FILED
NOT FOR PUBLICATION JUL 27 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10357
Plaintiff - Appellee, DC No. Cr. 2:09-0057 RLH
v. MEMORANDUM *
WILLIE ALLEN DILLARD,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Submitted July 20, 2012 **
San Francisco, California
Before: TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.
Willie Allen Dillard challenges the district court’s decision to apply the
Armed Career Criminal Act (“ACCA”) enhancement at his sentencing on his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
conviction of felon-in-possession of a firearm. We have jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), and we affirm.
Dillard’s basic contention is that one of the predicate convictions supporting
the district court’s application of the ACCA enhancement – a conviction obtained
when Dillard was seventeen years old after a Nevada juvenile court had certified
him to be tried as an adult – is not a “prior conviction” within the meaning of
Apprendi v. New Jersey, 530 U.S. 466 (2000). We disagree. Dillard does not deny
that this conviction was obtained in state-court criminal proceedings that afforded
him every necessary procedural protection; the conviction is therefore subject to
the exception to Apprendi’s general holding. See United States v.
Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir. 2000) (“Apprendi held that all prior
convictions – not just those admitted on the record – were exempt from Apprendi’s
general rule and . . . may continue to be treated as sentencing factors.”).
True, the decision to try Dillard as an adult was made in juvenile court by a
judge (not a jury), in the exercise of discretion (not beyond a reasonable doubt).
But nothing in Apprendi or its Ninth Circuit progeny suggests that this certification
decision should affect whether Dillard’s prior conviction is treated as a “prior
conviction” under Apprendi. Dillard’s certification was not a final adjudication of
the charge against him; it was merely a decision about the forum in which to
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conduct that adjudication. See In re Three Minors, 684 P.2d 1121, 1124 (Nev.
1984) (“Transfer proceedings are essentially dispositional in nature and not
adjudicatory. No determination of guilt or innocence is made.”), disapproved of on
other grounds by In re William S., 132 P.3d 1015 (Nev. 2006); cf. United States v.
Mitchell H., 182 F.3d 1034, 1035 (9th Cir. 1999) (stating that a federal “juvenile
transfer hearing is not itself a criminal proceeding”). When Dillard’s case was
adjudicated in Nevada state court, the adjudication undoubtedly afforded him the
“crucial procedural protections,” United States v. Tighe, 266 F.3d 1187, 1194 (9th
Cir. 2001), that Apprendi “prior convictions” require.
Dillard also argues that he was compelled to incriminate himself and “may
not have had” counsel during the certification proceedings, and that these
constitutional violations so tainted the ensuing conviction that it cannot properly
form the basis for a sentence enhancement under the ACCA. But Dillard failed to
meet his burden to show that he had actually been denied counsel. See United
States v. Mulloy, 3 F.3d 1337, 1339 (9th Cir. 1993). Moreover, Dillard’s self-
incrimination claim is exactly the kind of collateral attack Custis v. United States,
511 U.S. 485, 487 (1994), puts off-limits. In any event, by pleading guilty in state
court, Dillard waived both claims. See Harris v. Procunier, 498 F.2d 576, 579 (9th
Cir. 1974) (en banc) (holding that, even if the state failed to provide a defendant
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with counsel at the time of his juvenile court appearance, he waived any
constitutional objection by pleading guilty in an adult court “with all constitutional
safeguards present”).
Finally, to the extent Dillard is contending that the fact of his certification is
itself an Apprendi fact – i.e., that because certification increased Dillard’s
maximum penalty, it should have been decided by a jury beyond a reasonable
doubt – his contention is unavailing. Cf. United States v. Miguel, 338 F.3d 995,
1004 (9th Cir. 2003) (“Apprendi does not require that a jury find the facts that
allow the transfer to district court. The transfer proceeding establishes the district
court’s jurisdiction over a defendant. . . . Thus, we have refused to view the
transfer statute as one that increases the potential penalties for a crime.”); see also
United States v. Juvenile, 228 F.3d 987, 990 (9th Cir. 2000) (“The transfer statute
does not per se increase punishment; it merely establishes a basis for district court
jurisdiction of prosecutions to which it applies.” (internal quotation marks
omitted)).
AFFIRMED.
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