United States v. Joshua John Burge

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 2, 2005
No. 04-13468
THOMAS K. KAHN
CLERK

D. C. Docket No. 03-00253-CR-CG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSHUA JOHN BURGE,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Alabama

(May 2, 2005)

Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.

DUBINA, Circuit Judge:
 In this case, the government charged the defendant/appellant Joshua John

Burge with the illegal possession of a firearm by a previously convicted felon in

violation of 18 U.S.C. § 922(g)(1). Burge entered a guilty plea, and the district

court sentenced him under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §

924(e), to 190 months imprisonment. Burge filed this appeal challenging the

constitutionality of his sentence under the ACCA and United States v. Booker, 125

S. Ct. 738, 756 (2005). For the reasons that follow, we affirm.

I. BACKGROUND

The maximum sentence for a violation of 18 U.S.C. § 922(g)(1) is 10 years.

18 U.S.C. § 924(a)(2). For this substantive offense, without consideration of the

ACCA, the probation officer assigned Burge, under the now advisory Federal

Sentencing Guidelines (“Guidelines”), a total offense level of 17, criminal history

category V, with a Guidelines range of 46 to 57 months imprisonment.1 The

mandatory minimum sentence pursuant to the ACCA is 15 years. 18 U.S.C. §

924(e)(1). As an armed career criminal under the ACCA, Burge received an

1
The probation officer calculated this Guidelines range as follows: an offense level of 14
under U.S.S.G. § 2K2.1(a)(6) for the defendant’s conviction under 18 U.S.C. § 922(g); a 4 level
increase under U.S.S.G. § 2K2.1 for pointing his firearm at the arresting officers; a 2 level increase
under U.S.S.G. § 3C1.2 for creating a substantial risk of death or serious bodily injury; and a 3 level
deduction under U.S.S.G. § 3E1.1 for acceptance of responsibility.

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offense level of 34 pursuant to U.S.S.G. § 4B1.4(b)(3)(A). After a 3 level

reduction for his acceptance of responsibility, the probation officer assigned Burge

a total offense level of 31, criminal history category VI, with a Guidelines range of

188 to 235 months imprisonment.

A defendant is subject to the ACCA if he or she “violates section 922(g) of

this title and has three previous convictions by any court referred to in section

922(g)(1) of this title for a violent felony or a serious drug offense, or both,

committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The

term “violent felony” under 18 U.S.C. § 924(e)(2)(B)(ii), “means 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 . . . is burglary.” “[T]he term ‘conviction’ includes a finding that a person has

committed an act of juvenile delinquency involving a violent felony.” 18 U.S.C. §

924(e)(2)(C).

There is no dispute that Burge has two prior adult burglary convictions that

fall under section 924(e). However, in order to apply section 924(e), the court

considered – as the third necessary conviction – Burge’s juvenile charge of

burglary in the first degree under Ala. Code § 13A-7-5 (1975), which was

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adjudicated by the Juvenile Court of Mobile County, Alabama. Based on the

statutory language of Ala. Code § 13A-7-5, the juvenile petition, and the juvenile

judgment of delinquency, the district court determined that the juvenile

adjudication satisfied the requirements of section 924(e). The district court then

applied U.S.S.G. § 4B1.4(b)(3)(A), as opposed to U.S.S.G. § 4B1.4(b)(3)(B),

based on the fact that Burge pointed his gun at the arresting officers during the

substantive offense committed under section 922(g). This application of the

Guidelines resulted in a 1 level increase to Burge’s total adjusted offense level.

Burge challenges his sentence and contends that: (1) the district court erred

by considering the juvenile petition and judgment to determine whether the

juvenile adjudication satisfied section 924(e); (2) the consideration of his juvenile

adjudication violates Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348

(2000); and (3) the imposition of his sentence under the Guidelines violates

Booker.

II. ISSUES

1. Whether the district court may look beyond the statutory definition of an

offense to determine if it qualifies as a prior conviction under the ACCA.

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2. Whether a juvenile adjudication may be considered as a prior conviction under

the ACCA.

3. Whether the imposition of Burge’s sentence violates Booker.

III. STANDARDS OF REVIEW

The court reviews the district court’s legal interpretation of the statutes and

Guidelines de novo. United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir.

2004); see also United States v. Pope, 132 F.3d 684, 689 (11th Cir. 1998) (stating

that the court reviews questions of statutory interpretations under the ACCA de

novo).

Because Burge waived his constitutional objection to the district court’s

application of the Guidelines, the court reviews his sentence for plain error.

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005); United States v.

Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005). “An appellate court may not

correct an error the defendant failed to raise in the district court unless there is: (1)

error, (2) that is plain, and (3) that affects substantial rights.” Rodriguez, 398 F.3d

at 1298 (quotation and internal marks omitted). “If all three conditions are met, an

appellate court may then exercise its discretion to notice a forfeited error, but only

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if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (quotation omitted).

IV. DISCUSSION

A. The petition and judgment of a juvenile adjudication may be considered

In order to determine whether Burge’s juvenile offense (burglary) was

committed while he was carrying a firearm and, therefore, whether his juvenile

adjudication could count as a conviction for purposes of the ACCA, the district

court considered the petition for a declaration of juvenile delinquency and the

juvenile judgment of adjudication. Burge does not dispute the fact of the

underlying adjudication, that is, that he was adjudicated delinquent for violating

Ala. Code § 13A-7-5; rather, Burge argues that the juvenile adjudication cannot be

considered because the statute can be violated in one of three ways, and if the

court only considers the statute and the fact of adjudication, it is unclear whether

he committed the offense while carrying a firearm.2

2
Alabama Code §13A-7-5(a) provides: “A person commits the crime of burglary in the first
degree if he knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to
commit a crime therein, and, if, in effecting entry or while in dwelling or in immediate flight
therefrom, he or another participant in the crime: (1) Is armed with explosives or a deadly weapon;
or (2) Causes physical injury to any person who is not a participant in the crime; or (3) Uses or
threatens the immediate use of a dangerous instrument.”

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 The district court’s consideration of the petition and judgment to resolve the

ambiguity was not error. When a court considers the application of a sentencing

enhancement it should generally follow a “categorical approach” and “consider

only the fact of conviction and the statutory definition of the prior offense.”

United States v. Breitweiser, 357 F.3d 1249, 1254 (11th Cir. 2004) (quotation and

citation omitted); accord Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct.

2143, 2160 (1990) (holding that 18 U.S.C. § 924(e) “generally requires the trial

court to look only to the fact of conviction and the statutory definition of the prior

offense”). The district court may, however, “look beyond the conviction when

sentence enhancements are based on a defendant’s prior conduct or crime.”

Breitweiser, 357 F.3d at 1254. Under such circumstances, the district court “may

look behind the judgment of conviction when it is impossible to determine from

the face of the judgment or statute whether the prior crime satisfies the

enhancement statute.” Id. at 1255. The district court’s review “is limited to 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 v. United States, 125 S. Ct. 1254, 1263 (2005). Here,

consistent with Breitweiser and Shepard, the district court looked beyond the face

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of the statute to the petition and judgment in order to determine that Burge was

adjudicated delinquent for committing first degree burglary while carrying a

firearm and, therefore, to determine that his juvenile adjudication satisfied the

ACCA.

B. A juvenile adjudication may be a “prior conviction” under the ACCA

Burge’s juvenile adjudication required a finding of proof beyond a

reasonable doubt (as well as all other constitutionally required safeguards), but did

not afford him the right to a jury trial. Thus, Burge, relying on United States v.

Tighe, 266 F.3d 1187 (9th Cir. 2001), argues that the district court erred when it

considered his prior juvenile adjudication for purposes of increasing his sentence

under the ACCA.

“[T]he sentencing factor at issue here–recidivism–is a traditional, if not the

most traditional, basis for a sentencing court’s increasing an offender’s sentence.”

Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S. Ct. 1219, 1230

(1998). “[T]he government need not allege in its indictment and need not prove

beyond a reasonable doubt that a defendant had prior convictions for a district

court to use those convictions for purposes of enhancing a sentence.” United

States v. Marseille, 377 F.3d 1249, 1257 (11th Cir. 2004) (citing Almendarez-

Torres, 523 U.S. at 228, 118 S.Ct. at 1223). “This conclusion was left undisturbed

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by Apprendi, Blakely[ v. Washington, 124 S. Ct. 2531 (2004)], and Booker.”

United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005).

In Almendarez-Torres the Court considered whether an increased maximum

sentence (from up to 2 years to up to 20 years) based on a prior conviction

constituted a separate crime, which needed to be alleged in the indictment, or a

sentence enhancement, which did not need to be alleged in the indictment, and the

Court concluded that it was a sentence enhancement. 523 U.S. at 227-28, 118

S.Ct. at 1222. In Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215 (1999),

decided the following Term, the Court explained that Almendarez-Torres “stands

for the proposition that not every fact expanding a penalty range must be stated in

a felony indictment, the precise holding being that recidivism increasing the

maximum penalty need not be so charged.” 526 U.S. at 248, 119 S. Ct. at 1226-

27. In Jones, the Court concluded that the federal carjacking statute, which

provided three separate sentencing penalties based on facts other than the fact of a

prior conviction, constituted three separate crimes. Jones, 526 U.S. at 229, 119 S.

Ct. at 1217. Addressing Almendarez-Torres, the Court recognized that:

the holding last Term rested in substantial part on the tradition of regarding
recidivism as a sentencing factor, not as an element to be set out in the
indictment. The Court’s repeated emphasis on the distinctive significance
of recidivism leaves no question that the Court regarded that fact as
potentially distinguishable for constitutional purposes from other facts that

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 might extend the range of possible sentencing. . . . One basis for that
possible constitutional distinctiveness is not hard to see: unlike virtually any
other consideration used to enlarge the possible penalty for an offense, and
certainly unlike the factor before us in this case, a prior conviction must
itself have been established through procedures satisfying the fair notice,
reasonable doubt, and jury trial guarantees.

Jones, 526 U.S. at 249, 119 S. Ct. at 1227 (citations omitted).

In Apprendi, the Court was not faced with recidivism as a sentence

enhancement; rather, Apprendi argued that “the Due Process Clause of the United

States Constitution requires that the [trial court’s] finding of bias upon which his

hate crime sentence was based must be proved to a jury beyond a reasonable

doubt.” 530 U.S. at 471, 120 S. Ct. at 2352. The Court agreed, but preserved a

prior conviction exception: “Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530

U.S. at 490, 120 S. Ct. at 2362-63. As to this exception, the Court explained that

“there is a vast difference between accepting the validity of a prior judgment of

conviction entered in a proceeding in which the defendant had the right to a jury

trial and the right to require the prosecutor to prove guilt beyond a reasonable

doubt, and allowing the judge to find the required fact under a lesser standard of

proof.” Apprendi, 530 U.S. at 496, 120 S. Ct. at 2366. Further, the Court stated

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that the due process and Sixth Amendment concerns in Almendarez-Torres were

mitigated by “[b]oth the certainty that procedural safeguards attached to any ‘fact’

of prior conviction, and the reality that Almendarez-Torres did not challenge the

accuracy of the ‘fact’ in his case,” Apprendi, 530 U.S. at 488, 120 S. Ct. at 2362,

and because recidivism “does not relate to the commission of the offense itself.”

530 U.S. at 496, 120 S. Ct. at 2366 (quotation omitted). The Court reaffirmed

Apprendi’s prior conviction exception in Booker: “Any fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.”

Booker, 125 S. Ct. 738, 756.

Based on its interpretations of Jones and Apprendi, the Ninth Circuit limited

this exception to “prior convictions that were themselves obtained through

proceedings that included the right to a jury trial and proof beyond a reasonable

doubt.” Tighe, 266 F.3d at 1194. Specifically, the panel majority in Tighe

concluded that the underlying rationale for the prior conviction exception is the

following “fundamental triumvirate of procedural protections:” “fair notice,

reasonable doubt and the right to a jury trial.” Id. at 1193. Thus, the court held

that a juvenile adjudication that does not itself afford a defendant the right to a

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jury trial cannot fall within Apprendi’s prior conviction exception and cannot be

used as a prior conviction for purposes of the ACCA. Id. at 1194. The court was

forced to distinguish its holding from a prior panel decision, United States v.

Williams, 891 F.2d 212 (9th Cir. 1989), which held that it does not violate a

defendant’s “due process rights for the sentencing judge to use his prior, nonjury,

juvenile adjudications to enhance his sentence under the [federal] sentencing

guidelines.” 891 F.2d at 215 (reasoning that “[i]f it does not violate due process

for a juvenile to be deprived of his or her liberty without a jury trial, we fail to find

a violation of due process when a later deprivation of liberty is enhanced due to

this juvenile adjudication”). The court distinguished Williams from Tighe by

stating that “William’s [sic] prior juvenile adjudications were not used to increase

the statutorily mandated maximum punishment to which he was exposed.” Tighe,

266 F.3d at 1192. The dissent in Tighe disagreed and stated that:

the language in Jones stands for the basic proposition that Congress
has the constitutional power to treat prior convictions as sentencing
factors subject to a lesser standard of proof because the defendant
presumably received all the process that was due when he was
convicted of the predicate crime. For adults, this would indeed
include the right to a jury trial. For juveniles, it does not. Extending
Jones’ logic to juvenile adjudications, when a juvenile receives all the
process constitutionally due at the juvenile stage, there is no
constitutional problem (on which Apprendi focused) in using that
adjudication to support a later sentencing enhancement. Our decision
in Williams recognizes just that.

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Tighe, 266 F.3d at 1200 (Brunetti, J., dissenting).

Since Tighe, the majority of courts have followed the Tighe dissent: “If

juvenile adjudications are constitutionally sound according to the more limited set

of rights afforded in juvenile proceedings, they may be used to increase a

defendant’s sentence for a later crime.” State v. Hitt, 42 P.3d 732, 739, 273 Kan.

224, 235 (Kan. 2002); accord United States v. Jones, 332 F.3d 688 (3d Cir. 2003),

cert. denied, 540 U.S. 1150, 124 S. Ct. 1145 (2004); United States v. Smalley, 294

F.3d 1030 (8th Cir. 2002), cert. denied, 537 U.S. 1114, 123 S. Ct. 870 (2003);

Ryle v. State, 819 N.E. 2d 119, 123 (Ind. Ct. App. 2004); People v. Bowden, 102

Cal. App. 4th 387, 125 Cal. Rptr. 2d 513 (Cal. Ct. App. 2002). But see State v.

Brown, 879 So. 2d 1276, 1290 (La. 2004), cert. denied, 125 S. Ct. 1310 (2005)

(agreeing with Tighe that if “a juvenile adjudication is not established through a

procedure guaranteeing a jury trial, it cannot be excepted from Apprendi’s general

rule”). This issue is one of first impression in our circuit.

In Smalley, the Eighth Circuit stated that the Ninth Circuit’s interpretation

was too strict because: “We think that while the Court [in Apprendi] established

what constitutes sufficient procedural safeguards (a right to jury trial and proof

beyond a reasonable doubt), and what does not (judge-made findings under a

lesser standard of proof), the Court did not take a position on possibilities that lie

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in between these two poles.” Smalley, 294 F.3d at 1032. Juvenile adjudications,

where juvenile defendants have the right to notice, the right to counsel, the right to

confront and cross-examine witnesses, the privilege against self-incrimination, and

the right to a finding of guilt beyond a reasonable doubt, see McKeiver v.

Pennsylvania, 403 U.S. 528, 533, 91 S. Ct. 1976, 1980 (1971) (setting forth the

constitutional requirements of a state juvenile proceeding), provide more than

sufficient safeguards to ensure the reliability that Apprendi requires and, therefore,

may be considered under the ACCA. Smalley, 294 F.3d at 1033. In Jones, the

Third Circuit agreed with Smalley and stated that “[l]ike the Smalley court, we find

nothing in Apprendi or Jones, two cases relied upon by the Tighe court and [the

defendant] on this appeal, that requires us to hold that prior nonjury juvenile

adjudications that afforded all required due process safeguards cannot be used to

enhance a sentence under the ACCA.” Jones, 332 F.3d at 696; see Hitt, 42 P.3d at

740, 273 Kan. at 235 (stating that although Apprendi spoke of procedural

safeguards attached to a prior conviction, “[i]t did not specify all procedural

safeguards nor did it require certain crucial procedural safeguards”). Thus, the

Third Circuit held that “[a] prior nonjury juvenile adjudication that was afforded

all constitutionally-required procedural safeguards can properly be characterized

as a prior conviction for Apprendi purposes.” Jones, 332 F.3d at 696.

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 In the present case, the district court found the Third Circuit’s Jones

decision more persuasive than Tighe and applied Burge’s juvenile adjudication to

the ACCA. After reviewing the record, we conclude that this application was

correct. We base our holding on the reasoning of our sister circuits in

Smalley and Jones.

“[T]rial by jury in the juvenile court’s adjudicative stage is not a

constitutional requirement.” McKeiver, 403 U.S. at 545, 91 S. Ct. at 1986;

McCullough v. Singletary, 967 F.2d 530, 532 (11th Cir. 1992); cf. United States v.

Bent, 702 F.2d 210, 212 (11th Cir. 1983) (“[T]here is no constitutional right to a

jury trial in federal juvenile delinquency proceedings.”). Further, although the

Court’s Jones and Apprendi decisions discuss the right to a jury trial as a

procedural safeguard, neither case addresses juvenile adjudications and neither

case explicitly states that a juvenile adjudication can only count as a prior

conviction under the ACCA if the juvenile was afforded the right to a jury trial.

At a minimum, however, Apprendi’s prior conviction exception is based on the

procedural safeguards that attach to a prior conviction or juvenile adjudication.

See Hitt, 42 P.3d at 740, 273 Kan. at 236.

Prior to Almendarez-Torres, we recognized that the fact of a prior

conviction under section 924(e) “merely links the severity of the defendant’s

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punishment for a violation of the predicate offense § 922(g) to the number of

previous felony convictions” and need not be submitted for jury consideration

because “the defendant has received the totality of constitutional protections due

in the prior proceeding on the predicate offense.” United States v. McGatha, 891

F.2d 1520, 1526 (11th Cir. 1990). We explained that “[i]t was unnecessary for the

jury to consider the defendant’s prior convictions, for these convictions were not

an element of the offense for which he was indicted and to which he entered his

plea of guilty.” Id. at 1525. And we concluded that “[w]hile the Due Process

Clause indeed requires proof beyond a reasonable doubt of every fact necessary to

constitute the crime, in sentencing those already constitutionally convicted the

courts have traditionally operated without constitutionally imposed burdens of

proof.” Id. at 1526-27. Although we did not consider the use of a prior juvenile

adjudication in McGatha, its rationale is consistent with the Eighth Circuit’s

decision in Smalley and the Third Circuit’s decision in Jones, and can be applied

in this case. Accordingly, “[a] prior nonjury juvenile adjudication that was

afforded all constitutionally-required procedural safeguards can properly be

characterized as a prior conviction for Apprendi purposes.” Jones, 332 F.3d at

696. Here, we are persuaded that Burge received the totality of constitutional

protections due in his prior juvenile proceeding.

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 C. The district court did not err under Booker

In his written objections to the presentence report, Burge objected to the

proposed enhancement for allegedly pointing his gun at the arresting officers. At

sentencing, which occurred prior to Blakely v. Washington, 124 S. Ct. 2531

(2004), Burge abandoned his objections, and the district court enhanced his

sentence under the Guidelines accordingly. Burge then raised a Blakely objection

for the first time in his initial brief. The Supreme Court subsequently decided

Booker, which extends Blakely to the Guidelines. “The holding in Booker is that

the Sixth Amendment right to trial by jury is violated where under a mandatory

guidelines system a sentence is increased because of an enhancement based on

facts found by the judge that were neither admitted by the defendant nor found by

the jury.” Rodriguez, 398 F.3d at 1298.

We conclude from the record that there is no Sixth Amendment violation

under Booker in this case because the first prong of the plain error test is not

satisfied: Burge waived his objections to the factual statements about his relevant

conduct in the presentence report and, therefore, admitted the facts in that report.

United States v. Shelton, 400 F.3d at 1328-29. Further, there is no error in this

case under Booker as to the district court’s application of the Guidelines for the

reasons recently stated by this court in Rodriguez. Burge, like the defendant in

17
Rodriguez, has not carried his burden as to the third prong of the plain error test:

Burge cannot show that “there is a reasonable probability of a different result if the

guidelines had been applied in an advisory instead of binding fashion by the

sentencing judge in this case.” Rodriguez, 398 F.3d at 1301; accord United States

v. Dowling, No. 04-10464, 2005 WL 658938 (11th Cir. March 23, 2005).

For the foregoing reasons, we affirm Burge’s sentence.

AFFIRMED.

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