*1 Ass’n, Hines, morial Inc. v. supra, 995 F.2d supra, at 15-109 to 15-110; Moore, 299). at supra Wright, note at 698. Appellants also did not seek leave to Affirmed. amend complaint their after the district court granted appellees’ dismiss; motion to instead
appellants filed a appeal. notice of See Con Ass’n, Memorial Hines, Inc. v.
federate su pra, 299; 995 F.2d at see also Glenn v. First
Nat’l Bank in Junction, Grand supra, 868 371;
F.2d at National Petrochemical Co. of
Iran v. Stolt Sheaf, M/T 930 F.2d (2d Cir.1991). Appellants offer no explana
tion for seeking not leave to amend. See Twohy v. First Nat’l Chicago, Bank (7th
F.2d Cir.1985); Bank cf. Waunakee v. Sales, Rochester Inc., Cheese supra, 906 F.2d However, at 1192. their UNITED America, STATES of Appellee, failure to seek leave to amend is consistent with their counsel’s representations to the district court appellants’ interest Reco JOHNSON, Vondell amending the complaint was tied to future Appellant. administrative action. No. 93-3140. Appellants, further, have suggested why an exception general rules favor- United States Court Appeals, ing finality of judgments and expedi- District of Columbia Circuit. tious resolution of litigation should be made in their case.17 While approach our Argued need May 1994. inflexible,18 appellants offer no reason for July Decided 1994. not following the normal course for amending a complaint, and we are confronted with a showing that their interest in amend-
ing complaint rested on a future contin-
gency yet that has to occur. Accordingly, we
hold that appellants have right waived the
raise the amendment claim of error on ap-
peal, see The Dartmouth Review v. Dart- College,
mouth
supra
note
tions supra, 16 F.3d at (citing Ass’n, Memorial Hines, Inc. v. Confederate
supra, 299), 995 F.2d at they have failed
to show they are entitled to a remand this court permit them to seek leave to amend. Royal Business Group, Inc. v.
Realist, Inc., supra
note
1066;
David Under the Sentencing United States Guide- Service, DC, lines, Washington, Defender Public Johnson fell into Cate- Columbia, argued gory for the District of V. His base offense level amounted *3 appellant. for him the cause With briefs 29. The on lines the inter- table Kramer, Defender, A.J. at imprisonment. Federal Public sected 140 to 175 months’ Klein, Chief, Div., Appellate In James W. the district Public court sentenced Johnson Defender for the to 140 months. Service District Colum- bia, Leigh Kenny, A. and Asst. Federal Pub- eighteenth birthday, Before his Johnson lic Defender. repeatedly violated the criminal laws Meade, Atty., A. James Asst. U.S. Wash- presentence District Columbia. The re- DC, ington, argued appellee. the cause for port, 4A1.2(d),2 § in compliance with U.S.S.G. Holder, himWith on the brief were Erie H. relied Johnson’s extensive Jr., Atty., Roy U.S. R. John Fisher and history to calculate his criminal category. McLeese, III, Attys. W. Asst. U.S. Nine of Johnson’s ten history points were for offenses he committed before his Kendall, George Elaine R. H. Jones and eighteenth birthday. appeal pursuant In this III, DC, Washington, were on the brief for 3742(a), § to 18 challenges U.S.C. Johnson Legal amicus curiae NAACP Defense and Sentencing authority Commission’s Fund, Educational Inc. use records to determine a defen- WALD, SILBERMAN, Before: history dant’s criminal category, the district RANDOLPH, Judges. Circuit court’s depart failure to downward under 4A1.3, § alleged the Guidelines’ Opinion by for the court filed Circuit of neutrality respect lack with to socio-eco- Judge RANDOLPH. nomic status and race.3 opinion Dissenting Judge filed Circuit
WALD. I
RANDOLPH,
Judge:
Circuit
Sentencing
Commission has
Fulfilling
part
bargain,
statutory
Reeo
identified
basis
4A1.2(d)’s
pled guilty
§
Vondell
possession
counting juvenile adjudications
Johnson
grams
or more of cocaine
with
history,
base
intent
a defendant’s criminal
but this is
(21
841(a)(1)
§
to distribute
&
U.S.C.
not fatal.
Lopez,
See United States v.
(b)(l)(A)(iii)).1
(D.C.Cir.1991).
statutory
penalty
any
for this F.2d
1296-97
If
crime,
Sentencing
Act,
Johnson committed when he
Reform
rea
old,
years
imprisonment
sonably interpreted,
was nineteen
support
would
841(b)(1)(A). guideline,
§
120 months to life. 21 U.S.C.
must
we
sustain it. See United
return,
government
(B)
4Al.l(c)
1.
point
§
In
dismissed the re-
add 1
under
for each
maining
charging
two counts of the indictment
imposed
adult or
sentence
within five
(21
distribution
cocaine base
U.S.C.
years of the defendant's
commencement of
841(a)(1)
(b)(i)(A)(iii)),
§
possession
&
(A).
instant offense not covered in
drugs
intent to
distribute
within 1000 feet of
(21
860(a)).
§
a school
U.S.C.
Illinois,
Relying
on Baldosar v.
446 U.S.
(1980) (per
100 S.Ct.
cu-
L.Ed.2d 169
4A1.2(d) provides:
2. U.S.S.G.
riam),
argued
judges
Johnson also
that because
(d)
Age Eighteen
Offenses Committed Prior to
juvenile proceedings, counting
alone conduct
(1) If the defendant was convicted as an
"non-jury” juvenile adjudications in a defen-
imprisonment
adult and received a sentence of
dant's criminal
score is unconstitutional.
month,
exceeding
year
one
and one
add 3
appeal
pending,
While this
was
Nichols v. United
4Al.l(a)
points
under
for each such sen-
-
States,
-,
114 S.Ct.
tence.
(1994),
Baldosar, thereby
L.Ed.2d 745
overruled
case,
any
In
other
foreclosing
argument.
Johnson’s
Nichols held
(A)
4Al.l(b)
add
for each
may
uncounseled conviction
used
adult or
sentence
confinement of
Nichols,
light
sixty days
enhance
sentence.
there is
least
if the
was
defendant
released
why
non-jury juvenile
years
no reason
from such confinement within
constitutional
five
of his
offense;
may
way.
adjudication
commencement of the instant
not be used in the same
sealed;
juvenile convictions
often
Price,
ords are
217(a)
goes
if the offender
(D.C.Cir.1993).
Sentencing
Re
set aside
later be
Section
States,
994(d)(10),
straight.
v. United
U.S.C.
See Tuten
form Act
1412, 1415,
660, 664-65,
wheth
to “consider”
directs the Commission
history” should be
“criminal
defendant’s
States v. Mc
er a
L.Ed.2d 359
establishing catego
(D.C.Cir.1993).
“in
as relevant
Donald,
treated
871-73
guidelines,”
for use
McDonald,
of defendants
“[sjetting
ries
aside a
we said
As
history”
relevant,
and,
to take “criminal
youth
slipped
who has
allow a
conviction
994(d) lists ten ad
Section
“into account.”
footing by relieving him of the
regain his
“matters, among
for the
others”
ditional
*4
disabilities associated
and economic
social
view
consideration.
Commission’s
juvenile
But if a
record....
with a criminal
others,”
items on the list
“among
the eleven
recidivist,
a
the case for
turns into
offender
possibilities.
United
not exhaust
do
dissipates-
conferring
Soci
the benefit
(9th
Booten,
F.2d
1355
914
punishing appro
ety’s stronger interest is in
Cir.1990).
of the Sentenc
provisions
Other
unrepentant criminal.” 991 F.2d
priately an
Commission broad
give
Reform Act
ing
D.C.Code, therefore, a
Under the
at 872.
sentencing criteria.
authority to formulate
into
the defendant’s
take
account
994(a);
§§
Mistretta v.
28
U.S.C.
determining
his sentence
record in
States,
488 U.S.
an adult.
he committed as
for crimes
Price,
647, 657,
without doubt
529 A.2d at
said,
4A1.2(d)(2)
As we have
as-
288, the
Commission did
exceed its statu-
signs
two
for a
“sentence of
tory authority
taking
them into account
sixty
(Two
days
confinement” of
or more.
it
categories
when
established
of defendants.
points are
sixty-day
also added for a
imprisonment.”
“sentence
Johnson
also
attacks U.S.S.G.
4Al.l(b).)
4A1.2(d)
Guidelines do not
define
ground
it
unreason
“sentence of confinement.” Under D.C.Code
ably
fails
differentiate between
*5
16-2320(e),
§
judges
may impose a
Ann.
adjudications
wide
and adult criminal convictions.7
range of dispositions
juveniles
stands,
who are
system
juvenile sixty-
theAs
now
adjudged delinquent. The nature of confine-
day sentence of confinement warrants the
may vary
ment
considerably.
Juveniles
points
same number of
as an adult sentence
care,
placed
homes,
be
in
group
foster
or in
imprisonment
for
the same time. See
centers,
or in
4A1.2(d)(2)(A).
residential
treatment
4Al.l(b),
or in
§§
ju A
U.S.S.G.
prison-like
may,
secure
facilities. There
sixty days
venile sentence
less than
is
then,
in
be cases which an extensive “sen-
treated the same as an adult sentence of less
(say
tence
confinement”
ato
sixty days.
4Al.l(c),
§§
Out-
than
See U.S.S.G.
program)
ward
4A1.2(d)(2)(B).
Bound
would not even be
roughly equivalent
sixty-day
prison
to
sen-
ignominy
delinquents
Juvenile
achieve
tence. And it
be that
Gault,
committing crimes.8 In re
387 U.S. at
directly
ordered is not
gravity
related to the
society’s
at 1442.
Differences
Judges may,
instance,
of the offense.
response
youthful
to
offenders and its re-
disposition
fashion a
on the basis of the
sponse to adult
offenders
not attributable
juvenile’s
environment,
home
and the need to
to
differences
the nature of their criminal
setting.
remove the individual from that
yesterday’s juvenile delinquent
acts. When
States,
541, 554-55,
Kent v. United
383 U.S.
today’s
becomes
adult criminal the reasons
(1966).
86 S.Ct.
II
evidence that race and
“plentiful
there
process
status influence the
socio-economic
dispo
between
Distinctions
adjudications
orders
resulting in
and sentences
adult convictions
sitions and
*6
of confinement.”
may
warrant
imprisonment
sen
departing
the Guidelines’
court’s
juve
states,
stages,”
“the
“At all
Johnson
§ 4A1.3
tencing
pursuant
U.S.S.G.
range
degree
high
process
is characterized
nile
the defendant’s
on the basis
justice
But the criminal
of discretion....”
adequately reflect
history category “does not
pros
inherently discretionary:
system is also
past
defendant’s
crimi
the seriousness
accept
may charge
ecutors
lesser crimes
likelihood that
defen
or the
nal conduct
bargains;
juries may acquit altogether
plea
other crimes.” See United
dant will commit
offense; the
convict of a lesser included
(3d
Davis,
930,
Cir.
grant clemency.
power
has the
executive
1991).
maintains
here
While Johnson
If,
discretion,
juvenile justice
of
because
departed
down
the district court should
open
of race and
system
influence
ward,
discretionary
“sentencing court’s
re
status,
may be
the same
said
socio-economic
is not reviewable
depart
fusal to
downward
justice system.
of
Cf.
Spencer, 25
appeal.”
United States v.
297,
279,
McCleskey Kemp,
v.
(D.C.Cir.1994).
All that we
L.Ed.2d
Johnson’s claim that
consider is
Gregg Georgia,
199 n.
scope
its discretion
court
of
misconstrued
n.
49 L.Ed.2d
4A1.3, id.,
resting
§
a claim
under U.S.S.G.
J.).
Stewart,
(Opinion
If
Johnson
say
entirely
the court’s failure to
right,
Guidelines not
this rendered the
sufficiently
Johnson’s
record was
neutral,”
“entirely
it would follow that Con
age
he com
despite his
at the time
serious
any
gress meant to forbid consideration
Id. That the court did
mitted the offenses.
sentencing.
of criminal conduct
say
public opinion
in its
be
more
Obviously,
thing.
Congress meant no such
juve
attributable to the fact
Johnson’s
account,
history is to be taken into
Criminal
all
nile
are under seal. At
events the
records
always
it
has been.
enough
correctly
court
that it
said
to show
any punishment
aug-
Of course
selected or
scope
understood the
of its discretion. The
impermissible.
mented on the basis of race is
most
Johnson’s crimi
observed that
adjudica
history
explicitly
state that not
nal
was due to his
Guidelines
tions;
race,
sex,
creed,
origin,
com
national
the court examined the individual
but also
status,
ponents
history;
religion
“are not
of Johnson’s criminal
and socio-economic
determination of a sentence.”
to the extent that in
judge’s
opinion the
§
5H1.10. On its face U.S.S.G.
criminal history score significantly overre-
4A1.2(d)
is neutral with respect
to these
presents a defendant’s criminal predisposi-
factors. Johnson does not profess innocence
tion.
I
4A1.2(d)
find
to be
impermissi-
any
of the offenses that
up
make
his
ble reconciliation of conflicting policy inter-
record, and he does not contend that he was
ests, which should fall under
the second
against,
discriminated
in the sentence im-
prong
Chevron U.S.A Inc. v. Natural
posed by the district court or in the disposi- Resources
Council, Inc., 467 U.S.
Defense
tions of the
Johnson,
court. For
(1984).2
L.Ed.2d
Guidelines have fulfilled the mandate of neu-
trality set
994(d),
§in
forth
and we therefore
A.
reject
complaint.
At
outset,
I
my
note
agreement with
Affirmed.
the majority’s apparent conclusion that John-
son
prevail
cannot
under Chevron’s
step.
first
WALD,
Judge,
Circuit
dissenting:
Johnson contends
guideline
that the
equating
Although
agree
I
my
colleagues’
re-
confinement with adult criminal in-
jection of Johnson’s
claim,
constitutional
I
carceration clearly violates
D.C.Code
16-
cannot assent to their resolution of his
chal-
passed by Congress
lenge to the rationality
4A1.2(d)(2)
§of
states
that a
disposition “is not a
the Sentencing Guidelines. This ease calls
conviction of crime and does
impose
any
question
into
the Sentencing Commission’s civil disability ordinarily resulting from a
policy
treating
adult sentences
periods
conviction.” Although
this
emp-
incarceration like
hatic,
a subsequent section,
D.C.Code
16-
periods of confinement for purposes
of calcu-
provides that “the inspection
[juve-
lating a defendant’s
score.
nile case] records shall
permitted
to ...
To reach criminal history category
any
Y
court or
probation
its
staff, for purposes
case,
Johnson’s
the district court followed the
of sentencing
respondent
as a defendant
mandate of
§ 4A1.2(d),
weighed ju-
in a criminal case.” Given that Congress
*7
venile confinement like
incarceration,
adult
sanctioned
juvenile
the use of
dispositions in
and automatically added nine criminal histo-
criminal
in
sentencing
§ 16-2331,
D.C.Code
ry
to Johnson’s score for his several
it clearly did not resolve the issue of the
juvenile
stints in a
institution,
the first of
juvenile
treatment of a
record in Johnson’s
which
shortly
occurred
after his fourteenth
favor
under
16-2318. Nor
Congress
did
birthday.1 I believe that
the Commission’s
lay
precise
down any
rules for cabining the
decision
to treat
sentences and con- Sentencing Commission’s discretion to con-
finement like adult sentences and incarcera-
sider juvenile dispositions. The Sentencing
purposes
tion for
of computing a criminal
(“SRA”)
Reform Act
vests the Commission
history score
ais manifestly irrational exer- with latitude in defining the relevant criteria
cise of its delegated
My
discretion.
discom-
for sentencing.
994(d)
Section
charges the
fort is not
by
alleviated
the existence
aof
commission with considering the bearing of
departure
downward
available
“criminal history,” age, and nine other fac-
1. Without
points,
these additional
Johnson would
451
Other circuits that have confronted
have been in
category I and
the
employed
issue have
See,
also
e.g.,
Chevron.
would have been sentenced to
mandatory
the
Merritt,
United
1298,
v.
States
1309 & n.
months,
of
minimum
twenty
120
months shorter
(2d Cir.),
7
denied, -U.S. -,
cert.
113
than his actual sentence of 140 months.
2933,
(1993);
tors
(D.C.Cir.1992);
1416, 1424
F.2d
sury, 976
28 U.S.C.
See
nonexclusive.
is
list
its
that
984, 988
F.2d
Young,
v.
Labs.
Abbott
994(d).3
—
-,
denied,
cert.
(D.C.Cir.1990),
end
however,
not
does
one,
step
Chevron’s
(1991); NRDC
L.Ed.2d
first
at Chevron’s
loses
inquiry. Johnson
the
(D.C.Cir.1987)
1146, 1163
F.2d
v. EPA
not
has
Congress
that
is clear
it
step because
Reilly, 976
NRDC
banc);
also
(en
see
in
dispositions
of
use
the
foreclosed
J., concur
(Silberman,
(D.C.Cir.1992)
36, 42
the
clear
equally
is
itBut
sentencing.
ring).
juncture,
this
atwin
not
does
government
Commis
the
to
delegated
Congress
either.
variety
a wide
consider
authority to
the
sion
B.
Con
guidelines.
formulating its
in
factors
Commis-
the
recognizes,
majority
Commis
the
the
however,
As
write
not,
did
gress
between
differentiate
not
does
intent
specific
generally
The
sion
check.
a blank
sion
periods
or
adult
use
respect
Congress
incarcera-
adult
We
unclear.
in
dispositions
automatic,
opposed
silence,
how
in
result
Both
congressional
tion.4
from
infer
cannot
baseline
the
balances
increases
possible
discretionary,
all
in
acquiescence
ever, an
substantially
If, for
In
strike.
might
history score.
the Commission
Commis-
the
two,
determined
I believe
the
Commission
equating
the
example,
different
very
harsh
much more
irrationally treated
dispositions
has
sion
treat
not
convictions, would
enhanced
we
purposes
similarly for
adult
prior
things
ly than
actions
has
such,
Commission’s
Commission
As
declare
punishment.
hesitate
congres
would
presumed
Congress
I think
violative
than
further
irrational
gone
balance
admittedly
considera-
propriety
its
exercising
intent.
permit
sional
this
Commission
by the
the SRA.
actually struck
discretion
ble
sec
on Chevron’s
depends
therefore
instance
system,
justice
modern
whether
inquire
we
at which
step,
ond
turn-of-the-eentury
origins
its
traces
per
reasonable
ais
scheme
Commission’s
movement,
premised
reform
Progressive
This
statute.
construction
missible
profoundly
goals
assumptions and
toothless,
we
means
no
step is
those
different
in
agency
irrational
to strike
hesitated
re
system.5
past.
juncture
at this
terpretations
commencement
years of
five
within
ment
“criminal
term
define
Congress did
4A1.2(d)(2)(A);
offense,” U.S.S.G.
instant
However, legislative
994(d)(10).
histoiy” in
*8
year
a
adds
over
of
(2)
confinement
and
the
that
demonstrates
histoiy
the
criminal
a defendant’s
points to
only two
only the
not
includes
histoiy ... factor
"criminal
year
over
of
score,
adult
whereas
not
or
acts—whether
criminal
prior
of
number
of
neither
exceptions,
These
points.
three
adds
defendant has
in convictions—the
they resulted
my
case,
alter
do not
this
in
issue
seriousness,
recent
their
in, but their
engaged
regu-
rationality of the Commission’s
the
of
view
98th
S.Rep.
No.
remoteness.”
ness
lation.
1984
in
reprinted,
Sess.
Cong., 1st
term,
thus
as
This
3357.
U.S.C.C.A.N.
Gault,
in
recounted
Court
Supreme
the
5.As
encompass acts
enough to
defined, is broad
would
by juveniles,
pro-
by
which, although
adult
appalled
committed
were
[E]arly reformers
See
by adults.
that
by
fact
the
committed
and
if
penalties,
be criminal
and
cedures
(9th
Cir.
Booten,
1354
long prison sentences
given
be
States
could
children
argument
criminals.
reject Johnson's
Accordingly, I
hardened
1990).
jails with
in
mixed
and
society's
dispositions
convinced
room
profoundly
never
They
is
there
histoiy
by the
be confined
criminal
defendant's
could
duty
child
computing
in
They believed
justice alone.
concept score.
the
whether
ascertain
society’s
was
role
"innocent,”
"What
but
"guilty” or
however,
was
does,
re-
child
in two
The Commission
is,
what
and
he
what
he,
become
he
has
how
sentences
(1) juvenile
distinction:
spects draw
the
in
and
interest
in his
be done
best
had
one
(and
“adult”
a down-
from
him
to save
state
interest
histoiy score
year)
into
factor
as
essentially good,
The child—
career.”
ward
confine-
such
from
"released
was
defendant
1428, 1436,
S.Ct.
(1967);
L.Ed.2d 527
Nonetheless, while the purposes of confine-
Dormont, Note,
David
For the Good
the ment
spheres
Adult: An Examination
the Constitution
occasionally converge, they
have never been
ality Using Prior
Adjudications
Juvenile
congruent.
Barry
See
Feld,
C.
The Juvenile
Sentences,
Enhance Adult
75 Minn.L.Rev.
Court Meets the Principle
Pun-
of Offense:
(1991).
n.
Since its inception,
ishment, Treatment, and the
It
Difference
system
has rested
Makes,
on the
B.U.L.Rev.
848-49
parens patriae assumption that
purpose
“the
(“Feld, Punishment,
”).
Treatment
Two-
of [confinement is] to serve the best interest
thirds of the states continue to employ the
by
child meeting his or her need for
offender-specific
model,
rehabilitation
and in
regenerative care
supervision.”
BAR all states the initially distinct emphases of
Reducing
Flicker,
Overcrowding
BARA
and adult
systems
Juvenile
Unlike
Institutions
led to the development
very
of a
different set
criminal punishment, which might
im
procedures
be
and standards for confinement
posed in pursuit of retributive as well as
and incarceration.
Feld,
See
Transforma-
objectives,
rehabilitative
focus of
tion, supra, at 695.
confinement traditionally has been primarily,
At present,
procedural
landscape of
or even exclusively, on reforming and treat
juvenile and adult proceedings differs mark-
ing the offender.
Dormont,
See
supra, at
edly.
Gault,
U.S.
1776. Under
this approach, “the actual Supreme Court recognized that sufficient
crime or offense
that the
commits
stigma attached to delinquency to warrant
should not affect
severity
or length of the
the imposition of certain
process
due
protec-
intervention,
court’s
because each individual
tions at delinquency proceedings. However,
child’s needs are different and courts cannot
the Court expressly declined to mandate the
determine those needs in
merely
advance
full panoply
protections
that attend crimi-
looking at the committed
Dormont,
offense.”
trials,
nal
in light of the differences in em-
(citation
supra, at 1778 n. 45
omitted); see phasis and severity of the
systems.
two
See
Feld,
also Barry C.
The Transformation of Dormont, supra, at 1779.
sure,
To be
Court,
the Juvenile
695 Supreme Court has mandated that delin-
Minn.L.Rev.
(1991) (“Feld,
”).6
Transformation
quency be adjudged “beyond a reasonable
Admittedly, a chasm has
separated
often
doubt,” In re Winship, 397
358, 365-68,
theory
practice
from
aspect
this
our
1073-74,
McKeiver dispositions Juvenile (1971), the Court confinement, 647 1976, L.Ed.2d S.Ct. Juvenile jury. a than rather pro- delinquency juvenile a that im- largely incarceration, concluded still adult unlike prosecution” “criminal a not the ceeding was of of characteristics basis the posed Amendment, of the Sixth meaning the of the within characteristics than offender, rather Id. jury trial. a require not did ju- as such and of duration and imposition offense. 1052. at 550-51, at of irrespective set may be confinement venile enjoy a still sentence the courts of juvenile irrespective in most Judges proportionality; con- over is therefore discretion It virtually unchecked offenders. wide, for adult ranges crimi- all, adult in the history in at absent decisions of finement instructive Punishment, Treat- Feld, the and states majority See of context. nal substantial the the I. Unlike Table de- & the that ment, Columbia, at 849-50 supra to reveal of District in “sentencing” model, days or sixty rigid spent juvenile, fendant, more aas non- “open-ended, simply from varies court It juvenile juvenile confinement. inmore goal the indeterminate, with adequate and an proportional lacked that the mean (two- incapacitation,” or adequate community rehabilitation of lacked or home propor- and states) “determinate to states minority of thirds of Even services. or retribution of objective tional, of model punitive expressly an adhering to Most at 834.8 (one-third). Id. are deterrence” sentences confinement, juvenile indeterminate. remain sentences crimi- of indication reliable inherently less variety of a wide among may choose Judges impris- adult of periods than disposition nal jurisdic- in these “sentencing” alternatives of discretion untrammeled given the onment particular of the needs to response in tions jury trial. aof absence and sentencer out- probation, including at-home defendants, differences, I believe these of light In schools, boarding in placement of-home per- beyond strayed Sentencing Commission facilities, homes, medical group camps, interpretation boundaries missible generally See confinement.9 institutional periods sentences treating it, “[i]n describes Feld As 849. id. periods adult like jurisdictions, indeterminate majority vast of automatic purposes incarceration awith ends sentencing power judge’s the defendant’s increase correction state’s commitment recognized long has category. This correctional Thereafter, agency. it irrationally when acts agency when determines board parole authority or reject- typically protection equal ing based on juvenile courts required also has Court 7. The receive delinquents grounds ed a statement provide hearing and to hold People Compare "treatment," "punishment.” their transferring juveniles before reasons Cal.Rptr. Olivas, Cal.3d adults, reasoning as prosecuted to be jurisdiction (limiting (1976) sentence 375, 379 P.2d necessary rights are procedural basic maximum), statutory " adults as youths tried question important' 'critically deciding the Cal.Rptr. J., Cal.3d re Eric Inwith special of the deprived bewill child whether (refusing P.2d Court Juvenile provisions protections when maximum same States, adhere v. United Kent See Act." orien- "treatment” because juveniles youths as L.Ed.2d confinement). tation longer sentences fact, serve juveniles some 8. point one 4A1.2(d)(2)(B) prescribes 9.Section convicted counterparts do their than cov- ... not juvenile sentence adult or Punishment, "for each Feld, Treat- offenses. similar ment, turn, applies to (A), in (A)." Subsection ered example the cites Feld supra, at *10 to sentence[s] juvenile "adult making "lewd with charged Gault: facts apparently Commission days.” The sixty least commit- was Gault calls," fifteen-year old phone "sen- "sentences” between distinguishes period "for School Industrial to the State ted confinement,” to include seems tences An twenty-one. age until minority" i.e., — nonconfine- court’s juvenile a many all of if not have would offense a like convicted adult compass un- its within options sentencing jail ment two-month maximum and a fine $50 a faced (B). der sentenc- Challenges to indeterminate sentence. similarly treats parties situated differently. should be struck any like other irrational See, e.g., New Orleans Channel Inc. v. regulation on grounds. conventional Chevron FCC, (D.C.Cir.1987); 830 F.2d Mel- Music, FCC, ody Inc. v. 345 F.2d C. (D.C.Cir.1965). We recently recognized true,” that “the converse is also suggest- The departure provision, 4A1.3, ed that may equally an agency run afoul of under which a may, district court after calcu- by reason “failing to take account of circum- lating a defendant’s history criminal pursu- appear stances that to warrant different 4A1.2, ant to depart downward to the ex- treatment for parties.” different Petroleum tent that the criminal history category “sig- Communications, FCC, Inc. v. 22 F.3d nificantly overrepresents” the defendant’s ac- (D.C.Cir.1994). I believe that this case tual history, see 4A1.3 illustrates that principle aptly. The Commis- p.s., see Clark, also United States v. sion has irrationally attributed Congress 839, 843 (D.C.Cir.1993), does not my view an ignore intention the radically different cure problem. disagree I with the Third purposes and juvenile functions of the implication Circuit’s general that the depar- systems in computing a defendant’s ture of course is specif- —which (as history score well as the differ- juvenile ic to applies confinement and equally ent level of blameworthiness that is attribut- to adult provides adequate sentences — able to young teenager as compared to a safety valve injustice for the perpetrated by adult). legally mature majority, Unlike the I juvenile treating and adult sentences similar- cannot Congress surmise that approve would ly. See Davis, United States v. such an illogical and unfair construction. (3d Cir.1991). Obviously, question Nor do I think it controlling, majori- as the large part a classic problem. baseline ty apparently does, that Johnson has not Commission has chosen to ascribe undue demonstrated with particularity that his own weight automatically period each juve- stints of confinement were incom- nile if, Only confinement. after according mensurate periods of adult incarceration points for periods such (along with adult typically imposed for the same offense or sentences), the district court finds that the that his sentences actually imposed for points on aggregate “significantly overrepre- reasons unrelated to severity of his of- sent” the criminality defendant’s or likelihood fenses.10 argued Johnson has here and be- of recidivistic behavior compared with oth- low that his dispositions may not be ers in his category may the equated with criminal because, incarceration district engage process. lowering Columbia, District sen- Barring “significant such overrepresenta- tences statutorily required to be based tion,” the presumption in the Guidelines is largely on considerations to crimi- unrelated ineluctably lead to an nal culpability. That Johnson happened to increased sentence for the instant offense. be sentenced to Hill, confinement at Oak which may I look a lot do not prison, like believe does standard that ad- undermine point his basic mits of exception only that in significant the District for overrep- (as in states), two-thirds of all other resentation of a defendant’s total criminal sentencing is still offender-specific history adequately and can- takes into account the not, therefore, proxy serve as a past relative unreliability using juvenile sen- culpability or dangerousness. future tences Be- as a past barometer of or future crimi- cause the district court nality extended his sentence or the manifest irrationality of equat- twenty months applying guidance ing auto- all kinds confinement with matically treating juvenile and adult sen- adult incarceration. statutory regime by alike, tences I believe that Johnson is enti- precludes no means the use of dispo- tled challenge guideline and that it subsequent sitions in criminal sentencing. It is difficult to see how one severity could ever dem- jurisdiction of his conduct ain that em- length onstrate juvenile's that the of a confine- ploys juveniles. indeterminate ment was or directly was not related *11 regulation, Nonetheless, Commission’s specific aof addition mandates
which sentences, all number circum- age or juvenile’s regardless sentence, represents motivating the stances different pursue refusal an inexcusable require reason justice and where treatment design was the this not believe I do it.11 accordingly must dissent. Congress, AND ON SMOKING
ACTION Petitioner, HEALTH, LABOR, OF
DEPARTMENT al., Respondents.
et 92-1661.
No. Appeals, Court of States Circuit. of Columbia
District 12, 1994. May
Argued July
Decided properly conduct juve- under suggest that not mean I do course 11. Of and substance in time relevant employed in count properly records nile sentencing offense. con- immediate "relevant rubric however, baseline, a different duct.” This