U.S. v. Jones

• Decision Date: 19 June 2003
• Docket Number: No. 02-2392.,02-2392.
• Citation: 332 F.3d 688
• Parties: UNITED STATES of America v. Lester JONES, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 688

332 F.3d 688

UNITED STATES of America v. Lester JONES, Appellant.

No. 02-2392.

United States Court of Appeals, Third Circuit.

Argued March 11, 2003.

Filed June 19, 2003.

Shelley Stark, Karen Sirianni Gerlach (Argued), Renee Pietropaolo, Pittsburgh, PA, for Appellant.

Mary Beth Buchanan, Bonnie R. Schlueter, Constance M. Bowden, Kelly R. Labby (Argued), Pittsburgh, PA, for Appellee.

Before SLOVITER, NYGAARD and ALARCON,^* Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

In this appeal by Lester Jones challenging the enhancement of his sentence pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), we consider a question of first impression for this court — whether a prior nonjury juvenile adjudication can count as a prior conviction for purposes of the exception to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

I. BACKGROUND

Jones was indicted in the Western District of Pennsylvania with one count of being a previous felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and (e). Initially, he pleaded not guilty but thereafter changed his plea to guilty. During the change of plea hearing, the Government summarized its evidence against Jones. Three witnesses claimed that on April 10, 2000, Jones went to an apartment in Pittsburgh, Pennsylvania where he displayed two guns, one of which he discharged twice. Thereafter, Jones threatened the occupants and fled the apartment with $10,000 in cash and some clothing. When the police caught Jones, they recovered the stolen clothing, $10,000 in cash, and two guns, a Taurus and a Smith & Wesson. Experts matched two casings and a bullet found in the apartment to the Taurus gun.¹

A defendant convicted of being a felon in possession of a firearm is subject to a sentence of a maximum of 10 years imprisonment under 18 U.S.C. § 924(a)(2). However, the ACCA mandates a minimum sentence of 15 years imprisonment for anyone convicted of being a felon in possession in violation of 18 U.S.C. § 922(g)(1) who is found to have three previous convictions for a violent felony or serious drug offense. 18 U.S.C. § 924(e). The District Court noted that Jones had two adult state felony drug convictions and one prior juvenile adjudication for a violent crime, thereby constituting the necessary three prior convictions for application of the ACCA. Thereafter, the District Court ordered Jones to pay a special assessment in the sum of $100 and sentenced him to a 15 year term of imprisonment followed by a 4 year term of supervised release. This appeal followed.

Before us, Jones argues that the ACCA cannot apply to him. He does not dispute that his adult drug convictions qualify as prior convictions for purposes of the ACCA. Instead, Jones raises both statutory and constitutional challenges to the use of his prior juvenile adjudication for enhancement purposes. First, Jones argues that his juvenile adjudication does not constitute a "violent felony" under the ACCA when applying the "categorical approach" as enunciated in our recent decision in United States v. Richardson, 313 F.3d 121 (3d Cir.2002). Next, Jones contends that because he was not afforded the right to a jury trial during his juvenile adjudication, that adjudication cannot qualify for the so-called "prior conviction exception" articulated by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Although neither the Supreme Court nor this court has addressed this issue, two other courts of appeals have rendered differing opinions on this precise question, thereby creating a circuit split. Finally, Jones alleges that his prior juvenile adjudication cannot be used for enhancement purposes because the certified records from his juvenile adjudication do not demonstrate that he was afforded the right to counsel or waived such right.

Jones asks us to vacate his sentence and remand for resentencing with instructions that he be sentenced without the application of the ACCA.

II. DISCUSSION

A. Jurisdiction and Standard of Review

We have jurisdiction to hear this appeal pursuant to 18 U.S.C. §§ 1291 and 3742(a). This appeal presents purely legal questions, over which we exercise plenary review. See United States v. Preston, 910 F.2d 81, 84 (3d Cir.1990).

B. Jones' Statutory Claim

We first consider Jones' allegation that the statutory elements underlying his prior juvenile adjudication do not constitute a "violent felony" under the ACCA because we need not address his constitutional claims if we are persuaded by this statutory claim. In relevant part, the ACCA reads:

(1) In the case of a person who violates section 922(g) of this title and has three previous convictions ... for a violent felony or a serious drug offense, or both... such person shall be fined not more than $25,000 and imprisoned not less than fifteen years ...

(2) As used in this subsection —

. . .

(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that —

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another;

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involved conduct that presents a serious potential risk of physical injury to another; and

(C) the term "conviction" includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.

18 U.S.C. § 924(e).

To decide Jones' statutory claim, we must examine the offenses for which he was adjudicated delinquent as a juvenile by the Court of Common Pleas of Allegheny County. These were simple assault, aggravated assault, and a violation of Pennsylvania's Uniform Firearms Act, offenses we explore more fully below.

Relying on our recent decision in United States v. Richardson, 313 F.3d 121 (3d Cir.2002), Jones claims that his juvenile adjudication fails to constitute a "violent felony" as described under the ACCA. In Richardson, we held that when a juvenile adjudication is invoked to enhance a sentence under the ACCA, the sentencing court must use the same "categorical approach" as prescribed by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), for prior adult convictions. 313 F.3d at 122. The categorical approach requires the court to look only to the fact of conviction and the statutory definition of the prior offense to determine whether the defendant committed an offense which may be used for enhancement purposes. Id. at 125. The court is not to consider the actual conduct in which the juvenile engaged and make a factual determination as to whether the juvenile committed the offense. Id.

Explaining the ease with which the sentencing court can apply the categorical approach to determine whether the offense statutorily qualifies as a "violent felony" under the ACCA, we noted that "all it would have had to do would be to review the Pennsylvania criminal statutes underlying the juvenile adjudication" and see whether those statutes have as a necessary element "the use or carrying of a firearm, knife, or destructive device" required for a juvenile adjudication to count as a predicate offense under the ACCA. Id. at 127. In Richardson, the "necessary element" was not present in the statutes underlying the defendant's juvenile adjudication and thus, we vacated the sentence and remanded for resentencing. Id. at 127-28.

Jones' sentencing preceded our decision in Richardson and the District Court did not apply the categorical approach. Before us, the parties disagree as to how the categorical approach should be applied in Jones' case. Jones argues that to constitute a "violent felony" under the ACCA, the court must consider each statute underlying Jones' juvenile adjudication separately and at least one of the statutes must contain both requirements of the ACCA: "the use or carrying of a firearm, knife, or destructive device" and the use or threatened use of force. The Government rejects Jones' contention that the sentencing court is to parse out each charge underlying an act of juvenile delinquency and view it in isolation to determine whether one charge — alone — includes elements of both carrying a firearm and the use, attempted use, or threatened use of physical force. Instead, it argues that under the categorical approach, the sentencing court should view the underlying charges collectively to determine whether the ACCA's statutory elements are met. In defining "violent felony," the ACCA itself fails to definitively indicate whether the statutes underlying a juvenile adjudication should be viewed individually or in the aggregate. See 18 U.S.C. § 924(e)(2)(B).

Under either party's interpretation, the categorical approach directs an examination of the plain language of the statutes underlying Jones' juvenile adjudication, including simple assault,² aggravated assault,³ and a violation of Pennsylvania's Uniform Firearms Act.⁴ Jones argues that although the statutory elements of these three offenses require either "the use or carrying of a firearm, knife, or destructive device," or the use or threatened use of force, none of them individually requires both. It follows, according to Jones, that his juvenile adjudication does not constitute a "violent felony" under 18 U.S.C. § 924(e)(2).

In an effort to buttress his case, during oral argument counsel for Jones urged us to consider not only Richardson but also United States v. Galo, 239 F.3d 572 (3d Cir.2001). In Galo, a case dealing with sentencing enhancements under 18 U.S.C. § 2251(d) and not the ACCA, a divided panel of this court held that the district court erred in enhancing defendant's sentence because d...