FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10204
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00357-
LDG-PAL-1
DEMARIO F. EDWARDS,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, Senior District Judge, Presiding
Submitted June 14, 2013*
Submission Withdrawn
Resubmitted August 8, 2013
San Francisco, California
Filed August 15, 2013
Before: Mary M. Schroeder, Kenneth F. Ripple,**
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Schroeder
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
2 UNITED STATES V. EDWARDS
SUMMARY***
Criminal Law
The panel vacated a sentence and remanded for
resentencing without any enhancement for a prior “crime of
violence” conviction.
Rejecting the defendant’s challenge to the
constitutionality of U.S.S.G. § 4A1.2(d)(2)(A), which assigns
criminal history points for crimes committed when the
defendant was a juvenile, the panel held that the Eighth
Amendment permits courts to use prior juvenile convictions
to increase the sentence of an adult convicted of a crime.
The panel noted the government’s concession that the
Nevada attempted burglary statute, Nev. Rev. Stat. § 205.060,
is not a divisible statute and that the modified categorical
approach is therefore inapplicable under Descamps v. United
States, 133 S. Ct. 2276 (2013). Observing that the
government has never contended in this litigation that the
burglary statute is categorically a crime of violence under
U.S.S.G. § 4B1.2, the panel vacated the crime-of-violence
enhancement under U.S.S.G. § 2K2.1(a)(4)(A).
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. EDWARDS 3
COUNSEL
Chad A. Bowers, Las Vegas, Nevada, for Defendant-
Appellant.
Daniel G. Bogden, United States Attorney, Robert L. Ellman,
Appellate Chief, Adam M. Flake, Assistant United States
Attorney, District of Nevada, Las Vegas, Nevada, for
Plaintiff-Appellee.
OPINION
SCHROEDER, Circuit Judge:
DeMario Edwards appeals his 46-month sentence
following a guilty plea for possession of a firearm by a felon
in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). The
principal issue on appeal is the constitutionality of a provision
of the federal Sentencing Guidelines that assigns criminal
history points for crimes that were committed when the
defendant was a juvenile. U.S. Sentencing Guidelines
(“U.S.S.G.”) § 4A1.2(d)(2)(A). Edwards contends that
considering such crimes in sentencing adults is contrary to the
Supreme Court’s Eighth Amendment cases limiting the
degree of criminal punishment of juveniles. See Miller v.
Alabama, 132 S. Ct. 2455 (2012); Graham v. Florida,
130 S. Ct. 2011 (2010); Roper v. Simmons, 543 U.S. 551
(2005). Joining the unanimously held view of our sister
circuits, we conclude that the Eighth Amendment permits
courts to use prior juvenile convictions to increase the
sentence of an adult convicted of a crime.
4 UNITED STATES V. EDWARDS
Edwards further challenges the district court’s finding that
his prior conviction for attempted burglary under Nevada law
was a “crime of violence” under the modified categorical
approach, thereby increasing the base offense level for
purposes of the Sentencing Guidelines. The district court
looked beyond the elements of the Nevada burglary statute to
the charging document and guilty plea to hold that Edwards’s
conduct, in attempting to burglarize an occupied apartment,
created a risk of physical injury and was therefore a crime of
violence. While this appeal was pending, however, the
Supreme Court limited application of the modified
categorical approach and held that courts may not use
judicially noticeable documents to identify facts underlying
a prior conviction. See Descamps v. United States, 133 S. Ct.
2276 (2013). The government concedes that the application
of the modified categorical approach in this case would be
contrary to Descamps, and it has never contended that a
Nevada burglary conviction is a categorical crime of
violence. We must therefore vacate and remand for
resentencing without the “crime of violence” enhancement.
BACKGROUND
In his short life, Edwards, who is now 23 years old, has
accumulated a long and serious criminal history. He was
twice convicted as a juvenile, at ages 14 and 16, of felony
robbery with a deadly weapon. At age 17, he was convicted
as a juvenile for felony possession of marijuana with the
intent to sell.
Edwards has continued his criminal activity into
adulthood. At age 19, he was charged with attempted
burglary under Nevada law. In the charging document, the
State alleged that Edwards had “willfully, unlawfully and
UNITED STATES V. EDWARDS 5
feloniously attempt[ed] to enter, with intent to commit
larceny, that certain [apartment] building . . . occupied by [the
victim].” Edwards pleaded guilty to the offense and was
sentenced to 18 months probation.
While on probation for attempted burglary, parole officers
found Edwards in possession of a stolen .45 caliber pistol.
This led to the indictment in this case for possession of a
firearm by a convicted felon in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Edwards pleaded guilty.
In calculating criminal history, the Sentencing Guidelines
impose a two-point increase for each adult or juvenile
conviction before the defendant was 18 years old, that had a
maximum sentence of at least 60 days and occurred within
the five years preceding the commission of the crime for
which the defendant is being sentenced. U.S.S.G.
§ 4A1.2(d)(2)(A). The pre-sentence report found that two of
Edwards’s juvenile convictions—robbery with a deadly
weapon at age 16 and possession of marijuana with the intent
to sell at age 17—met these requirements. The report further
recommended that the district court find that Edwards’s
attempted burglary offense was a “crime of violence” as
defined by U.S.S.G. § 4B1.2, resulting in a base offense level
of 20 under U.S.S.G. § 2K2.1(a)(4)(A).
The district court sentenced Edwards to 46 months, the
bottom of the Guidelines range. The court, rejecting
Edwards’s constitutional arguments, ruled that counting the
juvenile convictions to determine criminal history was
permissible. The court further held that, pursuant to the
judicially noticeable documents, Edwards’s Nevada
attempted burglary conviction involved a risk of physical
injury to the victim and was therefore a “crime of violence.”
6 UNITED STATES V. EDWARDS
The court based its decision on Edwards’s guilty plea to
attempting to burglarize an occupied apartment. On appeal,
Edwards challenges the assignment of criminal history points
for juvenile convictions pursuant to the Sentencing
Guidelines and the finding that his attempted burglary plea
under Nevada law was for a “crime of violence.”
DISCUSSION
I. Consideration of Juvenile Criminal History in
Determining the Sentence for an Adult Convicted of a
Crime Does Not Violate the Eighth Amendment
Edwards contends that his juvenile crimes should not
have been used to calculate his criminal history score and, as
a result, his sentence. He argues that the use of these
adjudications is unconstitutional under the Supreme Court’s
recent decision in Roper, 543 U.S. at 569–70, where the
Court struck down the application of the death penalty to
individuals who committed a capital offense prior to age 18,
and Roper’s progeny, Graham, 130 S. Ct. at 2034, where the
Court held that a life without parole sentence for juveniles
convicted of non-homicide offenses was unconstitutional, and
Miller, 132 S. Ct. at 2475, where the Court held that statutes
mandating life without parole sentences are unconstitutional
as applied to juveniles.
We reject Edwards’s contention and hold that these recent
Eighth Amendment cases do not prevent the district court
from assigning criminal history points for juvenile
convictions. In so holding, we join the unanimous view of
our sister circuits, which have affirmed the use of juvenile
convictions to determine criminal history of adults. See
United States v. Graham, 622 F.3d 445, 461–64 (6th Cir.
UNITED STATES V. EDWARDS 7
2010) (affirming use of prior juvenile drug conviction in
determining sentence under 21 U.S.C. § 841(b)(1)(A));
United States v. Scott, 610 F.3d 1009, 1018 (8th Cir. 2010)
(same); United States v. Mays, 466 F.3d 335, 339–40 (5th
Cir. 2006) (same); United States v. Salahuddin, 509 F.3d 858,
863–64 (7th Cir. 2007) (upholding sentence increase under
the Armed Career Criminal Act based on juvenile criminal
history); United States v. Wilks, 464 F.3d 1240, 1242–43
(11th Cir. 2006) (same).
The Supreme Court’s recent Eighth Amendment
jurisprudence on criminal punishment for juvenile conduct is
animated by the concern that individuals are less culpable for
conduct that they engaged in as juveniles as compared with
adult conduct. As the Court stated in Roper, “[t]he
susceptibility of juveniles to immature and irresponsible
behavior means their irresponsible conduct is not as morally
reprehensible as that of an adult.” 543 U.S. at 570 (internal
quotation marks omitted). The Court was further concerned
with the harshness and disproportionality of death and life
without parole sentences, the elimination of the possibility of
rehabilitation, and the emerging consensus against such harsh
punishments for juveniles. Miller, 132 S. Ct. at 2465–66;
Graham, 130 S. Ct. at 2027–30; Roper, 543 U.S. at 575–78.
Enhancing Edwards’s sentence for adult criminal conduct
because he committed crimes as a juvenile does not implicate
any of these concerns. The conduct for which Edwards is
being punished occurred while he was an adult, not a juvenile
as in Roper, Graham, and Miller. His adult culpability with
regard to the crime for which he is being sentenced therefore
is not diminished. As the Eighth Circuit noted, Roper and
Graham “established constitutional limits on certain
sentences for offenses committed by juveniles”—not for
8 UNITED STATES V. EDWARDS
offenses committed as an adult. Scott, 610 F.3d at 1018.
Moreover, the prior juvenile convictions do not serve as a
predicate for a life sentence, as has been criticized in a three-
strikes situation. See United States v. Graham, 622 F.3d at
469–70 (Merritt, J., dissenting). There has also been no
showing, like that the Court observed in Roper, of an
emerging national or international consensus against this type
of sentencing enhancement. In fact, as the Fifth Circuit has
said, “at the federal level, sentences are routinely enhanced
under the sentencing guidelines based upon juvenile
convictions.” Mays, 466 F.3d at 340.
II. The District Court’s Application of the Modified
Categorical Approach to Determine that Edwards’s
Prior Attempted Burglary Conviction was for a
“Crime of Violence” Does Not Survive Descamps
Under the Sentencing Guidelines, individuals convicted
of firearm offenses are subject to an enhancement to a base
offense level of 20 if they have been previously convicted of
a “crime of violence.” U.S.S.G. § 2K2.1(a). The Guidelines
define “crime of violence” as any offense that either “has as
an element the use, attempted use, or threatened use of
physical force against the person of another” or “is burglary
of a dwelling, arson, or extortion, involves the use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2(a).
Edwards pleaded guilty to attempted burglary in violation
of Nevada law. See Nev. Rev. Stat. § 205.060. Edwards
argued that his conviction was not for a crime of violence
because attempted burglary does not create a risk of injury.
The district court looked beyond the elements of the Nevada
UNITED STATES V. EDWARDS 9
offense to the judicially noticeable charging document and
guilty plea in reaching its conclusion that Edwards’s actual
conduct was the attempted burglary of an occupied
apartment, which created a risk of physical injury and was
therefore a crime of violence pursuant to U.S.S.G. § 4B1.2(a).
Under our law prior to the Supreme Court’s recent
decision in Descamps, we would have affirmed this
conclusion, as the attempted burglary of an occupied
apartment presents a risk of face-to-face confrontation
between the burglar and the potential victim, a bystander, or
a police officer that may come to investigate. See United
States v. Park, 649 F.3d 1175, 1179 (9th Cir. 2011); see also
United States v. Terrell, 593 F.3d 1084, 1093–94 (9th Cir.
2010); United States v. Mayer, 560 F.3d 948, 961 (9th Cir.
2009).
But Descamps has now limited the use of the modified
categorical approach. It is appropriate to look to judicially
noticeable documents only where the state statute at issue is
divisible, that is when it has multiple, alternative elements,
and the court is attempting to determine the set of elements to
which the defendant pleaded guilty. Descamps, 133 S. Ct. at
2285. The government concedes in a supplemental brief
addressing Descamps, however, that for the purposes of this
case the Nevada attempted burglary statute is not a divisible
statute and that the modified categorical approach is therefore
inapplicable. The government has further never contended in
this litigation that the burglary statute is categorically a crime
of violence. We must therefore vacate Edwards’s sentence
and remand for resentencing without the “crime of violence”
enhancement.
10 UNITED STATES V. EDWARDS
CONCLUSION
We find no error with respect to the district court’s
calculation of Edwards’s criminal history, but we
nevertheless VACATE the sentence and REMAND the
matter for resentencing without any enhancement to the
offense level for a prior “crime of violence” conviction.