USA. v. Tighe

• Decision Date: 24 September 2001
• Docket Number: PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,No. 00-30263,00-30263
• Citation: 266 F.3d 1187
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. SHANNON WAYNE TIGHE,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1187

266 F.3d 1187 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. SHANNON WAYNE TIGHE, DEFENDANT-APPELLANT.

No. 00-30263

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 13, 2001

Filed September 24, 2001

[Copyrighted Material Omitted]

Michael Donahoe, Assistant Federal Defender, Helena, Montana, for the defendant-appellant.

Bernard F. Hubley, Assistant United States Attorney, Helena, Montana, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana John S. Rhoades, District Judge, Presiding D.C. No. CR-00-00005-JSR

Before: Betty B. Fletcher, Melvin Brunetti and Raymond C. Fisher, Circuit Judges.

Fisher, Circuit Judge

OVERVIEW

This case is before us to review the legality of Tighe's sentence, imposed pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. §§ 924(e), which mandates a minimum sentence of 15 years for any person who violates the felon-in-possession statute, 18 U.S.C. §§ 922(g), and who has three previous convictions for violent felonies or serious drug offenses. Tighe claims that his sentence cannot stand because ACCA is unconstitutional in light of the Supreme Court's recent decision in Apprendi v. New Jersey, and because two of the prior offenses upon which the district court relied as predicate offenses were improperly counted as such. Although we reject Tighe's claim that ACCA is facially unconstitutional, as well as his claim that his third degree burglary conviction was not a "violent felony" under ACCA, we agree that the district court violated Apprendi in counting as a predicate offense Tighe's previous juvenile adjudication. Accordingly, we vacate Tighe's sentence and remand for resentencing.

BACKGROUND

On April 20, 2000, Tighe pled guilty to three counts of a three-count indictment charging him with bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d) (Count I), being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and §§ 924(a)(4) (Count II) and interstate transportation of a stolen vehicle in violation of 18 U.S.C.§§ 2312 (Count III). The indictment did not state that if he was found to be an armed career criminal, he would receive a minimum sentence of at least 15 years.¹ During the Rule 11 plea colloquy, the district court informed Tighe that if he had three prior convictions for a violent felony he would receive a sentence of not less than 15 years. In the Presentence Report ("PSR"), the Probation Office concluded that the ACCA sentencing enhancement should be applied to Tighe, and set forth five previous incidents of violent conduct. Tighe submitted objections to the PSR, including objections to whether or not his convictions qualified him for the enhancement. In a sentencing memo, Tighe also objected on the ground that Apprendi required that the three felony predicates be proven before a jury by a beyond-a-reasonable-doubt standard of proof.

At sentencing on August 28, 2000, the district court determined, over Tighe's objection, that he should be sentenced pursuant to U.S.S.G. §§ 4B1.4(b)(3)(B), which implements ACCA. The district court rejected Tighe's Apprendi objection. As for the three prior felonies required to trigger the armed career criminal enhancement, the district court first relied upon a 1993 Wyoming armed robbery conviction, which was agreed upon by both parties. The court then found that a 1988 Oregon juvenile adjudication of a charge of reckless endangerment and first-degree robbery and unauthorized use of a motor vehicle counted as a prior conviction. Finally, the district court found that a 1992 South Dakota burglary conviction fell squarely within the "Taylor heartland of burglary offenses" and therefore counted as the third conviction necessary to apply the enhancement. Having found three countable convictions, the district court sustained Tighe's objection to a 1993 South Dakota grand theft conviction "in the interest of judicial economy." The court sentenced Tighe to 235-months imprisonment for Count I, 180 months for Count II and 120 months for Count III, all sentences to run concurrently. He timely appeals his sentence.

STANDARD OF REVIEW

The legality of a sentence is reviewed de novo. United States v. Murphy, 65 F.3d 758, 762 (9th Cir. 1995). The constitutionality of a statutory provision is reviewed de novo. Taylor v. United States, 143 F.3d 1178, 1179 (9th Cir. 1998). Whether a conviction is a predicate felony under section 924(e) is reviewed de novo. United States v. Bonat, 106 F.3d 1472, 1474 (9th Cir. 1997).

DISCUSSION

I. Constitutional Challenges to Tighe's Sentence under ACCA

Tighe brings both facial and as-applied constitutional challenges to his sentences under ACCA. We address each challenge in turn.

A. Facial Challenge

The Armed Career Criminal Act, 18 U.S.C. §§ 924(e), mandates a minimum sentence of 15 years for anyone convicted of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) who is found to have three previous convictions for a violent felony or a serious drug offense. 18 U.S.C. §§ 924(e)(1); United States v. McElyea, 158 F.3d 1016, 1018 (9th Cir. 1998). A defendant convicted of being a felon in possession of a firearm who has not been previously convicted of three violent felonies or serious drug offenses can be sentenced only to a maximum of 10 years. 18 U.S.C. §§ 924(a)(2). Tighe challenges ACCA on its face on the ground that it "allows for a substantial increase in [the] statutory maximum [sentence] based on prior convictions, the existence of which need only be proved to the judge by a preponderance of the evidence." He argues that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the fact of his prior convictions must be proved to a jury beyond a reasonable doubt.

Under the current state of the law, the Constitution does not require prior convictions that increase a statutory penalty to be charged in the indictment and proved before a jury beyond a reasonable doubt. United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir. 2001) ("The district court was entitled to consider any prior aggravated felony convictions in sentencing Pacheco-Zepeda for illegal re-entry even though such conduct had not been charged in the indictment, presented to a jury, and proved beyond a reasonable doubt."); see also Apprendi, 530 U.S. at 490 ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (emphasis added)); Almendarez-Torres v. United States, 523 U.S. 224, 243-44 (1998). Accordingly, we affirm the district court's holding that ACCA is constitutional on its face.

B. As-Applied Challenge

Tighe argues that his sentence is unconstitutional because it was increased beyond the statutory maximum 10 years by the district court's finding that he was adjudicated a juvenile delinquent for committing a violent felony when he was 14years old. He argues that Apprendi requires that the fact of his juvenile adjudication be charged in an indictment and found by a jury beyond a reasonable doubt.

One of the three predicate felonies used by the district court to enhance Tighe's sentence was a 1988 Oregon juvenile adjudication for reckless endangerment, robbery and unauthorized use of a motor vehicle. As a juvenile, Tighe was not afforded the right to a jury trial during the juvenile proceedings under either state or federal law. McKeiver v. Pennsylvania, 403 U.S. 528 (1971) (concluding that, in a juvenile delinquency adjudication, trial by jury is not a constitutional requirement); State v. Reynolds, 857 P.2d 842 (Or. 1993). Despite the lack of a jury trial and certain other procedural protections in the context of most juvenile proceedings, however, Congress has declared that juvenile delinquency adjudications involving violent felonies may nonetheless qualify as predicate "convictions" under ACCA. 18 U.S.C. §§ 924(e)(2)(C).

This is not the first time we have addressed the constitutionality of non-jury juvenile adjudications as sentencing enhancements. In United States v. Williams, 891 F.2d 212 (9th Cir. 1989), a pre-Apprendi case, we held that a sentencing judge's use of a prior, non-jury juvenile adjudication to enhance a defendant's sentence under the sentencing guidelines did not violate due process. Contrary to the government's assertion, however, Williams is not dispositive of the issue presently before us, because the nature of the sentencing decision reviewed in that case was fundamentally different from the sentencing decision Tighe now challenges. Although Williams addressed the use of prior juvenile adjudications to enhance a defendant's sentence, the defendant's ultimate sentence in that case was within the statutorily mandated range for the offense of conviction. In other words, William's prior juvenile adjudications were not used to increase the statutorily mandated maximum punishment to which he was exposed. ²

In contrast, under ACCA the fact of Tighe's prior juvenile adjudication was used to increase his statutorily mandated maximum punishment from not more than 10 years, under 18 U.S.C. §§ 924(a)(2), to at least 15 years. A fact that is used to increase the maximum statutory penalty to which a defendant is exposed raises an entirely different set of constitutional concerns than a fact that merely affects where a sentence is fixed within an undisputed statutorily mandated range. See United States v. Moss, 252 F.3d 993(8th Cir., June 11, 2001). Accordingly, because Tighe challenges the use of his prior juvenile adjudications to raise his statutory maximum punishment, Williams does not answer the question of whether the district court's use of such adjudications was constitutional.

As discussed in the preceding section addressing Tighe's facial challenge to ACCA, the Supreme Court has held that "other than the...