United States v. Sealed Defendant, 020111 FED5, 10-50719

Docket Nº:10-50719
Opinion Judge:JERRY E. SMITH, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SEALED DEFENDANT, Defendant-Appellant.
Judge Panel:Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
Case Date:February 01, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit



SEALED DEFENDANT, Defendant-Appellant.

No. 10-50719

United States Court of Appeals, Fifth Circuit

February 1, 2011

Appeal from the United States District Court for the Western District of Texas No. 7:10-CR-6-1

Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.

JERRY E. SMITH, Circuit Judge:[*]

The defendant, a juvenile whom we call A.S., appeals an order granting the government's motion to transfer him to adult status for criminal prosecution.

We affirm.


A.S.'s father, Armando, and his uncle, Francisco, worked for Jose "Chaco" Gardea, a drug trafficker. Armando and Francisco had a dispute with Gardea and another drug trafficker, Steven Soto, because Soto had recently usurped Armando's position as Gardea's right-hand man. Additionally, Armando believed that Gardea had failed to compensate him for storing Gardea's illegal drugs.

A.S., Armando, Francisco, A.S.'s fifteen-year-old brother, and a seventeen-year-old friend laid an ambush for Gardea and Soto. They waited in an alley behind Armando's and Francisco's adjacent houses. When Gardea and Soto arrived and began exiting their jeep, the five ambushers opened fire with about 160-180 rounds from assault rifles and shotguns. Gardea died of multiple wounds, but Soto managed to survive the initial barrage by climbing into the back seat of the jeep. Armando walked up to the jeep and fired two shots into Soto's head. The five assailants then left the scene. At the time, A.S. was 17 years, 8 months old.

A.S. was arrested and charged with two counts of juvenile delinquency pursuant to 18 U.S.C. § 5032. Count 1 alleged that A.S. fired a weapon into a group of two or more persons and killed them in furtherance of a major drug offense and with the intent to intimidate, harass, injure, and maim, which would have been a crime in violation of 18 U.S.C. § 36 if he were an adult. Count 2 alleged that A.S. used a firearm to cause the deaths of Gardea and Soto in furtherance of the crime of violence alleged in Count 1, which would have been a crime in violation of 18 U.S.C. § 924(c) and (j) if he were an adult.

The government filed a motion to transfer A.S. to adult status for criminal prosecution. After an evidentiary hearing, the district court the granted the motion.


We review "factual findings made by a district court considering a motion to transfer a juvenile to adult status for clear error" and "the overall decision to grant or deny the transfer motion for abuse of discretion." United States v. Sealed Appellant 1, 591 F.3d 812, 820 (5th Cir. 2009). "A finding of fact is clearly erroneous when although there is enough evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed." Id.

In evaluating a requested transfer, a district court must consider the six factors outlined in 18 U.S.C. § 5032: (1) the age and social background of the juvenile; (2) the nature of the alleged offense; (3) the extent and nature of the juvenile's delinquency record; (4) his present intellectual development and psychological maturity; (5) the nature of past treatment efforts and the juvenile's response to such efforts; and (6) the availability of programs designed to treat his behavioral problems. Not all factors must be weighted equally; "the seriousness of the offense in particular may be given more weight than other factors in determining whether there is a realistic chance of rehabilitation and hence whether transfer is appropriate." Sealed Appellant 1, 591 F.3d at 820 (quotations and citation omitted).


The district court conducted a thorough analysis, making detailed factual findings on all six factors-as required by the statute. The court properly concluded that factors (1), (2), (4), and (6) weighed in favor of transfer and that factors (3) and (5) did not.

As to the first factor, the age of the juvenile, A.S. was only four months away from his eighteenth birthday. Regardless of his troubled upbringing, his age weighs heavily in favor of a transfer.

The second factor, the nature of the...

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