UNITED STATES of America, Plaintiff-Appellee, v. Shannon Wayne TIGHE, Defendant-Appellant.
No. 00-30263.
United States Court of Appeals, Ninth Circuit.
Filed Sept. 24, 2001
Argued and Submitted June 13, 2001
266 F.3d 1187
We agree with the district court that Gilbert‘s allegations of misconduct on the part of the IRS are not relevant to his claim of vindictive prosecution. In all but the most extreme cases, it is only the biases and motivations of the prosecutor that are relevant. See United States v. Gomez-Lopez, 62 F.3d 304, 306 (9th Cir. 1995). The purported motivation of another agency, the IRS, is no indication that the prosecutor brought charges against Gilbert to punish him for his action against the IRS.
E. Preindictment Delay
As a final argument, Gilbert contends he was denied due process because of the delay in filing charges against him.
The
According to Gilbert, the delay in filing charges against him resulted in losing testimony from two accountants who could not remember conversations they had regarding this case. Gilbert further argues that during the delay the lead IRS agent on his case developed mental incompetence and could no longer be used as a witness.
This court has found “the burden of showing actual prejudice is heavy and [] is rarely met.” Doe, 149 F.3d at 948. The district court found that Gilbert‘s claims are purely speculative because his assertions that critical testimony was lost are not substantiated by any specific evidence. We agree with the district court that Gilbert did not substantiate his claim by showing how the testimony from these witnesses would have benefitted his case. A simple allegation that testimony was lost is not enough. As such, we find the district court did not err in concluding that Gilbert was not prejudiced by preindictment delay.
In sum, we reject Gilbert‘s arguments and affirm the judgment of conviction in the district court.
AFFIRMED.
Bernard F. Hubley, Assistant United States Attorney, Helena, Montana, for the plaintiff-appellee.
Before: B. FLETCHER, BRUNETTI and FISHER, Circuit Judges.
FISHER, Circuit Judge:
OVERVIEW
This case is before us to review the legality of Tighe‘s sentence, imposed pursuant to the Armed Career Criminal Act (“ACCA“),
BACKGROUND
On April 20, 2000, Tighe pled guilty to three counts of a three-count indictment charging him with bank robbery in violation of
At sentencing on August 28, 2000, the district court determined, over Tighe‘s objection, that he should be sentenced pursuant to U.S.S.G. § 4B1.4(b)(3)(B), which implements ACCA. The district court rejected Tighe‘s Apprendi objection. As for the three prior felonies required to trigger the armed career criminal enhancement, the district court first relied upon a 1993 Wyoming armed robbery conviction, which was agreed upon by both parties. The court then found that a 1988 Oregon juvenile adjudication of a charge of reckless endangerment and first-degree robbery and unauthorized use of a motor vehicle counted as a prior conviction. Finally, the district court found that a 1992 South Dakota burglary conviction fell squarely within the “Taylor heartland of burglary offenses” and therefore counted as the third conviction necessary to apply the enhancement. Having found three countable convictions, the district court sustained Tighe‘s objection to a 1993 South Dakota grand theft conviction “in the interest of judicial economy.” The court sentenced Tighe to 235-months imprisonment for Count I, 180 months for Count II and 120 months for Count III, all sentences to run concurrently. He timely appeals his sentence.
STANDARD OF REVIEW
The legality of a sentence is reviewed de novo. United States v. Murphy, 65 F.3d 758, 762 (9th Cir.1995). The constitutionality of a statutory provision is reviewed de novo. Taylor v. United States, 143 F.3d 1178, 1179 (9th Cir.1998). Whether a conviction is a predicate felony under section 924(e) is reviewed de novo. United States v. Bonat, 106 F.3d 1472, 1474 (9th Cir.1997).
DISCUSSION
I. Constitutional Challenges to Tighe‘s Sentence under ACCA
Tighe brings both facial and as-applied constitutional challenges to his sentences
A. Facial Challenge
The Armed Career Criminal Act,
Under the current state of the law, the Constitution does not require prior convictions that increase a statutory penalty to be charged in the indictment and proved before a jury beyond a reasonable doubt. United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir.2001) (“The district court was entitled to consider any prior aggravated felony convictions in sentencing Pacheco-Zepeda for illegal reentry even though such conduct had not been charged in the indictment, presented to a jury, and proved beyond a reasonable doubt.“); see also Apprendi, 530 U.S. at 490 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis added)); Almendarez-Torres v. United States, 523 U.S. 224, 243-44, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Accordingly, we affirm the district court‘s holding that ACCA is constitutional on its face.
B. As-Applied Challenge
Tighe argues that his sentence is unconstitutional because it was increased beyond the statutory maximum 10 years by the district court‘s finding that he was adjudicated a juvenile delinquent for committing a violent felony when he was 14-years old. He argues that Apprendi requires that the fact of his juvenile adjudication be charged in an indictment and found by a jury beyond a reasonable doubt.
One of the three predicate felonies used by the district court to enhance Tighe‘s sentence was a 1988 Oregon juvenile adjudication for reckless endangerment, robbery and unauthorized use of a motor vehicle. As a juvenile, Tighe was not afforded the right to a jury trial during the juvenile proceedings under either state or federal law. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) (concluding that, in a juvenile delinquency adjudication, trial by jury is not a constitutional requirement); State v. Reynolds, 317 Or. 560, 857 P.2d 842 (1993). Despite the lack of a jury trial and certain other procedural protections in the context of most juvenile proceedings, however, Congress has declared that juvenile delinquency adjudications involving violent felonies may nonetheless qualify as predicate “convictions” under ACCA.
This is not the first time we have addressed the constitutionality of nonjury ju-
In contrast, under ACCA the fact of Tighe‘s prior juvenile adjudication was used to increase his statutorily mandated maximum punishment from not more than 10 years, under
As discussed in the preceding section addressing Tighe‘s facial challenge to ACCA, the Supreme Court has held that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis added); see also Jones, 526 U.S. at 243, n. 6, 119 S.Ct. 1215. Thus, the Supreme Court has held that prior convictions are exempt from Apprendi‘s general rule and, as sentencing factors, need not be afforded the same procedural protections that attach to facts that are construed as elements of the charged crime.3
At first blush, it may appear that Tighe‘s 1988 juvenile adjudication, which Congress has characterized as a “prior conviction” for the purposes of ACCA, falls precisely within Apprendi‘s exception for “the fact of a prior conviction,” thus foreclosing Tighe‘s argument that the use of that adjudication at sentencing to increase his maximum penalty violated Apprendi. Such an analysis, however, ignores the significant constitutional differences between
In Almendarez-Torres, the case that first held prior convictions could be treated as sentencing factors that raise the maximum penalty of an offense, the Court addressed the constitutionality of a statutory provision that authorizes an increased prison sentence for aliens re-entering the United States after deportation if the alien was convicted of a prior aggravated felony. Almendarez-Torres, 523 U.S. at 229. The defendant argued that the fact of his prior conviction, which was used to increase his statutorily mandated maximum punishment, was an element of his offense and should have been charged in the indictment. The Court rejected this argument, holding that the fact of the prior conviction was a sentencing factor, and not a separate element of the crime to be charged in the indictment. Id. at 243.
The next term, in Jones v. United States, 526 U.S. 227 (1999), the Court considered Almendarez-Torres’ holding regarding the use of prior convictions in the context of emerging concerns about the viability of using facts not charged in an indictment nor proved to a jury beyond a reasonable doubt to increase the statutory maximum penalty to which a defendant is exposed. The Court explained why the fact of prior convictions was constitutionally distinct from other sentence-enhancing facts, such that it was permissible, under Almendarez-Torres, to use prior convictions to increase the possible penalty for an offense without treating them as an element of the current offense: “One basis for that constitutional distinctiveness [of prior convictions] is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense ... a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt and jury trial guarantees.” Jones, 526 U.S. at 249 (emphasis added). Thus, Jones’ recognition of prior convictions as a constitutionally permissible sentencing factor was rooted in the concept that prior convictions have been, by their very nature, subject to the fundamental triumvirate of procedural protections intended to guarantee the reliability of criminal convictions: fair notice, reasonable doubt and the right to a jury trial.
One year later, in Apprendi, the Court further elaborated on the importance of such procedural protections being inherent in prior convictions used as sentencing factors to increase statutory penalties. The Court explained that “the certainty that procedural safeguards attached to the ‘fact’ of prior conviction” was crucial to
Thus, as we read Jones and Apprendi, the “prior conviction” exception to Apprendi‘s general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. Juvenile adjudications that do not afford the right to a jury trial and a beyond-a-reasonable-doubt burden of proof, therefore, do not fall within Apprendi‘s “prior conviction” exception.4
To the extent the government‘s argument can be construed as a request to extend Apprendi‘s “prior conviction” exception to include prior nonjury juvenile adjudications on the basis of Almendarez-Torres’ logic, we decline to do so. The Apprendi Court‘s serious reservations about the reasoning of Almendarez-Torres counsel against any extension of that opinion‘s holding:
Even though it is arguable the Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision‘s validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. Given its unique facts, it surely does not warrant rejection of the otherwise uniform course of decision during the entire history of our jurisprudence.
Apprendi, 530 U.S. at 489-90 (emphasis added); see also id. at 487 (”Almendarez-Torres represents at best an exceptional departure from the historic practice that we have described.“) Although this Circuit recognized the continuing precedential value of Almendarez-Torres in Pacheco-Zepeda, 234 F.3d at 413-14, we conclude that, given the “unique facts” of Almendarez-Torres, its holding regarding prior convictions should remain a “narrow exception” to Apprendi that does not extend to nonjury juvenile adjudications.
In sum, we conclude 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.5 Thus, the “prior con-
Because Tighe properly preserved his Jones/Apprendi claim for appeal, his sentence cannot stand unless the district court‘s constitutional error was harmless beyond a reasonable doubt. United States v. Velasco-Heredia, 249 F.3d 963, 968 (9th Cir.2001); United States v. Garcia-Guizar, 234 F.3d 483, 488 (9th Cir.2000). Because Tighe‘s sentence of 180 months for his violation of
We note that Tighe‘s sentence under Count I, the armed robbery offense, was also improperly affected by the inclusion of his juvenile adjudication as a predicate offense for ACCA. For sentencing purposes, the district court grouped Counts I and II. See U.S.S.G. § 3D1.1(a)(3). The court then determined that Tighe was an armed career offender because he was convicted of being a felon in possession with three prior violent felonies. It applied U.S.S.G. § 4B1.4(b)(3)(A) and determined that Tighe‘s offense level was 31 (34 minus three points for an acceptance-of-responsibility adjustment) and that given his criminal history category, the sentencing range for Count I was 188-235 months. It sentenced him to the high end of that range, 235 months.
For § 4B1.4 to apply, however, the defendant must be subject “to an enhanced sentence under the provisions of [ACCA,]
II. Tighe‘s Taylor Challenge to his South Dakota Burglary Conviction
Tighe also claims that his 1992 conviction for burglary fails to qualify as a predicate felony under ACCA because South Dakota‘s definition of burglary is too broad to constitute a “violent felony.” We address this issue here because it may arise again on remand if the government at-
Although ACCA includes “burglary” among the enumerated violent felonies,
Tighe argues that South Dakota‘s third degree burglary statute, SDCL § 22-32-8, does not contain the necessary elements of generic burglary, because the South Dakota statute omits any reference to the required entry being unlawful or unprivileged. Accordingly, Tighe maintains that his 1992 burglary conviction was nongeneric and cannot constitute a predicate offense under ACCA.
In relevant part, SDCL §§ 22-32-8 provides:
Any person who enters an unoccupied structure, with intent to commit any crime other than the act of shoplifting or retail theft ... or remains in an unoccupied structure after forming the intent to commit any crime ... is guilty of third degree burglary.
Given the plain language of the statute, Tighe‘s assertion is technically correct, as there is no mention of the lawfulness of the entry. Taylor itself recognized that a state might omit this necessary element of generic burglary: “[a] few States’ burglary statutes, however, ... define burglary more broadly, e.g. by eliminating the requirement that the entry be unlawful.” 495 U.S. at 599 (emphasis added). It would appear, therefore, that South Dakota‘s statutory definition of burglary falls outside the generic definition of burglary.
In State v. Derby, 462 N.W.2d 512, 513 (S.D.1990), however, the Supreme Court of South Dakota held that, although not explicitly stated in the statute, “unlawful or unauthorized entry into a structure [is] an element of third-degree burglary.” The Derby decision‘s explicit inclusion of the element of “unlawful or unauthorized entry” brings the burglary statute under which Tighe was convicted squarely with the definition of generic burglary, as each of the three essential elements of generic burglary are actually required to obtain a conviction under the South Dakota Supreme Court‘s interpretation of South Dakota law. A state court‘s interpretation of a statute is binding in determining whether the elements of generic burglary are present. Bonat, 106 F.3d at 1475. Therefore, given the South Dakota court‘s interpretation of the burglary statute, the Taylor definition of generic burglary is satisfied and Tighe‘s prior South Dakota conviction for burglary was properly counted as a predicate violent felony under ACCA.
III. Remand for Resentencing
Because we conclude that the district court erred by counting Tighe‘s 1988 juvenile adjudication as a predicate offense
Nonetheless, Tighe now argues that because the government failed to file a cross-appeal contesting the district court‘s grant of Tighe‘s objection to the use of that conviction as a predicate offense, it has waived any argument that the 1993 conviction qualifies as a predicate offense. We disagree. Failure to cross-appeal a sentencing error does not constitute a waiver of the right to contest that error at resentencing. See United States v. Garcia-Guizar, 234 F.3d 483, 490 (9th Cir.2000) (“[W]e reject [the defendant‘s] claim that the government waived its right to correct the error in the original sentence because it did not cross-appeal from the original sentence.“). At resentencing, a district court is “free to review the entire sentencing calculus.” United States v. Caterino, 29 F.3d 1390, 1394 (9th Cir.1994), overruled on other grounds, Witte v. United States, 515 U.S. 389 (1995). Thus, at Tighe‘s resentencing, the district court is free to consider whether Tighe‘s 1993 conviction for grand theft qualifies as a predicate offense under ACCA.
Finally, Tighe argues that if the district court is permitted to consider his 1993 grand theft conviction at resentencing, the government should be precluded from offering any additional evidence regarding that conviction. In support of this contention, Tighe relies on United States v. Matthews, 226 F.3d 1075 (9th Cir.2000). Matthews involved completely different facts.7 There, the government patently failed to comply with evidentiary requirements at sentencing and wanted to re-open the record on remand to correct its error. Here, the government complied with its evidentiary burden during sentencing. Allowing the government to submit evidence at Tighe‘s resentencing hearing will therefore not constitute an impermissible “second bite at the apple” for the government. Accordingly, at Tighe‘s resentencing, the government may offer Tighe‘s 1993 grand theft conviction for consideration as a predicate offense under ACCA, and may, if necessary, submit additional documentation regarding that conviction.
CONCLUSION
We conclude that ACCA‘s use of prior convictions as sentencing factors is proper under Almendarez-Torres. We also conclude that Tighe‘s 1992 South Dakota third degree burglary conviction was a generic burglary conviction that properly served as a predicate offense under ACCA. We hold, however, that the use of Tighe‘s 1988 nonjury juvenile delinquency adjudication to increase his maximum statutory penalty violated Apprendi. Accordingly, we va-
VACATED AND REMANDED.
BRUNETTI, Circuit Judge, dissenting:
The majority reaches the unsupportable conclusion that a juvenile adjudication is not a “conviction” for sentencing enhancement purposes because, in essence, juveniles have no constitutional right to a trial by jury. I respectfully dissent from Part I.B of the opinion because it fails to recognize the full force of Supreme Court precedent, our case law, and congressional intent.
I begin with
This court has clearly held that section 924(e) is a penalty enhancement statute and does not create a new substantive federal crime. United States v. Dunn, 946 F.2d 615, 619 (9th Cir.1991) (citing United States v. West, 826 F.2d 909, 911 (9th Cir.1987)); see also Taylor v. United States, 495 U.S. 575 (1990) (referring repeatedly to § 924(e) as a “sentence enhancement provision“). We have further held that the fact of the predicate felony convictions required for a sentencing enhancement under section 924(e) need not be included in the indictment nor proved at trial. Id. The judge may find the fact of the requisite predicate convictions at the sentencing hearing under a preponderance-of-the-evidence standard. United States v. Phillips, 149 F.3d 1026, 1033 (9th Cir.1998).
With this backdrop in mind, I turn to the facts of this case relevant to my concern. The district court determined at sentencing that Shannon Wayne Tighe had been convicted of at least three prior violent felonies, requiring an ACCA enhancement. One of these prior convictions is a 1988 Oregon juvenile adjudication for reckless endangerment, first-degree robbery, and unauthorized use of a motor vehicle. Over Tighe‘s constitutional objections, the district court included the Oregon juvenile adjudication as a countable felony under section 924(e) by relying, in great part, on our decision in United States v. Williams, 891 F.2d 212 (9th Cir.1989).
In Williams, the defendant contended that his due process rights were violated because his adult criminal sentence was enhanced due to prior juvenile adjudications for which he did not have a right to jury trial. Id. at 213. Relying on McKeiver v. Pennsylvania, 403 U.S. 528 (1971), in which the Supreme Court held that jury trials are not constitutionally required for juvenile adjudications, we allowed the juvenile conviction to support the sentence enhancement. We observed that while “juvenile delinquency proceedings must conform to the due process guarantees of the Constitution ... these due process guarantees do not include the right to a jury trial for delinquency adjudications.” Williams, 891 F.2d at 214 (citations omitted). Thus, where a juvenile received all the process constitutionally due at the delinquency proceeding stage, we found the later use of the juvenile adjudication for an adult enhancement to be constitutionally sound because “the conviction was constitutionally valid for purposes of imposing a
Tighe‘s case should be straightforward under Williams because, as explained above, there is no constitutional problem with using a juvenile delinquency adjudication to support a sentencing enhancement. But the majority suggests that the Supreme Court‘s decisions in Almendarez-Torres, Jones, and Apprendi direct a different result than the one Williams demands. I disagree.
Jones v. United States, 526 U.S. 227 (1999) was a precursor to the Court‘s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490; see also Jones, 526 U.S. at 243 n. 6. The “other than a fact of a prior conviction” language in Apprendi hearkens back to the Court‘s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998).
Almendarez-Torres held that where a legislature crafts a penalty provision which simply authorizes a court to increase a sentence for a recidivist, the Constitution does not require the government to charge the fact of the prior conviction in the indictment. Id. at 226-227. There, the Court examined whether a provision in an illegal re-entry statute, which raised the penalty for illegal re-entry from two to twenty (20) years based on recidivism, was a sentencing factor or an element of the crime. In concluding that it was a sentencing factor, the Court rejected the argument that, because the fact of recidivism increased the maximum penalty to which a defendant was exposed, Congress was constitutionally required to treat recidivism as an element of the crime that must be charged in an indictment and proved beyond a reasonable doubt. Id. at 239; see also United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir.2001) (explaining that Almendarez-Torres “stands for the proposition that not every fact expanding a penalty range must be stated in a felony indictment, the precise holding being that recidivism increasing the maximum penalty need not be so charged.“) (citation and internal quotations omitted).
In United States v. Pacheco-Zepeda, we had occasion to address whether Almendarez-Torres remained good law after the Court in Apprendi expressed some concern over its continuing validity. Pacheco-Zepeda, 234 F.3d at 414. We observed that Apprendi reasoned that any due process or
The majority acknowledges, as it must, that Almendarez-Torres is still part of
“One basis for that constitutional distinctiveness [of prior convictions] is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense ... a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt and jury trial guarantees.”
Majority Opinion at 1193 (quoting Jones, 526 U.S. at 249.)
The majority takes this language and makes the quantum leap to hold, in effect, that in order for a prior conviction to support a sentencing enhancement, it must have been “subject to the fundamental triumvirate of procedural protections intended to guarantee the reliability of criminal convictions: fair notice, reasonable doubt and the right to a jury trial.” Majority Opinion at 1193. Because part of this so-called “fundamental triumvirate of procedural protections” is absent for juvenile adjudications, the majority takes juvenile adjudications out of the equation, even though Congress specifically made them part of it.
I do not believe the language plucked from Jones provides sufficient authority to overrule (albeit implicitly) this court‘s decision in Williams, nor do I think the majority‘s attempt to distinguish Williams is valid. In my view, the language in Jones stands for the basic proposition that Congress has the constitutional power to treat prior convictions as sentencing factors subject to a lesser standard of proof because the defendant presumably received all the process that was due when he was convicted of the predicate crime. For adults, this would indeed include the right to a jury trial. For juveniles, it does not. Extending Jones’ logic to juvenile adjudications, when a juvenile receives all the process constitutionally due at the juvenile stage, there is no constitutional problem (on which Apprendi focused) in using that adjudication to support a later sentencing enhancement. Our decision in Williams recognizes just that.
The majority does not make clear how its decision today will work in practice, but it is obvious that it will be troublesome. If a juvenile adjudication (without the right to a jury trial) does not fall within the Almendarez-Torres exception, then, to comply with Apprendi, prosecutors will be required to prove the fact of the prior convictions to the jury in order to support the sentencing enhancement. While, as the majority notes, some states treat prior convictions as elements of the related crime and submit the fact of a prior conviction to a jury, it overlooks the fact that the Supreme Court has long recognized “that the introduction of evidence of a defendant‘s prior crimes risks significant prejudice.” Almendarez-Torres, 523 U.S. at 235 (citing Spencer v. Texas, 385 U.S. 554, 560 (1967)); see also United States v. Dunn, 946 F.2d 615, 619-620 (9th Cir.1991) (commenting that including information regarding three prior violent felonies in the defendant‘s indictment “probably would have introduced an unacceptable level of prejudice into his trial“). Thus, a
For these reasons, I respectfully dissent from Part I.B and the ultimate result, but concur in all other respects.
Roberta BUGENIG, Plaintiff-Appellant, v. HOOPA VALLEY TRIBE; The Hoopa Valley Tribal Council; The Tribal Court of The Hoopa Valley Tribal Reservation; Honorable Byron Nelson, Jr., Judge of the Hoopa Valley Tribal Court; Merv George, Chairman of the Hoopa Valley Tribal Council, Defendants-Appellees.
No. 99-15654.
United States Court of Appeals, Ninth Circuit.
Filed Sept. 11, 2001
Rehearing En Banc Granted Feb. 28, 2001.
Argued and Submitted July 18, 2000. Opinion Filed Oct. 3, 2000. Argued and Submitted June 19, 2001.