UNITED STATES of America, Plaintiff-Appellee, v. Raul Roger ORONA, Jr., Defendant-Appellant.
No. 12-2129.
United States Court of Appeals, Tenth Circuit.
July 31, 2013.
724 F.3d 1297
There remains the question of whether Valenzuela‘s double jeopardy claim was nonetheless “colorable.” “We will not exercise jurisdiction over [an] interlocutory appeal from the denial of [a] motion to dismiss unless [the] double jeopardy claim is ‘colorable.‘” Zone, 403 F.3d at 1104 (quoting United States v. Price, 314 F.3d 417, 420 (9th Cir.2002)). “We will exercise jurisdiction over an interlocutory appeal of denial of a motion to dismiss on double jeopardy grounds if the double jeopardy claim is colorable.” United States v. Price, 314 F.3d 417, 420 (9th Cir.2002) (internal quotation marks and citation omitted).
We conclude that Valenzuela‘s claim barely meets the threshold of “colorable” because we had not clearly reconciled our opinions in Garcia-Aguilar, Covian-Sandoval, and Mendoza-Zaragoza, and because the procedures set forth in Ellis, 356 F.3d at 1207, merit reiteration. However, this opinion drains the color from any future attempt to seek an interlocutory appeal from a similar rejection of a guilty plea.8 The district court‘s rejection of Valenzuela‘s guilty plea is AFFIRMED.
Dennis James Candelaria, Esq., Office of the Federal Public Defender, District of New Mexico, Las Cruces, NM, for the Defendant-Appellant.
James Robert Wolfgang Braun (Kenneth J. Gonzales and Lаura Fashing with him on the briefs), Office of the United States Attorney, District of New Mexico, Albuquerque, NM, for the Plaintiff-Appellee.
Before BRISCOE, Chief Judge, SEYMOUR and LUCERO, Circuit Judges.
LUCERO, Circuit Judge.
Raul Roger Orona, Jr., appeals from his conviction and sentence for being a felon in possession of a firearm. Orona was sentenced to 198 months’ imprisonment under the Armed Career Criminal Act (“ACCA“),
I
Following a three-day jury trial, Orona was convicted of being a felon in possession of a firearm in violation of
Based on Orona‘s status as an armed career offender, however, the PSR recommended that hе be sentenced with a base offense level of 33 pursuant to U.S.S.G. § 4B1.4(a) and
Orona objected to the PSR, arguing that the use of a juvenile adjudication as a predicate conviction for ACCA purposes violates the Eighth Amendment. The probation office responded that juvenile adjudications qualify as predicate offenses under
At sentencing, the district court concluded that a sentence under ACCA was constitutional, but stated it was persuaded that “defendant has somewhat less culpability” given that one of his predicate offenses occurred when he was a juvenile. The court elected to vary downward one level and sentenced Orona to 198 months’ imprisonment and five years of supervised release. Orona timely appealed.
II
We review de novo whether a criminal sentence violates the Eighth Amendment‘s prohibition against cruel and unusual punishment. United States v. Williams, 576 F.3d 1149, 1165 (10th Cir. 2009). As the Supreme Court explained in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the
The Court‘s cases addressing the proportionality of sentences fall within two general classifications. The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty. Id.
Although the second line of analysis had previously only been applied in the death penalty context, the Court explained that the categorical approach was appropriate in Graham, which concerned sentencing juvenile offenders to life without parole for non-homicide crimes, because “a sentencing practice itself is in question.” Id. at 2022. That is, the “case implicate[d] a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes.” Id. at 2022-23.
Orona asserts a categorical challenge rather than a proportionality claim based on his particular facts and circumstances. He argues that the sentencing practice of using juvenile adjudications as
The Court first considers objective indicia of society‘s standards, as expressed in legislative enactments and state practice to determine whether there is a national consensus against the sentencing practice at issue. Next, guided by the standards elaborated by controlling precedents and by the Court‘s own understanding and interpretation of the Eighth Amendment‘s text, history, meaning, and purpose, the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution.
Id. at 2022 (quotations and citations omitted).1
A
As to the first prong of this test, “the clearest and most reliable objective evidence of contemporary values is the legislation enactеd by the country‘s legislatures.” Atkins v. Virginia, 536 U.S. 304, 312, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (quotation omitted). Orona argues that there is “arguably” a national consensus against using juvenile adjudications as predicate offenses. He relies on a law review note for this proposition:
[F]orty-one states had habitual offender statutes. Of those states, California and Texas were the only states which permitted a juvenile adjudication to qualify as a strike. Nineteen states explicitly prohibited the use of juvenile adjudications as a strike, five by statute, and fourteen through judicial determination. In the remaining twenty states that were silent on the issue, each contained language in its criminal statutes indicating that prior juvenile adjudications may not be used towards adult criminal sentences.
Joseph I. Goldstein-Breyer, Note, Calling Strikes before He Stepped to the Plate: Why Juvenile Adjudications Should Not Be Used To Enhance Adult Sentences, 15 Berkeley J.Crim. L. 65, 88 (2010). As Orona acknowledges, however, another note concludes that “the mixed-bag of jurisdictions’ policies and practices on using juvenile-age convictions for recidivism purposes demonstrates the lack of a national consensus regarding this particular sentencing regime.” Christopher Walsh, Note, Out of the Strike Zone: Why Graham v. Florida Makes It Unconstitutional To Use Juvenile-Age Adjudications as Strikes To Mandate Life Without Parole under § 841(b)(1)(A), 61 Am. U.L.Rev. 165, 187 (2011).
Following an independent review of states’ sentencing practices, we agree with the latter conclusion: states have not reached a meaningful consensus regarding the manner in which juvenile adjudications
ACCA, however, does not closely parallel the statute at issue in Nguyen. Nguyen concerned California Penal Code § 667, which provided for lengthy mandatory minimum sentences if a defendant with two qualifying prior felonies was convicted of any instant felony. Cal.Penal Code § 667(e)(2)(A) (2008);2 see also Lockyer v. Andrade, 538 U.S. 63, 67, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (“Under California‘s three strikes law, any felony can constitute the third strike, and thus can subject a defendant to a term of 25 years to life in prison.“). ACCA, in contrast, provides for an enhanced sentence only with respect to an individual who: (1) unlawfully possesses a firearm or ammunition; and (2) “has three previous convictions . . . for a violent felony or a serious drug offense.”
Looking more broadly to states’ use of juvenile adjudications in adult sentencing proceedings does not indicate a clear consensus. Two states treat juvenile adjudications as convictions for purposes of broadly applicable habitual offender statutes. See
At least twenty-three additional states permit the sentencing court to consider prior juvenile adjudications in selecting a sentence within a statutory range. See
As the foregoing indicates, states vary tremendously in the degree to which they permit a prior juvenile adjudication to impact sentencing following a subsequent adult conviction. The vast majority of states—at least forty-two by our count—allow a trial court to consider prior juvenile adjudications in fashioning a sentence. And in more than a third of states, prior juvenile adjudications increase the statutory penalties available for an adult defendant in a subsequent case in certain instances.
Although there is no consensus regarding whеther prior juvenile adjudications
However, the Atkins Court relied “not so much the number of these States” but upon “the consistency of the direction of change.” Id. at 315. Between 1990 and 2001, the Court noted, sixteen states prohibited the execution of the mentally ill while no state moved in the opposite direction. Id. at 314-15. The Court further relied on the fact that execution of the mentally retarded was exceedingly rare in states that permitted the practice; only five states had executed such defendants in recent years. Id. at 316. Similarly, in Roper, the Court noted that only six states had executed a juvenile offender since 1989, and only three since 1995. 543 U.S. at 564-65. And the Court relied on “significant” change in the number of states permitting the practice: “The number of States that have abandoned capital punishment for juvenile offenders . . . is smaller than the number of States that abandoned capital punishment for the mentally retarded . . . yet we think the same consistency of direction of change has been demonstrated.” Id. at 566. The Court adopted a similar line of analysis in Graham, in which it concluded a national consensus counseled against the imposition of life without parole sentences on juvenile offenders despite the fact that thirty-seven states permitted the practice. Noting that “[a]ctual sentencing practices are an important part of the Court‘s inquiry into consensus,” Graham, 130 S.Ct. at 2023, the Court relied on the infrequency with which such sentences were actually imposed, id. at 2024 (only 123 such sentences were being served nationwide, with a majority imposed by a single state).
Orona does not offer any evidence regarding the frequency with which juvenile adjudications are used to enhance subsequent adult sentences, although it is his burden to establish that a national consensus exists. See Stanford v. Kentucky, 492 U.S. 361, 373, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989) overruled on other grounds by Roper, 543 U.S. at 574. Unable to conclude that a national consensus exists on the matter, and given our determination that approximately two-thirds of states do not appear to use juvenile adjudications to increase the statutorily available sentencing ranges for subsequent adult convicts, we will proceed to the second prong of the categorical analysis.
“Community consensus, while entitled to great weight, is not itself determinative of whether a punishment is cruel and unusual.” Graham, 130 S.Ct. at 2026 (quotation omitted). Instead, courts must apply their independent judgment in interpreting the Eighth Amendment. Id. In doing so, we must consider “the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question” and “whether the challenged sentencing practice serves legitimate penological goals.” Id.
Orona argues that the practice of using a juvenile adjudication as a predicate offense under ACCA conflicts with the Supreme Court‘s holdings regarding juvenile offenders in Roper and Graham. In the former case, the Court concluded that the imposition of the death penalty upon juvenile offenders violates the Eighth Amendment. Roper, 543 U.S. at 560. It reached this conclusion based in large part on the differences between juveniles and adults. Juveniles, the Court held, have “a lack of maturity and an underdeveloped sense of responsibility.” Id. at 569 (alteration and quotation omitted). They “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” Id. And the “personality traits of juveniles are more transitory, less fixed.” Id. at 570. These differences “render suspect any conclusion that a juvenile falls among the worst of offenders.” Id. Juvenile offenders must be considered less culpable because they “have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment,” and “a greater possibility exists that a minor‘s character deficiencies will be reformed.” Id. The Graham Court extended this logic, prohibiting the imposition of mandatory life without parole sentences for non-homicide juvenile offenders. 130 S.Ct. at 2034. This holding was again based on the “fundamental differences between juvenile and adult minds.” Id. at 2026. And in Miller, the Court held that mandatory life without parole sentences for juveniles are entirely impermissible for the same reasons. 132 S.Ct. at 2464.
Orona argues that the use of a juvenile adjudication as a predicate offense under ACCA similarly violates the Eighth Amendment because juveniles are less morally culpable. The problem with this line of argument is that it assumes Orona is being punished in part for conduct he committed as a juvenile. This assumption is unfounded. The Supreme Court “consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant.” Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (quotation omitted). “When a defendant is given a higher sentence under a recidivism statute . . . 100% of the punishment is for the offense of conviction. None is for the prior convictions or the defendant‘s status as a recidivist.” United States v. Rodriquez, 553 U.S. 377, 386, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008) (quotation omitted).
Unlike the defendants in Roper and Graham, Orona is being punished for his adult conduct. As we recently explained in rejecting a substantive due process challenge to ACCA‘s use of juvenile adjudications, the cases upon which Orona relies “involve sentences imposed directly for crimes committed while the defendants were young. In the case before us, an adult defendant faced an enhanced sen-
In United States v. Banks, 679 F.3d 505 (6th Cir.2012), the Sixth Circuit reached a similar conclusion in holding that a conviction committed by a juvenile who is tried as an adult could be used under ACCA consistent with the Eighth Amendment. It distinguished Graham‘s culpability rationale, noting that the defendant, “33 years old at the time of his felon-in-possession offense, remained fully culpable as an adult for his violation and fully capable of appreciating that his earlier criminal history could enhance his punishment.” Id. at 508. The Eighth Circuit has applied the same reasoning. See United States v. Scott, 610 F.3d 1009, 1018 (8th Cir.2010) (“Scott was twenty-five years old at the time he committed thе conspiracy offense in this case. . . . The Court in Graham did not call into question the constitutionality of using prior convictions, juvenile or otherwise, to enhance the sentence of a convicted adult.“). And several pre-Graham cases rejected the argument that juvenile conduct should not be counted as an ACCA predicate offense. See United States v. Salahuddin, 509 F.3d 858, 864 (7th Cir.2007) (“[T]he Eighth Amendment does not prohibit using a conviction based on juvenile conduct to increase a sentence under the armed career criminal provisions.“); United States v. Wilks, 464 F.3d 1240, 1243 (11th Cir.2006) (reaching the same conclusion).
Orona also argues that the use of juvenile adjudications under ACCA does not serve “legitimate penological goals.” Graham, 130 S.Ct. at 2026. We disagree. The Court has repeatedly held that retribution and incapacitation are legitimate penological goals. See, e.g., id. at 2028. Both are served by ACCA. Thе government “is justified in punishing a recidivist more severely than it punishes a first offender.” Solem v. Helm, 463 U.S. 277, 296, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). This is because “an offense committed by a repeat offender is often thought to reflect greater culpability and thus to merit greater punishment.” Rodriquez, 553 U.S. at 385; see also Ewing v. California, 538 U.S. 11, 29, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (“In weighing the gravity of Ewing‘s offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature‘s choice of sanctions.“).
ACCA‘s consideration of juvenile adjudications also serves the government‘s inter-
Orona argues that a Guidelines sentence of 92-115 months, which would apply absent ACCA‘s fifteen-year mandatory minimum, would be sufficient to meet these penological goals. But our review of Congress’ decision as to the adequacy of punishment is quite circumscribed. “[I]f the punishment has some connection to a valid penological goal,” the question is whether “the punishment is . . . grossly disproportionate in light of the justification offered.” Graham, 130 S.Ct. at 2029. “[T]he point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.” Rummel v. Estelle, 445 U.S. 263, 285, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).
Orona has not shown that ACCA‘s statutory minimum, which is approximately five years longer than his already lengthy advisory Guidelines range, is grossly disproportionate. ACCA address-4es the very serious danger of recidivist felons in possession of firearms. See Angelos, 433 F.3d at 751 (affirming a fifty-five-year sentence under
III
In addition to his Eighth Amendment claim, Orona contends that the residual clause of ACCA is unconstitutionally vague. We review whether a statute is unconstitutionally vague de novo. United States v. Michel, 446 F.3d 1122, 1135 (10th Cir.2006). “The void-for-vagueness doctrine provides that a penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Id. (quotation omitted).
ACCA defines “violent felony” as including any crime that is “burglary, arson, or extortion, involves use оf explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
Just a few years later, the Court held that the crime of fleeing from a law enforcement officer qualified as a predicate offense under ACCA. See Sykes v. United States, — U.S. —, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011). The Court rejected the defendant‘s argument, based largely on Begay, that “ACCA predicates [must] be purposeful, violent, and aggressive in ways that vehicle flight is not.” 131 S.Ct. at 2275. ”Begay involved a crime akin to strict liability, negligence, and recklessness crimes,” the Court explained, “and the purposeful, violent, and aggressive formulation was used in that case to explain the result.” Id. at 2276. The Court dismissed the importance of the “purposeful, violent, and aggressive” language that appeared dispositive in Begay, noting that the phrase “has no precise textual link to the residual clause.” Id. at 2275. Instead, the
Orona argues that the Court‘s shifting jurisprudence on the proper test used to determine whether a crime qualifies under the residual clause renders the statute impermissibly vague. In James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), Justice Scalia argued in dissent that ACCA‘s rеsidual clause was incomprehensible based on the manner in which the Court had interpreted it. Id. at 214 (Scalia, J., dissenting). The majority rejected this conclusion:
While ACCA requires judges to make sometimes difficult evaluations of the risks posed by different offenses, we are not persuaded by Justice Scalia‘s suggestion—which was not pressed by James or his amici—that the residual provision is unconstitutionally vague. The statutory requirement that an unenumerated crime “otherwise involv[e] conduct that presents a serious potential risk of physical injury to another” is not so indefinite as to prevent an ordinary person from understanding what conduct it prohibits. Similar formulations have been used in other federal and state criminal statutes.
Id. at 210 n. 6 (citations omitted). Although this statement was dicta, “we are bound by Supreme Court dicta almost as firmly аs by the Court‘s outright holdings, particularly when the dicta is recent and not enfeebled by later statements.” United States v. Serawop, 505 F.3d 1112, 1122 (10th Cir.2007) (quotation omitted).
Further, the Court reiterated in Sykes that the residual clause “states an intelligible principle and provides guidance that allows a person to conform his or her conduct to the law.” 131 S.Ct. at 2277 (quotation omitted). And in 2011, Justice Scalia dissented from the denial of certiorari on this specific issue. See Derby v. United States, — U.S. —, 131 S.Ct. 2858, 180 L.Ed.2d 904 (Scalia, J., dissenting from the denial of certiorari). Several circuit courts have held the residual clause is not unconstitutionally vague. See United States v. Cowan, 696 F.3d 706, 708 (8th Cir.2012); United States v. Jones, 689 F.3d 696, 704 (7th Cir.2012); United States v. Hudson, 673 F.3d 263, 268-69 (4th Cir.2012). Orona does not direct us to any opinion holding the opposite.
Although we have previously noted that “[t]he Supreme Court‘s holding in Sykes is not a model of clarity,” United States v. Sandoval, 696 F.3d 1011, 1017 n. 8 (10th Cir.2012), we have nevertheless distilled a comprehensible test from the Court‘s residual clause cases: “[A]fter Sykes, it is not necessary to reach Begay‘s purposeful inquiry when the mens rea of the offense requires intentional conduct. In such cases, we ask instead whether the crime is similar in risk to the listed crimes in the ACCA.” United States v. Maldonado, 696 F.3d 1095, 1103 (10th Cir.2012) (quotations, citation, and alteration omitted). We are persuaded by the Court‘s consistent rejection of Orona‘s vagueness argument and the unanimous conclusion of our sibling circuits, and hold that the residual clause is not impermissibly vague.
IV
For the foregoing reasons, Orona‘s conviction and sentence are AFFIRMED.