UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 93-5268
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
TERRANCE ROSHANE HOLLAND,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
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(June 29, 1994)
Before WISDOM, DAVIS, and DUHÉ, Circuit Judges.
DAVIS, Circuit Judge:
Terrance Roshane Holland challenges the sentence imposed by
the district court following his guilty plea. Because we conclude
that the district court properly considered Holland's juvenile
record in determining his criminal history score, we affirm.
I.
In June 1993, Holland pled guilty to knowingly and
intentionally possessing, with intent to distribute, five grams or
more of crack cocaine within 1000 feet of a playground in violation
of 21 U.S.C. §§ 841(a)(1) and 860. At his sentencing hearing,
Holland objected to the district court's use of his juvenile record
in determining his criminal history score under the Sentencing
Guidelines. The district court overruled Holland's objection and
sentenced him to 115 months imprisonment, to be followed by eight
years of supervised release.1
II.
Holland challenges his sentence to the extent that the
district court added four points to his criminal history score as
a result of his juvenile record. Holland argues that, because
Texas does not consider juvenile adjudications to be convictions,2
the district court erred in considering them in determining his
criminal history score. We review the district court's
interpretation of the Guidelines de novo. See United States v.
McCaskey, 9 F.3d 368, 372 (5th Cir. 1993), cert. denied, 114 S.Ct.
1565 (1994).
In calculating a defendant's criminal history score, U.S.S.G.
§ 4A1.2(d) provides that:
(1) If the defendant was convicted as an adult and
received a sentence of imprisonment exceeding
one year and one month, add 3 points under §
4A1.1(a) for each such sentence.
(2) In any other case,
(A) add 2 points under § 4A1.1(b) for each
adult or juvenile sentence to confinement of
at least sixty days if the defendant was
released from such confinement within five
years of his commencement of the instant
offense;
1
The district court determined that Holland's base offense
level was 25, and that his criminal history score was 16.
2
See P.G. v. State, 616 S.W.2d 635, 637 (Tex. App.--San
Antonio 1981, writ ref'd n.r.e.).
2
(B) add 1 point under § 4A1.1(c) for each
adult or juvenile sentence imposed within
five years of the defendant's commencement of
the instant offense not covered in (A).
In this context, the Guidelines specify that "[t]he term 'prior
sentence' means any sentence previously imposed upon an
adjudication of guilt, whether by guilty plea, trial, or plea of
nolo contendere, for conduct not part of the instant offense."
U.S.S.G. § 4A1.2(a)(1).
The question in this case is whether Holland's juvenile
adjudications are "adjudications of guilt" under § 4A1.2(a)(1).
Holland argues that they are not, because Texas "stops short of
actually adjudicating guilt and convicting a person who is brought
in under the juvenile justice procedures." The district court,
however, found that juvenile adjudications are the same as
convictions for purposes of the Sentencing Guidelines:
The Court finds that even though under Texas law the
purpose of juvenile adjudications is to avoid the taint
of criminality and to provide a program for treatment and
rehabilitation, the Texas law does provide for a finding
by the Court as to whether or not the juvenile engaged in
delinquent conduct.
Here, Mr. Holland was found to have been a child
engaged in delinquent conduct at that time. And under
4A1.2, that is essentially the same as being convicted of
an offense, in that his guilt was established at those
juvenile hearings.
In United States v. Giraldo-Lara, 919 F.2d 19, 22 (5th Cir.
1990), we held that a "deferred adjudication probation" entered by
a Texas court was an adjudication of guilt, and therefore, a "prior
sentence" under the Guidelines. We reached that conclusion even
3
though, under Texas law, the court made no finding of guilt in
entering a deferred adjudication probation.
In United States v. Ashburn, 20 F.3d 1336, 1341-43 (5th Cir.
1994), we addressed whether a conviction under the Youth Correction
Act, which was automatically set aside, could be considered in
arriving at a criminal history score. In holding that it could be
considered, we agreed with the District of Columbia Circuit that:
"If a juvenile offender turns into a recidivist, the case for
conferring the [set aside] benefit dissipates. Society's stronger
interest is in punishing appropriately an unrepentant criminal."
United States v. McDonald, 991 F.2d 866, 872 (D.C. Cir. 1993).
This reasoning is consistent with cases that have addressed a
court's authority to include juvenile records in criminal history
calculations. In United States v. Booten, 914 F.2d 1352, 1354 (9th
Cir. 1990), the court concluded that juvenile adjudications could
be considered:
Congress authorized the Sentencing Commission to enact
guidelines that would permit a trial judge to consider a
defendant's prior criminal conduct in making a sentencing
decision, notwithstanding the fact that the defendant may
not have been adjudged guilty of the prior act.
See also United States v. Bucaro, 898 F.2d 368, 370 (3d Cir. 1990)
("It is clear that under the federal sentencing guidelines, the
district court properly factored [defendant's] prior juvenile
delinquency adjudications into its calculation of his criminal
history category."); United States v. Chanel, 3 F.3d 372, 373 (11th
Cir. 1993), cert. denied, 114 S.Ct. 1107 (1994).
4
According to Holland's pre-sentence report, he committed the
instant offense on August 6, 1992. Under § 4A1.2(d)(2)(B), the
district court may look to any sentence--juvenile or adult--that
was imposed within five years of that date. The pre-sentence
report listed the following juvenile adjudications:
(1) 4/4/90: Burglary of a residence (1 year probation);
(2) 3/27/90: Burglary of a residence (1 year probation);
(3) 3/19/90: Burglary of a residence (1 year probation);
(4) 3/10/90: Burglary of a vehicle (1 year probation);
(5) 1/27/90: Possession of stolen property (1 year
probation);
(6) 8/24/89: Burglary of a vehicle (1 year probation).
Because all six violations fall within the five-year period
prescribed by § 4A1.2(d)(2)(B), the district court properly added
four points to Holland's criminal history score.3
III.
Because the district court properly considered Holland's
juvenile record in calculating his criminal history score, we
affirm the sentence imposed by the district court.
AFFIRMED.
3
Although § 4A1.2(d)(2)(B) allows one point to be added
for each prior sentence, § 4A1.1(c) provides that the total points
added cannot exceed four.
5