U.S. v. Johnson

• Decision Date: 08 July 1994
• Docket Number: No. 93-3140,93-3140
• Citation: 28 F.3d 151,307 U.S.App.D.C. 284
• Parties: UNITED STATES of America, Appellee, v. Reco Vondell JOHNSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 151

28 F.3d 151

307 U.S.App.D.C. 284

UNITED STATES of America, Appellee, v. Reco Vondell JOHNSON, Appellant.

No. 93-3140.

United States Court of Appeals,

District of Columbia Circuit.

Argued May 12, 1994.

Decided July 8, 1994.

Appeal from the United States District Court for the District of Columbia (92cr00410).

David A. Reiser, Sp. Litigation Counsel, Public Defender Service, Washington, DC, for the District of Columbia, argued the cause for appellant. With him on the briefs were A.J. Kramer, Federal Public Defender, James W. Klein, Chief, Appellate Div., Public Defender Service for the District of Columbia, and Leigh A. Kenny, Asst. Federal Public Defender.

James A. Meade, Asst. U.S. Atty., Washington, DC, argued the cause for appellee. With him on the brief were Eric H. Holder, Jr., U.S. Atty., and John R. Fisher and Roy W. McLeese, III, Asst. U.S. Attys.

Elaine R. Jones and George H. Kendall, III, Washington, DC, were on the brief for amicus curiae NAACP Legal Defense and Educational Fund, Inc.

Before: WALD, SILBERMAN, and RANDOLPH, Circuit Judges.

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, Reco Vondell Johnson pled guilty to possession of 50 grams or more of cocaine base with intent to distribute (21 U.S.C. Sec. 841(a)(1) & (b)(1)(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. Sec. 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. Sec. 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. Sec. 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. Sec. 4A1.3, and the Guidelines' alleged lack of neutrality with respect to socio-economic status and race. ³

I

The Sentencing Commission has not identified the statutory basis for U.S.S.G. Sec. 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. Sec. 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. Secs. 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. Sec. 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. Sec. 4A1.2(d) exceeds the Commission's statutory authority. He asks how "criminal history" under Sec. 994(d)(10) can include his juvenile offenses when D.C.CODE ANN. Sec. 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 records 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, "[s]etting 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. Sec. 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. Sec. 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. Sec. 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 Sec. 994(d)(10), or is a factor within the "among others" clause of Sec. 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. Sec. 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. Secs. 4A1.1(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. Secs. 4A1.1(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. Sec. 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. Sec. 4A Introductory Commentary.

We recognize that generalizing about juvenile dispositions may give rise to difficulties. As we have said, U.S.S.G. Sec. 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. Sec. 4A1.1(b).) The Guidelines do not define "sentence of confinement." Under D.C.CODE ANN. Sec. 16-2320(c), 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...