17‐2880
United States v. Juvenile Male aka Desorden aka Dylan
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 20th day of December, two thousand eighteen.
PRESENT: DENNIS JACOBS,
GUIDO CALABRESI,
Circuit Judges,
JED S. RAKOFF,*
District Judge.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
JUVENILE MALE aka DESORDEN aka DYLAN,
Defendant‐Appellant,
‐v.‐ 17‐2880
UNITED STATES OF AMERICA,
Appellee.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
Judge Jed S. Rakoff, United States District Court for the Southern District of New York, sitting by
*
designation.
FOR DEFENDANT‐APPELLANT: GLENN A. OBEDIN, Law Office of
Glenn A. Obedin, Central Islip, NY.
FOR APPELLEE: JO ANN M. NAVICKAS, PAUL G.
SCOTTI, JOHN J. DURHAM, Assistant
United States Attorneys, for Richard P.
Donoghue, United States Attorney for
the Eastern District of New York, New
York, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Bianco, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
C.A., a juvenile male, appeals a memorandum and order granting the
government’s motion to proceed against him as an adult pursuant to 18 U.S.C. §
5032. C.A. argues that the district court improperly balanced the six factors used
to determine whether to proceed against juveniles as adults, and thereby abused
its discretion. We assume the parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.
C.A. is a suspected member of the La Mara Salvatrucha gang, also known
as MS‐13, and has been charged with racketeering, racketeering conspiracy,
conspiracy to murder, murder, attempted murder, and assault with a dangerous
weapon in violation of 18 U.S.C. §§ 1959(a)(1), 1959(a)(3), 1959(a)(5), 1962(c), and
1962(d). Specifically, C.A. is accused of shooting a rival gang member on
January 15, 2016 outside of a public library in Brentwood, New York. C.A. was
arrested and released on bail. C.A. is further accused of conspiring to kill
another alleged MS‐13 member, Jose Pena, who was suspected of being gay and
who was thought to be cooperating with the police investigation of the January
15 shooting. Pena was stabbed to death in a forest on June 3, 2016, while C.A.
was out on bail.
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We review an order transferring a juvenile to adult status for abuse of
discretion. United States v. Nelson, 68 F.3d 583, 588 (2d Cir. 1995). An abuse of
discretion occurs when a district court “fails to make the required factual
findings or where the findings it does make are clearly erroneous.” Id.
A juvenile aged 15 or more, who is alleged to have committed a crime that
would be a felony crime of violence if committed by an adult, may be prosecuted
as an adult if a district court, upon a motion by the Attorney General, finds such
transfer to be in the interest of justice. See 18 U.S.C. § 5032. Six factors bear upon
transfer:
[1] the age and social background of the juvenile; [2] the nature of
the alleged offense; [3] the extent and nature of the juvenile’s prior
delinquency record; [4] the juvenile’s present intellectual
development and psychological maturity; [5] the nature of past
treatment efforts and the juvenile’s response to such efforts; [and 6,]
the availability of programs designed to treat the juvenile’s
behavioral problems.
Id. “The six statutory factors need not be accorded equal weight by the district
court, which may balance the factors in any way that seems appropriate to it.”
Nelson, 68 F.3d at 588. “[W]hen a crime is particularly serious, the district court
is justified in weighing [the second] factor more heavily than the other[s],”
particularly given “the heinous nature of the crime of intentional murder.” Id. at
590.
C.A. concedes that he is eligible for prosecution as an adult but argues that
the court abused its discretion by according undue weight to the second factor
(the nature of the alleged offense) and insufficient weight to the fifth and six
factors (prior treatment and availability of treatment programs). This argument
fails as an initial matter because the district court may balance the factors as it
sees fit. And although the court did accord more weight to the second factor, see
App’x 86, this was not an abuse of discretion given the seriousness of the alleged
crimes, which include intentional murder.
C.A. argues that prior treatment should have been given more weight; but
the court found this factor to be neutral because C.A. never participated in
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mental health treatment. And we see no evidence that the court afforded less
weight to the sixth factor‐‐which it found weighed against transfer because the
government did not prove that programs designed to treat C.A.’s behavior were
unavailable‐‐than to the first, third, and fourth factors. In any event, even
assuming the court afforded less weight to the fifth and sixth factors, the record
contains no evidence suggesting that rehabilitative programs would have
positive results. We cannot say that the district court abused its discretion in
weighing the severity of the allegations more heavily than the hypothetical
prospect of rehabilitation.
We have considered C.A.’s remaining arguments and find them to be
without merit. The judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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