 (1987), later held that, in a prosecution for
illegal re-entry following a deportation, where the "prior deportation is an element of
the crime," id. at 833 (emphasis added), a defendant may, during the later criminal
proceedings, attack the prior civil adjudication that led to the deportation. Id. at
841–42. The alleged constitutional infirmity with the prior civil adjudication in
Mendoza-Lopez was a due-process violation based on a denial of any meaningful
procedure for appellate review of the deportation ruling. The Court stated, "[a] statute
[that] envisions . . . a court may impose a criminal penalty for reentry after any
deportation, regardless of how violative of the rights of the alien the deportation
proceeding may have been, . . . does not comport with the constitutional requirement
of due process." Id. at 837. Mendoza-Lopez distinguished Lewis based on language
from Lewis recognizing that "a convicted felon may challenge the validity of a prior
conviction, or otherwise remove his disability, before obtaining a firearm," Lewis, 445
U.S. at 67. Read broadly, however, Mendoza-Lopez stands for the proposition that
certain constitutional infirmities in underlying proceedings make use of the judgment
from such a proceeding infirm for the purpose of proving an element of a subsequent
criminal charge. Broadly read, Lewis stands for the proposition that "status" is all that
matters and questions surrounding the reliability of the conviction imposing that status

behind those decisions was the concern that according any credibility to
an uncounseled felony conviction would seriously erode the protections
of the Sixth Amendment. Congress' decision to include convicted felons
within the class of persons prohibited from possessing firearms can
rationally be supported only if the historical fact of conviction is indeed
a reliable indicator of potential dangerousness. As we have so often said,
denial of the right to counsel impeaches "the very integrity of the
fact-finding process." And the absence of counsel impairs the reliability
of a felony conviction just as much when used to prove potential
dangerousness as when used as direct proof of guilt.

Lewis, 445 U.S. at 72 (Brennan, J., dissenting, joined by Justices Marshall and
Powell) (internal citations omitted).

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cannot justify barring the use of that conviction to prove the elements of a subsequent
offense.

Taken together, these cases—up to and including Nichols and Mendoza-
Lopez—fail to provide clear direction as to whether an uncounseled misdemeanor
conviction obtained in violation of Scott could be used to prove the elements of a
§ 117 offense. Nichols falls short in answering the question because it did not involve
a guilt-phase determination and because there was no actual Scott violation at issue
in Nichols. Further, as the opinion in Shelton demonstrates, there may be limits to the
theory that subsequent impositions of terms of incarceration punish only the
subsequent acts (rather than alter punishment for the earlier offense). Finally, Lewis
and Mendoza-Lopez fall short because it is not clear if § 117 is more akin to the
firearms restriction involved in Lewis (for which "status" and the fact of conviction
were all that mattered and infirmities in the underlying conviction were held to be
immaterial) or the illegal reentry following deportation involved in Mendoza-Lopez
(for which infirmities in the underlying civil judgment precluded proof of the
subsequent offense, but in which the violation at issue was not analogous to the
present case).

C. Use of Cavanaugh's Tribal Conviction

The ultimate question in the present case, however, is not whether a prior
conviction involving a Scott violation may be used to prove a § 117 violation. It is
whether an uncounseled conviction resulting in a tribal incarceration that involved no
actual constitutional violation7 may be used later in federal court. In this regard, we

7
It perhaps would be more appropriate to refer to the proceedings that led to
Cavanaugh's prior convictions as lying "outside the bounds of the United States
Constitution" rather than as "not involving a violation of the United States
Constitution." In this regard, we note that Cavanaugh states in his brief that using the
present convictions would be akin to accepting prior convictions from Iran. Although

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note that none of the previously discussed cases precluded the use of a prior
conviction for any purpose in the absence of an actual violation of the United States
Constitution.8 As per Nichols, then, we believe it is necessary to accord substantial
weight to the fact that Cavanaugh's prior convictions involved no actual constitutional
violation. Even assuming the cases discussed above collectively would preclude use
of a prior state or federal conviction in the present circumstances, we do not believe
we are free to preclude use of the prior conviction merely because it would have been
invalid had it arisen from a state or federal court.

Our approach is, admittedly, categorical in nature rather than firmly rooted in
the reliability concerns expressed in Gideon. Further, it fails to accord any special
weight to the unique reason for why there was no constitutional violation in
Cavanaugh's prior proceedings—the "gap" in the right to counsel caused by
incomplete extension of Sixth Amendment coverage to Indian tribes through the
Indian Civil Rights Act. Still, we believe the Court's emphasis in Nichols on the
existence or absence of a prior constitutional violation was clear, and, as we
recognized in Charles, we believe the Court held the technical validity of a conviction

presented with rhetorical flare, his point is not lost on this panel. As a practical
matter, however, even without reaching any constitutional questions, it is clear the
language of the present statute would not allow the use of such convictions, it
references only federal, state, and tribal convictions. See Small v. United States, 544
U.S. 385, 387 (2005) (refusing to read into a statute an intent to use convictions from
foreign jurisdictions). Further, this is a not a case involving allegations of other gross
irregularities or abuses as Cavanaugh undoubtedly intended to suggest would be
present in the courts of the cited foreign state. Here, Cavanaugh's counsel stated
clearly at oral argument that Cavanaugh alleges no irregularities with his tribal-court
proceedings other than the denial of counsel (which was not a violation of any tribal
or federal law).
8
Baldasar serves as the exception to this statement, but, as already noted, the
Court expressly overruled Baldasar in Nichols.

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was a more important factor than the Gideon-type reliability concerns that always
arise when counsel is absent.

Also, although we do not believe Lewis or Mendoza-Lopez directly control in
the present context, we do not read either case as precluding the use of Cavanaugh's
prior convictions. To the extent the present situation is akin to Lewis, in which the
Court emphasized that the defendant could have moved to vacate his convictions prior
to committing the latter offense, we note that Cavanaugh does not allege he attempted
to vacate his prior convictions at any time prior to these proceedings. In fact, he does
not even allege he pursued an appeal, and he alleges neither that he was innocent of
the tribal charges nor that there were any other irregularities in the tribal proceedings.
Further, to the extent Cavanaugh's case is akin to Mendoza-Lopez, where the court
held a deprivation of appellate rights could preclude subsequent use of a civil
adjudication to establish guilt, Cavanaugh does not allege any irregularities related to
a deprivation of appellate rights, and, in any event, we do not view Mendoza-Lopez
as fully reconcilable with Lewis.

Other courts have disagreed as to whether prior tribal court proceedings should
be treated as involving constitutional violations where a similar absence of counsel
would have violated the Sixth Amendment had it occurred in federal or state court.
Compare State v. Spotted Eagle, 71 P.3d 1239, 1245–46 (Mont. 2003) (refusing to
treat a tribal proceeding as though it involved a Sixth Amendment violation) with
United States v. Ant, 882 F.2d 1389, 1394 (9th Cir. 1989) (treating a tribal proceeding
as though it had involved a Sixth Amendment violation). In Ant, the Ninth Circuit
held that it was impermissible to use a prior, uncounseled, tribal-court guilty plea to
prove the underlying facts for a subsequent federal manslaughter charge. Ant, 882
F.2d at 1395. Ant differed from the present case in that the federal proceedings in Ant
arose out of the same alleged incident as the tribal proceedings at issue in the case.
Also, the government in Ant sought to use the guilty plea from tribal proceedings to
prove, not the fact of a prior conviction, but rather the truth of the matters asserted in

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the plea. The court in Ant ultimately held it was necessary to suppress the guilty plea
from tribal court because, although the guilty plea was not obtained in violation of
tribal law or the Indian Civil Rights Act, "the tribal court guilty plea was made under
circumstances which would have violated the United States Constitution were it
applicable to tribal proceedings . . . ." Id. at 1390. The court also noted that its
holding would not "unduly prejudice" the government because the government could
still prove the facts by other means. Id.

In the Montana case, the state sought to use the fact of a prior tribal-court
conviction to enhance a state DUI charge to felony status. Spotted Eagle, 71 P.3d at
1241. The Montana Supreme Court expressed the need to avoid "interfering with the
tribal courts and the respective tribe's sovereignty," stressed that the tribal-court
conviction was valid from its inception, and noted that, "Nothing of record indicates
that the proceedings were fundamentally unfair or that Spotted Eagle was in fact
innocent of the tribal charges." Id. at 1245. The court refused to treat the tribal
convictions as invalid merely because, "had [they] been obtained in a federal or state
court, they would [have been] invalid at their inception pursuant to Scott." Id. at
1243. This determination seemingly is consistent with our conclusion and Nichols.

In discussing interference with tribal sovereignty, however, the court in Spotted
Eagle made two points, only one of which we find convincing. The court noted that
general principles of comity required the Supreme Court of Montana to "give full
effect to the valid judgments of a foreign jurisdiction according to that sovereign's
laws, not the Sixth Amendment standard that applies to proceedings in Montana."
Id. at 1245. The court, however, also discussed the risk of "imposing inappropriately
sweeping standards upon diverse tribal governments, institutions, and cultures" and
imposing "an insurmountable financial burden on many tribal governments." Id.
Regarding this latter statement, we see no such risk inherent in Cavanaugh's position.
Precluding the use of an uncounseled tribal conviction in federal court would in no
manner restrict a tribe's own use of that conviction; it would simply restrict a federal

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court's ability to impose additional punishment at a later date in reliance on that earlier
conviction.

In any event, the most we take from these two cases is that 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. Accordingly, as a matter of first impression, we
hold that, in the absence of any other allegations of irregularities or claims of actual
innocence surrounding the prior convictions, we cannot preclude the use of such a
conviction in the absence of an actual constitutional violation.

D. Equal Protection

Cavanaugh also presents an equal protection argument that is not fully fleshed
out in his brief. He argues that, because the present issue may arise only in relation
to prior offenses committed by Indians, § 117 as applied in this situation
impermissibly singles out Indians because of their race and permits only Indians to be
convicted of § 117 violations based upon prior, uncounseled convictions.

In United States v. Antelope, 430 U.S. 641 (1977), the Court held that federal
criminal statutes did not violate the "equal protection requirements implicit in the Due
Process Clause of the Fifth Amendment" because distinctions based upon tribal
affiliation were not invidious race-based distinctions; they were distinctions based
upon "'the quasi-sovereign status of [Indian tribes] under federal law.'" Id. at 644, 646
(quoting Fisher v. District Court, 424 U.S. 382, 390 (1976)). As noted, Cavanaugh
has not fully argued this issue, and as such, he has presented no meaningful
opportunity for us to address equal protection issues in this case. We note only that,
when the Supreme Court issues an opinion with reasoning that appears to undercut an
earlier decision, lower courts must continue to apply the earlier ruling in factual

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contexts analogous to the earlier case until such time that the Supreme Court itself
overturns the earlier case. See Agostini v. Felton, 521 U.S. 203, 237 (1997) ("We
reaffirm that '[i]f a precedent of this Court has direct application in a case, yet appears
to rest on reasons rejected in some other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to this Court the prerogative of
overruling its own decisions.'") (quoting Rodriguez de Quijas v. Shearson/Am. Exp.,
Inc., 490 U.S. 477, 484 (1989)). Here the rule of Antelope appears to be directly on
point, and as such it would seem that we must apply Antelope unless and until the
Court decides that certain distinctions related to Indians are race-based and merit
greater scrutiny.

III. Conclusion

We reverse the judgment of the district court.

BYE, Circuit Judge, dissenting.

I agree with my panel colleagues' observation as to the Supreme Court's
jurisprudence failing to provide clear direction in determining whether the Sixth
Amendment precludes a federal court from using an uncounseled tribal court
misdemeanor conviction to prove the elements of a subsequent federal offense. The
majority's opinion exhaustively covers the subject matter and aptly describes the
tension in the decisions which we must consider. I can also agree the lack of clarity
means reasonable decision-makers are likely to differ on the conclusions they reach
with respect to allowing or prohibiting such use of an uncounseled tribal court
conviction. I disagree with the conclusion reached by the majority, however, and
therefore respectfully dissent.

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 The Sixth Amendment requires courts to furnish counsel for indigent criminal
defendants whenever they face the possibility of a deprivation of liberty; the failure
to provide counsel in such situations violates the Due Process Clause. See Gideon v.
Wainwright, 372 U.S. 335, 339-45 (1963) (requiring counsel for indigent defendants
facing felony charges); Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (extending the
rule in Gideon to any criminal charge which actually leads to imprisonment for any
period of time). In Burgett v. Texas, 389 U.S. 109 (1967), the Supreme Court said
"[t]o permit a conviction obtained in violation of Gideon v. Wainwright to be used
against a person either to support guilt or enhance punishment for another offense . . .
is to erode the principle of that case." Id. at 115. After Burgett, the Supreme Court
nonetheless eroded Gideon by allowing uncounseled convictions to be used to
enhance a sentence in a subsequent conviction. See Nichols v. United States, 511 U.S.
738, 747 (1994) ("Reliance on such a conviction is also consistent with the traditional
understanding of the sentencing process, which we have often recognized as less
exacting than the process of establishing guilt.").

I do not believe, however, the Supreme Court has eroded the other half of
Gideon, that is, the prohibition on using an uncounseled conviction to support guilt
for another offense. In Lewis v. United States, 445 U.S. 55 (1980), the Supreme Court
held such a use was permissible only because the uncounseled conviction was being
used to support what the Court characterized as an "essentially civil disability," i.e.,
the prohibition on a felon's possession of a firearm. Id. at 67. The Court justified the
use of an uncounseled conviction to impose a criminal sanction to enforce a civil
disability by explaining Congress could rationally include uncounseled convicted
felons "among the class of persons who should be disabled from dealing in or
possessing firearms because of potential dangerousness." Id.

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 Section 117 of Title 18 cannot be characterized as merely imposing a civil
disability on a certain class of potentially dangerous persons – the statute is clearly
aimed at recidivist criminal behavior where prior offenses are necessary and integral
elements of a subsequent federal offense. In such a situation, I submit, the reliability
of a prior conviction matters. See United States v. Mendoza-Lopez, 481 U.S. 828,
833 (1987) (prohibiting the use of an uncounseled deportation proceeding to prove "an
element of the crime" in a subsequent criminal prosecution).

There remains the problem that an uncounseled misdemeanor conviction
obtained in tribal court does not directly implicate the Sixth Amendment. I
nonetheless believe such a conviction should be treated as involving a constitutional
violation where it is used to prove an element of an offense in a subsequent federal
court proceeding where the Sixth Amendment is implicated. As to such a proposition,
I find persuasive United States v. Ant, 882 F.2d 1389 (9th Cir. 1989), where the Ninth
Circuit prohibited the use of an uncounseled tribal court guilty plea to prove the
elements of a subsequent federal charge because "the tribal court guilty plea was made
under circumstances which would have violated the United States Constitution were
it applicable to tribal proceedings." Id. at 1390. In this case, the district court
correctly observed, "[t]he issue before the Court is not to question the validity of the
tribal court proceedings or question the tribal justice system, but instead to evaluate
whether the convictions satisfy constitutional requirements for use in a federal
prosecution in federal court." United States v. Cavanaugh, 680 F. Supp. 2d 1062,
1075 (D.N.D. 2009). I am not convinced by the majority opinion's attempts to
distinguish Ant on the ground the federal prosecution for manslaughter involved
therein arose out of the same alleged incident involved in tribal court. In my view, the
key in both cases involves the use of the prior proceeding to prove an element of a
subsequent federal offense. See Burgett, 389 U.S. at 115 (prohibiting the use of a

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"conviction obtained in violation of Gideon v. Wainwright to be used against a person
. . . to support guilt . . . for another offense").

I respectfully dissent.
______________________________

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