NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-36024
Plaintiff-Appellee, D.C. No.
CV-18-55-GF-BMM
v. CR-15-01-GF-BMM
BRANDON RAY BUCKLES,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted May 7, 2020**
Portland, Oregon
Before: WATFORD and HURWITZ, Circuit Judges, and BATTAGLIA, *** District
Judge.
Brandon Ray Buckles was convicted of sexual abuse and making a false
statement to a federal officer and his conviction was affirmed on direct appeal.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
United States v. Buckles, 666 F. App’x. 670 (9th Cir. 2016). Buckles then filed a 28
U.S.C. § 2255 motion, alleging that his trial counsel was ineffective for stipulating
that Buckles was an Indian person within the meaning of the Indian Major Crimes
Act.1 See 18 U.S.C. § 1153(a). The district court denied the motion without an
evidentiary hearing. Buckles timely appealed. We have jurisdiction of that appeal
under 28 U.S.C. §§ 1291 and 2255(d), and affirm.
Under the Indian Major Crimes Act, a defendant qualifies as an Indian person,
if he: (1) has some quantum of Indian blood; and (2) is a member of or is affiliated
with a federally recognized tribe. United States v. Zepeda, 792 F.3d 1103, 1113 (9th
Cir. 2015) (en banc); United States v. Maggi, 598 F.3d 1073, 1080–81 (9th Cir.
1
The following stipulation was read to the jury during preliminary instructions:
“Instruction Number 13. The parties have stipulated to the follow [sic], that means
they have agreed to the following facts: Number 1. The defendant, Brandon Ray
Buckles, is an enrolled member of the Assiniboine and Sioux Tribes of the Fort Peck
Indian Reservation. Number 2. The Assiniboine and Sioux Tribes are federally
recognized tribes. Three. The defendant, Brandon Ray Buckles, is an Indian person.
No further evidence is required to prove that the defendant is an Indian person. You
should treat these facts as having been proved.”
At the close of evidence, the district court again reiterated the stipulation in Jury
Instruction 22: “The parties have stipulated as follows: (1) The defendant Brandon
Ray Buckles is an enrolled member of the Assiniboine and Sioux Tribes of the Fort
Peck Indian Reservation. (2) The Assiniboine and Sioux Tribes are federally
recognized tribes. (3) Defendant’s status as an Indian person has been proven beyond
a reasonable doubt. You should treat these facts as having been proved.”
2
2010), overruled in part by Zepeda, 793 F.3d at 1113.2 In determining whether the
defendant is a member or affiliated with a federally recognized tribe, evidence of the
following is considered in declining importance: “1) tribal enrollment; 2)
government recognition formally and informally through receipt of assistance
reserved only to Indians; 3) enjoyment of the benefits of tribal affiliation; and 4)
social recognition as an Indian through residence on a reservation and participation
in Indian social life.” United States v. Bruce, 394 F.3d 1215, 1224 (9th Cir. 2005)
(internal quotation marks omitted).
Buckles does not contest that he has a quantum of Indian blood; nor does he
contest that he has Certificate of Indian Blood documenting his membership in a
federally recognized tribe. But he nonetheless contends that trial counsel was
ineffective in stipulating that he was an “Indian person,” because there was evidence
that he received fewer benefits of tribal affiliation than others.
The district court correctly rejected that argument. Certificates of enrollment
are important evidence of Indian status. See, e.g., id.; Zepeda, 792 F.3d at 1115–16;
United States v. Alvirez, 831 F.3d 1115, 1124 (9th Cir. 2016). And, this Court has
previously decided that an individual with the same enrollment status as Buckles,
with the same tribe, qualified as an Indian person. See United States v. Smith, 442 F.
2
Although Zepeda was decided after Buckles’ trial, it did not materially change the
two-part test as relevant to this case.
3
App’x. 282, 284–85 (9th Cir. 2011). Accordingly, Buckles’ trial counsel was not
ineffective in making the strategic decision to stipulate to the fact that Buckles is an
“Indian person.” See United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996).
And, because the critical facts that informed counsel’s decision are not contested,
the trial court did not err in dismissing this § 2255 motion without an evidentiary
hearing. See United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004).
AFFIRMED.
4