U.S. v. David H., 93-50395

• Citation: 29 F.3d 489
• Decision Date: 08 July 1994
• Docket Number: No. 93-50395,93-50395
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. DAVID H., Juvenile, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 489

29 F.3d 489

UNITED STATES of America, Plaintiff-Appellant, v. DAVID H., Juvenile, Defendant-Appellee.

No. 93-50395.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 4, 1993.

Decided July 8, 1994.

Kimberly Dunne, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellant.

Barbara E. O'Connor, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before: BROWNING, BEEZER, and TROTT, Circuit Judges.

PER CURIAM:

The United States filed an information under Sec. 5032 of the Federal Juvenile Delinquency Act charging David H. with committing armed bank robbery when he was seventeen, and moved to transfer David H. to adult status for criminal prosecution. Section 5032 required such a transfer if (1) the act charged was committed after the juvenile's sixteenth birthday, (2) the act would have been a felony involving the use of violence if committed by an adult, and (3) the juvenile had previously been found guilty of such an offense. ¹ To satisfy the last requirement, the government demonstrated that David H. was previously adjudicated a juvenile delinquent in state court after he pled guilty to committing robbery in violation of California Penal Code Sec. 211.

The district court denied the motion to transfer David H. to adult status because: (1) the mandatory transfer provision is unconstitutionally vague; and (2) the conduct involved in David H.'s prior state court juvenile delinquency adjudication was not sufficiently egregious to require transfer of the charged offenses to the district court for prosecution. We reverse and remand. ²

I

The void-for-vagueness doctrine is probably inapplicable to the mandatory transfer provision of Sec. 5032. A penal statute is void-for-vagueness if it fails to "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited," or fails to "establish minimal guidelines to govern law enforcement." Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (internal quotation omitted). The mandatory transfer provision of Sec. 5032 does not prohibit or sanction conduct. It merely establishes a basis for district court jurisdiction of prosecutions to which it applies. Since the provision "imposes neither regulation of nor sanction for conduct ... no necessity exists for guidance so that one may avoid the applicability of the law." Boutilier v. INS, 387 U.S. 118, 123, 87 S.Ct. 1563, 1566, 18 L.Ed.2d 661 (1967); see also United States v. Jordan, 747 F.2d 1120, 1130 (7th Cir.1984) ("[Void-for-vagueness] cases have one thing in common: a sanction, whether it be penal or a refusal to grant a license, for allegedly engaging in certain conduct proscribed by a statute. It is the definition of that proscribed or regulated conduct which gives rise to ... notice concerns....").

In any event, the statute does not suffer from the deficiencies suggested by the district court. It does not fail to identify the procedures to be followed, including whether mandatory transfer must be requested by motion or is automatic, or to specify the issues to be considered, including whether the court may reexamine the basis for the prior conviction.

A

The statute provides a single, straightforward procedure for both discretionary and mandatory transfer. ³ The government must file an information alleging the offenses ⁴ and a motion to transfer the juvenile to adult status. ⁵ Since mandatory transfer is treated as an exception to discretionary transfer, both will be considered in the same proceeding. ⁶ Since both mandatory and discretionary transfer depend on the existence of particular (although different) facts, a court must hold a hearing and make findings before a transfer may occur. ⁷ If the findings indicate the discretionary transfer provision applies, the district court will determine whether a transfer would be in the "interest of justice." ⁸ If the findings indicate the mandatory transfer provision applies, the district court will forego the "interest of justice" analysis and transfer the juvenile. Even if the juvenile consents, the court must order the actual transfer. ⁹

B

Focusing on the requirement that the juvenile "had previously been found guilty of an act," the district court noted that "[a]djudication of juvenile delinquency is not a conviction of a crime, but rather, a determination of a juvenile's status," United States v. Gonzalez-Cervantes, 668 F.2d 1073, 1076 (9th Cir.1981), and concluded David H.'s prior state court juvenile delinquency adjudication was not a finding of "guilt" within the meaning of Sec. 5032.

The phrase "has previously been found guilty of an act" is followed by the phrase "which if committed by an adult would have been one of the offenses set forth in this subsection." Similarly, Sec. 5038 provides that "[w]henever a juvenile is found guilty of committing an act which if committed by an adult would be a felony that is a crime of violence ..., such juvenile shall be fingerprinted and photographed." 18 U.S.C. Sec. 5038(d) (emphasis added). The phrase "which if committed by an adult" in both provisions clearly indicates Congress intended "found guilty" to apply to previous juvenile delinquency adjudications. This conclusion is reinforced by the next sentence in Sec. 5038(d) which requires that the juvenile's fingerprints and photographs be safeguarded from disclosure like other records from juvenile delinquency adjudications. ¹⁰

Congress added the mandatory transfer provision to the Act for the very purpose of addressing the problem of repeat juvenile offenders. ¹¹ Since the provision was designed to require the transfer of repeat juvenile offenders to adult status, Congress necessarily intended the term "found guilty" to include past juvenile delinquency adjudications.

David H. also contends, without elaboration, that the word "act" in the mandatory transfer provision does not apply to the conduct underlying his past juvenile delinquency adjudication. The statute, however, uses the term "act" in other contexts to refer to conduct that gives rise to a juvenile delinquency proceeding or forms the basis of a juvenile delinquency adjudication. ¹²

C

The district court found Sec. 5032 failed to specify whether the court should make a factual inquiry to determine whether David H. actually committed the prior offense relied upon as requiring mandatory transfer. The plain language of Sec. 5032 indicates the court is not to reexamine the facts underlying the prior conviction. The prior conviction requirement is met if the juvenile "has previously been found guilty of an act which if committed by an adult would have been one of the offenses set forth in this paragraph...." 18 U.S.C. Sec. 5032 (emphasis added). Once accepted by the juvenile court, the guilty plea was equivalent to a judicial finding that David H. committed the act, Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969), and precluded him from claiming he had not. ¹³ See United States v. Kidder, 869 F.2d 1328, 1332-33 (9th Cir.1989).

II

As noted, David H. was adjudicated a juvenile delinquent under state law after he plead guilty to committing robbery in violation of California Penal Code Sec. 211. The district court held a hearing regarding the conduct leading to David H.'s guilty plea, and learned that David H. and an accomplice approached two other teenagers in a school yard and took pocket change from one and a ring from the other under threat of physical harm. The district court held this conduct was not sufficiently egregious to trigger mandatory transfer under Sec. 5032.

The district court erred by looking beyond the penal statute under which David H. was convicted to determine whether his conduct would have constituted a crime of violence if committed by an adult. Mandatory transfer is triggered by a prior conviction of "a felony offense that has as an element thereof the use, attempted use, or threatened use of physical force against the person of another, or that, by its very nature, involves a substantial risk that physical force against the person of another may be used in committing the offense." 18 U.S.C. Sec. 5032 (emphasis added). The court must look to the elements or essential nature of the criminal offense for which the juvenile was convicted. If an element of the offense is the use, attempted use, or threatened use of force, or if the offense, by its very nature, involves a substantial risk of physical force, the prior conviction triggers mandatory transfer under Sec. 5032, regardless of the specific conduct underlying the conviction.

This conclusion is required by this court's interpretation of similar statutory language. Under 18 U.S.C. Sec. 924(c), a 15-year minimum sentence is mandated for persons convicted of possessing a firearm who have three prior convictions for violent felonies. The statute defines a violent felony as one having "as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. Sec. 924(e)(2)(B)(i) (emphasis added). "We concluded that the phrase 'as an element' requires an examination of the statute that delineates the offense of which the defendant was convicted and precludes any inquiry into the defendant's conduct." United States v. Sherbondy, 865 F.2d 996, 1005 (9th Cir.1988) (discussing United States v. Springfield, 829 F.2d 860 (9th Cir.1987)); see also Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990) (holding 18 U.S.C. Sec. 924(e) "generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense").

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