*

This decision was originally issued as an “unpublished decision” filed on August 3, 2010. The

court has now designated the opinion as one recommended for full-text publication.

**The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of

Tennessee, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0240p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

CARTER EUBANKS, aka CARTER JUNIOR

REED,

 Defendant-Appellant.

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,

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No. 09-1254

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 08-00154-001—Janet T. Neff, District Judge.

Argued: April 21, 2010

Decided and Filed: August 3, 2010*

Before: BATCHELDER, Chief Judge; WHITE, Circuit Judge; GREER, District

Judge.**

_________________

COUNSEL

ARGUED: David L. Kaczor, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand

Rapids, Michigan, for Appellant. Russell A. Kavalhuna, ASSISTANT UNITED

STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: David L.

Kaczor, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids, Michigan, for

Appellant. Michael L. Schipper, ASSISTANT UNITED STATES ATTORNEY, Grand

Rapids, Michigan, for Appellee. 

1
No. 09-1254 United States v. Eubanks Page 2

_________________

OPINION

_________________

ALICE M. BATCHELDER, Chief Judge. Carter Eubanks appeals his sentence,

claiming that the court erred in finding that his juvenile conviction in Michigan may be

considered in designating him as an armed career criminal pursuant to the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Because we find that the district court

correctly determined that Eubanks’s prior conviction must be considered under the

ACCA, we AFFIRM.

I.

Carter Eubanks was apprehended by police officers after they responded to a

complaint of a man selling drugs from his car in the parking lot of an apartment

complex. Upon searching his car, the officers found two ounces of marijuana. The next

day, they obtained a warrant to search his home and discovered a pistol. Eubanks was

indicted for being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1); he pled guilty to the indictment without a plea agreement.

The pre-sentence investigation report (“PSR”) designated Eubanks an armed

career criminal pursuant to the ACCA because of two prior controlled-substance

violations as an adult and a juvenile conviction for felonious assault, a designation that

requires a mandatory minimum sentence of fifteen years’ imprisonment. At the

sentencing hearing, Eubanks objected to the use of the juvenile conviction to enhance

his sentence under the ACCA. He argued that the conviction should not be considered

because Michigan law required that the record of his juvenile conviction be destroyed

when he turned thirty years old, and he was thirty-one at the time of the instant offense.

The district court overruled the objection, noting that although Michigan law does

provide for the destruction of some juvenile records when an offender turns thirty years

old, the law nonetheless permits the conviction itself to be used to calculate a future

sentence.
No. 09-1254 United States v. Eubanks Page 3

Because Eubanks meets the statutory requirements for designation as an armed

career criminal, and because the mandatory minimum sentence under the ACCA is 180

months, the district court sentenced him to 180 months’ imprisonment, though it stated

on the record its belief that this period of imprisonment was much too harsh.

Eubanks filed a timely notice of appeal.

II.

Eubanks argues that the district court committed procedural error in sentencing

him pursuant to the ACCA sentencing enhancement, 18 U.S.C. § 924(e), when he did

not in fact have the requisite three qualifying convictions. He argues that his juvenile

conviction is not a qualifying conviction, because Michigan Court Rules require that the

files and records of juvenile offenses be destroyed when the offender turns thirty years

old, and that this is an effective expunction under federal law. See 18 U.S.C.

§ 921(a)(20) (“a conviction which has been expunged . . . shall not be considered a

conviction for purposes of this chapter.”). In the alternative, he argues that even if his

juvenile conviction was not expunged, Michigan law should have prevented the

disclosure of the records of that conviction, and without those records, the court could

not have conducted the review necessary to determine whether the offense qualified as

a violent felony under the ACCA. See Shepard v. United States, 544 U.S. 13 (2005).

A. Expunction of the Juvenile Record

We review de novo the district court’s interpretation of a federal statute,

including whether a conviction constitutes a violent felony for purposes of that statute.

United States v. Hargrove, 416 F.3d 486, 494 (6th Cir. 2005).

The ACCA provides that one convicted of being a felon in possession of a

firearm who has three prior convictions for either violent felonies or serious drug

offenses is subject to a mandatory minimum sentence of 15 years’ imprisonment.

18 U.S.C. § 924(e)(1). Eubanks concedes that his two prior adult convictions qualify as

serious drug offenses, as defined by § 924(e)(2); however, he argues that his juvenile
No. 09-1254 United States v. Eubanks Page 4

conviction for felonious assault does not qualify as a violent felony because it falls under

the expunction exception of 18 U.S.C. § 921(a)(20).

A violent felony under the ACCA is defined as:

(B) . . . any crime punishable by imprisonment for a term

exceeding one year, or any act of juvenile delinquency

involving the use or carrying of a firearm, knife, or

destructive device that would be punishable by

imprisonment for such term if committed by an adult that

--

(i) has as an element the use, attempted

use, or threatened use of physical force

against the person of another; or

(ii) is burglary, arson, or extortion,

involves use of explosives, or otherwise

involves conduct that presents a serious

potential risk of physical injury to another

. . . .

18 U.S.C. § 924(e)(2)(B). An exception to this general rule is that “what constitutes a

conviction . . . shall be determined in accordance with the law of the jurisdiction in

which the proceedings were held” and “[a]ny conviction which has been expunged or

set aside . . . shall not be considered a conviction” sufficient to qualify as one of the

predicate three convictions under the ACCA enhancement. 18 U.S.C. § 921(a)(20).

Eubanks argues that his juvenile conviction, even if it would otherwise qualify

as a “violent felony,” has been effectively expunged by a Michigan Court Rule which

provides that “the court must destroy the files and records pertaining to a person’s

juvenile offenses when the person becomes 30 years old.” Mich. Ct. R. 3.925(E)(2)(c).

The rule also specifically provides that “[d]estruction of a file does not negate, rescind,

or set aside an adjudication.” Mich. Ct. R. 3.925(E)(1). And another section of the rule

provides the specific route by which a juvenile offender may attempt to have his juvenile

adjudication or conviction set aside. See Mich. Ct. R. 3.925(F) (“[t]he setting aside of

juvenile adjudications is governed by M.C.L. 712A.18e” and “[t]he court may only set
No. 09-1254 United States v. Eubanks Page 5

1

It appears that Mr. Eubanks would be ineligible to set aside his juvenile offense, because the

Michigan statute providing for set asides requires that the applicant have no felony convictions and not

more than one juvenile offense. See M.C.L. 712A.18e(1).

2

The Michigan Court Rule then in operation was former Rule 5.913, which required certain

juvenile court records to be “expunged” when the offender turned 27. It should be noted that this language

is stronger than the current rule, which uses the term “destroyed” rather than “expunged,” further

strengthening the conclusion that mere destruction of records is insufficient to exclude juvenile convictions

from future sentencing consideration.

aside a conviction as provided by M.C.L. 780.621 et. seq.”).1 Critically, several

subsections of Rule 3.925 provide that “the register of actions” must not be destroyed.

See Mich. Ct. R. 3.925 (E)(1), (2)(b) and (2)(d). This “register of actions” is established

by Michigan Court Rule 8.119(D)(1)(c), which requires that among the records that must

be kept by the clerk of each trial court is the register of actions, which must include,

among other things: the offense; the judge assigned to the case; the date of trials and

hearings; the orders, judgments, and verdicts; and the date and manner of adjudication

and disposition. Mich. Ct. R. 8.119(D)(1)(c).

An analysis of the plain language of the federal and Michigan statutes indicates

that the destruction of records required by the rule is not the expunction contemplated

by 18 U.S.C. § 921(a)(20). Michigan case law makes it clear that juvenile convictions,

some records of which have been destroyed pursuant to Michigan Court Rules, may

nonetheless be considered by a sentencing judge when sentencing an adult offender. See

People v. Smith, 470 N.W.2d 70, 75 (Mich. 1991). In Smith, a criminal defendant

challenged the inclusion of his juvenile record in his PSR, arguing that because the

juvenile record should have been automatically expunged under the Michigan Court

Rule,2

 it should not be considered by the trial judge in determining whether he qualified

as an habitual offender under state law. The Michigan Supreme Court disagreed,

explaining that “[t]he purpose of the court rule . . . is to prevent a juvenile record from

becoming an obstacle to educational, social, or employment opportunities. When,

however, a juvenile offender appears in court again as an adult, his juvenile offense

record may be considered in imposing the sentence.” Id.

Despite this settled Michigan law, Eubanks proffers two unpublished Sixth

Circuit cases that appear at first glance to be quite helpful to his argument, namely
No. 09-1254 United States v. Eubanks Page 6

United States v. Flores, 118 F. App’x 49 (6th Cir. 2004) (unpublished), and United

States v. Merryman, 16 F.3d 1222, 1994 WL 54430 (6th Cir. Feb. 23,1994) (unpublished

table decision). Both cases involved the question of whether certain Michigan juvenile

offenses could be counted as predicate offenses under the ACCA if they were supposed

to have been expunged as a matter of law. They are, however, inapposite. In both cases,

the parties and the court assumed that Michigan’s Court Rules expunge the juvenile

offense for purposes of the ACCA. In neither case is that issue — which is the heart of

the instant case — discussed or decided by the court. And in neither case is Michigan’s

decisional law, particularly the Michigan Supreme Court’s decision in Smith, mentioned.

Instead, Flores focused on whether the defendant’s being barred from obtaining a

concealed weapons permit (a bar which resulted from his juvenile offense) could

resurrect his presumably expunged juvenile conviction for consideration under the

ACCA. Flores, 118 F. App’x at 52-53. And Merryman’s holding focused solely on the

timing of expunction, stating that only convictions that exist at the time of a defendant’s

sentencing may be considered as ACCA predicate offenses. Merryman, 1994 WL

54430, at *4.

Eubanks also attempts to dismiss the holding of Smith by pointing to the policy

considerations behind the Michigan Supreme Court’s allowing the use of prior juvenile

convictions. See Smith, 470 N.W.2d at 75 (explaining that judges need access to

complete information in order to properly individualize each offender’s sentence and that

one’s juvenile offender history may reveal an even more extensive pattern of

lawbreaking than does the adult record alone). He argues that this policy rationale is not

applicable in the federal ACCA setting because the use of juvenile convictions for

ACCA purposes actually hinders a judge from tailoring an individualized sentence, in

that it triggers the statutory minimum and deprives the judge of discretion. But Eubanks

has not explained why this argument is relevant to our inquiry of what the status of his

juvenile conviction would be according to the laws of the state of Michigan. It is not the

policy considerations underlying the Smith decision that concern us here; our task is to

apply Michigan law as we find it. See also United States v. Ellis, 604 F. Supp. 2d 346,
No. 09-1254 United States v. Eubanks Page 7

348-49 (D. Mass. 2009) (explaining that when state law allows for the use of a juvenile

conviction in imposing sentence, then it may also be used under the federal ACCA).

The ACCA requires the federal court to look to the law of the state — here, the

law of Michigan — to determine the status of a defendant’s prior convictions; the

Michigan Court Rules provide for the destruction of certain juvenile records when the

offender turns thirty, but they do not expunge or set aside any juvenile conviction, or

prevent the use of that conviction by the sentencing judge in later state court

proceedings. The district court therefore did not err in concluding that Eubanks’s 1992

juvenile conviction for felonious assault is an ACCA predicate offense.

B. Review of the Juvenile Offense under Shepard

Eubanks’s alternative argument is that even if the district court must consider his

juvenile offense in determining whether he is an armed career criminal, the court’s

procedures in making that determination were erroneous. Because under Michigan law

most of the records should have been destroyed, Eubanks argues, the court should not

have been able to access them in order to determine whether the offense qualified as a

violent felony under the ACCA.

Ordinarily, we review sentences under an abuse-of-discretion standard, looking

first to determine whether the district court committed any significant procedural error.

See Gall v. United States, 552 U.S. 38, 51 (2007). But Eubanks did not object at

sentencing to the court’s use of the facts contained in the charging document for the

juvenile felonious assault conviction — indeed, Eubanks expressly conceded in his

Objections to the PSR and during the course of the sentencing hearing that the charging

documents reflected that this juvenile conviction was for an offense that involved the use

of a firearm. And Eubanks raised no objection at the conclusion of sentencing when the

court inquired whether there remained any legal objections to the sentence. Our review

is therefore for plain error. United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008).

And we will reverse for plain error only where the error not only affects substantial

rights, but “seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993).
No. 09-1254 United States v. Eubanks Page 8

To qualify as a predicate “violent felony” under the ACCA, a juvenile offense

must not only meet the qualifications for an adult predicate offense (be punishable by

more than a year in prison and involve the use, attempted use, or threatened use of

physical force against another), but it must also involve “the use or carrying of a firearm,

knife, or destructive device.” 18 U.S.C. § 924(e)(2)(B). The Michigan statute under

which Eubanks was convicted, M.C.L. 750.82, defines “felonious assault” to include

assault with a firearm. However, the statutory definition includes as well assaults with

such things as iron bars, clubs, and brass knuckles, none of which is included in the

ACCA’s definition of “violent felony.”

Clearly, Eubanks’s juvenile conviction is for violation of a statute which

proscribes both conduct that would constitute a violent felony under the ACCA and

conduct that would not. Under those circumstances, in determining whether that prior

conviction constitutes a violent felony, the sentencing court is limited to considering “the

terms of the charging document, the terms of a plea agreement or transcript of colloquy

between judge and defendant in which the factual basis for the plea was confirmed by

the defendant, or to some comparable judicial record of this information.” Shepard, 544

U.S. at 26.

Eubanks asserts that the documentation required to demonstrate that he used a

firearm, knife, or destructive device during the commission of his juvenile felonious

assault should have been unavailable to the district court because his juvenile record was

supposed to have been destroyed. He argues that the fact of his conviction and the

examination of the Michigan statute by themselves would not be sufficient to

demonstrate his use of such a weapon or device.

But Eubanks’s argument misses the mark. Eubanks himself acknowledged to the

district court, both in his filed objections to the PSR and in the colloquy at sentencing,

that the charging documents revealed that the juvenile felonious assault conviction

involved his use of a gun. And Eubanks raised no objection at sentencing to the district

court’s reliance on that fact.
No. 09-1254 United States v. Eubanks Page 9

Beyond that, Michigan Court Rules do not require that all of a juvenile offender’s

records be destroyed. In fact, the rules require that the “register of actions” must not be

destroyed, Mich. Ct. R. 3.925 (E)(1), (2)(b) and (2)(d), and that register must include,

among other things, the offense, the judge assigned to the case, the date of trials and

hearings, the orders, judgments, and verdicts, and the date and manner of adjudication

and disposition. Mich. Ct. R. 8.119(D)(1)(c). It is far from clear that the district court

based its decision on any document required by the Michigan Court Rules to have been

destroyed. The PSR, in its detailing of the juvenile offense as part of Eubanks’s criminal

history, refers to the “petition,” which reflects that the offense involved the use of a gun.

Eubanks has provided us no basis upon which to infer that this petition was not a record

that is required to be part of the register of actions established by Rule 8.119(D)(1)(c).

And, as we have already discussed, the Michigan Supreme Court has made it clear that

when “a juvenile offender appears in court again as an adult, his juvenile offense record

may be considered in imposing the sentence.” Smith, 470 N.W.2d at 75.

Under these circumstances, we conclude that if the district court committed any

error at all by considering Eubanks’s juvenile felonious assault conviction and in

concluding that it constituted a violent felony under the ACCA, that error certainly was

not plain.

III.

For the foregoing reasons, we AFFIRM the sentence imposed by the district

court.