United States v. Washington , 706 F.3d 1215 ( 2012 )


Menu:
  •                                                                             FILED
    United States Court of Appeals
    Tenth Circuit
    December 28, 2012
    PUBLISH                      Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES COURT OF APPEALS
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff–Appellee,                          No. 11-6339
    v.
    CORY DEVON WASHINGTON,
    Defendant–Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE WESTERN DISTRICT OF OKLAHOMA
    (D.C. No. 5:11–CR–00099–HE–1)
    Jeffrey Michael Byers, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for
    Defendant–Appellant.
    Suzanne Mitchell, U.S. Attorney’s Office (Sanford C. Coats, U.S. Attorney, Steven W.
    Creager, Special Assistant U.S. Attorney, and Ashley L. Altshuler, Assistant U.S.
    Attorney, on the brief), Oklahoma City, Oklahoma, for Plaintiff–Appellee.
    Before HARTZ, McKAY, and TYMKOVICH, Circuit Judges.
    McKAY, Circuit Judge.
    Defendant Cory Washington pled guilty to two firearms charges. Before
    sentencing, the government filed a notice of prior convictions to support a sentencing
    enhancement under the Armed Career Criminal Act, 
    18 U.S.C. § 924
    (e). The probation
    office identified three predicate violent felonies: an adult conviction for assault and
    battery with a dangerous weapon, an adult conviction for second degree burglary, and an
    Oklahoma juvenile adjudication for pointing a weapon. Defendant objected to the
    application of the juvenile adjudication, but the district court ultimately concluded that
    the juvenile adjudication qualified as a violent felony under the ACCA. The court
    therefore applied the enhancement and sentenced Defendant to the minimum sentence
    under the Act, fifteen years’ imprisonment. On appeal, Defendant objects only to the
    application of the juvenile adjudication to support the sentencing enhancement.
    The ACCA enhancement applies when “a person who violates [18 U.S.C. §]
    922(g) . . . has three previous convictions by any court . . . 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).
    As used in this subsection . . . the term ‘violent felony’ 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—(i) has as an element the use, attempted use,
    or threatened use of physical force against the person of another; or (ii) is
    burglary, arson, or extortion, involves use of explosives, or otherwise
    involves conduct that presents a serious potential risk of physical injury to
    another . . . .
    
    Id.
     § 924(e)(2)(B). “[T]he term ‘conviction’ includes a finding that a person has
    committed an act of juvenile delinquency involving a violent felony.” Id. § 924(e)(2)(C).
    Whether Defendant’s juvenile adjudication qualifies as a violent felony conviction under
    the ACCA is a legal question that we review de novo. See United States v. Zuniga, 553
    -2-
    F.3d 1330, 1333 (10th Cir. 2009).
    Defendant raises three objections to the application of this enhancement. First, he
    argues that the government did not establish his juvenile adjudication was for a felony,
    rather than a misdemeanor, violation of state law. Second, he contends Oklahoma
    juvenile adjudications generally do not qualify as convictions under the ACCA. Finally,
    he argues his juvenile adjudication was dismissed after he served his five-month term of
    probation, rendering the action a nullity under Oklahoma law and preventing its use as a
    predicate conviction under the ACCA. We consider each argument in turn.
    We first consider Defendant’s argument that the government failed to establish he
    committed an act of juvenile delinquency involving a violent felony rather than a
    misdemeanor. This argument arises from the fact that the charging document and
    associated documents from the juvenile adjudication did not include a statutory reference
    for Defendant’s offense, and pointing a weapon can be either a misdemeanor or a felony
    under Oklahoma law.
    As it stood at the time of Defendant’s juvenile adjudication, the Oklahoma
    misdemeanor offense provided: “It shall be unlawful for any person to point any pistol or
    any other deadly weapon whether loaded or not, at any other person or persons either in
    anger or otherwise.” 
    Okla. Stat. tit. 21, § 1279
     (1992) (amended 1995). This offense was
    punishable by three to twelve months of imprisonment. 
    Id.
     § 1280. The felony offense
    provided in part:
    -3-
    It shall be unlawful for any person to willfully or without lawful cause point
    a shotgun, rifle or pistol, or any deadly weapon, whether loaded or not, at
    any person or persons for the purpose of threatening or with the intention of
    discharging the firearm or with any malice or for any purpose of injuring,
    either through physical injury or mental or emotional intimidation . . . .
    Id. § 1289.16. Violation of this statute was punishable by one to ten years of
    imprisonment. Id. § 1289.17.
    Although the charging document for Defendant’s adjudication does not include a
    statutory reference, it clearly tracks the language of the felony offense:
    [T]he said minor is alleged to be delinquent in that: said Cory Devon
    Washington committed the act of POINTING A WEAPON, in Canadian
    County, State of Oklahoma, on or about the 14th day of April, 1992, to-wit:
    did willfully, and without lawful cause point a Colt M16 rifle, for the
    purpose of threatening and intimidating [a trooper], and with the unlawful,
    malicious intent then and there on the part of said Cory Devon Washington
    to injure the said Trooper . . . physically, or for the purpose of mental or
    emotional intimidation.
    (R. Vol. 2 at 99.) Nevertheless, Defendant argues the juvenile adjudication was based on
    the misdemeanor offense because: (1) the charging document uses the term “pointing a
    weapon,” which was closer to the 1992 title of the misdemeanor offense, “Pointing
    weapon at another,” than the 1992 title for the felony, “Pointing firearms”; (2)
    Defendant’s sentence of five months of probation was within the misdemeanor range of
    punishment; (3) court costs were not assessed at the standard level for juvenile felony
    adjudications; and (4) to the extent there is ambiguity, we should apply the rule of lenity
    to construe the juvenile adjudication to refer to the misdemeanor offense.
    We are not persuaded the charging document must have been referring to the
    -4-
    misdemeanor offense simply because it used the word “weapon” rather than “firearm.”
    Oklahoma courts are not consistent in their use of these terms and have specifically used
    the phrase “pointing a weapon” to refer to the felony offense. See, e.g., Thompson v.
    State, 
    169 P.3d 1198
    , 1200 (Okla. Crim. App. 2007) (stating that the defendant was
    charged in “two counts of Feloniously Pointing a Weapon, under 
    21 O.S. 2001
    , §
    1289.16”); Wimberly v. State, 
    698 P.2d 27
    , 30 (Okla. Crim. App. 1985) (noting the
    defendant was charged with three counts of “Pointing a Weapon” under 
    Okla. Stat. tit. 21, § 1289.16
    , the felony statute); Gatlin v. State, 
    553 P.2d 204
    , 205 (Okla. Crim. App. 1976)
    (stating that the defendant was “convicted of the crime of Pointing a Weapon at Another
    in violation of 21 O.S. § 1289.16”). Thus, the charging document’s description of
    Defendant’s offense as “pointing a weapon” does not persuade us it must have been
    intended to refer to the misdemeanor offense even though the rest of the charging
    document would contradict such a conclusion.
    Nor are we persuaded by Defendant’s other arguments. The fact that Defendant
    was sentenced to five months of probation as a juvenile delinquent does not prove he
    would have been sentenced to a similar term of imprisonment had he been sentenced as
    an adult. A juvenile court need not follow statutory sentencing ranges in a juvenile
    adjudication. See In re G.A.M., 
    563 P.2d 161
    , 162 (Okla. Crim. App. 1977) (affirming an
    order placing a juvenile in the custody of the Oklahoma Department of Institutions, Social
    and Rehabilitative Services for an indeterminate period of time, where an adult could only
    receive a thirty day sentence for the same violation). Indeed, “[t]he very purpose of the
    -5-
    juvenile system is to treat juveniles in a different manner from adults.” 
    Id.
     As for the
    court costs, while the amount assessed was lower than the flat charge for a juvenile
    felony, it was greater than the statutory cap for a juvenile misdemeanor, which supports
    the conclusion that Defendant’s adjudication was not based on the misdemeanor
    offense—otherwise, the juvenile court would have exceeded its authority by ordering
    greater costs than authorized by statute. See 
    Okla. Stat. tit. 28, § 162
    (A). Finally, we
    note that the rule of lenity is a rule of statutory construction inapplicable to ambiguous
    orders and judgments. See United States v. Metzener, 
    584 F.3d 928
    , 934-35 (10th Cir.
    2009). Because the language of the charging document clearly tracks the language of the
    felony statute, and because this felony offense falls within the ACCA’s definition of a
    violent felony, we conclude that Defendant’s juvenile adjudication qualified as a
    predicate violent felony under the ACCA.
    Defendant also argues Oklahoma law prevents the treatment of juvenile
    adjudications as criminal convictions under the ACCA or for other purposes. We rejected
    essentially the same argument in United States v. Carney, 
    106 F.3d 315
    , 317 (10th Cir.
    1997). There, we explained the use of prior juvenile adjudications for sentencing
    purposes is “entirely consistent with Oklahoma law,” and, even if there were an
    inconsistency, “it is clear that Oklahoma law could not bar consideration of defendant’s
    state juvenile court records by a federal court in determining a sentence, when federal law
    provides otherwise.” 
    Id.
     (internal quotation marks omitted). Although Defendant cites to
    one additional Oklahoma statute that was not cited in Carney, this statute does not affect
    -6-
    our analysis. This statute simply provides that no juvenile adjudication “shall operate to
    impose any of the civil disabilities ordinarily resulting from conviction of a crime” and
    that “a child [shall not] be deemed a criminal by reason of a juvenile adjudication.” Okla.
    Stat. tit. 10A, § 2-6-108(A). Neither the imposition of civil disabilities nor the deeming
    of a child as a criminal are at issue here. Moreover, we note Oklahoma law itself
    specifically permits prior juvenile adjudications to be used both for sentencing purposes,
    id. § 2-6-108(G)(3), and to determine the lawfulness of subsequent firearm possession,
    
    Okla. Stat. tit. 21, § 1283
    (D). “For these reasons [Defendant] has no basis for arguing
    that Oklahoma law prohibited the district court from considering his state juvenile
    adjudications during sentencing.” Carney, 
    106 F.3d at 317
    .
    Finally, Defendant contends his juvenile adjudication could not be used as a
    predicate conviction under the ACCA because it was dismissed by the juvenile court,
    rendering it a nullity. The record reflects that the charging document was filed in April
    1992. In June 1992, the juvenile court ordered Defendant placed on probation and set a
    review hearing for November 19, 1992. On November 19, 1992, the district attorney
    “move[d] the Court to dismiss the . . . Juvenile Action for the reason to best meet the ends
    of justice” and “pray[ed] that all action in this case be terminated and dismissed.” (R.
    Vol. 2 at 103.) The juvenile court approved the district attorney’s application for
    dismissal and ordered the action to be dismissed without costs. Defendant argues this
    dismissal rendered the action a nullity, essentially setting it aside under state law such that
    it cannot be counted as a conviction under the ACCA. See 
    18 U.S.C. § 921
    (a)(20). For
    -7-
    support, Defendant relies on Carder v. Court of Criminal Appeals, 
    595 P.2d 416
     (Okla.
    1978). He also cites to the general principle that “dismissal of the action or proceeding,
    though a previous judgment may have been rendered therein, extinguishes judgment,
    action, and all, leaving the parties in the position they were in before it was commenced.”
    Sammons v. Pike, 
    117 N.W. 244
    , 245 (Minn. 1908).
    Under the ACCA, “[w]hat constitutes a conviction . . . shall be determined in
    accordance with the law of the jurisdiction in which the proceedings were held.” 
    18 U.S.C. § 921
    (a)(20). Our review of Oklahoma law persuades us that “dismissal” is
    simply one way in which a juvenile court may terminate its jurisdiction over a juvenile
    action. See Okla. Stat. tit. 10A, § 2-2-503(A)(9) (“The court may dismiss the petition or
    otherwise terminate its jurisdiction at any time for good cause shown.”). Oklahoma’s
    statutory scheme treats dismissed cases the same as closed cases, and a dismissed case is
    only considered never to have occurred if the juvenile records are sealed. Under
    Oklahoma law, an individual’s juvenile records may be sealed when “one (1) year has
    elapsed from the later of: (1) dismissal or closure of the case by the court, or (2) notice to
    the court . . . of final discharge of such person from the supervision of the Office of
    Juvenile Affairs or juvenile bureau,” the individual has not been found guilty of a
    subsequent criminal offense, and “no juvenile or adult proceeding for a criminal offense
    is pending.” Okla. Stat. tit. 10A, § 2-6-108(B)(1). And it is only “[u]pon the sealing of
    any record of any person alleged to be delinquent” that “the record and official actions
    subject to the order shall be deemed never to have occurred.” Id. § 2-6-108(D).
    -8-
    Moreover, even such sealed records may still be used for sentencing purposes. Id. § 2-6-
    108(G)(3).
    The fact that Oklahoma law permits the use of dismissed and sealed cases for
    sentencing purposes strongly suggests Oklahoma does not treat a dismissed juvenile
    adjudication as a nullity. Rather, Oklahoma appears to use “dismissal” simply as a way
    for a juvenile court to close a proceeding after appropriate actions have been taken, such
    as Defendant’s completion of a five-month term of probation in this case. See also
    United States v. Mason, 435 F. App’x 726, 728 (10th Cir. 2011) (explaining that the
    probation office contacted an Oklahoma county district attorney’s office and learned that
    “a dismissal in juvenile proceedings does not negate the delinquent adjudication, but
    instead closes the Court’s interest in the juvenile case” (quoting PSR addendum)). In
    light of this specific use of the word “dismissal” in the Oklahoma scheme, general
    principles of law regarding this term’s typical usage are inapplicable.
    Defendant relies on the Oklahoma Supreme Court’s statement in Carder that a
    juvenile court’s dismissal order “vacated, set aside and entirely eliminated the action,
    rendering it a nullity.” 595 P.2d at 422. At first glance, this statement appears to support
    Defendant’s argument. However, viewing this statement in context, we are not persuaded
    that Carder was intended to alter the statutory scheme under which dismissed juvenile
    cases are treated essentially the same as other closed juvenile cases. In Carder, a juvenile
    was adjudicated delinquent and ordered into the temporary custody of the Department of
    Institutions, Social and Rehabilitative Services. The juvenile court subsequently
    -9-
    dismissed the case. However, the Department contended the court was without
    jurisdiction to do so. It was the Department’s position that the juvenile court lost
    jurisdiction over the delinquent child as soon as the court ordered the child into the
    Department’s custody. In support of this position, the Department relied in part on a
    statute providing that “an order committing a child adjudicated to be delinquent to the
    Department[] may not be modified.” 
    Okla. Stat. tit. 10, § 1118
     (1969) (amended 1979,
    1981, and 1995) (current version at 
    Okla. Stat. tit. 10, § 7003-6.1
    ). The Oklahoma
    Supreme Court rejected this argument, holding: “It is clear that the order dismissing J-7-
    14 was not a ‘modification.’ Modification is merely a revision or adjustment of details.
    The dismissal order vacated, set aside and entirely eliminated the action, rendering it a
    nullity.” Carder, 595 P.2d at 422 (citation omitted). Thus, the juvenile court had the
    authority to dismiss the juvenile action and, once it did so, “the Department, [the
    juvenile’s] custodian only by reason of orders entered in that action, was without further
    claim of lawful custody.” Id.
    Thus, Carder’s statement that the “dismissal order vacated, set aside and entirely
    eliminated the action” came in the context of distinguishing a dismissal from an
    unauthorized modification of a custody order: because the dismissal order completely
    ended the action and terminated jurisdiction over the juvenile, the court held it was not
    the same as a modification of the disposition order. Carder did not discuss the effect of a
    dismissal on the use of a juvenile adjudication in future proceedings, and we do not read
    it to affect the statutory scheme under which dismissed cases are treated the same as other
    -10-
    closed cases, only being deemed never to have occurred if the records are sealed under
    the statutory provisions.
    Oklahoma’s use of the term “dismiss” to refer to the termination of a juvenile
    court’s jurisdiction over a proceeding is admittedly confusing. Perhaps Oklahoma does
    indeed intend for such a dismissal to render the juvenile adjudication a complete nullity
    ab initio, even for sentencing purposes. However, the statutory scheme as it presently
    stands does not so provide, and we will not reach such a result based simply on
    Oklahoma’s use of the word “dismiss” and the Oklahoma Supreme Court’s remarks in a
    different context. We hold that the dismissal of Defendant’s juvenile adjudication
    following his five-month term of probation did not constitute expungement or setting
    aside of the conviction for ACCA purposes. We thus hold that the juvenile adjudication
    was appropriately applied as a predicate conviction under the ACCA.
    Defendant’s conviction and sentence are AFFIRMED.
    -11-