United States v. First, No. 11-30346 (10-1-13) (Paez with Ripple and Trott).

What a disappointing opinion: an uncounseled tribal domestic violence misdemeanor can serve as a predicate offense under 922(g)(f) so long as the defendant could have hired counsel. The fact that he could not afford counsel was not a sixth amendment violation because this was a tribal prosecution, where Gideon does not extend under pre-TLOA law. The 9th reverses the district court's dismissal of the indictment. In so doing, the 9th does not credit the defendant's argument that 922's requirement of counsel means the appointment of counsel. The 9th reasons that, the defendant only had to have the right to retain counsel, or for appointed counsel if more than a year imprisonment. Turning to the constitutional challenge, the 9th also holds that the lack of counsel does not invalidate the civil disability of possessing a firearm. There is no fifth, sixth or fourteenth amendment violation. Again, so long as the defendant was provided whatever right to counsel existed in the underlying misdemeanor proceeding, the conviction can be used as a predicate.

A hard fought appeal by Tony Gallagher of the Federal Defenders of Montana.