Impounded v.

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit

6-30-1997

Impounded v.
Precedential or Non-Precedential:

Docket 96-7781

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Filed June 30, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 96-7781

IMPOUNDED
(Juvenile R.G., Appellant)

On Appeal From the District Court of
the Virgin Islands (Division of St. Croix)
(D.C.Crim No. 96-cr-00046)

Argued: April 9, 1997

Before: BECKER, ROTH, and WEIS,
Circuit Judges.

(Filed June 30, 1997)

THURSTON T. McKELVIN, ESQUIRE
Federal Public Defender
MELODY M. WALCOTT, ESQUIRE
(ARGUED)
Assistant Federal Public Defender
P.O. Box 3450
Christiansted, St. Croix
U.S. Virgin Islands 00822

Attorneys for Appellant
JAMES A. HURD, JR., ESQUIRE
United States Attorney
RICHARD M. PRENDERGAST,
ESQUIRE (ARGUED)
Assistant United States Attorney
1108 King Street - Suite 201
Christiansted, St. Croix
U.S. Virgin Islands 00820

Attorneys for Appellees

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal by a juvenile defendant charged with a
number of serious crimes challenges the authority of the
United States government to prosecute him in federal court.
The governing statute is 18 U.S.C. § 5032, which
establishes a two-step procedure governing the transfer of
juveniles from state to federal court for criminal
prosecution. The appeal presents the important question,
which has divided the circuits, whether the certification
decision of the United States Attorney General or her
designee -- the first-step in the transfer proceedings -- is
reviewable by a federal court.

Because we believe that the core of the decision to certify
is one left to the discretion of the federal prosecutor, we
follow the majority circuit view and hold that we have
jurisdiction to review only limited aspects of the
certification decision, including whether the certification is
proper in form, whether it was made in bad faith, and the
purely legal question whether the juvenile has been charged
with a crime of violence.

Our conclusion as to our limited ability to review a
certification decision effectively resolves the question
whether the prosecutor made a proper certification here, for
the non-reviewable facets of the certification (that the Virgin
Islands refuses to assume jurisdiction and that the case
presents a substantial federal interest) are sufficient and
sustain the certification.

2
The second-step question, whether the district court
properly allowed the transfer of the juvenile to adult status
under the so-called mandatory transfer provisions of
§ 5032, turns on whether the possession crime with which
the juvenile was charged, see V.I. Code Ann. tit. 14,
§ 2251(a)(2), involves a substantial risk of the use of
physical force. Because the possession crime includes as an
element of the offense the intent to use a dangerous
weapon, and the commission of the crime will therefore
present a substantial risk that physical force will be used,
we hold that the possession crime satisfies the
requirements of the § 5032 mandatory transfer provisions.
The order of the district court transferring the juvenile's
case to federal court will thus be affirmed.

I. SECTION 5032 TRANSFERS

In order to facilitate the understanding of the issues, we
first describe the provisions in 18 U.S.C. § 5032 pertaining
to the transfer of a juvenile from state authorities to a
federal district court for criminal prosecution as an adult.
Transfer proceedings are governed by a two-step process.
The first step is certification by the Attorney General or her
designee, normally a United States Attorney. The certifying
party must certify either that

(1) the juvenile court or other appropriate court of a
State does not have jurisdiction or refuses to assume
jurisdiction over said juvenile with respect to such
alleged act of juvenile delinquency, (2) the State does
not have available programs and services adequate for
the needs of juveniles, or (3) the offense charged is a
crime of violence that is a felony or [is] an offense
[specifically enumerated in this paragraph], and that
there is a substantial Federal interest in the case or
the offense to warrant the exercise of Federal
jurisdiction.

18 U.S.C. § 5032.1
_________________________________________________________________

1. We recognize that § 5032 might be read to mean that the certifying
party must, in all cases, certify that there is a substantial federal
interest. That reading, although plausible, is a function of inartful

3
Contingent upon a proper certification, the federal
prosecutor may move in the appropriate district court for a
transfer of the juvenile to adult status -- the second step in
the transfer process. Section 5032 envisions two avenues
by which a transfer may occur. First are the so-called
permissive transfer provisions. Under the permissive
transfer provisions, the district court may transfer a
juvenile "if such court finds, after hearing, such transfer
would be in the interest of justice." Id. To assess whether
_________________________________________________________________

drafting of the statute. Following the phrase in the sentence that reads
"the Attorney General, after investigation, certifies to the appropriate
district court of the United States that" (emphasis added) there are three
choices. Separating that phrase and the three choices from the
substantial federal interest phrase are the words "and that" preceded by
a comma. Simplifying the sentence, then, it reads as follows: "the
Attorney General, after investigation, certifies to the appropriate district
court of the United States that [A, B, or C], and that [D]." (emphasis
added) The "A, B, or C" represents the phrase containing the three
choices; the "D" is the phrase containing the substantial federal interest.
Thus, one might read the statute to require that the Attorney General
certify everything following the two uses of the word "that," i.e., the
Attorney General must always certify to the existence of a substantial
federal interest.

However, this reading does not comport with the legislative history of
the 1984 amendment to § 5032 that added the language referring to
crimes of violence and to a substantial federal interest. A Senate report
stated that the 1984 amendment added a "third category to existing law
that would permit the disposition of a case involving a juvenile charged
with a serious felony by means of a Federal proceeding . . . if the
Attorney General certifies that the offense is a felony crime of violence
. . . and that there is a `substantial Federal interest in the case or offense
to warrant the exercise of Federal jurisdiction.' " S. Rep. No. 98-225, at
389 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3529 (footnote
omitted). Thus, we believe that the proper reading of § 5032 includes the
substantial federal interest requirement within the third category of
choices to which the Attorney General must certify. In other words,
using the same representation as that used above, the certifying party
must certify to (A), (B), or (C and D). Our reading comports with that of
the Ninth Circuit, see United States v. Doe, 13 F.3d 302, 304 n.1 (9th
Cir. 1993), and the Department of Justice, see 3(a) United States
Department of Justice, United States Attorneys' Manual § 9-8.110
(1988).

4
a transfer would be "in the interest of justice," the statute
directs the court to examine:

the age and social background of the juvenile; the
nature of the alleged offense; the extent and nature of
the juvenile's prior delinquency record; the juvenile's
present intellectual development and psychological
maturity; the nature of past treatment efforts and the
juvenile's response to such efforts; the availability of
programs designed to treat the juvenile's behavioral
problems.

Id.

The second avenue by which a juvenile may be
transferred to adult status is by way of the mandatory
transfer provisions. Pursuant to § 5032, a district court
shall transfer the juvenile if three factors are present: (1)
the juvenile committed the act underlying the charged
offense after his sixteenth birthday; (2) the charged offense
is a felony that has as an element the use of physical force
or by its nature involves the risk of physical force, or is an
offense specifically enumerated in the paragraph; and (3)
the juvenile has previously been found guilty of a crime
that would satisfy factor (2). Id.

II. FACTS AND PROCEDURAL HISTORY

The core offense involves a carjacking. In January 1995,
a young woman drove to her parents' house to pick up her
sister. Just after the sister entered the car outside the
house, two masked men, one of whom was armed,
approached the car and demanded the keys. The women
complied and ran back inside the house. Their father then
went outside, but returned immediately to the house when
he heard a gun shot. The two men drove off. The police
located the car the following day; a stereo system and a
cellular phone had been stolen from the car.

One of the young women named the juvenile as her
assailant. The Virgin Islands police located the juvenile,
arrested him, and charged him with robbery, assault, and
possession of a firearm during the commission of a crime of
violence. The Territorial Court of the Virgin Islands ordered

5
that the juvenile be prosecuted in that court as an adult.
Then, pursuant to an agreement with the United States
Attorney for the Virgin Islands, the Government of the
Virgin Islands declined to prosecute the juvenile. Shortly
thereafter, the United States Attorney filed an Information
in the District Court of the Virgin Islands charging the
juvenile with carjacking, robbery, use of a firearm during a
crime of violence, and possession of a firearm during a
crime of violence. The United States Attorney also made the
requisite certification under § 5032, and moved under both
the mandatory and permissive provisions of § 5032 to
transfer the juvenile to adult status.

The district court held a hearing to determine whether
transfer to adult status was appropriate. The court
concluded that all three elements of § 5032's mandatory
transfer provisions were met: the juvenile was more than
sixteen years of age when the crime was alleged to have
been committed; each of the crimes for which he was
charged had as an element "the use, attempted use, or
threatened use of physical force . . . or . . . involved a
substantial risk that physical force [may be used] against
. . . another"; and the juvenile had previously been found
guilty of a violent crime. The court therefore ordered the
transfer of the juvenile to adult status.

The juvenile appeals from the district court's transfer
order. Included in that appeal is a challenge to the § 5032
certification. We will assume that the § 5032 certification is
a prerequisite to the district court exercising jurisdiction
over the transfer hearing. Therefore, whether the district
court properly exercised jurisdiction over the § 5032
transfer hearing turns on whether the certification was
proper. Although the order from which the juvenile appeals
is not "final" for the purposes of 28 U.S.C.§ 1291 or 48
U.S.C. § 1613a(c), we have appellate jurisdiction pursuant
to the collateral order doctrine. See In re A.M., 34 F.3d 153,
155-56 (3d Cir. 1994).

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III. REVIEW OF THE PROSECUTOR'S § 5032
CERTIFICATION

A. Is a § 5032 Certification Reviewable?

As a threshold matter, we must determine whether we
have jurisdiction to review the prosecutor's § 5032
certification. Although this is an issue of first impression
for us, we do not write on a blank slate, for a number of
Courts of Appeals have already published opinions on the
point, from which we draw instruction.2

The seminal case is United States v. Vancier, 515 F.2d
1378 (2d Cir. 1975). In Vancier, the United States Attorney
had certified to the district court that no appropriate state
court had jurisdiction over the defendant.3 On appeal,
Vancier argued that the certification was improper because
there existed an "appropriate" state court with jurisdiction
over him. The court noted, however, that § 5032 does not
explicitly provide for judicial review of a certification, nor
does it provide articulable standards against which a court
could measure whether an appropriate state court could
exercise jurisdiction over the juvenile. See id. at 1380. It
concluded that, although the statute provides some
limitations on the prosecutor's discretion to certify a
juvenile for federal jurisdiction, those limitations do not
afford the courts the power to review the exercise of that
discretion. See id. at 1380-81. Analogizing the certification
decision to other non-reviewable determinations made by
_________________________________________________________________

2. It is interesting to note that both Houses of Congress are currently
considering legislation that would amend § 5032 to make clear that the
necessary certifications are not reviewable by any court. The House of
Representatives has already passed a version of the legislation, see
Juvenile Crime Control Act of 1997, H.R. 3, 105th Cong. § 101 (1997),
and the Senate is actively deliberating about another version, see Violent
and Repeat Juvenile Offender Act of 1997, S.10, 105th Cong. § 102(a)
(1997). We understand, of course, that the legislation may change prior
to enactment, if it is enacted at all.

3. At the time of the Vancier case, § 5032 did not contain the option to
certify that the juvenile was charged with a crime of violence or with one
of the enumerated crimes, or the requirement that such a case present
a substantial federal interest.

7
law enforcement officials, the court held that the§ 5032
certification is unreviewable. See id. at 1381.

Other circuits have reached a similar conclusion. The
Eleventh Circuit, in United States v. C.G., 736 F.2d 1474
(11th Cir. 1984), adopted the reasoning of Vancier and held
that a court could not review the correctness of a § 5032
certification asserting that an appropriate state court did
not have jurisdiction over the juvenile. See id. at 1477-78.
The Eleventh Circuit suggested, however, that it could
review a certification to ensure that the certifying party was
authorized under the statute, that the certification was
timely filed, and that it stated the appropriate statutory
factors that give rise to federal jurisdiction. See id. at 1477.
The court also suggested that it would be appropriate to
inquire into whether the certification was made in bad
faith. See id. at 1478; see also United States v. Wellington,
102 F.3d 499, 503-05 (11th Cir. 1996) (reaffirming the
holding of C.G.). Similarly, the Ninth Circuit held that
"[w]here . . . a certificate was timely filed, and that
certificate appeared regular on its face, the trial judge has
no duty independently to investigate and determine if the
certificate refers to the proper state court." United States v.
Gonzalez-Cervantes, 668 F.2d 1073, 1078 (9th Cir. 1981).

In 1984 Congress amended § 5032, adding the option
that a prosecutor's certification could include the statement
that the crime charged was one of violence or was one
specifically enumerated. In United States v. Juvenile Male,
923 F.2d 614 (8th Cir. 1991), the juvenile challenged the
certification of the charged offense as a crime of violence.
See id. at 616. The court held that review of a § 5032
certification that the juvenile was charged with a crime of
violence was appropriate. The court summarized Vancier
and C.G. and then concluded that "[n]either of the . . . cases
persuades us that we cannot review certification here." See
id. at 617. The Eighth Circuit believed both that it had a
standard against which to judge the correctness of the
certification (whether a crime is one of violence is a legal
question) and that it was merely ensuring that the form of
the certification was correct (a certification based on the
type of crime charged must state one of the crimes
enumerated in the statute (a crime of violence is an
enumerated crime)). See id. at 617.

8
We do not, however, read the Eighth Circuit as generally
allowing review of a § 5032 certification, or departing from
the general principles established in the cases cited above.
Rather, the holding in Juvenile Male is limited to review of
whether the crime for which the juvenile was charged was
actually a crime of violence. The Eighth Circuit's reasoning
is consistent with the opinions that have not allowed review
of a § 5032 certification; those opinions focused on different
aspects of the certification decision, aspects that focused on
prosecutorial discretion, and the lack of standards guiding
review of the decision to certify. Such concerns, as the
Eighth Circuit pointed out, are not implicated by a
certification that a crime is one of violence, because
whether a crime is one of violence is determined by
congressionally created statutory standards. See id. at
617-18. Our view of Juvenile Male is bolstered by the
Second Circuit's recent decision in United States v. Doe, 49
F.3d 859 (2d Cir. 1995). In Doe, the Second Circuit also
reviewed a § 5032 certification to determine whether the
crime charged was one of violence. See id. at 866-67.4

The 1984 amendments also added the language requiring
that the Attorney General or her designee certify "that there
is a substantial Federal interest in the case or the offense
to warrant the exercise of Federal jurisdiction." 28 U.S.C.
§ 5032. Although an argument can be made that this
language introduced an articulable standard against which
a court could review certain aspects of certification
decisions, courts have been unimpressed with that
contention and have held that this aspect of the
certification decision, like the other aspects described
above, is unreviewable. The Eleventh Circuit so held in
United States v. I.D.P., 102 F.3d 507 (11th Cir. 1996),
stressing that, although the statute provided a list of
factors for a court to consider in determining whether to
grant a motion to transfer, none was a factor by which a
_________________________________________________________________

4. Interestingly, the court cited to Juvenile Male, but did not cite to
Vancier. We assume that the court did not intend to overrule Vancier;
therefore, we also assume that the court believed it was acting
consistently with Vancier. In other words, Doe can be read to mean that
the Second Circuit allows review of some aspects of a § 5032
certification, but not others, the very conclusion we reach here.

9
court could meaningfully determine whether there existed a
substantial federal interest. See id. at 511.

The court further reasoned that the determination
whether a particular case presented a substantial federal
interest was an administrative decision that turned on law
enforcement considerations such as the general incidence
of crime, the need for deterrence, enforcement priorities,
and the like. See id. at 511-12. Such decisions, it noted,
are best left to the prosecutors. Finally, the court examined
the legislative history of the 1984 amendment, and
concluded that this history suggested that Congress
intended the decision whether there existed a substantial
federal interest to be left to the discretion of the Attorney
General, qualified by a number of limiting factors not
contained in the statute itself. See id. at 512-13.

The only case finding a certification of a substantial
federal interest to be reviewable is United States v. Juvenile
Male #1, 86 F.3d 1314 (4th Cir. 1996). In Juvenile Male #1,
the juvenile had moved to dismiss the case against him in
federal court on the grounds that the § 5032 certification
was improper because the case did not present a
substantial federal interest, and the district court denied
his motion. The appeals court began by examining whether
the district court had jurisdiction to review a § 5032
certification at all.5 It first noted that the lack of a specific
provision calling for judicial review does not bar review, and
asserted that there is a strong presumption that Congress
_________________________________________________________________

5. The court stated that "[i]t should be beyond serious argument that the
courts should review compliance with the essentially technical
requirements of § 5032, such as the proper certifying party, timeliness of
the certification, inclusion of the statutory language, or the age of the
juvenile." See Juvenile Male #1, 86 F.3d at 1319 (citations omitted). We
agree, and would add that we may review whether the certification was
made in bad faith. We note that the appellant here does not challenge
the § 5032 certification for technical defects. There is no suggestion that
the form of the certification is incorrect (for example, whether a
prosecutor certified that the juvenile is charged with a crime not
enumerated in the statute), that the certification was untimely filed, that
an improper official made the certification, or that it was made in bad
faith or for an improper purpose. Nor does evidence of such appear in
the record.

10
intends judicial review. See id. at 1319-20. And, the court
continued, it could find nothing in the statute that
overcomes this strong presumption in favor of reviewability.
See id. at 1320. The court concluded its brief discussion by
noting that it would give primary attention to the needs of
rehabilitation in construing the juvenile statutes. See id. In
reaching its conclusion, the court relied on Gutierrez de
Martinez v. Lamagno, ___ U.S. ___, 115 S. Ct. 2227 (1995),
a case from which the concurrence also draws significant
support, for the proposition that executive determinations
are generally subject to judicial review. See Juvenile Male
#1, 86 F.3d at 1319.

Chief Judge Wilkinson, in his concurring opinion,
reached the conclusion that such certifications are
unreviewable. Judge Wilkinson began by noting that the
statute contains no provision explicitly allowing for judicial
review of § 5032 certifications, though it does provide for
judicial review of the second step -- the motion to transfer
the juvenile. See United States v. Juvenile Male #1, 86 F.3d
1314, 1324 (4th Cir. 1996) (Wilkinson, C.J., concurring).
More importantly, he stressed that the statute does not set
out standards by which a court is to review the
certification, whereas, in contrast, the statute includes a
list of factors a court is to consider when determining
whether the motion to transfer the juvenile is appropriate.
See id. at 1324-25.6 This lack of guidance suggested to
Judge Wilkinson that Congress intended the determination
whether to issue a certification to be left to the discretion
of the Attorney General, limited only by the requirement
that the case present a substantial federal interest. See id.
at 1325.

Whether a case presents a substantial federal interest,
Judge Wilkinson continued, turns on policy-based
determinations of law enforcement priorities that are best
left to the prosecutors. See id. Judge Wilkinson feared that
allowing courts to review § 5032 certification decisions
_________________________________________________________________

6. For permissive transfers, these factors include the six aspects of the
"interest of justice" standard; for mandatory transfers, these factors
include the age of the juvenile, the type of offense for which he has been
charged, and his past criminal record. See supra at part I.

11
would engender interbranch conflict as courts would
second-guess decisions decidedly executive (not judicial) in
nature. See id. at 1325-26. Judge Wilkinson compared the
§ 5032 certification decision to other, similar prosecutorial
decisions that have traditionally been unreviewable. See id.
at 1326. Finally, Judge Wilkinson distinguished Gutierrez
de Martinez. He noted that in Gutierrez de Martinez the
certification at issue was " `dispositive of a court
controversy.' " Id. at 1326 n.2 (quoting Gutierrez de
Martinez, 115 S. Ct. at 2231).7 In such circumstances,
judicial review is expected. However, § 5032 certifications,
Judge Wilkinson notes, are not dispositive of the
controversy. See id. In other words, a § 5032 certification
does not prevent judicial review of all aspects of the
relevant case. The concerns animating the Court in
Gutierrez de Martinez, then, do not apply in§ 5032
certifications.

We agree with Judge Wilkinson's reasoning and
observations, adding a few comments about the federalism
concerns implicated by § 5032 certifications upon which the
concurring opinion relies. Whether a case presents a
substantial federal interest does, of course, implicate
federalism concerns. Such concerns, rooted in the debate
over the proper relationship between the states and the
federal government, are different in kind from law
enforcement considerations. Concerns over law enforcement
are best left to the discretion of prosecutors closest to these
problems. Concerns over federalism, in contrast, might
seem more properly considered by the courts. That review
in contexts such as that presented here, however, depends
on adequate statutory standards, and those standards are
lacking. Even if they were present, the other factors
weighing against judicial review of a certification of
substantial federal interest (mentioned during our
summary of the case law in the area) clearly prevail.

The concurring opinion observes that the federal courts
are experienced in making judgments as to matters such as
_________________________________________________________________

7. Judge Wilkinson also noted that the Attorney General had argued in
favor of judicial review. See Juvenile Male #1, 86 F.3d at 1326 n.2
(Wilkinson, C.J., concurring).

12
what constitutes a substantial federal interest. We do not
know specifically what the concurrence has in mind, but we
know of no satisfactory formula for making such judgments
within the framework of our jurisprudence.8 At all events,
the exercise at issue here is more akin to policy making.

The remaining rationale of the concurring opinion strikes
us as somewhat ephemeral. It suggests that Congress
added the substantial federal interest requirement with the
intent of reminding federal prosecutors of the strong
interest the states have in juvenile justice. It also draws
support from the fact that the decision to certify has been
delegated to local United States Attorneys who may be
subject to parochial concerns, thereby lessening their
concern with the interests of federalism. These reasons
seem speculative to us, and do not, in our view, reveal a
congressional intent that the substantial federal interest
certification be subject to judicial review. At all events, the
arguments do not countervail the forceful contentions
marshaled by our sister circuits in the opinions we have
_________________________________________________________________

8. The concurring opinion points to language in the legislative history of
the 1984 amendments and suggests that such language provides some
guidance as to what constitutes a substantial federal interest. That
language, however, only provides examples. And, unfortunately, those
examples are, for the most part, crimes that make up only a minuscule
fraction of total federal crime, e.g., assaults on federal officials, hijacking,
kidnaping, major espionage, and significant destruction of federal
property. The only example given in the legislative history that deals with
frequently occurring crimes is large-scale drug trafficking. It is
interesting to note in this regard that federal courts have concurrent
jurisdiction with the state courts over drug crimes, and the decision
whether to prosecute drug crimes in the federal courts is generally left
to the discretion of federal prosecutors.

As an example of the difficulty presented by endeavoring to define
standards against which phrases such as "substantial federal interest"
can be measured, we suggest examining the Judicial Conference's
attempts to draw the contours of the kinds of cases that ought to
command the attention of federal courts. Despite the years of effort that
went into its drafting, the Long Range Plan for the Federal Courts
ultimately adopted provisions that are quite broad, and scarcely provide
the calipers for making the kind of determination for which the
concurrence would call. See Judicial Conference of the United States,
Long Range Plan for the Federal Courts 22-30 (1995).

13
summarized (and, in large measure, endorsed). The
concurrence also notes that there must be a "finding" of a
substantial federal interest, and reasons that this suggests
judicial determination. We find this argument
unpersuasive.

We follow Judge Wilkinson's lead and that of Vancier and
its progeny discussed above, and hold that, while we have
jurisdiction to review a § 5032 certification only for
technical defects, for whether a crime is one of violence,
and for whether the certification was made in bad faith or
for improper purposes, we have no jurisdiction to review
the other aspects of a § 5032 certification, namely whether
a state court will assume jurisdiction, whether the state
has adequate programs for juveniles, and whether there is
a substantial federal interest.9

B. Was the Certification Proper?

Having determined the extent of reviewability, we turn to
the question whether the United States Attorney's § 5032
certification was proper. The United States Attorney
certified that the Virgin Islands had refused to exercise
jurisdiction over the prosecution of the case, that the
crimes for which the juvenile was charged were ones of
violence, and that the case presented a substantial federal
interest. The juvenile argues that the certification was
improper for two reasons. First, he claims that one of the
crimes for which he was charged, possession of a firearm,
is not a crime of violence.10 Second, he contends that the
case does not present a substantial federal interest.
_________________________________________________________________

9. In our discussion, we have summarized precedent from other circuits
addressing the reviewability of certifications based on the type of crime
charged and based upon the lack of or refusal to assume jurisdiction
over the juvenile by a state court. We are unaware of any court decision
addressing a certification based upon the availability of services for the
juvenile. It would appear, however, that such certifications should not be
subject to review for the same reasons that we do not review whether
there is a state court that will assume jurisdiction over the prosecution
of the case, i.e., the lack of statutory standards and the similarity of the
determination to unreviewable executive decisions.

10. The juvenile was also charged with crimes that are indisputably
crimes of violence. The juvenile is effectively arguing that the existence

14
Under § 5032, the federal prosecutor need only certify to
one of the following: (1) that there is no appropriate state
court to exercise jurisdiction over the juvenile; (2) that the
state has inadequate programs to address juvenile
delinquency; or (3) that the crime charged was a crime of
violence or was enumerated in the statute, and there was
a substantial federal interest sufficient to warrant the
exercise of jurisdiction. Because the federal prosecutor here
certified that no state court would exercise jurisdiction over
the prosecution of the juvenile, which as we have explained
is non-reviewable, there is no need also to certify that the
juvenile has been charged with a crime of violence, and that
there existed a substantial federal interest. We need not,
therefore, discuss whether the challenged crime is one of
violence or whether a substantial federal interest is present.

In short, the federal prosecutor has fulfilled the statutory
requirements of certification in such a manner so as to
effectively insulate the certification from our review.

IV. MANDATORY TRANSFER UNDER § 5032

We turn finally to the second step in the § 5032 exercise
-- the question of the correctness of the district court's
order transferring the juvenile to adult status. Our
standard for reviewing such an order is not clear. We have
previously stated that we review the district court's decision
to transfer under the § 5032 permissive transfer provisions
for abuse of discretion. See United States v. A.R., 38 F.3d
699, 702 (3d Cir. 1994). Here, however, the district court
approved the transfer of the juvenile to federal district court
under the so-called mandatory transfer provisions of
§ 5032. Because the § 5032 mandatory transfer provisions
require the district court to order a transfer given certain
factual and legal predicates, we believe an abuse of
discretion standard is inappropriate. Rather, we will subject
_________________________________________________________________

of one non-violent crime amidst a slew of violent crimes renders the
certification improper, at least with respect to that one non-violent crime
but possibly to all the charged crimes. We need not reach this question,
however, because, as we will make clear in the text, the possession crime
is clearly one of violence.

15
the district court's legal conclusions to plenary review and
its factual findings to clearly erroneous review.

Under the mandatory transfer provisions, and contingent
on a proper certification, a juvenile's case must be
transferred to federal district court if three factors are
present. First, the juvenile must have committed the act in
question after his sixteenth birthday. Second, the charged
offense must be a felony that either "[(1)] has as an element
thereof the use, attempted use, or threatened use of
physical force against the person of another, or[(2)] by its
very nature, involves a substantial risk that physical force
against the person of another may be used in committing
the offense," or is one that has been enumerated in the
statute. Third, the juvenile must previously have been
convicted of a crime that satisfies the second factor.

The juvenile does not challenge the district court's
findings as to the first and third factors (he committed the
act in question while he was seventeen years old, and he
has previously been found guilty of robbery in thefirst
degree). We see no reason to question them. Turning to the
second factor, the juvenile was charged with violating
§ 2251(a)(2), which prohibits the possession of dangerous
weapons; Section 2251(a)(2) is a felony because it is
punishable by a term of imprisonment greater than one
year. See 18 U.S.C. § 1(1) (defining felony as "[a]ny offense
punishable by death or imprisonment for a term exceeding
one year"). The juvenile nonetheless contends that the
possession crime for which he was charged still does not
satisfy the second factor in the § 5032 mandatory transfer
provisions.11
_________________________________________________________________

11. The juvenile's argument assumes that for the purposes of § 5032 we
may look only to the conduct alleged in the possession count to
determine whether § 2251(a)(2) satisfies the requirements of the second
part of the second factor of the § 5032 mandatory transfer provisions. In
other words, the juvenile seems to assume that § 5032 requires a
categorical approach, rather than a fact-specific approach, to
determining whether a particular crime satisfies the § 5032
requirements. That assumption draws support from our discussion of
the definition of a crime of violence in the Sentencing Guidelines. See
United States v. Joshua, 976 F.2d 844, 850-56 (3d Cir. 1992). In Joshua,

16
The crime challenged by the juvenile punishes those who,
"with intent to use the same unlawfully against another,
has, possesses, bears, transports, carries or has under his
proximate control, a dagger, dirk, dangerous knife, razor,
stiletto, or any other dangerous or deadly weapon." V.I.
Code Ann. tit. 14, § 2251(a)(2) (emphasis added). Clearly,
§ 2251(a)(2) does not satisfy the requirements of the first
part of the second factor, because no element of
§ 2251(a)(2) involves the "use, attempted use, or threatened
use of physical force." However, just as clearly, § 2251(a)(2)
satisfies the requirements of the second part of the second
factor, which requires that the charged offense by its very
nature involves a "substantial risk that physical force . . .
may be used" during the commission of the crime. 12 Section
§ 2251(a)(2) includes as an element the intent to use a
dangerous weapon. Certainly, if someone intends to use a
dangerous weapon then there is "substantial risk that
physical force . . . may be used." Therefore, § 2251(a)(2)
_________________________________________________________________

we held that "a sentencing court should look solely to the conduct
alleged in the count of the indictment charging the offense of conviction
in order to determine whether that offense is a crime of violence"
because it creates a risk of the use of physical force. Id. at 856. In our
discussion, we assume, though do not hold, that we may not look
beyond the possession count to determine if the requirements of § 5032
are met. If we were to consider the charged conduct beyond the
possession count, the requirements of § 5032 would surely be met; the
juvenile brandished the weapon, pointed it at one of the victims, and, at
some point, fired it, thereby creating a substantial risk of the use of
physical force.

12. Our conclusion that § 2251(a)(2) is a crime of violence is supported
by analogy to 18 U.S.C. § 16. The phrase crime of violence, though not
defined in § 5032, is defined at 18 U.S.C. § 16. The language of the
second factor of the § 5032 mandatory transfer provisions tracks the
language of § 16 in all relevant respects. Under § 16, a crime of violence
means either "(a) an offense that has as an element the use, attempted
use, or threatened use of physical force . . . or (b) any other offense that
is a felony and that, by its nature, involves substantial risk that physical
force against the person or property of another may be used in the
course of committing the offense." Section 2251(a)(2) satisfies the
requirements of § 16(b), just as it satisfied the requirements of the
second part of the second factor of the § 5032 mandatory transfer
provisions.

17
satisfies the second factor of the § 5032 mandatory transfer
provisions.13
_________________________________________________________________

13. Experience with the career offender provisions of the Sentencing
Guidelines is instructive in interpreting § 2251(a)(2). To qualify as a
career offender under the Sentencing Guidelines, an offender, inter alia,
must have been convicted of two previous felony crimes of violence or
felony crimes involving controlled substances. See 1995 U.S.S.G.
§ 4B1.1. Pursuant to the Guidelines, a crime that "involves conduct that
presents a serious potential risk of physical injury to another" is a crime
of violence. See id. § 4B1.2(1)(ii). Prior to the amendment, this definition
generated controversy when applied to the felon-in-possession of a
firearm crime. See 18 U.S.C. § 922(g)(1). Under § 922(g)(1), it is a crime
for a person who has previously been convicted of a felony merely to
possess a firearm. See id. "[A] substantial body of Circuit precedent" held
that a felon-in-possession crime constituted a crime of violence under
the Guidelines. Stinson v. United States, ___ U.S. ___, 113 S. Ct. 1913,
1916 & n.1 (1993).

Typical of the reasoning holding that a felon-in-possession crime is
categorically a crime of violence is the discussion in United States v.
O'Neal, 910 F.2d 663 (9th Cir. 1990). In O'Neal, the court reasoned that
an armed felon, without more, poses a substantial threat of the use of
physical force. See id. at 667. In other words, mere possession of a
weapon by a felon is enough, because by past deeds that felon has
shown the willingness to engage in criminal activity and this willingness
may now include the use of the weapon he possesses. See id.; see also
United States v. Stinson, 943 F.2d 1268, 1271-73 (11th Cir. 1991),
vacated on other grounds, 113 S. Ct. 1913 (1993). In contrast, we had
held that mere possession, without more, by a felon was not a crime of
violence under the pre-amendment career offender guidelines. See United
States v. Williams, 892 F.2d 296, 304 (3d Cir. 1989) Because of cases
like O'Neal, the Sentencing Commission amended the Application Notes
to § 4B1.2 specifically to exclude the felon-in-possession crime from the
definition of crime of violence for purposes of the career offender
guidelines. See 1992 U.S.S.G., App. C, Amend. 461.

The felon-in-possession crime cases are instructive here because they
rely on the reasoning that mere possession may imply intent to use. The
intent to use, in turn, creates the substantial risk of the use of physical
force. The amendment to the Guidelines eliminated the inferential leap
courts had been taking in interpreting § 922(g)(1); in other words, the
Sentencing Commission made it impermissible for a court to infer for the
purposes of the career offender guidelines that the status of being a felon
in possession of a weapon implied that the felon intended to use the
weapon. The amendment did not, however, affect the reasoning that the
intent to use a weapon created a substantial risk of the use of physical

18
Because we believe the district court did not err in
finding that each of the three mandatory transfer provision
factors were present in this case, we hold that the court
properly transferred the juvenile to federal court for
criminal prosecutions.

The order of the district court will be affirmed.
_________________________________________________________________

force. At least a part of the reasoning of the felon-in-possession crime
cases survives, the part we rely on here.

At all events, § 2251(a)(2) includes as an element the intent to use the
weapon the individual possesses. (Section 922(g)(1) does not include
intent as an element.) Section 2251(a)(2), then, requires proof of the very
element that courts interpreting § 922(g)(1) had been inferring. With
proof that a defendant intends to use the weapon he possesses, a court
can look to the felon-in-possession crime cases to reason that such a
defendant poses a substantial risk of the use of physical force. We do so
here.

19
WEIS, Circuit Judge, concurring.

I.

Analysis of the scope of judicial review of the
government's certification under the Juvenile Delinquency
Act, 18 U.S.C. § 5032, must begin with the following
statement from the Supreme Court: "[W]e have stated time
and again that judicial review of executive action`will not
be cut off unless there is persuasive reason to believe that
such was the purpose of Congress.' " Gutierrez de Martinez
v. Lamagno, 115 S.Ct. 2227, 2231 (1995) (quoting Abbott
Labs. v. Gardner, 387 U.S. 136, 140 (1967)). Conceding
that the statute under consideration in that case was
susceptible to divergent interpretations, the Court adopted
a construction consistent with "traditional understandings
and basic principles: that executive determinations
generally are subject to judicial review and that mechanical
judgments are not the kind federal courts are set up to
render." Id. at 2236.

Using Lamagno as a guide, the question is whether there
is "persuasive reason" to believe that Congress intended to
limit the scope of judicial review of section 5032
certifications to technical compliance and prosecutorial bad
faith. Not only do careful studies of the statutory language
and its legislative history fail to reveal a convincing ground
to limit judicial review, they also disclose Congress' deep
concern for principles of federalism that might be
jeopardized by overzealous federal prosecution.

The 1984 amendments to section 5032 expanded the
bases for transferring a case from state to federal
jurisdiction. If the felony offense is a "crime of violence" or
one of those offenses specifically described in the
amendments, and "there is a substantial Federal interest in
the case or the offense," the prosecution may proceed in the
federal courts.

The Senate Report that accompanied the amendments
acknowledged that the traditional policy of state
predominance in this area survived. Explaining the narrow,
federal inroad into state jurisdiction over juvenile
delinquency proceedings, the Senate Committee stated:

20
The essential concepts of the 1974 Act are that juvenile
delinquency matters should generally be handled by
the States and that criminal prosecution of juvenile
offenders should be reserved for only those cases
involving particularly serious conduct by older
juveniles. The Committee continues to endorse these
concepts, but has determined that certain
modifications in current law are necessary to allow an
adequate Federal response to serious criminal conduct
on the part of juveniles.

S.Rep. 98-225 at 386 (1984) reprinted in 1984 U.S.C.C.A.N.
3182, 3526.

The Committee also cautioned that "a determination that
there is a `substantial Federal interest' " be grounded on a
"finding" that

the nature of the offense or the circumstances of the
case give rise to special Federal concerns. Examples of
such cases could include an assault on, or
assassination of, a federal official, an aircraft hijacking,
a kidnaping where State boundaries are crossed, a
major espionage or sabotage offense, participation in
large-scale drug trafficking, or significant and willful
destruction of property belonging to the United States.

Id. at 389 reprinted in id. at 3529.

By requiring a certification by the Attorney General,
Congress emphasized that the decision to place a juvenile
case within federal jurisdiction must be neither casual nor
routine, but should be carefully considered. The existence
of this restraint is in sharp contrast to the typical adult
criminal case in which a federal prosecutor may choose to
indict for a federal crime even when the underlying conduct
may also violate state law. In such a situation, of course,
the prosecutor enjoys wide discretion that, significantly, is
unfettered by a certification requirement.

Rather than extend such unlimited discretion to the
prosecutor's decision to initiate juvenile proceedings in
federal court, Congress included the certification
requirement to remind federal prosecutors of the strong
interests that states have in juvenile justice. That

21
consideration leads to the related inference that, rather
than being adverse to judicial review, Congress approves it
as a method of enforcing its policy in favor of state primacy
in juvenile delinquency proceedings.

Additional support for this view is supplied by the
Committee's assertion that the determination of a
"substantial federal interest" be based on a "finding" of
special federal concerns. Use of the term "finding"
reasonably implies that a judicial proceeding was
contemplated.

Finally, we should not discount the significance of 28
C.F.R. § 0.57 (1996), through which the Attorney General
has delegated to the United States Attorney in the
appropriate district the authority to provide the requisite
certification. The certification process, therefore, is not
administered at the national level, but is applied in a local
context where parochial concerns become more influential.

Federal courts manage caseloads that are far more
diverse than those of local federal prosecutors and, as a
result, have a greater familiarity with the complexities of
federalism. Given the experience of the federal bench in
questions of federal-state relations, it would be expected
that Congress would vest oversight of these important
procedures in the judiciary rather than in the local United
States Attorney. At the very least, that inference should
govern absent a clear indication to the contrary from
Congress.

The strong language in Lamagno favoring judicial review
differs dramatically from the view taken by the Courts of
Appeals in United States v. Vancier, 515 F.2d 1378 (2d Cir.
1975), and to a lesser extent, United States v. C.G., 736
F.2d 1474 (11th Cir. 1984). Those opinions take a
restrictive approach to judicial review of certifications under
18 U.S.C. § 5032. Both pre-dated Lamagno and,
consequently, their persuasive value has been substantially
undermined. In addition, the "substantial federal interest"
qualification, which was added to the Juvenile Delinquency
Act in 1984, also post-dates those two cases.

In United States v. I. D. P., 102 F.3d 507, 511-13 (11th
Cir. 1996), the Court of Appeals for the Eleventh Circuit

22
chose to follow C.G., and to distinguish Lamagno, in
holding that the courts may not review certifications to
determine the existence of a substantial federal interest. In
its review of the legislative history, I.D.P. observed that the
Senate Report referred to a predecessor bill that set forth
standards for the Attorney General to follow. The Court,
however, did not discuss the fact that the earlier bill
contained a provision barring judicial review of
certifications -- a provision that eventually was removed. In
my view, the deliberate deletion of that prohibition not only
shows that Congress knew how to ban review if it wished
but also that it had rejected the proposal.

The Court of Appeals for the Fourth Circuit took a
different approach than I.D.P. in United States v. Juvenile
Male #1, 86 F.3d 1314 (4th Cir. 1996) when it relied upon
the traditional congressional preference for having juvenile
matters handled in state courts, even though federal
jurisdiction had been expanded in the 1984 amendments to
the Juvenile Delinquency Act. Viewing the legislative history
as inconsistent with the grant of unreviewable discretion to
the prosecutor, Juvenile Male #1 held that the strong
presumption in favor of judicial review so forcefully
reiterated in Lamagno must prevail. Id. at 1321. Although
the Juvenile Male #1 Court did not use the term
"federalism," that consideration was at the core of its
reasoning.

Those Courts that deny review of the certification process
except for technical compliance and bad faith cite the lack
of standards in the statutory language for substantive
review. See C.G., 736 F.2d at 1478; Vancier, 515 F.2d at
1380. This reasoning is somewhat puzzling. It implies that
the United States Attorneys will be able to apply the statute
despite the absence of standards, but that the courts are
unable to cope with the task of review in similar
circumstances. If the federal prosecutors had the same
broad discretion as they do when adult prosecutions are
contemplated, that rationale might be justified. But, as
noted earlier, Congress made it clear that the federal
prosecutor's authority in the juvenile delinquency setting
remains limited. Moreover, judicial deference is especially
questionable here because at stake are issues of federalism

23
and the limitations of federal prosecutorial authority --
areas in which Congress reasonably could expect the
courts' perspective to be more objective than that of the
United States Attorneys.

The legislative history of the 1984 amendments, which
explicitly stated that "the Federal Government will continue
to defer to State authorities for less serious juvenile
offenses," addresses this concern. The Senate Report cited
certain examples of offenses raising special federal
interests. Although Congress did not repeat these
standards in the statute itself, they are helpful guideposts,
and there is no indication that Congress intended them to
inform the prosecutor's decision, but not the court's.

Finally, the search for a substantial federal interest
cannot be any more difficult than, for example, "the judicial
struggle to interpret the Commerce Clause during the
transition from the economic system the Founders knew to
the single, national market still emergent in our own era."
United States v. Lopez, 115 S.Ct. 1624, 1634 (1995)
(Kennedy, J., concurring). Whether the interpretative
question is constitutional or statutory, the judiciary must
provide an answer no matter how nebulous the standard. I
believe that the federal courts have both the competence
and the duty to review the certifications in section 5032
and that we should undertake that task in this case.

II.

I agree with the majority that the dispositive issue in this
case is whether it was properly transferred under clause (1)
of § 5032 because the Territorial Government had
relinquished jurisdiction. To arrive at its conclusion, the
majority says it is bound to accept the certification's
statement to that effect because it is unreviewable.

Rather than simply accept the United States Attorney's
certification on its face, I have reviewed the record and
found that it provides undisputed evidence that the
Attorney General of the Virgin Islands abandoned its
prosecution of the juvenile and so informed the United
States Attorney. I perceive no difference between a state's
refusal to assume jurisdiction from the outset, see United

24
States v. Hill, 538 F.2d 1072, 1077 (4th Cir. 1976), and a
state's agreement to relinquish jurisdiction after charges
have been filed. Neither situation presents a conflict of the
sovereigns' interests. When the state agrees to step aside,
federalism concerns fade into the background. The
certification therefore withstands review.

In addition, I fully agree with the majority's opinion that,
after assuming jurisdiction, the district court properly
invoked the mandatory transfer provision of section 5032
for treating defendant as an adult.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

25