*3 Charleston, in community center West SHEDD, and Before WIDENER deliveryman Virginia. pizza the ar- When Judges, Circuit and JAMES C. rived, conspirators up one of the walked to CACHERIS, Senior United States District pizza. the took the vehicle and Another Judge Virginia, for the Eastern District of conspirator approached the and vehicle sitting by designation. deliveryman struck in the mouth with the and remanded published Reversed the butt a firearm and that of demanded opinion. Judge the SHEDD wrote money. he turn his over all After the in which majority opinion, Judge deliveryman money, handed over his one Judge concurred. CACHERIS in shot him conspirators the back. a dissenting opinion. WIDENER wrote pierced deliveryman’s The bullet the spleen lodged in his and liver stomach. OPINION carry- T.M. was near the vehicle and was SHEDD, Judge. Circuit deliveryman ing a when the firearm robbed and shot. just shy when he was two months birthday, eighteenth allegedly his con spired four adults in robbing with II. shooting pizza deliveryman in Charles juvenile proceed Jurisdiction ton, The Virginia. United States West ings governed by federal court is (the “government”) prosecuted the four part which is the Juve- court. Although adults the state Delinquency nile Justice and Prevention juvenile prosecutor initially pro filed a juvenile Act. A to have alleged committed court, against T.M. in ceeding a crime may proceeded against not be eventually court dismissed that action. government federal court unless the “certi- days Just two before action was dis fies the district ... missed, appropriate court juve government initiated this juvenile court or appro- other by filing nile criminal infor priate juris- court of a State does have mation T.M. in federal The court. diction or refuses to assume district court dismissed the information juvenile respect lack jurisdiction, concluding said with to such alleged government delinquency had failed to act of ... or comply with (3) the requirements charged certification offense is crime of vio- 18 U.S.C. A.M., felony lence ... and 5032. States v. that is a that there is (S.D.W.Va.2004).1 The F.Supp.2d substantial Federal the case appeals, or the now and we reverse offense warrant exercise of jurisdiction.” for further con Federal 18 U.S.C. proceedings remand opinion. Proper sistent with this certification caption correctly de- court that the The district court identifies the noted defendant's ini- order, its tials are at 751 n. 1. fendant as "A.M.” In the district ''T.M.” Id. subject necessary to create violence in which there exists a substantial juvenile pro- later, over a days matter interest. Two April White, ceeding. United States v. the state court dismissed the (4th Cir.1998). proceeding against 999-1000 T.M. based on the state prosecutor’s representation III. jurisdiction over- T.M. had ended. T.M. was then transferred to federal custody. government prosecuted the four 4,May On
adult coconspirators federal court for information, alleging the same substantive robbery their shooting roles specifically crimes but citing for the deliveryman. first pizza All four were time creating jurisdic- statute violating Act, the Hobbs *4 juvenile tion over 1951, proceedings in § by interfering U.S.C. with inter- courts. by robbery. state commerce Two of the coconspirators were also with vio- T.M. moved to dismiss the information
lating by using 18 U.S.C. and against him for lack subject ju matter during firearm and in relation risdiction. granted The district court the robbery. coconspirators to the All four dismiss, motion to concluding that neither pled guilty and signifi- were sentenced to by of the bases government offered the imprisonment. cant terms its 5032' certification was sufficient to
T.M. was arrested on charges jurisdiction state and confer juvenile over T.M.’s 20, custody 2004, taken into January First, proceeding. the court held that the day the after the robbery shooting state court had not “refused to assume pizza deliveryman. the prosecu- jurisdiction The state over T.M. The state court not juvenile T.M., tor filed a petition against only jurisdiction assumed over it ex alleging that he participated robbery jurisdiction the ercised that every way but a shooting. pled A.M., T.M. guilty not and trial on the' merits.” 339 F.Supp.2d juvenile Second, was detained at a state detention at 755. the district court conclud pending center his trial April jurisdiction scheduled for ed that was not warranted be 20, 2004. alleged cause T.M.’s offenses did not rise to a substantial federal interest. Id. at April four days On before the sched- government 759. The appeals now the trial, prosecutor uled the state informed dismissal of the criminal information the that he intended to move against T.M. the court juvenile pro- state to dismiss the ceeding against April day On one IV. trial,
before the scheduled state court
the
government filed an information in the dis-
A.
court,
trict
alleging that T.M. violated the
Hobbs Act and used and carried a
Although
firearm
nine circuits have held
during
robbery
shooting
government’s §
that the
5032 certifications
pizza deliveryman.
separate filing,
In a
subject
judicial
are either not
to
review or
certified,
required by
subject
as
very
most
to
narrow review for
that
the district court
compliance with
see United States
F.S.J.,
(9th Cir.2001)
could properly
jurisdiction
exercise
over v.
265 F.3d
(1)
grounds:
T.M.’s case on two
(deciding
join
the state
that the Ninth Circuit was
jurisdiction”
T.M.;
“refuses to
ing eight
assume
over
other
in holding
circuits
alleged
offenses are
crimes
5032 certifications
to as-
court refuses
most,
judicial
tion—that
state
to, at
limited
subject
T.M.—warrants the
only
is the
review),2
Fourth Circuit
sume
con-
jurisdiction. We
searching
a more
re
of federal
requires
exercise
circuit
in its
government’s
clude that it does.
view of the
assertions
certifications,
States
§ 5032
see United
5032(1)
provides
Section
(4th
1314, 1321
#
Male
alleg
in a
may proceed
district court
Cir.1996).
(Wilkinson,
But see id. at 1324
juve
if “the
ing
crimes
result)
J.,
(contending
concurring
court of a
appropriate
court or other
nile
that there is
government’s certification
jurisdiction or refuses
does not have
State
in case or of
federal interest
substantial
jurisdiction over said
to assume
judicial re
subject
fense should
alleged act of
respect
to such
view). Thus,
assuming jurisdiction
before
“embodie[s]
delinquency.” Section
a court in this
juvenile proceeding,
having juvenile crimi
preference
clear
ju
satisfy itself
circuit must first
nal matters
handled
properly invoked
risdiction has been
[Sjubsection (1)
provide[s]
courts....
underlying
the stated reasons
“reviewing
if
was unable
the state
proceed
decision to
government’s
”
a forum for the
unwilling
provide
*5
Id. at 1321.
federal court.”
1,
Male #
juvenile proceeding.
that federal
government
The
certified
added).
(emphasis
C. crime of violence that a felony; there Next we review the sufficiency of exists a substantial federal government’s second stated basis of case or offense to warrant the exercise of at least one of the of —that jurisdiction. T.M. does not contest alleged against fenses T.M. is a crime of requirement the first a violation of —that violence in which there is a substantial is a crime of violence that federal interest. conclude that We T.M.’s felony. As for the requirement, second alleged offense of carrying using *6 primarily argues that the offense of firearm during and in relation to a rob using and a firearm during and in 924(c)— bery § violation of 18 U.S.C. —a relation to a crime of violence is tradition- warrants the exercise of federal ally state, within the police powers of the tion. so there must not abe substantial federal 5032(3)provides Section that feder the offense. argu- We find this involving juvenile al in a case unpersuasive. ment if the certifies that “the offense is a crime of We have not devised a violence definitive test in that felony ... and that this circuit there is a to determine whether a sub- substantial Federal interest in the or stantial particu- federal interest exists in a the offense to warrant the exercise of Fed- lar offense. intended to move provided proper jurisdictional the state court to dismiss basis for its proceeding against prosecution. federal important T.M. It was for the to take some official ac- argues principles 4. T.M. that of abstention against tion T.M. before the state court dis- and deference to the state in matters missed the case to that ensure T.M. was not suggest that federal is not war- custody released from state once the state argument ranted in this case. We find this Moreover, proceeding court was dismissed. particular meritless facts and cir- any might technical error that have existed in cumstances of this case. Because the state original certification was later corrected proceeding court dismissed its when the amended the informa- proceeding there was no district tion —soon after the state court court could have deferred to or abstained § was dismissed —to assert 5032 then interfering from with. controlled if it is to be however, governments local cases, placed have prior
Our Crime Control severity penalty effectively.” Omnibus of importance on 90- of Act Pub.L. No. and the sense for the offense Safe Streets prescribed version, deciding original to feder- In urgency by Congress 82 Stat. NJB, 924(c) only crime. United States for the seizure provided § alize the (4th Cir.1997); commission of F.3d firearm used in the any (concluding # F.3d at 1321 Male for terms of provision It no crime. made and the penalties of the the harshness three Id. at 233. Just incarceration. “strong 924(c) indicators urgency sense later, § years Congress mill federal inter- than a run of the more nonmandatory of not less sentences create statute). Section carjacking est” for a first conviction year than one 924(c) criteria. meets both of these subsequent years than two not less 91-644, 84 Stat. Pub.L. No. convictions. carry
First, penalties for prescribed 1984, Congress significantly during and using a firearm ing 924(c) man by requiring § strengthened are extreme to a crime of violence relation datory minimum consecutive sentences lengthy and they involve ly because severe conviction years For five for the first imprisonment. at least mandatory terms of 924(c) conviction, years § the defendant ten second and at least the first imprison to a term of Pub.L. No. 98- subsequent must be sentenced conviction. years regardless than five Report ment of not less The Senate 98 Stat. 1837. mitigat 924(c) history or most other of criminal § violations as “serious describes circumstances.5 ing S.Rep. offenses.” dangerous 924(c)(1)(A)®. any subsequent For § (1984), reprinted at 20 924(c) convictions, must the defendant added). (emphasis U.S.C.C.A.N. of not less than sentenced to a term 924(c) concludes report conviction. Id. twenty-five years for each to ensure completely revised “should be 924(c)(1)(C)®. Moreover, each commit persons all who to, consecutively must run sentence ... a mandato of violence receive crimes with, concurrently any other sentences. sentence, possibility ry without Robinson, 924(c)(1)(D)(ii); Id. concurrently being made to run sentence *7 850, of a manda (requiring imposition 861 underlying offense or for that for the years relat tory sentence of 182 minimum 313, Id. at any other crime.” 924(c) § convic ing to defendant’s Not content with at 3491. U.S.C.C.A.N. tions). provisions, Congress again rigorous these 924(c) “throttle § in 1998 to Second, history of legislative by increasing 924(c) guns” use of criminal [the] a keen and continu § demonstrates or sub minimum sentence for second to combat by Congress ing attentiveness twenty-five convictions to at least sequent caused problem national ing the serious conviction. Pub.L. years for each in furtherance by the use of firearms legislative 3469. This en Stat. originally it crimes of violence. When urgency 924(c) history the sense 1968, consid demonstrates Congress acted placed has importance Congress “essentially prob a local ered crime to use of attempting to deter the criminal be dealt with State lem that must assis- defendant’s substantial may impose a based on the sentence 5. The district court Robinson, 404 F.3d tance. United States years only if the five less than (4th Cir.2005). departure for downward first files motion According firearms on the federal level. government’s federal involvement in the White, ly, we conclude that there exists a sub matter. See U.S. v. 139 F.3d (4th Cir.1998) §in prose stantial federal interest (citing S.Rep. No. 98- (1984), cutions. at 389 reprinted in 1984 (1984));
U.S.C.C.A.N. U.S. v. (4th 1314, 1319 Juvenile Male # V. Cir.1996) (“the ‘substantial interest’ and reasons, For the foregoing we hold that prongs other of the certification statute act government’s 5032 certification was as limits on jurisdiction the federal courts’ and sufficient to confer to act in sphere.”). this The fact that the proceeding. T.M.’s There- crime is a felony violent alone does not fore, judgment we reverse the of the dis- mean that the gives offense also rise to a trict court and remand for further pro- “substantial Federal interest.” See Unit ceedings consistent opinion. with this Juvenile, ed States v. Male 844 F.Supp. REVERSED AND REMANDED. (E.D.Va.1994) 283-84 (concluding that the “substantial Federal require interest” WIDENER, Judge, Circuit dissenting: ment was intended to limit I respectfully majori- dissent from the juveniles tion over to something less than ty’s that a conclusion substantial federal crimes). all violent federal alleged interest is shown T.M.’s offenses however, majority, by its holding of conspiring to obstruct commerce in vio- robbing a pizza delivery man is a lation carrying of 18 U.S.C. 1951 and in gives crime that rise to a “substantial Fed gun robbery hand which so affect- interest,” eral opens the door for a deci ed commerce in violation of 18 U.S.C. sion that all federal crimes of violence 924(c)(1)(A), both crimes in violation of amount to a such an interest. rob While bing a pizza delivery man at gunpoint is crime, certainly a violent neither this of
I. fense nor presents the case as a whole obtaining One the means of scenario that the drafters this statute in a criminal envisioned as a “substantial Fed Attorney occurs when the Gen- eral According legislative interest.” to the eral of the United States certifies that “the history, the determination of whether a offense a crime of violence that presents scenario a “substantial Federal felony ... and that there is a substan- finding interest” is to “be based on a tial Federal in the ease or the the nature of the offense the circum to warrant the exercise of Federal stances of the case to special rise offense *8 jurisdiction.” (emphasis 18 U.S.C. 5032 S.Rep. Federal concerns.” See No. 98- added). (1984), reprinted at 389 in 1984 (1984). By U.S.C.C.A.N. 3529 re The “substantial provi Federal interest” quiring “special leg Federal concerns” the a separate requirement sion is that must history plainly islative means the case be met after it has been determined that or offense should manifest concerns that the crime is violent and felonious. This particular government, are to the federal condition thus application restricts the than merely rather State concerns. federal to those violent felonies by juveniles terms, committed general also evidence pre the two concerns some justifying sort federal interest in combating sented this case are violent
428 examples of cases delinquency. showing While offenses or
crimes serious, my opinion, both in nei they “special are federal concerns.” Because nei- are-“special concerns Federal ther of these “give this case nor offense ther rise to justify removing concern concerns,” s” Federal special “substantial majority tion from the state court. The Federal interest” is also absent. exactly interest not the federal does state case, concern,presented or in this rather II. favor of argument it does make in required describes the satisfying the Feder this case “substantial federal in this in substantial interest al nature interest” is aimed at the violent brief, principal p. as: punishment and the available the crime years Defendant was seventeen and ten But, § 924. as discussed
under 18 U.S.C. crime, old and four months when he adults above, adequate of.violence is delivery person, robbed a restaurant special. to federal its- own show the concern., him were-, beat and shot him. The four adults Fed If it the “substantial in the violent all charged clause 5032 crime were eral interest” in 18 U.S.C. federally, meaning. without This leaves and the defendant would be should be Moreover, delinquency the other concern as them. is there presented. delinquency, howev unquestionably a substantial federal in- concern, er, special not a but federal terest in violence. combating gun traditionally a matter dealt with instead And, brief, in governments reply p. 98-225, at courts. See S.Rep. No. 4-5, in the substantial federal interest this (1984), reprinted in U.S.C.C.A.N. case is described: (stating premise possessed gun Defendant a hand when “juvenile delinquency gen should matters robbery. participated he in the Pursu- States”). handled Conse erally be 922(x)(2)(A), ant to 18 it two quently, presented concerns crime for a possess hand as a the offense at issue and the case Therefore, gun. the United States could whole, them con neither of show a federal prosecute possessing the hand justifies juvenile jurisdic cern that federal Furthermore, gun.... the four adults tion. involved violent crime were all Moreover, legislative history gives charged federally. There is a substan- special rise to examples cases that combating tial federal gun interest concerns, on, including “an assault violence, and the States’ certifi- of, official, or an assassination Federal justification cation-under prop- this hijacking, a where kidnaping aircraft State er. crossed, major espionage boundaries are descriptions These of the substantial offense, sabotage participation large- or cry a far from trafficking, significant and drug scale or requirements exemplified §of as belonging property willful destruction legislative history as assault on at S.Rep. the United States.” official, assassination of (1984), a federal aircraft reprinted U.S.C.C.A.N. (1984). hijacking, kidnapping when State borders The offense issue *9 crossed, major here, espionage juvenile robbing sabotage, four adults and one man, large-scale drug-trafficking, significant rea- and pizza delivery one local has no similarity to far- large-scale, sonable and wilful destruction of United States reaching property. criminal envisioned as schemes Brewer, Representa summary, a crime of violence alone Leona as Personal Rose, not intended to and should not be tive of the Estate of Edward deceased, enough satisfy the “substantial Federal Plaintiff-Appellant, requirement interest” of 18 U.S.C. 5032. v. juvenile’s robbery holding that a of a Our Indemnity Company, National a Nebras delivery gunpoint man at pizza local Corporation; Kingsley ka W.E. Com a sufficient to show “substantial Federal pany, Kentucky Corporation, a Defen likely permit any interest” will federal fel- dants-Appellees, ony committed a with attend- juris- ant violence be tried and diction, may permit and well the same for Maynard; Maynard Joe Norma Jean and any felony with attendant violence com- Gregory Maynard, Maynard’s d/b/a by juvenile. mitted Service; Gauze, Wrecker Denise M. as I would affirm. Executrix of the Estate of Herbert
Maynard, Maynard’s Used Auto d/b/a Parts; Young; Young Joe A. A. Joe Agency, Inc., Kentucky Insurance Corporation; Hanshaw, Deborah L. Defendants, Company; Nationwide Mutual Insurance BREWER, Represen Leona as Personal Emily Howell; Rose; Manuuel Rhon Rose, tative of the Estate of Edward Messer, da Parties in Interest. deceased, Plaintiff-Appellant, Nos. 03-1696. Appeals, States Court of COMPANY, NATIONAL INDEMNITY Fourth Circuit. Corporation; Kingsley Nebraska W.E. Company, Kentucky Corporation, Argued Jan.
Defendants-Appellees, Decided June Maynard; Maynard Joe Norma Jean
Gregory Maynard, Maynard’s d/b/a Service; Gauze, M.
Wrecker Denise as
Executrix of the Estate of Herbert
Maynard, Maynard’s Used Auto d/b/a
Parts; Young; Young Joe A. A. Joe Agency, Inc., Kentucky
Insurance
Corporation; Hanshaw, L. Deborah
Defendants, Company;
Nationwide Mutual Insurance
Emily Howell; Rose; Manuuel Rhon Messer,
da Parties Interest.