1st Circuit Notes Split Re Whether Juvenile Adjudications May Constitutionally be Used as Predicate Convictions to Support an ACCA Enhancement
Per U.S. v. Matthews, --- F.3d ----, 2007 WL 2253499 (1st Cir. (Ma. Aug. 07, 2007) (Nos. 05-1655, 05-1925):
Appellant Larry Matthews was convicted of being a felon in possession of a firearm and sentenced under the Armed Career Criminal Act ("ACCA") to the statutory minimum fifteen-year term of imprisonment. See 18 U.S.C. § 924(e)(1). His sentencing challenge requires us to consider an issue on which other circuits have split and ours has not yet explicitly spoken: whether juvenile adjudications constitutionally may be used as predicate convictions to support an ACCA enhancement. After a careful review of the relevant law in the context of this case, we find no due process barrier to the use of appellant's juvenile proceeding. His other sentencing arguments are equally unavailing, as are his trial-based claims of insufficient evidence and instructional error. We therefore affirm both his conviction and sentence.
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A more substantial question is whether the assumption of reliability that underlies Apprendi 's exception for prior convictions-eliminating the need to prove the fact of conviction to a jury beyond a reasonable doubt-is properly extended to juvenile adjudications. See United States v. Smalley, 294 F.3d 1030, 1031-32 (8th Cir.2002) ("[W]hether juvenile adjudications can be characterized as 'prior convictions' for Apprendi purposes is a constitutional question implicating [the defendant's] right not to be deprived of liberty without 'due process of law,' and Congress's characterization, therefore, is not dispositive.") (citation omitted). Four circuits have held that juvenile adjudications may be deemed qualifying convictions under the ACCA, consistent with Apprendi, and therefore need not be submitted to the jury for fact-finding. See United States v. Crowell, No. 06-5902, 2007 WL 1814333, at *5 (6th Cir. June 26, 2007); United States v. Burge, 407 F.3d 1183, 1190-91 (11th Cir.2005); United States v. Jones, 332 F.3d 688, 696 (3d Cir.2003); Smalley, 294 F.3d at 1033.
However, the Ninth Circuit, in a decision that provoked a dissent, held to the contrary in United States v. Tighe, 266 F.3d 1187 (9th Cir.2001). The majority in Tighe reasoned that juvenile adjudications did not feature the "fundamental triumvirate of procedural protections" that guaranteed reliability-"fair notice, reasonable doubt and the right to a jury trial." Id. at 1193. Noting its concern about the absence of one of those fundamentals-the right to trial by jury-the Ninth Circuit majority held that " Apprendi 's narrow 'prior conviction' exception is limited to prior convictions resulting from proceedings that afforded the procedural necessities of a jury trial and proof beyond a reasonable doubt." Id. at 1194. In so concluding, the court pointed to language in Apprendi and Jones suggesting that the reliability of the jury process provides a basis for distinguishing between the fact of a prior conviction and other sentence-enhancing facts. Id. at 1193-94 (quoting Apprendi, 530 U.S. at 496; Jones, 526 U.S. at 249).
The four circuits that count juvenile adjudications as predicate crimes, whose decisions came after Tighe, also focused on whether juvenile adjudications are accompanied by sufficient procedural protections to justify the Apprendi exception. They disagreed, however, that a jury trial was a prerequisite. Recognizing that defendants in juvenile proceedings have no constitutional right to a jury trial, see McKeiver v. Pennsylvania, 403 U.S. 528, 545 (1971) (plurality opinion), the Eighth Circuit concluded that "the use of a jury in the juvenile context would 'not strengthen greatly, if at all, the fact-finding function,' " Smalley, 294 F.3d at 1033 (quoting McKeiver, 403 U.S. at 547). The court also cited In re Winship, 397 U.S. 358, 368 (1970), in observing that the safeguards that are required for juvenile offenses-the right to notice, the right to counsel, the right to confront and cross-examine witnesses, the privilege against self-incrimination, and proof of guilt beyond a reasonable doubt-"are more than sufficient to ensure the reliability that Apprendi requires." Smalley, 294 F.3d at 1033.
The Third Circuit in Jones adopted the Eighth Circuit's reasoning and 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." 332 F.3d at 696. Because the right to a jury trial is not constitutionally required in the juvenile context, its "absence ... does not automatically disqualify juvenile adjudications for purposes of the Apprendi exception." Id. The Eleventh Circuit in Burghe and the Sixth Circuit in Crowell subsequently came to the same conclusion. See Burghe, 407 F.3d at 1190-91 ("We base our holding on the reasoning of our sister circuits in Smalley and Jones."); Crowell, 2007 WL 1814333, at *5 ("[W]e join the Third, Eighth, and Eleventh circuits in finding that the imposition of a sentence enhancement under the ACCA based on a defendant's juvenile adjudication without a jury trial does not violate the defendant's due process rights or run afoul of Apprendi.").
Thus, while their outcomes differed, all of the courts to consider the issue have agreed that "the question of whether juvenile adjudications should be exempt from Apprendi 's general rule should [ ] turn on ... an examination of whether juvenile adjudications, like adult convictions, are so reliable that due process of law is not offended by such an exemption." Smalley, 294 F.3d at 1032-33. We share that view of the question. For purposes of Apprendi ' s recidivism exception, we see no distinction between juvenile adjudications and adult convictions; both reflect the sort of proven prior conduct that courts historically have used in sentencing. If their reliability is also equivalent, the prior conviction exception presumably would apply to juvenile adjudications with equal force.
We need not resolve in this case, however, whether trial by jury-the only one of the "fundamental triumvirate of procedural protections" not constitutionally mandated in juvenile proceedings-is a necessary assurance of reliability for Apprendi purposes. Massachusetts law gives juveniles the right to a jury trial, see Mass. Gen. Laws Ann. ch. 119, § 55A, and the certified copy of the docket in appellant's juvenile case shows that he was offered, and declined, a jury. Appellant therefore was provided more process than he was constitutionally due in his juvenile proceeding and, even under the Ninth Circuit's more restrictive approach, his adjudication of delinquency would qualify as a predicate conviction for purposes of the ACCA.
In sum, we detect no constitutional barrier to the use of that adjudication to support appellant's enhanced sentence.