PAEZ, Circuit Judge:
Lakota Thomas First was indicted as a misdemeanant in possession of a firearm under 18 U.S.C. § 922(g)(9), which makes
In 2003, First, an Indian, was charged in the Fort Peck Tribal Court in Montana for misdemeanor domestic abuse in violation of the governing tribal law. See Fort Peck Tribes Comprehensive Code of Justice ("CCOJ"), tit. VII, § 244 (2003).
In August 2011, the government indicted First for one count of violating 18 U.S.C. § 922(g)(9) for possessing a firearm after having been convicted of the 2003 misdemeanor crime of domestic violence. First moved to dismiss the indictment because he had not been represented by counsel nor had he waived his right to appointed counsel in the 2003 tribal court proceeding. For the purpose of a § 922(g)(9) prosecution, "[a] person shall not be considered to have been convicted" of a "misdemeanor crime of domestic violence" unless "the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case." 18 U.S.C. § 921(a)(33)(B)(i). The district court granted First's motion and held that First could not be charged with violating § 922(g)(9) on the basis of a predicate misdemeanor conviction when he had been denied his Sixth Amendment right to counsel in that misdemeanor proceeding.
We have jurisdiction under 28 U.S.C. § 1291. "We review de novo a district
Under well-established precedent, the Sixth Amendment right to counsel serves as a constitutional minimum in all state and federal criminal proceedings that result in a sentence of actual imprisonment or a suspended sentence of imprisonment. Alabama v. Shelton, 535 U.S. 654, 658, 672, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002) (holding that "a suspended sentence that may `end up in the actual deprivation of a person's liberty' may not be imposed unless the defendant was accorded `the guiding hand of counsel' in the prosecution for the crime charged" (citation omitted)); Scott v. Illinois, 440 U.S. 367, 373-74, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) (holding that the Sixth Amendment right to counsel was only required when a defendant was sentenced to "actual imprisonment," which was later expanded by Shelton); Argersinger v. Hamlin, 407 U.S. 25, 33, 37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (holding that defense counsel must be appointed in any criminal prosecution, "whether classified as petty, misdemeanor, or felony," "that actually leads to imprisonment even for a brief period").
However, "[t]his Circuit has held the Sixth Amendment right to counsel does not apply in tribal court criminal proceedings." United States v. Percy, 250 F.3d 720, 725 (9th Cir.2001) (citing United States v. Ant, 882 F.2d 1389, 1392 (9th Cir.1989) and Settler v. Lameer, 507 F.2d 231, 241 (9th Cir.1974)). As we have explained, "[t]he protections of the United States Constitution are generally inapplicable to Indian tribes, Indian courts and Indians on the reservation [because] ... Indian tribes are quasi-sovereign nations." Id. (citations omitted). In 1968, however, Congress enacted the Indian Civil Rights Act ("ICRA"), which mandated that a defendant in tribal court be provided a right to retained counsel in all criminal proceedings. 25 U.S.C. § 1302(6) (1968); see Pub.L. 90-284, tit. II §§ 201-02, 82 Stat. 77 (Apr. 11, 1968). In 2010, Congress further provided defendants in tribal court with the right to appointed counsel "[i]n a criminal proceeding in which an Indian tribe, in exercising powers of self-government, imposes a total term of imprisonment of more than 1 year," 25 U.S.C. § 1302(c), but left unchanged the right to retained counsel when a lesser penalty is imposed, id. § 1302(a)(6).
First does not argue that he was denied his right to retained counsel pursuant to federal statute and tribal law, and we do not address that issue here. Further, the government does not dispute that First was not provided and did not waive a Sixth Amendment right to appointed counsel. Here, the dispute turns on whether a conviction for a misdemeanor crime of domestic violence that was validly obtained in tribal court, under circumstances that would have violated the Sixth Amendment in state or federal court, may qualify as the predicate misdemeanor offense for a prosecution under § 922(g)(9).
We begin by addressing First's statutory argument and then turn to his constitutional arguments.
Section 921(a) defines the terms used in § 922, which criminalizes inter alia the possession of firearms by certain persons. The relevant portion of § 921(a) provides:
18 U.S.C. § 921(a)(33) (emphasis added).
We must determine whether the "right to counsel" in § 921(a)(33)(B)(i)(I) refers to a uniform federal meaning containing a Sixth Amendment floor (First's contention) or to the right as it existed in the predicate misdemeanor proceeding (the government's contention). We conclude that the government's argument should prevail.
We begin with the text of the statute. Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir.2012) cert. denied, ___ U.S. ___, 133 S.Ct. 256, 184 L.Ed.2d 137 (2012). The government argues that in the phrase "right to counsel in the case," the words "in the case" modify the words "right to counsel." We agree. First offers no plausible alternative interpretation that does not effectively eliminate the words "in the case" from the statute. And it is our "duty to give effect, if possible, to every clause and word of a statute." Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (citations and quotation marks omitted). Moreover, the words "in the case" clearly refer to the predicate misdemeanor proceeding, and they could not plausibly refer to any other proceeding. Indeed, in looking to "the language and design of the statute as a whole," K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988), the entirety of § 921(a)(33) defines a qualifying predicate misdemeanor.
Unlike First, we do not find it "noteworthy that Congress referred to local law in the clause immediately following the right to counsel provision." That subclause provides that
§ 921(a)(33)(B)(i)(II) (emphasis added). Although Congress arguably referenced local law more clearly when it spoke about a defendant's right to a jury than it did when it spoke to his right to counsel, that does not mean we can ignore its direction to examine the "right to counsel" as it existed "in the case," i.e., in the predicate misdemeanor proceeding. Put another way, the canon of statutory construction that states "when Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in disparate inclusion or exclusion," Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (internal quotation marks omitted), is inapplicable in this circumstance because Congress placed a limitation in both subclauses.
First also argues that we should give the "right to counsel" a uniform federal meaning because, by default, words in federal statutes are to be given federal meaning. Although this proposition may be generally applicable, it is not persuasive here where Congress explicitly modified the "right to counsel" with the phrase "in the case." In the primary case relied upon by First, the Supreme Court held that the term "conviction" in the federal firearms statute, 18 U.S.C. §§ 922(g)-(h) (1976), had a uniform federal meaning. Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111-12, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), superseded by statute, 18 U.S.C. § 921(a)(20). There, however, the Court relied on the fact that it had previously interpreted the word "conviction" in a parallel gun control statute to have a uniform federal meaning because "[n]o modifier is present, and nothing suggests any restriction on the scope of the term `convicted.'" Id. at 111, 103 S.Ct. 986 (quoting Lewis v. United States, 445 U.S. 55, 60, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980)). Indeed, the Court noted that "[n]othing on the face of the statute suggests a congressional intent to limit its coverage." Id. (internal quotation marks omitted). Therefore, the Court concluded:
Id. at 111-12, 103 S.Ct. 986 (citation omitted). First also directs us to an Eleventh Circuit case, in which the court interpreted Dickerson as standing for the proposition that "[w]ords in federal statutes reflect federal understandings, absent an explicit statement to the contrary, even if a state uses the word differently." United States v. Ayala-Gomez, 255 F.3d 1314, 1319 (11th Cir.2001) (per curiam). Here, in contrast, Congress explicitly modified "right to counsel" when it appended the words "in the case."
At least one circuit seems to have implicitly read the "right to counsel" provision in § 921(a)(33)(B) as referring to the right that existed in the underlying proceeding. See United States v. Smith, 171 F.3d 617, 621-22 (8th Cir.1999). In Smith, the defendant was convicted under § 922(g)(9) on the basis of a prior Iowa misdemeanor domestic assault conviction. Id. at 619. The state court appointed counsel, but counsel failed to appear at Smith's plea hearing. Id. Smith then waived his right to counsel, pleaded guilty, and was fined $100. Id. On appeal, Smith argued that his waiver of the right to counsel was not knowing and intelligent as required by § 921(a)(33)(B)(i)(I). Id. The Eighth Circuit noted that Smith's right to counsel in his Iowa misdemeanor proceeding necessarily arose under state law because the Sixth Amendment right did not apply where only a fine was imposed. Id. at 622 (citing Scott, 440 U.S. at 373-74, 99 S.Ct. 1158). Nonetheless, the court went on to evaluate whether Smith's waiver of the state right to counsel was valid. Id. at 621-22. Although the decision does not explicitly determine whether, for purposes of qualifying as a conviction under § 921(a)(33), the law governing the right to counsel is state or federal, it is at least somewhat telling that the court did not terminate its inquiry the moment it determined that Smith had no federal right to counsel.
The federal firearms statute codified at 18 U.S.C. §§ 921 et. seq. has existed in several iterations. In its initial manifestation, the statute did not include misdemeanors whatsoever. See id. § 921 (effective through Sept. 29, 1996). In 1996, via the "Lautenberg Amendment" to the Omnibus Consolidated Appropriations Act, Congress added § 921(a)(33)(A), thereby including "misdemeanor crimes of domestic violence" as predicate offenses. See Pub.L. 104-208, div. A, tit. I, § 101(f) (Sept. 30, 1996).
The Lautenberg Amendment was hotly contested and sheds some light on the meaning Congress intended in its text.
142 Cong. Rec. S10377 (Sept. 12, 1996).
As the government points out, the Lautenberg Amendment was intended to help close the gap between the way perpetrators of domestic violence were treated compared to perpetrators of non-domestic violence. Whereas a defendant might only be charged with a misdemeanor for abusing his own spouse, he would likely be charged with a felony for abusing someone else's spouse. 142 Cong. Rec. S10379. As Senator Feinstein said, "This amendment looks to the type of crime, rather than the classification of the conviction." Id. at S10380.
Because Congress was seeking to deprive misdemeanants of gun rights, congressional opponents of the gun ban fought for the inclusion of increased procedural protections for defendants. 142 Cong. Rec. S11877 (Sept. 30, 1996). As Senator Lautenberg noted on September 30, 1996, "opponents of a strong gun ban continued to express concern that gun rights should not be lost without an assurance that offenders will be provided with all appropriate due process." 142 Cong. Rec. S11877 (Sept. 30, 1996). If Congress was going to take away gun rights, defendants needed more process; and we assume that Congress was aware that misdemeanor proceedings typically provide for lesser process than felony proceedings.
The words "in the case" were likely added to address these due process concerns. They were added to the proposed statute between September 12, 1996, when the statute required that "the individual has been represented by counsel or knowingly and intelligently waived the right to counsel" and September 30, 1996, when Senator Lautenberg had changed the language to address due process concerns. Id. Thus, we find it hard to imagine that
The first decade after its enactment, § 921(a)(33)(A) did not include tribal convictions within the ambit of its proscription. It read: "... the term `misdemeanor crime of domestic violence' means an offense that — (i) is a misdemeanor under Federal or State law." 18 U.S.C. § 921 (effective Sept. 30, 1996 to Jan. 4, 2006). In 2006, as part of the Violence Against Women and Department of Justice Reauthorization Act of 2005, Congress amended § 921(a)(33)(A)(i) to include offenders convicted under tribal law. See Pub.L. 109-162, tit. IX, § 908(a), 119 Stat. 3083 (Jan. 5, 2006).
"We assume that Congress is aware of existing law when it passes legislation." Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990); see also Annachamy v. Holder, No. 07-70336, ___ F.3d ___, ___, 2013 WL 4405687, at *5 n. 7 (9th Cir. Aug. 19, 2013); United States v. Vallee, 677 F.3d 1263, 1265 (9th Cir.2012). But see In re Doctors Hosp. of Hyde Park, 337 F.3d 951, 960 (7th Cir.2003). At that time, ICRA provided only the right to retained counsel in tribal court criminal proceedings, 25 U.S.C. § 1302 (2006), and it was well-recognized that the federal constitution did not apply to tribes exercising their sovereign powers, see Talton v. Mayes, 163 U.S. 376, 381-82, 16 S.Ct. 986, 41 L.Ed. 196 (1896); see also Felix S. Cohen, Handbook of Federal Indian Law § 14.04[2] (2012). Therefore, we conclude that Congress was aware that by including tribal court convictions in § 921(a)(33)(A), it was allowing convictions obtained without constitutional protections to qualify as misdemeanors capable of triggering prosecution under § 922(g)(9).
In sum, we conclude that the "right to counsel" in § 921(a)(33)(B)(i)(I) refers to the right to counsel as it existed in the domestic violence misdemeanor proceeding.
First argues that our interpretation of the statute violates the Sixth Amendment and the Due Process Clause of the Fifth Amendment because it allows a conviction obtained in violation of Scott and Shelton to be used to support his guilt in a subsequent § 922(g)(9) prosecution. First relies on our decision in Ant, 882 F.2d 1389, but this case is controlled by Lewis, 445 U.S. 55, 100 S.Ct. 915.
Lewis presented the question of "whether a defendant's extant prior conviction, flawed because he was without counsel, as required by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), may constitute the predicate for a subsequent conviction under [18 U.S.C.App.] § 1202(a)(1) [(1980)]," the predecessor to § 922(g).
In reaching this conclusion, Lewis distinguished a line of cases holding that a conviction obtained in violation of the Sixth Amendment could not be used in a subsequent prosecution to "support guilt or enhance punishment." Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); see Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972) (affirming this proposition in the "support guilt" context); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) (affirming this proposition in the enhancement of punishment context). In contrast, Lewis concluded that the statute, which prohibited certain individuals from possessing firearms, imposed an "essentially civil disability." 445 U.S. at 67, 100 S.Ct. 915. Therefore, "[e]nforcement of that essentially civil disability through a criminal sanction does not `support guilt or enhance punishment.'" Id. (quoting Burgett, 389 U.S. at 115, 88 S.Ct. 258). Although the three Justices in dissent argued that the majority's distinction was "simply inexplicable," id. at 72, 100 S.Ct. 915 (Brennan, J., dissenting), Lewis remains binding law.
Lewis held that the "[u]se of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by a criminal sanction" does not violate the Sixth Amendment, even when the underlying conviction did. Id. at 66-67, 100 S.Ct. 915.
Id. at 67, 100 S.Ct. 915. We see no reason not to apply the same reasoning to § 922(g)(9). For very similar reasons, discussed supra, Congress sought to prohibit those convicted of misdemeanor crimes of domestic violence from possessing firearms.
Therefore, it is of no moment that First's misdemeanor conviction was obtained without complying with the Sixth Amendment. The use of such a conviction to trigger the "civil disability" of possessing a firearm does not violate the Sixth Amendment, the Due Process Clause of the Fifth Amendment, nor the Equal Protection Clause of the Fourteenth Amendment.
In sum, we hold that although the right to counsel in § 921(a)(33)(B)(i)(I) includes a Sixth Amendment constitutional minimum in all state and federal proceedings — and indeed a more expansive right to counsel in many states — a misdemeanor conviction obtained in tribal court may qualify as a predicate offense to a § 922(g)(9) prosecution so long as the defendant was provided whatever right to counsel existed in the underlying misdemeanor proceeding.
In Frechette, the First Circuit analyzed "whether the jury waiver question [in § 921(a)(33)(B)] is determined by reference to state law standards or to the federal constitutional standard for waiver." 456 F.3d at 7. The court held that the federal constitutional standard applied to "the validity of a waiver of jury trial." Id. The court reasoned that the "very phrase `knowingly and intelligently' can easily be read as a shorthand encapsulation of the federal constitutional standard.'" Id. at 9. Although the jury provision "explicitly referred to the law of the jurisdiction in which the offense was committed," id., the court held that federal constitutional standards governed the sub-provision regarding "waiver" of that right. Id. We do not address the application of the federal standard to the words "knowingly and intelligently." Here, we conclude only that this holding does not bear on our decision, where the "right to counsel" is explicitly modified by the words "in the case." § 921(a)(33)(B)(i)(I).
Similarly, in Jennings, the Fourth Circuit concluded that a defendant's waiver of his rights to counsel and a jury trial in an underlying state domestic violence misdemeanor proceeding met federal "constitutional minimums." 323 F.3d at 276. This conclusion goes no further than the First Circuit's decision in Frechette. The same is true of the Fifth Circuit's reasoning in Bethurum. See 343 F.3d at 717-19.
Therefore, although Congress expressed a heightened concern with the reliability of predicate misdemeanor convictions for § 922(g)(9) prosecutions, this concern does not render application of the statute to First unconstitutional. Rather, the inclusion of tribal convictions within the ambit of the statute shows that Congress balanced its concern with reliability against its concern with tribal sovereignty over criminal proceedings.
