United States v. Reco Vondell Johnson , 28 F.3d 151 ( 1994 )

Opinion for the court filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Circuit Judge WALD.

RANDOLPH, Circuit Judge:

Fulfilling his part of the bargain, Reeo Vondell Johnson pled guilty to possession of 50 grams or more of cocaine base with intent to distribute (21 U.S.C. § 841(a)(1) & (b)(l)(A)(iii)).¹ The statutory penalty for this crime, which Johnson committed when he was nineteen years old, is imprisonment for 120 months to life. 21 U.S.C. § 841(b)(1)(A). Under the United States Sentencing Guidelines, Johnson fell into criminal history Category V. His base offense level amounted to 29. The lines on the sentencing table intersected at 140 to 175 months’ imprisonment. In 1993, the district court sentenced Johnson to 140 months.

Before his eighteenth birthday, Johnson repeatedly violated the criminal laws of the District of Columbia. The presentence report, in compliance with U.S.S.G. § 4A1.2(d),² relied on Johnson’s extensive juvenile record to calculate his criminal history category. Nine of Johnson’s ten criminal history points were for offenses he committed before his eighteenth birthday. In this appeal pursuant to 18 U.S.C. § 3742(a), Johnson challenges the Sentencing Commission’s authority to use juvenile records to determine a defendant’s criminal history category, the district court’s failure to depart downward under U.S.S.G. § 4A1.3, and the Guidelines’ alleged lack of neutrality with respect to socio-eco-nomic status and race.³

I

The Sentencing Commission has not identified the statutory basis for U.S.S.G. § 4A1.2(d)’s counting juvenile adjudications in a defendant’s criminal history, but this is not fatal. See United States v. Lopez, 938 F.2d 1293, 1296-97 (D.C.Cir.1991). If any provision of the Sentencing Reform Act, reasonably interpreted, would support the guideline, we must sustain it. See United States v. Price, 990 F.2d 1367, 1370 (D.C.Cir.1993). Section 217(a) of the Sentencing Reform Act of 1984, 28 U.S.C. § 994(d)(10), directs the Commission to “consider” whether a defendant’s “criminal history” should be treated as relevant “in establishing categories of defendants for use in the guidelines,” and, if relevant, to take “criminal history” “into account.” ⁴ Section 994(d) lists ten additional “matters, among others” for the Commission’s consideration. In view of the “among others,” the eleven items on the list do not exhaust the possibilities. United States v. Booten, 914 F.2d 1352, 1355 (9th Cir.1990). Other provisions of the Sentencing Reform Act give the Commission broad authority to formulate sentencing criteria. See 28 U.S.C. §§ 991, 994(a); Mistretta v. United States, 488 U.S. 361, 377, 109 S.Ct. 647, 657, 102 L.Ed.2d 714 (1989); Price, 990 F.2d at 1369. For instance, 28 U.S.C. § 991(b)(1) empowers the Commission to “establish sentencing policies and practices for the Federal criminal justice system that ... reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process.... ”

As Johnson sees it, U.S.S.G. § 4A1.2(d) exceeds the Commission’s statutory authority. He asks how “criminal history” under § 994(d)(10) can include his juvenile offenses when D.C.Code Ann. § 16-2318 states that a juvenile adjudication “is not a conviction of a crime.”

Juvenile justice systems, in theory, focus on treatment and rehabilitation. See In re Gault, 387 U.S. 1, 15-17, 87 S.Ct. 1428, 1437-38, 18 L.Ed.2d 527 (1967). Juvenile crime is termed “delinquency” and those responsible for it are “youth offenders.” Juvenile ree-ords are often sealed; juvenile convictions may later be set aside if the offender goes straight. See Tuten v. United States, 460 U.S. 660, 664-65, 103 S.Ct. 1412, 1415, 75 L.Ed.2d 359 (1983); United States v. McDonald, 991 F.2d 866, 871-73 (D.C.Cir.1993). As we said in McDonald, “[sjetting aside a conviction may allow a youth who has slipped to regain his footing by relieving him of the social and economic disabilities associated with a criminal record.... But if a juvenile offender turns into a recidivist, the case for conferring the benefit dissipates- Society’s stronger interest is in punishing appropriately an unrepentant criminal.” 991 F.2d at 872. Under the D.C.Code, therefore, a court may take into account the defendant’s juvenile record in determining his sentence for crimes he committed as an adult. D.C.Code Ann. § 16-2331(b)(4).⁵ The practice of considering prior juvenile adjudications at sentencing, a practice authorized in the Federal Youth Corrections Act, 18 U.S.C. § 5038(a)(2), see Barnes v. United States, 529 A.2d 284, 288 (D.C.1987), has long been accepted. See Consideration of Accused’s Juvenile Court Record in Sentencing for Offenses Committed as an Adult, 64 A.L.R.3d 1291 (1975). A defendant with a juvenile record may not have been “convicted,” but the defendant nevertheless “violated a provision of the criminal law,” Matter of W.A.F., 573 A.2d 1264, 1267 (D.C.1990).⁶ The Sentencing Commission’s mandate is to establish categories of defendants on the basis of factors bearing on punishment. 28 U.S.C. § 994(d). It would be strange therefore if the Commission departed from the practice just described by ignoring a defendant’s record of juvenile delinquency. See United States v. Carrillo, 991 F.2d 590, 594-95 (9th Cir.1993). Recidivism, so Congress and the Commission concluded, -generally warrants increased punishment. Whether the Commission’s guideline requiring juvenile offenses to be counted rests specifically on § 994(d)(10), or is a factor within the “among others” clause of § 994(d), seems to us of little moment. Since juvenile records are without doubt relevant, Barnes, 529 A.2d at 288, the Commission did not exceed its statutory authority in taking them into account when it established categories of defendants.

Johnson also attacks U.S.S.G. § 4A1.2(d) on the ground that it unreasonably fails to differentiate between juvenile adjudications and adult criminal convictions.⁷ As the system now stands, a juvenile sixty-day sentence of confinement warrants the same number of points as an adult sentence of imprisonment for the same time. See U.S.S.G. §§ 4Al.l(b), 4A1.2(d)(2)(A). A juvenile sentence of less than sixty days is treated the same as an adult sentence of less than sixty days. See U.S.S.G. §§ 4Al.l(c), 4A1.2(d)(2)(B).

Juvenile delinquents achieve ignominy by committing crimes.⁸ In re Gault, 387 U.S. at 24, 87 S.Ct. at 1442. Differences in society’s response to youthful offenders and its response to adult offenders are not attributable to differences in the nature of their criminal acts. When yesterday’s juvenile delinquent becomes today’s adult criminal the reasons behind society’s earlier forbearance disappear. The question before the sentencing court is what punishment to mete out to an adult criminal, not how to treat and rehabilitate a youthful offender. In light of the purposes of sentencing, see 18 U.S.C. § 3553(a)(2), the Commission’s decision to give juvenile confinements or sentences the same weight as adult criminal imprisonments or sentences is not unreasonable. It is a method, rough to be sure, of measuring relative culpability among offenders and the likelihood of their engaging in future criminal behavior. Those who have committed crimes after serving sixty days or more in a prison-like facility, whether they were then a juvenile or an adult, prove that they have not been deterred. See U.S.S.G. § 4A Introductory Commentary.

We recognize that generalizing about juvenile dispositions may give rise to difficulties. As we have said, U.S.S.G. § 4A1.2(d)(2) assigns two points for a juvenile “sentence of confinement” of sixty days or more. (Two points are also added for a sixty-day adult “sentence of imprisonment.” U.S.S.G. § 4Al.l(b).) The Guidelines do not define “sentence of confinement.” Under D.C.Code Ann. § 16-2320(e), judges may impose a wide range of dispositions on juveniles who are adjudged delinquent. The nature of confinement may vary considerably. Juveniles may be placed in foster care, or in group homes, or in residential treatment centers, or in secure prison-like facilities. There may, then, be cases in which an extensive “sentence of confinement” (say to a juvenile Outward Bound program) would not even be roughly equivalent to a sixty-day prison sentence. And it may be that the confinement ordered is not directly related to the gravity of the offense. Judges may, for instance, fashion a disposition on the basis of the juvenile’s home environment, and the need to remove the individual from that setting. See Kent v. United States, 383 U.S. 541, 554-55, 86 S.Ct. 1045, 1054, 16 L.Ed.2d 84 (1966).

Johnson raises these potential problems, but we do not resolve them. The district court assigned Johnson four points for two sentences of confinement of more than sixty days. On both occasions Johnson was ordered to Oak Hill Youth Center, the District of Columbia’s secure commitment center. See District of Columbia v. Jerry M., 571 A.2d 178, 181 n. 6 (D.C.1990); Beyer, Brown & DeMuro, Report of the Jerry M. Panel Appendix I (submitted to the D.C. Superior Court Mar. 11, 1987); cf. In re Gault, 387 U.S. at 27, 87 S.Ct. at 1443. Johnson did not contend, here or in the district court, that it is unreasonable, for the purpose of calculating criminal history, to equate more than sixty days in Oak Hill with an equivalent period of imprisonment. Cf. United States v. Williams, 891 F.2d 212, 216 (9th Cir.1989), cert. denied, 494 U.S. 1037, 110 S.Ct. 1496, 108 L.Ed.2d 631 (1990). Neither has he claimed that the length of his confinement was unrelated to his underlying criminal conduct, the details of which confidentiality precludes us from discussing. Accordingly, as to Johnson, there was nothing untoward about the Guidelines’ use of a juvenile “sentence of confinement” in calculating his criminal history.

II

Distinctions between juvenile dispositions and adult convictions and sentences of imprisonment may warrant a sentencing court’s departing from the Guidelines’ sentencing range pursuant to U.S.S.G. § 4A1.3 on the basis that the defendant’s criminal history category “does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” See United States v. Davis, 929 F.2d 930, 933 (3d Cir.1991). While Johnson maintains that here the district court should have departed downward, a “sentencing court’s discretionary refusal to depart downward is not reviewable on appeal.” United States v. Spencer, 25 F.3d 1105, 1112 (D.C.Cir.1994). All that we may consider is Johnson’s claim that the court misconstrued the scope of its discretion under U.S.S.G. § 4A1.3, id., a claim resting entirely on the court’s failure to say that Johnson’s juvenile record was sufficiently serious despite his age at the time he committed the offenses. Id. That the court did not say more in its public opinion may be attributable to the fact that Johnson’s juvenile records are under seal. At all events the court said enough to show that it correctly understood the scope of its discretion. The court observed that most of Johnson’s criminal history was due to his juvenile adjudications; the court examined the individual components of Johnson’s criminal history; and the court assessed them in the context of his “long and varied experience with the criminal justice system.” In evaluating Johnson’s record, the court concluded—in language reflecting a correct understanding of U.S.S.G. § 4A1.3—“[i]t is regrettable, but certain, that nothing in Mr. Johnson’s record has overrepresented his ‘likelihood to commit further crimes.’ ”

III

Congress directed the Sentencing Commission to “assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socio-economic status of offenders.” 28 U.S.C. § 994(d). According to Johnson, § 4A1.2(d) is not entirely neutral because there is “plentiful evidence that race and socio-economic status influence the process resulting in juvenile adjudications and orders of confinement.”

“At all stages,” Johnson states, “the juvenile process is characterized by a high degree of discretion....” But the criminal justice system is also inherently discretionary: prosecutors may charge lesser crimes and accept plea bargains; juries may acquit altogether or convict of a lesser included offense; the executive has the power to grant clemency. If, because of discretion, the juvenile justice system is open to the influence of race and socio-economic status, the same may be said of the adult criminal justice system. Cf. McCleskey v. Kemp, 481 U.S. 279, 297, 107 S.Ct. 1756, 1769, 95 L.Ed.2d 262 (1987); Gregg v. Georgia, 428 U.S. 153, 199 n. 50, 96 S.Ct. 2909, 2937 n. 50, 49 L.Ed.2d 859 (1976) (Opinion of Stewart, J.). If Johnson were right, if this rendered the Guidelines not “entirely neutral,” it would follow that Congress meant to forbid consideration of any record of criminal conduct in sentencing. Obviously, Congress meant no such thing. Criminal history is to be taken into account, as it always has been.

Of course any punishment selected or augmented on the basis of race is impermissible. The Guidelines explicitly state that not only race, but also sex, national origin, creed, religion and socio-economic status, “are not determination of a sentence.” U.S.S.G. § 5H1.10. On its face U.S.S.G. § 4A1.2(d) is neutral with respect to these factors. Johnson does not profess innocence of any of the offenses that make up his record, and he does not contend that he was discriminated against, in the sentence imposed by the district court or in the dispositions of the juvenile court. For Johnson, the Guidelines have fulfilled the mandate of neutrality set forth in § 994(d), and we therefore reject his complaint.

Affirmed.

1 . In return, the government dismissed the remaining two counts of the indictment charging distribution of cocaine base (21 U.S.C. § 841(a)(1) & (b)(i)(A)(iii)), and possession with intent to distribute the drugs within 1000 feet of a school (21 U.S.C. § 860(a)).

2 . U.S.S.G. § 4A1.2(d) provides:

(d) Offenses Committed Prior to Age Eighteen

(1) If the defendant was convicted as an adult and received a sentence of imprisonment exceeding one year and one month, add 3 points under § 4Al.l(a) for each such sentence.

(2) In any other case,

(A) add 2 points under § 4Al.l(b) for each adult or juvenile sentence to confinement of at least sixty days if the defendant was released from such confinement within five years of his commencement of the instant offense;

(B) add 1 point under § 4Al.l(c) for each adult or juvenile sentence imposed within five years of the defendant's commencement of the instant offense not covered in (A).

3 . Relying on Baldosar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980) (per cu-riam), Johnson also argued that because judges alone conduct juvenile proceedings, counting "non-jury” juvenile adjudications in a defendant's criminal history score is unconstitutional. While this appeal was pending, Nichols v. United States, - U.S. -, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), overruled Baldosar, thereby foreclosing Johnson’s argument. Nichols held that an uncounseled conviction may be used to enhance a sentence. In light of Nichols, there is no reason why a constitutional non-jury juvenile adjudication may not be used in the same way.

4 (d) The Commission in establishing categories of defendants for use in the guidelines and policy statements governing the imposition of sentences of probation, fine, or imprisonment ... shall consider whether the following matters, among others, with respect to a defendant have any relevance to the nature, extent, place of service, or other incidents of an appropriate sentence, and shall take them into account only to the extent that they do have relevance— ...

(10) criminal history....

28 U.S.C. § 994(d)(10).

5 . Johnson views D.C.Code Ann. § 16-2318 as a promise that juvenile adjudications will not be treated as a criminal conviction for any purpose, a view D.C.Code Ann. § 16-2331(b)(4) flatly contradicts. See also United States v. Bucaro, 898 F.2d 368, 371-73 (3d Cir.1990); United States v. Daniels, 929 F.2d 128, 129-30 (4th Cir.), cert. denied, - U.S. -, 112 S.Ct. 201, 116 L.Ed.2d 161 (1991).

6 . The Guidelines exclude "juvenile status offenses and truancy” from criminal history calculation. U.S.S.G. § 4A1.2(c)(2). See United States v. Miller, 987 F.2d 1462, 1465-66 (10th Cir.1993).

7 . The only appreciable difference is that juvenile confinement more than five years distant from the commencement of the offense at issue is not counted, U.S.S.G. § 4A1.2(d)(2), while the cutoff period for adults is ten years. U.S.S.G. § 4Al.l(b) Application Note 2.

8 . Under the D.C.Code, a judge in the Family Division of the D.C. Court system must determine that the juvenile committed a delinquent act beyond a reasonable doubt. D.C.Code Ann. § 16—2317(b)(1).