[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
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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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