United States v. McGhee ( 2011 )

United States Court of Appeals
For the First Circuit
No. 09-1322
UNITED STATES OF AMERICA,
Appellee,
v.
WINSTON McGHEE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.
J. Martin Richey, Federal Defender Office, on supplemental
brief for appellant.
Nina Goodman, Appellate Section, Criminal Division, U.S.
Department of Justice, Carmen Milagros Ortiz, United States
Attorney, Timothy E. Moran, Assistant United States Attorney,
Lanny A. Breuer, Assistant Attorney General, and Greg D. Andres,
Acting Deputy Assistant Attorney General, on supplemental brief for
appellee.
June 22, 2011
BOUDIN, Circuit Judge. Winston McGhee was convicted of
drug crimes committed in July 2006 and at sentencing determined to
be a career offender, U.S.S.G. § 4B1.1 (2008), based in part on a
prior state youthful offender adjudication. On appeal, we affirmed
both the conviction and the resulting sentence, United States v.
McGhee, 627 F.3d 454, 461 (1st Cir. 2010), noting that the career
offender designation was compelled by United States v. Torres, 541
F.3d 48 (1st Cir. 2008), cert. denied, 129 S. Ct. 1987 (2009).
McGhee then petitioned for panel rehearing and rehearing
en banc to challenge Torres. The government then conceded that
Torres' holding was incorrect, but it defended McGhee's sentence on
other grounds. After consulting with the en banc judges, this
panel granted panel rehearing to reconsider Torres ourselves--a
practice occasionally used in this circuit in special
circumstances1--the en banc request then being dismissed as moot.
Career offender status, which affects both the guideline
range and criminal history category, requires that the defendant
has committed "at least two prior felony convictions of either a
crime of violence or a controlled substance offense." U.S.S.G.
§ 4B1.1(a). The commentary on guideline section 4B1.2
("Definitions of Terms Used in Section 4B1.1") provides that
1
See United States v. Holloway, 630 F.3d 252, 255 n.2 (1st
Cir. 2011); United States v. Dowdell, 595 F.3d 50, 62 n.8 (1st Cir.
2010); Gallagher v. Wilton Enters., Inc., 962 F.2d 120, 124 n.4
(1st Cir. 1992) (per curiam).
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"'[p]rior felony conviction' means a prior adult federal or state
conviction for an offense punishable by death or imprisonment for
a term exceeding one year, regardless of whether such offense is
specifically designated as a felony and regardless of the actual
sentence imposed." Id. § 4B1.2 cmt. n.1 (emphasis added).2 It
continues:
A conviction for an offense committed at age
eighteen or older is an adult conviction. A
conviction for an offense committed prior to
age eighteen is an adult conviction if it is
classified as an adult conviction under the
laws of the jurisdiction in which the
defendant was convicted (e.g., a federal
conviction for an offense committed prior to
the defendant's eighteenth birthday is an
adult conviction if the defendant was
expressly proceeded against as an adult).
Id. (emphasis added).
Torres held that a prior offense committed before age 18
could be counted towards career offender status without
consideration of the state's classification of the offense. 541
F.3d at 51-52. It reached this conclusion because another
application note to section 4B1.2 provides that "[t]he provisions
of § 4A1.2 [governing criminal history generally] . . . are
applicable to the counting of convictions under § 4B1.1." U.S.S.G.
§ 4B1.2 cmt. n.3.
2
"[C]ommentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline." Stinson v. United
States, 508 U.S. 36, 38 (1993).
-3-
Sections 4A1.1 and 4A1.2 are concerned with counting and
weighting sentences of imprisonment to establish a defendant's
criminal history category--one of the two variables that fixes the
guideline sentencing range; section 4A1.2(d) determines which
sentences for offenses committed prior to age 18 should be excluded
by asking whether defendant was "convicted as an adult" and what
length and kind of sentence were imposed. An application note to
section 4A1.2 states:
Section 4A1.2(d) covers offenses committed
prior to age eighteen. Attempting to count
every juvenile adjudication would have the
potential for creating large disparities due
to the differential availability of records.
Therefore, for offenses committed prior to age
eighteen, only those that resulted in adult
sentences of imprisonment exceeding one year
and one month, or resulted in imposition of an
adult or juvenile sentence or release from
confinement on that sentence within five years
of the defendant's commencement of the instant
offense are counted. To avoid disparities
from jurisdiction to jurisdiction in the age
at which a defendant is considered a
"juvenile," this provision applies to all
offenses committed prior to age eighteen.
§ 4A1.2 cmt. n.7 (emphasis added).
Because of the cross-reference, Torres assumed that this
provision, governing the calculation of criminal history points,
was sufficient to determine career offender predicates under
section 4B1. And, as Torres had committed his latest offense
within five years of what he claimed to be a juvenile offense, the
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court held that it was "immaterial whether Torres was classified as
an adult under [state] law." 541 F.3d at 52.
Although the maze of provisions is assuredly confusing,
there is now a consensus that Torres misread them.3 For career
offender purposes, a conviction for an offense committed before age
18 counts only if "it is classified as an adult conviction under
the laws of" that jurisdiction, U.S.S.G. § 4B1.2 cmt. n.1; by
contrast, ordinary criminal history is computed under section 4A1
by a different rule, which seeks more uniformity as to offenses
committed before 18, id. § 4A1.2 cmt. n.7 (quoted above).
The career offender provision is the one at issue both in
Torres and in this case. Its specific and unqualified reliance on
how the state "classified" the conviction cannot be undone by
pointing to a general cross-reference in the career offender
provisions to a different set of provisions, one of which
(application note 7) takes a contrasting approach and counts for
ordinary criminal history points juvenile convictions that occurred
within five years of the later offense. Torres is therefore no
longer to be followed in this circuit.
3
The Acting Solicitor General started down this line by
calling the Torres theory "somewhat doubtful," Brief for the United
States in Opposition at 10, Torres v. United States, 129 S. Ct.
1987 (2009) (mem.) (No. 08-8227), while defending the outcome on
other grounds, and the government's brief responding to the
petition for rehearing en banc in this case states that the Torres
"holding misconstrues the career-offender provisions of the
Sentencing Guidelines and should be corrected."
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There is disagreement among the circuits on a related set
of issues involving the interplay of the career offender provisions
with application note 7,4 but these divisions do not affect the
outcome here, and it will be time enough to address them when they
arise in a concrete case with briefing on the issue. What does
remain to be decided in this case is whether McGhee's prior
conviction critical to his designation as a career offender is
"classified" as an "adult conviction" under Massachusetts law.
McGhee had two prior offenses counted towards his career
offender determination, both committed prior to age 18: he was
adjudicated delinquent as a youthful offender for armed robbery and
assault with a deadly weapon committed when he was 15, and he was
convicted in adult court of assault and battery with a dangerous
weapon committed when he was 17.
McGhee objects only to counting the youthful offender
adjudication for armed robbery, arguing that it is not "classified"
as an adult conviction under Massachusetts law. In applying many
provisions of the federal sentencing statutes and guidelines, the
state's labels are not determinative; a uniform treatment is sought
in federal sentencing, 28 U.S.C. § 991(b)(1)(B) (2006), and in
4
Compare United States v. Mason, 284 F.3d 555, 558-62 (4th
Cir. 2002) (holding that an offense for which the defendant
received an adult conviction but a juvenile sentence was not a
career offender predicate), with United States v. Carrillo, 991
F.2d 590, 593-95 (9th Cir.), cert. denied, 510 U.S. 883 (1993)
(holding that an adult sentence is any sentence imposed after an
adult conviction).
-6-
various contexts the federal courts disregard state labels and
employ a uniform federal test where terms like "burglary" or
"felony" drive guideline calculations.5
Doubtless influenced by this case law, several circuits
have sought to decide whether "an adult conviction" took place by
applying solely objective criteria, framed by the federal courts,
to the circumstances surrounding a state conviction, including the
events underlying the conviction and factors such as the forum,
procedure, sentence, and time served. E.g., United States v.
Jones, 415 F.3d 256, 263-64 (2d Cir. 2005); United States v.
Pinion, 4 F.3d 941, 944-45 (11th Cir. 1993).
However, the language of the commentary to the guideline
in this instance does place more emphasis than has occurred in
other contexts on whether the conviction is "classified" as an
adult offense "under the laws of the jurisdiction" of conviction,
U.S.S.G. § 4B1.2 cmt. n.1, undermining any presumption in favor of
a federal standard that disregards state labels. See Dickerson v.
New Banner Inst., Inc., 460 U.S. 103, 119-20 (1983); United States
5
See, e.g., United States v. DeLuca, 17 F.3d 6, 8-9 (1st Cir.
1994) (defining "extortion" for career offender status under
sections 4B1.1 and 4B1.2); United States v. Aymelek, 926 F.2d 64,
71-72 (1st Cir. 1991) (defining "felony" for offense conduct under
section 2L1.2(b)(1)); United States v. Unger, 915 F.2d 759, 762-63
(1st Cir. 1990), cert. denied, 498 U.S. 1104 (1991) (computing
criminal history under section 4A1.2); see also Taylor v. United
States, 495 U.S. 575, 590-92 (1990) (defining "burglary" for the
purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e)
(2006)).
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v. Turley, 352 U.S. 407, 411 (1957). There may well be limits to
how far state labels even here can override circumstances, but ours
is not an extreme case.
Massachusetts law originally provided that defendants
between 7 and 17 were subject only to adjudication as a delinquent
child in the juvenile justice system, unless the court after a
hearing transferred the defendant to the criminal justice system,
finding that trial as an adult was appropriate. Mass. Gen. Laws
ch. 119, §§ 52, 58, 58B, 61 (1994) (amended 1996). But prior to
McGhee's offense, the transfer regime was repealed and a new
category--"youthful offender"--was added, governing offenses except
murder. 1996 Mass. Acts 898, 905.
Youthful offenders are those who, between 14 and 17,
commit offenses for which adults could be imprisoned and also have
been previously committed to the Department of Youth Services, have
committed an offense involving the infliction or threat of serious
bodily harm, or have committed certain firearms violations. Mass.
Gen. Laws ch. 119, § 52 (2008). McGhee's offense could result in
imprisonment for an adult and involved the threat of bodily harm,
and so he was under Massachusetts law a youthful offender rather
than merely a juvenile delinquent.
Youthful offenders may be indicted, Mass. Gen. Laws ch.
119, § 54, may suffer harsher sentences up to and including an
adult sentence, id. § 58, and their records are open to the public,
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id. § 60A; but jurisdiction of the matter remains in juvenile
court, id. § 52, 58, and youthful offenders, like delinquent
children, "as far as practicable, . . . shall be treated, not as
criminals, but as children in need of aid, encouragement and
guidance," id. § 53. The proceedings, the statute provides, "shall
not be deemed criminal proceedings." Id.
A wholly objective assessment would conclude that in the
armed robbery case McGhee was treated, in several respects, much
like an adult: he was indicted, sentenced to an extended term of
probation, and upon violations of probation was held twice in an
adult jail. Yet, the venue was the Roxbury Juvenile Court, the
probation was with the Department of Youth Services, and McGhee was
released from the department's custody at age 21; and, of course,
state law says that these are not "deemed criminal proceedings"
under state law.
We conclude that Massachusetts has "classified" "youthful
offender" adjudications differently from "adult convictions," and
McGhee's adjudication is not a career offender predicate. Accord
United States v. Peguero-Martinez, Criminal No. 10-10132-PBS, 2010
WL 4955587, at *2, *4 (D. Mass. Nov. 30, 2010). This is a judgment
call, but Massachusetts' nomenclature clearly distinguishes between
youthful offenders and adults, and to the extent that objective
criteria apply, the treatment accorded under state law is
significantly different than that given adult offenders.
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At sentencing, the district court quite properly treated
McGhee as a career offender because Torres bound it to do so, but
we now must treat that retrospectively as error. However, the
government argues that even if we reject its position that McGhee's
disputed conviction was an adult conviction, the district court's
error was harmless. This is a close call in light of remarks made
by the district court at the sentencing, but on balance we think
that a remand is still warranted.
Career offender status usually causes a significant
increase in the guideline range, U.S.S.G. § 4B1.1, which even post-
Booker often influences the final sentence, see United States v.
Booker, 543 U.S. 220, 245-46 (2005). Here, McGhee's guideline
range should have been 92 to 115 months, but it was increased to
210 to 262 months by the career offender designation. The district
court granted a downward variance and sentenced him to 96 months'
imprisonment.
In explaining the sentence, the district judge stated:
I thought this was a ten-year case, if that,
and I, also, recognize that . . . [McGhee] was
the subject of a substantial period of dead
time . . . . Now, that suggests that I have
to move outside of the Guideline system, and I
do, by reference to the factors in Section
3553.
After subtracting 24 months of dead time during which McGhee was
imprisoned awaiting trial in a case for which a nolle prosequi was
ultimately entered, the court arrived at the 96-month sentence.
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"[O]nce the court of appeals has decided that the
district court misapplied the Guidelines, a remand is appropriate
unless the reviewing court concludes, on the record as a whole,
that the error was harmless, i.e., that the error did not affect
the district court's selection of the sentence imposed." Williams
v. United States, 503 U.S. 193, 203 (1992); see also Fed. R. Crim.
P. 52(a). Given the transcript, McGhee's sentence might well have
been the same regardless of the career offender designation, but we
are not certain enough to find harmless error.
The government relies on United States v. Teague, 469
F.3d 205 (1st Cir. 2006). There, as here, the district court found
the defendant to be a career offender but imposed a sentence well
below the career offender range. This court disagreed with the
designation but held the error harmless because the district judge
had made clear that the designation had not mattered--only the
circumstances of the prior crimes and Teague's overall criminal
role had been considered. Id. at 209-10.
The district court in our case explained his variant
sentence, which was well below the career guideline range, but we
think the transcript is less clear than it was in Teague that the
career offender designation was entirely irrelevant; that the
sentence here was below the career offender range cannot alone be
dispositive since the designation can be influential even if not
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treated as controlling. And it is easy enough to let the district
court decide the matter for itself.
McGhee's sentence is vacated and the matter is remanded
for resentencing.
It is so ordered.
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