NOT FOR PUBLICATION                           FILED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, 

, 1113 (9th

Cir. 2015) (en banc); United States v. Maggi, 

, 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 

.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, 

, 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.; 

–16;

United States v. Alvirez, 

, 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, 

 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, 

, 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, 

, 877 (9th Cir. 2004).

      AFFIRMED.




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