United States v. Demario Edwards , 734 F.3d 850 ( 2013 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                          No. 12-10204
    Plaintiff-Appellee,
    D.C. No.
    v.                           2:11-cr-00357-
    LDG-PAL-1
    DEMARIO F. EDWARDS,
    Defendant-Appellant.                    OPINION
    Appeal from the United States District Court
    for the District of Nevada
    Lloyd D. George, Senior District Judge, Presiding
    Submitted June 14, 2013*
    Submission Withdrawn
    Resubmitted August 8, 2013
    San Francisco, California
    Filed August 15, 2013
    Before: Mary M. Schroeder, Kenneth F. Ripple,**
    and Consuelo M. Callahan, Circuit Judges.
    Opinion by Judge Schroeder
    *
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    **
    The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
    for the Seventh Circuit, sitting by designation.
    2                  UNITED STATES V. EDWARDS
    SUMMARY***
    Criminal Law
    The panel vacated a sentence and remanded for
    resentencing without any enhancement for a prior “crime of
    violence” conviction.
    Rejecting the defendant’s challenge to the
    constitutionality of U.S.S.G. § 4A1.2(d)(2)(A), which assigns
    criminal history points for crimes committed when the
    defendant was a juvenile, the panel held that the Eighth
    Amendment permits courts to use prior juvenile convictions
    to increase the sentence of an adult convicted of a crime.
    The panel noted the government’s concession that the
    Nevada attempted burglary statute, Nev. Rev. Stat. § 205.060,
    is not a divisible statute and that the modified categorical
    approach is therefore inapplicable under Descamps v. United
    States, 
    133 S. Ct. 2276
    (2013). Observing that the
    government has never contended in this litigation that the
    burglary statute is categorically a crime of violence under
    U.S.S.G. § 4B1.2, the panel vacated the crime-of-violence
    enhancement under U.S.S.G. § 2K2.1(a)(4)(A).
    ***
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. EDWARDS                       3
    COUNSEL
    Chad A. Bowers, Las Vegas, Nevada, for Defendant-
    Appellant.
    Daniel G. Bogden, United States Attorney, Robert L. Ellman,
    Appellate Chief, Adam M. Flake, Assistant United States
    Attorney, District of Nevada, Las Vegas, Nevada, for
    Plaintiff-Appellee.
    OPINION
    SCHROEDER, Circuit Judge:
    DeMario Edwards appeals his 46-month sentence
    following a guilty plea for possession of a firearm by a felon
    in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). The
    principal issue on appeal is the constitutionality of a provision
    of the federal Sentencing Guidelines that assigns criminal
    history points for crimes that were committed when the
    defendant was a juvenile. U.S. Sentencing Guidelines
    (“U.S.S.G.”) § 4A1.2(d)(2)(A). Edwards contends that
    considering such crimes in sentencing adults is contrary to the
    Supreme Court’s Eighth Amendment cases limiting the
    degree of criminal punishment of juveniles. See Miller v.
    Alabama, 
    132 S. Ct. 2455
    (2012); Graham v. Florida,
    
    130 S. Ct. 2011
    (2010); Roper v. Simmons, 
    543 U.S. 551
    (2005). Joining the unanimously held view of our sister
    circuits, we conclude that the Eighth Amendment permits
    courts to use prior juvenile convictions to increase the
    sentence of an adult convicted of a crime.
    4               UNITED STATES V. EDWARDS
    Edwards further challenges the district court’s finding that
    his prior conviction for attempted burglary under Nevada law
    was a “crime of violence” under the modified categorical
    approach, thereby increasing the base offense level for
    purposes of the Sentencing Guidelines. The district court
    looked beyond the elements of the Nevada burglary statute to
    the charging document and guilty plea to hold that Edwards’s
    conduct, in attempting to burglarize an occupied apartment,
    created a risk of physical injury and was therefore a crime of
    violence. While this appeal was pending, however, the
    Supreme Court limited application of the modified
    categorical approach and held that courts may not use
    judicially noticeable documents to identify facts underlying
    a prior conviction. See Descamps v. United States, 
    133 S. Ct. 2276
    (2013). The government concedes that the application
    of the modified categorical approach in this case would be
    contrary to Descamps, and it has never contended that a
    Nevada burglary conviction is a categorical crime of
    violence. We must therefore vacate and remand for
    resentencing without the “crime of violence” enhancement.
    BACKGROUND
    In his short life, Edwards, who is now 23 years old, has
    accumulated a long and serious criminal history. He was
    twice convicted as a juvenile, at ages 14 and 16, of felony
    robbery with a deadly weapon. At age 17, he was convicted
    as a juvenile for felony possession of marijuana with the
    intent to sell.
    Edwards has continued his criminal activity into
    adulthood. At age 19, he was charged with attempted
    burglary under Nevada law. In the charging document, the
    State alleged that Edwards had “willfully, unlawfully and
    UNITED STATES V. EDWARDS                       5
    feloniously attempt[ed] to enter, with intent to commit
    larceny, that certain [apartment] building . . . occupied by [the
    victim].” Edwards pleaded guilty to the offense and was
    sentenced to 18 months probation.
    While on probation for attempted burglary, parole officers
    found Edwards in possession of a stolen .45 caliber pistol.
    This led to the indictment in this case for possession of a
    firearm by a convicted felon in violation of 18 U.S.C.
    §§ 922(g)(1) and 924(a)(2). Edwards pleaded guilty.
    In calculating criminal history, the Sentencing Guidelines
    impose a two-point increase for each adult or juvenile
    conviction before the defendant was 18 years old, that had a
    maximum sentence of at least 60 days and occurred within
    the five years preceding the commission of the crime for
    which the defendant is being sentenced.              U.S.S.G.
    § 4A1.2(d)(2)(A). The pre-sentence report found that two of
    Edwards’s juvenile convictions—robbery with a deadly
    weapon at age 16 and possession of marijuana with the intent
    to sell at age 17—met these requirements. The report further
    recommended that the district court find that Edwards’s
    attempted burglary offense was a “crime of violence” as
    defined by U.S.S.G. § 4B1.2, resulting in a base offense level
    of 20 under U.S.S.G. § 2K2.1(a)(4)(A).
    The district court sentenced Edwards to 46 months, the
    bottom of the Guidelines range. The court, rejecting
    Edwards’s constitutional arguments, ruled that counting the
    juvenile convictions to determine criminal history was
    permissible. The court further held that, pursuant to the
    judicially noticeable documents, Edwards’s Nevada
    attempted burglary conviction involved a risk of physical
    injury to the victim and was therefore a “crime of violence.”
    6              UNITED STATES V. EDWARDS
    The court based its decision on Edwards’s guilty plea to
    attempting to burglarize an occupied apartment. On appeal,
    Edwards challenges the assignment of criminal history points
    for juvenile convictions pursuant to the Sentencing
    Guidelines and the finding that his attempted burglary plea
    under Nevada law was for a “crime of violence.”
    DISCUSSION
    I. Consideration of Juvenile Criminal History in
    Determining the Sentence for an Adult Convicted of a
    Crime Does Not Violate the Eighth Amendment
    Edwards contends that his juvenile crimes should not
    have been used to calculate his criminal history score and, as
    a result, his sentence. He argues that the use of these
    adjudications is unconstitutional under the Supreme Court’s
    recent decision in 
    Roper, 543 U.S. at 569–70
    , where the
    Court struck down the application of the death penalty to
    individuals who committed a capital offense prior to age 18,
    and Roper’s progeny, 
    Graham, 130 S. Ct. at 2034
    , where the
    Court held that a life without parole sentence for juveniles
    convicted of non-homicide offenses was unconstitutional, and
    
    Miller, 132 S. Ct. at 2475
    , where the Court held that statutes
    mandating life without parole sentences are unconstitutional
    as applied to juveniles.
    We reject Edwards’s contention and hold that these recent
    Eighth Amendment cases do not prevent the district court
    from assigning criminal history points for juvenile
    convictions. In so holding, we join the unanimous view of
    our sister circuits, which have affirmed the use of juvenile
    convictions to determine criminal history of adults. See
    United States v. Graham, 
    622 F.3d 445
    , 461–64 (6th Cir.
    UNITED STATES V. EDWARDS                     7
    2010) (affirming use of prior juvenile drug conviction in
    determining sentence under 21 U.S.C. § 841(b)(1)(A));
    United States v. Scott, 
    610 F.3d 1009
    , 1018 (8th Cir. 2010)
    (same); United States v. Mays, 
    466 F.3d 335
    , 339–40 (5th
    Cir. 2006) (same); United States v. Salahuddin, 
    509 F.3d 858
    ,
    863–64 (7th Cir. 2007) (upholding sentence increase under
    the Armed Career Criminal Act based on juvenile criminal
    history); United States v. Wilks, 
    464 F.3d 1240
    , 1242–43
    (11th Cir. 2006) (same).
    The Supreme Court’s recent Eighth Amendment
    jurisprudence on criminal punishment for juvenile conduct is
    animated by the concern that individuals are less culpable for
    conduct that they engaged in as juveniles as compared with
    adult conduct. As the Court stated in Roper, “[t]he
    susceptibility of juveniles to immature and irresponsible
    behavior means their irresponsible conduct is not as morally
    reprehensible as that of an 
    adult.” 543 U.S. at 570
    (internal
    quotation marks omitted). The Court was further concerned
    with the harshness and disproportionality of death and life
    without parole sentences, the elimination of the possibility of
    rehabilitation, and the emerging consensus against such harsh
    punishments for juveniles. 
    Miller, 132 S. Ct. at 2465–66
    ;
    
    Graham, 130 S. Ct. at 2027–30
    ; 
    Roper, 543 U.S. at 575–78
    .
    Enhancing Edwards’s sentence for adult criminal conduct
    because he committed crimes as a juvenile does not implicate
    any of these concerns. The conduct for which Edwards is
    being punished occurred while he was an adult, not a juvenile
    as in Roper, Graham, and Miller. His adult culpability with
    regard to the crime for which he is being sentenced therefore
    is not diminished. As the Eighth Circuit noted, Roper and
    Graham “established constitutional limits on certain
    sentences for offenses committed by juveniles”—not for
    8               UNITED STATES V. EDWARDS
    offenses committed as an adult. 
    Scott, 610 F.3d at 1018
    .
    Moreover, the prior juvenile convictions do not serve as a
    predicate for a life sentence, as has been criticized in a three-
    strikes situation. See United States v. 
    Graham, 622 F.3d at 469–70
    (Merritt, J., dissenting). There has also been no
    showing, like that the Court observed in Roper, of an
    emerging national or international consensus against this type
    of sentencing enhancement. In fact, as the Fifth Circuit has
    said, “at the federal level, sentences are routinely enhanced
    under the sentencing guidelines based upon juvenile
    convictions.” 
    Mays, 466 F.3d at 340
    .
    II. The District Court’s Application of the Modified
    Categorical Approach to Determine that Edwards’s
    Prior Attempted Burglary Conviction was for a
    “Crime of Violence” Does Not Survive Descamps
    Under the Sentencing Guidelines, individuals convicted
    of firearm offenses are subject to an enhancement to a base
    offense level of 20 if they have been previously convicted of
    a “crime of violence.” U.S.S.G. § 2K2.1(a). The Guidelines
    define “crime of violence” as any offense that either “has as
    an element the use, attempted use, or threatened use of
    physical force against the person of another” or “is burglary
    of a dwelling, arson, or extortion, involves the use of
    explosives, or otherwise involves conduct that presents a
    serious potential risk of physical injury to another.” U.S.S.G.
    § 4B1.2(a).
    Edwards pleaded guilty to attempted burglary in violation
    of Nevada law. See Nev. Rev. Stat. § 205.060. Edwards
    argued that his conviction was not for a crime of violence
    because attempted burglary does not create a risk of injury.
    The district court looked beyond the elements of the Nevada
    UNITED STATES V. EDWARDS                        9
    offense to the judicially noticeable charging document and
    guilty plea in reaching its conclusion that Edwards’s actual
    conduct was the attempted burglary of an occupied
    apartment, which created a risk of physical injury and was
    therefore a crime of violence pursuant to U.S.S.G. § 4B1.2(a).
    Under our law prior to the Supreme Court’s recent
    decision in Descamps, we would have affirmed this
    conclusion, as the attempted burglary of an occupied
    apartment presents a risk of face-to-face confrontation
    between the burglar and the potential victim, a bystander, or
    a police officer that may come to investigate. See United
    States v. Park, 
    649 F.3d 1175
    , 1179 (9th Cir. 2011); see also
    United States v. Terrell, 
    593 F.3d 1084
    , 1093–94 (9th Cir.
    2010); United States v. Mayer, 
    560 F.3d 948
    , 961 (9th Cir.
    2009).
    But Descamps has now limited the use of the modified
    categorical approach. It is appropriate to look to judicially
    noticeable documents only where the state statute at issue is
    divisible, that is when it has multiple, alternative elements,
    and the court is attempting to determine the set of elements to
    which the defendant pleaded guilty. 
    Descamps, 133 S. Ct. at 2285
    . The government concedes in a supplemental brief
    addressing Descamps, however, that for the purposes of this
    case the Nevada attempted burglary statute is not a divisible
    statute and that the modified categorical approach is therefore
    inapplicable. The government has further never contended in
    this litigation that the burglary statute is categorically a crime
    of violence. We must therefore vacate Edwards’s sentence
    and remand for resentencing without the “crime of violence”
    enhancement.
    10            UNITED STATES V. EDWARDS
    CONCLUSION
    We find no error with respect to the district court’s
    calculation of Edwards’s criminal history, but we
    nevertheless VACATE the sentence and REMAND the
    matter for resentencing without any enhancement to the
    offense level for a prior “crime of violence” conviction.