United States v. D.J.H.

• Decision Date: 01 April 2016
• Docket Number: Case No. 16–CR–9–JPS
• Citation: 179 F.Supp.3d 866
• Parties: United States of America, Plaintiff, v. D.J.H. Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

179 F.Supp.3d 866

United States of America, Plaintiff,

v.D.J.H. Defendant.

Case No. 16–CR–9–JPS

United States District Court, E.D. Wisconsin.

Signed April 1, 2016

Laura Schulteis Kwaterski, United States Department of Justice, Milwaukee, WI, for Plaintiff.

Krista A. Halla–Valdes, Federal Defender Services of Wisconsin Inc., Green Bay, WI, for Defendant.

ORDER

J.P. Stadtmueller

, United States District Judge

On January 12, 2016, the government filed a Juvenile Information charging the defendant, D.J.H., a juvenile male, with: (1) two counts of motor vehicle robbery and one count of attempted motor vehicle robbery, in violation of 18 U.S.C. §§ 2119(1)

-(2) ; (2) two counts of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii)–(2) ; and (3) one count of discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii)–(2). (Docket # 1). These charges arise out a series of three incidents involving a .38 special revolver that occurred over the course of approximately two hours on November 15, 2015. (Docket # 13 at 2–5). D.J.H., who was seventeen (17) at the time of the alleged carjackings, is claimed to have been the gunman on all three occasions. (Docket # 13 at 5; Docket # 5; Docket # 4 at 2).

Pursuant to 18 U.S.C. § 5032

, the government filed both a certification to proceed under the Federal Juvenile Delinquency Act (“JDA”), 18 U.S.C. § 5031 et seq . (Docket # 5), and a motion for the mandatory transfer of these proceedings to adult criminal prosecution (Docket # 6). The government filed the motion for mandatory transfer on the grounds that D.J.H. has previously been convicted¹ as a juvenile of Armed Robbery with Threat of Force, as Party to a Crime, in violation of Wis. Stats. §§ 943.32(2) and 939.50. (Docket # 13 at 18). This juvenile conviction stemmed from two separate robberies that occurred in September of 2013 in which D.J.H. and a co-actor used a .357 pellet gun to steal a vehicle, purse, wallet, keys, and cell phones from two victims. (Docket # 13 at 6–7). D.J.H. admitted to being the gunman during one of these incidents. (Docket # 13 at 7).

The government argues that transfer is mandatory because D.J.H.'s current carjacking charges and prior armed robbery conviction as a juvenile have, as an element thereof, the use, attempted use, or threatened use of physical force. (See generally Docket # 13). The defense argues, inter alia, that in light of Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015)

, neither D.J.H.'s prior conviction nor current charges serve as proper bases for transfer under § 5032. (See generally Docket # 16).

The government's motion for mandatory transfer is now fully briefed and ripe for adjudication. (See Docket # 13, # 16, # 17). For the reasons described herein, the Court will grant the government's motion and transfer D.J.H. to adult criminal prosecution.

2. ANALYSIS

For the sake of analytical clarity, the Court will first address the statutory framework embodied in § 5032

. Thereafter, the Court will analyze whether D.J.H. must be transferred to adult criminal prosecution pursuant to that statute.

2.1 The Mandatory Transfer Statute—18 U.S.C. § 5032

Mandatory transfer of juveniles to adult criminal prosecution is governed by 18 U.S.C. § 5032

. This verbose statute is far from a model of clarity. Cf.

United States v. A.S.R., 81 F.Supp.3d 709, 714 (E.D.Wis.2015) (“[T]his is about as dysfunctional ... a statute ... [as] you could find.”) (internal citations omitted). Nonetheless, the statute provides that the transfer of a juvenile to adult prosecution is mandatory if three requirements are satisfied:

(1) the juvenile defendant is charged in the instant case with committing a crime after his sixteenth birthday;

(2) the charged crime is “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, or would be [one of several enumerated offenses]”; and

(3) the juvenile defendant “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 or an offense in violation of a State felony statute that would have been such an offense if a circumstance giving rise to Federal jurisdiction had existed.”

18 U.S.C. § 5032

.²

The first requirement's meaning is unambiguous and the parties do not dispute that it is satisfied in this case because D.J.H. was seventeen (17) at the time he allegedly committed the crimes charged in this case. (See Docket # 1; Docket # 5; Docket # 4 at 2).

The second requirement for mandatory transfer, according to the plain language of the statute, is satisfied if the crime charged in the instant case is a felony that either: (1) has, as an element thereof, the use, attempted use, or threatened use of force (hereinafter, the “force clause”); (2) involves a substantial risk that physical force would be used in its commission (hereinafter, the “residual clause”); or (3) is one of several enumerated offenses. 18 U.S.C. § 5032

. This requirement contains language that is “virtually identical” to the definition of “crime of violence”³ embodied in both 18 U.S.C. § 16

and in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B) (hereinafter “the ACCA”). See

United States v. M.C.E., 232 F.3d 1252, 1256–57 (9th Cir.2000) (citing Taylor v. United States, 495 U.S. 575, 600–02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ); Impounded, 117 F.3d 730, 738 n. 12 (3d Cir.1997). However, in light of the Supreme Court's decision that ACCA's residual clause is unconstitutionally vague, see

Johnson, 135 S.Ct. at 2555–56, and the Seventh Circuit's decision that the residual clause embodied in 18 U.S.C. § 16 is unconstitutional under Johnson,see

United States v. Vivas–Ceja, 808 F.3d 719, 723 (7th Cir.2015), the government does not rely—and nor will the Court—on the residual clause embodied in Section 5032 when determining whether any of the charges and/or convictions in this case constitute crimes of violence. (See Docket # 13).

The third requirement for mandatory transfer is confusing, though the parties do not contest its interpretation. See 18 U.S.C. § 5032

; (see also Docket # 13 at 9; Docket # 16 at 2). But see

A.S.R., 81 F.Supp.3d at 713–14 (“The defendant argues that the offenses set forth in that paragraph include only those specifically enumerated.”); United States v. Juvenile Male No. 1, 47 F.3d 68, 69 (2d Cir.1995) (explaining that a prior conviction satisfies the mandatory transfer provision if it is “one of the enumerated offenses supporting discretionary transfer”). In the absence of binding authority to the contrary, the Court agrees with the parties' proposed reading of Section 5032 insofar as it requires that the juvenile defendant's earlier offense be a federal or state crime that would also satisfy the mandatory transfer provision's second requirement. (Compare Docket # 13 at 9 with Docket # 16 at 2); M.C.E ., 232 F.3d at 1257 ; Impounded, 117 F.3d at 732 ; United States v. David H ., 29 F.3d 489, 493–94 (9th Cir.1994) ; United States v. Juvenile Male (JNK), 1999 WL 427153, at *2 (6th Cir.1999) (unpublished). In other words, as applied to this case, the mandatory transfer provision's third requirement is satisfied if D.J.H. previously committed a state or federal crime that—just like the crime charged in the instant offense—either: (1) has, as an element, the use, attempted use, or threatened use of force; or (2) is one of the enumerated offenses in § 5032.⁴

See, e.g.,

Impounded, 117 F.3d at 732 ; David H., 29 F.3d at 493–94 ; A.S.R., 81 F.Supp.3d at 714–16.

2.2 Mandatory Transfer Analysis

As referenced above, the parties do not dispute that D.J.H. satisfies the first requirement of mandatory transfer under Section 5032

because he was seventeen (17) years old when he allegedly committed the carjackings underlying this criminal action. (See Docket # 13, # 16; see also Docket # 4 at 2). The remainder of the Court's analysis will, accordingly, be dedicated to addressing whether D.J.H.'s current federal charges and prior state juvenile conviction constitute crimes of violence so as to support transfer under Section 5032.

2.2.1 D.J.H.'s Current Charge of Motor Vehicle Robbery Satisfies the Force Clause of Section 5032

The government argues that the crimes charged in D.J.H.'s Juvenile Information—namely, carjacking in violation of 18 U.S.C. §§ 2119(1)

-(2) —satisfy the second requirement for mandatory transfer because Section 2119

has, as an element thereof, the use, attempted use, or threatened use of physical force. (Docket # 13 at 10). The defense disagrees and argues that because carjacking under Section 2119 can be committed through “intimidation,” it does not categorically qualify as a transferrable offense. (Docket # 16 at 6–11).

As a preliminary matter, the Court notes that the defendant analyzes this second requirement by resort to what is commonly known in the criminal law as the “categorical” approach. (Docket # 13 at 10; Docket # 16 at 6). The government does not explicitly endorse any particular analytical method—categorical, modified categorical, or otherwise—with respect to this issue, but impliedly relies on a categorical analysis in its reply brief.⁵ (Docket # 16 at 10; Docket # 17 at 2–5) (arguing that all of the conduct proscribed by Section 2119

satisfies the force clause).

The so-called “categorical” approach is a by product of a series of Supreme Court cases interpreting the ACCA. See United States v. Johnson, 680 F.3d 966, 983 (7th Cir.2012)

(citing Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) ). At bottom, this methodology attempts to help district courts determine whether a predicate offense qualifies as a...