United States v. Eubanks

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0240p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 09-1254
v.
,
>
-
-
CARTER EUBANKS, aka CARTER JUNIOR

Defendant-Appellant. -
REED,
-
N
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 08-00154-001—Janet T. Neff, District Judge.
Argued: April 21, 2010
Decided and Filed: August 3, 2010*
Before: BATCHELDER, Chief Judge; WHITE, Circuit Judge; GREER, District
Judge.**
_________________
COUNSEL
ARGUED: David L. Kaczor, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand
Rapids, Michigan, for Appellant. Russell A. Kavalhuna, ASSISTANT UNITED
STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: David L.
Kaczor, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids, Michigan, for
Appellant. Michael L. Schipper, ASSISTANT UNITED STATES ATTORNEY, Grand
Rapids, Michigan, for Appellee.

*
This decision was originally issued as an “unpublished decision” filed on August 3, 2010. The
court has now designated the opinion as one recommended for full-text publication.
**
The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.

1
No. 09-1254 United States v. Eubanks Page 2

_________________

OPINION
_________________

ALICE M. BATCHELDER, Chief Judge. Carter Eubanks appeals his sentence,
claiming that the court erred in finding that his juvenile conviction in Michigan may be
considered in designating him as an armed career criminal pursuant to the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Because we find that the district court
correctly determined that Eubanks’s prior conviction must be considered under the
ACCA, we AFFIRM.

I.

Carter Eubanks was apprehended by police officers after they responded to a
complaint of a man selling drugs from his car in the parking lot of an apartment
complex. Upon searching his car, the officers found two ounces of marijuana. The next
day, they obtained a warrant to search his home and discovered a pistol. Eubanks was
indicted for being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1); he pled guilty to the indictment without a plea agreement.

The pre-sentence investigation report (“PSR”) designated Eubanks an armed
career criminal pursuant to the ACCA because of two prior controlled-substance
violations as an adult and a juvenile conviction for felonious assault, a designation that
requires a mandatory minimum sentence of fifteen years’ imprisonment. At the
sentencing hearing, Eubanks objected to the use of the juvenile conviction to enhance
his sentence under the ACCA. He argued that the conviction should not be considered
because Michigan law required that the record of his juvenile conviction be destroyed
when he turned thirty years old, and he was thirty-one at the time of the instant offense.
The district court overruled the objection, noting that although Michigan law does
provide for the destruction of some juvenile records when an offender turns thirty years
old, the law nonetheless permits the conviction itself to be used to calculate a future
sentence.
No. 09-1254 United States v. Eubanks Page 3

Because Eubanks meets the statutory requirements for designation as an armed
career criminal, and because the mandatory minimum sentence under the ACCA is 180
months, the district court sentenced him to 180 months’ imprisonment, though it stated
on the record its belief that this period of imprisonment was much too harsh.

Eubanks filed a timely notice of appeal.

II.

Eubanks argues that the district court committed procedural error in sentencing
him pursuant to the ACCA sentencing enhancement, 18 U.S.C. § 924(e), when he did
not in fact have the requisite three qualifying convictions. He argues that his juvenile
conviction is not a qualifying conviction, because Michigan Court Rules require that the
files and records of juvenile offenses be destroyed when the offender turns thirty years
old, and that this is an effective expunction under federal law. See 18 U.S.C.
§ 921(a)(20) (“a conviction which has been expunged . . . shall not be considered a
conviction for purposes of this chapter.”). In the alternative, he argues that even if his
juvenile conviction was not expunged, Michigan law should have prevented the
disclosure of the records of that conviction, and without those records, the court could
not have conducted the review necessary to determine whether the offense qualified as
a violent felony under the ACCA. See Shepard v. United States, 544 U.S. 13 (2005).

A. Expunction of the Juvenile Record

We review de novo the district court’s interpretation of a federal statute,
including whether a conviction constitutes a violent felony for purposes of that statute.
United States v. Hargrove, 416 F.3d 486, 494 (6th Cir. 2005).

The ACCA provides that one convicted of being a felon in possession of a
firearm who has three prior convictions for either violent felonies or serious drug
offenses is subject to a mandatory minimum sentence of 15 years’ imprisonment.
18 U.S.C. § 924(e)(1). Eubanks concedes that his two prior adult convictions qualify as
serious drug offenses, as defined by § 924(e)(2); however, he argues that his juvenile
No. 09-1254 United States v. Eubanks Page 4

conviction for felonious assault does not qualify as a violent felony because it falls under
the expunction exception of 18 U.S.C. § 921(a)(20).

A violent felony under the ACCA is defined as:

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

18 U.S.C. § 924(e)(2)(B). An exception to this general rule is that “what constitutes a
conviction . . . shall be determined in accordance with the law of the jurisdiction in
which the proceedings were held” and “[a]ny conviction which has been expunged or
set aside . . . shall not be considered a conviction” sufficient to qualify as one of the
predicate three convictions under the ACCA enhancement. 18 U.S.C. § 921(a)(20).

Eubanks argues that his juvenile conviction, even if it would otherwise qualify
as a “violent felony,” has been effectively expunged by a Michigan Court Rule which
provides that “the court must destroy the files and records pertaining to a person’s
juvenile offenses when the person becomes 30 years old.” Mich. Ct. R. 3.925(E)(2)(c).
The rule also specifically provides that “[d]estruction of a file does not negate, rescind,
or set aside an adjudication.” Mich. Ct. R. 3.925(E)(1). And another section of the rule
provides the specific route by which a juvenile offender may attempt to have his juvenile
adjudication or conviction set aside. See Mich. Ct. R. 3.925(F) (“[t]he setting aside of
juvenile adjudications is governed by M.C.L. 712A.18e” and “[t]he court may only set
No. 09-1254 United States v. Eubanks Page 5

aside a conviction as provided by M.C.L. 780.621 et. seq.”).1 Critically, several
subsections of Rule 3.925 provide that “the register of actions” must not be destroyed.
See Mich. Ct. R. 3.925 (E)(1), (2)(b) and (2)(d). This “register of actions” is established
by Michigan Court Rule 8.119(D)(1)(c), which requires that among the records that must
be kept by the clerk of each trial court is the register of actions, which must include,
among other things: the offense; the judge assigned to the case; the date of trials and
hearings; the orders, judgments, and verdicts; and the date and manner of adjudication
and disposition. Mich. Ct. R. 8.119(D)(1)(c).

An analysis of the plain language of the federal and Michigan statutes indicates
that the destruction of records required by the rule is not the expunction contemplated
by 18 U.S.C. § 921(a)(20). Michigan case law makes it clear that juvenile convictions,
some records of which have been destroyed pursuant to Michigan Court Rules, may
nonetheless be considered by a sentencing judge when sentencing an adult offender. See
People v. Smith, 470 N.W.2d 70, 75 (Mich. 1991). In Smith, a criminal defendant
challenged the inclusion of his juvenile record in his PSR, arguing that because the
juvenile record should have been automatically expunged under the Michigan Court
Rule,2 it should not be considered by the trial judge in determining whether he qualified
as an habitual offender under state law. The Michigan Supreme Court disagreed,
explaining that “[t]he purpose of the court rule . . . is to prevent a juvenile record from
becoming an obstacle to educational, social, or employment opportunities. When,
however, a juvenile offender appears in court again as an adult, his juvenile offense
record may be considered in imposing the sentence.” Id.

Despite this settled Michigan law, Eubanks proffers two unpublished Sixth
Circuit cases that appear at first glance to be quite helpful to his argument, namely

1
It appears that Mr. Eubanks would be ineligible to set aside his juvenile offense, because the
Michigan statute providing for set asides requires that the applicant have no felony convictions and not
more than one juvenile offense. See M.C.L. 712A.18e(1).
2
The Michigan Court Rule then in operation was former Rule 5.913, which required certain
juvenile court records to be “expunged” when the offender turned 27. It should be noted that this language
is stronger than the current rule, which uses the term “destroyed” rather than “expunged,” further
strengthening the conclusion that mere destruction of records is insufficient to exclude juvenile convictions
from future sentencing consideration.
No. 09-1254 United States v. Eubanks Page 6

United States v. Flores, 118 F. App’x 49 (6th Cir. 2004) (unpublished), and United
States v. Merryman, 16 F.3d 1222, 1994 WL 54430 (6th Cir. Feb. 23,1994) (unpublished
table decision). Both cases involved the question of whether certain Michigan juvenile
offenses could be counted as predicate offenses under the ACCA if they were supposed
to have been expunged as a matter of law. They are, however, inapposite. In both cases,
the parties and the court assumed that Michigan’s Court Rules expunge the juvenile
offense for purposes of the ACCA. In neither case is that issue — which is the heart of
the instant case — discussed or decided by the court. And in neither case is Michigan’s
decisional law, particularly the Michigan Supreme Court’s decision in Smith, mentioned.
Instead, Flores focused on whether the defendant’s being barred from obtaining a
concealed weapons permit (a bar which resulted from his juvenile offense) could
resurrect his presumably expunged juvenile conviction for consideration under the
ACCA. Flores, 118 F. App’x at 52-53. And Merryman’s holding focused solely on the
timing of expunction, stating that only convictions that exist at the time of a defendant’s
sentencing may be considered as ACCA predicate offenses. Merryman, 1994 WL
54430, at *4.

Eubanks also attempts to dismiss the holding of Smith by pointing to the policy
considerations behind the Michigan Supreme Court’s allowing the use of prior juvenile
convictions. See Smith, 470 N.W.2d at 75 (explaining that judges need access to
complete information in order to properly individualize each offender’s sentence and that
one’s juvenile offender history may reveal an even more extensive pattern of
lawbreaking than does the adult record alone). He argues that this policy rationale is not
applicable in the federal ACCA setting because the use of juvenile convictions for
ACCA purposes actually hinders a judge from tailoring an individualized sentence, in
that it triggers the statutory minimum and deprives the judge of discretion. But Eubanks
has not explained why this argument is relevant to our inquiry of what the status of his
juvenile conviction would be according to the laws of the state of Michigan. It is not the
policy considerations underlying the Smith decision that concern us here; our task is to
apply Michigan law as we find it. See also United States v. Ellis, 604 F. Supp. 2d 346,
No. 09-1254 United States v. Eubanks Page 7

348-49 (D. Mass. 2009) (explaining that when state law allows for the use of a juvenile
conviction in imposing sentence, then it may also be used under the federal ACCA).

The ACCA requires the federal court to look to the law of the state — here, the
law of Michigan — to determine the status of a defendant’s prior convictions; the
Michigan Court Rules provide for the destruction of certain juvenile records when the
offender turns thirty, but they do not expunge or set aside any juvenile conviction, or
prevent the use of that conviction by the sentencing judge in later state court
proceedings. The district court therefore did not err in concluding that Eubanks’s 1992
juvenile conviction for felonious assault is an ACCA predicate offense.

B. Review of the Juvenile Offense under Shepard

Eubanks’s alternative argument is that even if the district court must consider his
juvenile offense in determining whether he is an armed career criminal, the court’s
procedures in making that determination were erroneous. Because under Michigan law
most of the records should have been destroyed, Eubanks argues, the court should not
have been able to access them in order to determine whether the offense qualified as a
violent felony under the ACCA.

Ordinarily, we review sentences under an abuse-of-discretion standard, looking
first to determine whether the district court committed any significant procedural error.
See Gall v. United States, 552 U.S. 38, 51 (2007). But Eubanks did not object at
sentencing to the court’s use of the facts contained in the charging document for the
juvenile felonious assault conviction — indeed, Eubanks expressly conceded in his
Objections to the PSR and during the course of the sentencing hearing that the charging
documents reflected that this juvenile conviction was for an offense that involved the use
of a firearm. And Eubanks raised no objection at the conclusion of sentencing when the
court inquired whether there remained any legal objections to the sentence. Our review
is therefore for plain error. United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008).
And we will reverse for plain error only where the error not only affects substantial
rights, but “seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993).
No. 09-1254 United States v. Eubanks Page 8

To qualify as a predicate “violent felony” under the ACCA, a juvenile offense
must not only meet the qualifications for an adult predicate offense (be punishable by
more than a year in prison and involve the use, attempted use, or threatened use of
physical force against another), but it must also involve “the use or carrying of a firearm,
knife, or destructive device.” 18 U.S.C. § 924(e)(2)(B). The Michigan statute under
which Eubanks was convicted, M.C.L. 750.82, defines “felonious assault” to include
assault with a firearm. However, the statutory definition includes as well assaults with
such things as iron bars, clubs, and brass knuckles, none of which is included in the
ACCA’s definition of “violent felony.”

Clearly, Eubanks’s juvenile conviction is for violation of a statute which
proscribes both conduct that would constitute a violent felony under the ACCA and
conduct that would not. Under those circumstances, in determining whether that prior
conviction constitutes a violent felony, the sentencing court is limited to considering “the
terms of the charging document, the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea was confirmed by
the defendant, or to some comparable judicial record of this information.” Shepard, 544
U.S. at 26.

Eubanks asserts that the documentation required to demonstrate that he used a
firearm, knife, or destructive device during the commission of his juvenile felonious
assault should have been unavailable to the district court because his juvenile record was
supposed to have been destroyed. He argues that the fact of his conviction and the
examination of the Michigan statute by themselves would not be sufficient to
demonstrate his use of such a weapon or device.

But Eubanks’s argument misses the mark. Eubanks himself acknowledged to the
district court, both in his filed objections to the PSR and in the colloquy at sentencing,
that the charging documents revealed that the juvenile felonious assault conviction
involved his use of a gun. And Eubanks raised no objection at sentencing to the district
court’s reliance on that fact.
No. 09-1254 United States v. Eubanks Page 9

Beyond that, Michigan Court Rules do not require that all of a juvenile offender’s
records be destroyed. In fact, the rules require that the “register of actions” must not be
destroyed, Mich. Ct. R. 3.925 (E)(1), (2)(b) and (2)(d), and that register must include,
among other things, the offense, the judge assigned to the case, the date of trials and
hearings, the orders, judgments, and verdicts, and the date and manner of adjudication
and disposition. Mich. Ct. R. 8.119(D)(1)(c). It is far from clear that the district court
based its decision on any document required by the Michigan Court Rules to have been
destroyed. The PSR, in its detailing of the juvenile offense as part of Eubanks’s criminal
history, refers to the “petition,” which reflects that the offense involved the use of a gun.
Eubanks has provided us no basis upon which to infer that this petition was not a record
that is required to be part of the register of actions established by Rule 8.119(D)(1)(c).
And, as we have already discussed, the Michigan Supreme Court has made it clear that
when “a juvenile offender appears in court again as an adult, his juvenile offense record
may be considered in imposing the sentence.” Smith, 470 N.W.2d at 75.

Under these circumstances, we conclude that if the district court committed any
error at all by considering Eubanks’s juvenile felonious assault conviction and in
concluding that it constituted a violent felony under the ACCA, that error certainly was
not plain.

III.

For the foregoing reasons, we AFFIRM the sentence imposed by the district
court.