2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-19-2003

USA v. Jones

Precedential or Non-Precedential: Precedential

Docket No. 02-2392

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PRECEDENTIAL

Filed June 19, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2392

UNITED STATES OF AMERICA

v.

LESTER JONES,

Appellant

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 01-cr-00136)

District Judge: Hon. Donald E. Ziegler

Argued March 11, 2003

Before: SLOVITER, NYGAARD and

ALARCON,* Circuit Judges

(Filed: June 19, 2003)

Shelley Stark

Karen Sirianni Gerlach (Argued)

Renee Pietropaolo

Office of Federal Public Defender

Pittsburgh, PA l5222

Attorneys for Appellant

* Honorable Arthur L. Alarcon, Senior Judge, United States Court of

Appeals for the Ninth Circuit, sitting by designation. 
Mary Beth Buchanan

Bonnie R. Schlueter

Constance M. Bowden

Kelly R. Labby (Argued)

Office of United States Attorney

Pittsburgh, PA l5219

Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge. 

In this appeal by Lester Jones challenging the

enhancement of his sentence pursuant to the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e), we consider a

question of first impression for this court — whether a prior

nonjury juvenile adjudication can count as a prior

conviction for purposes of the exception to Apprendi v. New

Jersey, 530 U.S. 466 (2000). 

I.

BACKGROUND

Jones was indicted in the Western District of

Pennsylvania with one count of being a previous felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(2) and (e). Initially, he pleaded not guilty but

thereafter changed his plea to guilty. During the change of

plea hearing, the Government summarized its evidence

against Jones. Three witnesses claimed that on April 10,

2000, Jones went to an apartment in Pittsburgh,

Pennsylvania where he displayed two guns, one of which he

discharged twice. Thereafter, Jones threatened the

occupants and fled the apartment with $10,000 in cash

and some clothing. When the police caught Jones, they

recovered the stolen clothing, $10,000 in cash, and two

guns, a Taurus and a Smith & Wesson. Experts matched

2
two casings and a bullet found in the apartment to the

Taurus gun.1

A defendant convicted of being a felon in possession of a

firearm is subject to a sentence of a maximum of 10 years

imprisonment under 18 U.S.C. § 924(a)(2). However, the

ACCA mandates a minimum sentence of 15 years

imprisonment for anyone convicted of being a felon in

possession in violation of 18 U.S.C. § 922(g)(1) who is found

to have three previous convictions for a violent felony or

serious drug offense. 18 U.S.C. § 924(e). The District Court

noted that Jones had two adult state felony drug

convictions and one prior juvenile adjudication for a violent

crime, thereby constituting the necessary three prior

convictions for application of the ACCA. Thereafter, the

District Court ordered Jones to pay a special assessment in

the sum of $100 and sentenced him to a 15 year term of

imprisonment followed by a 4 year term of supervised

release. This appeal followed. 

Before us, Jones argues that the ACCA cannot apply to

him. He does not dispute that his adult drug convictions

qualify as prior convictions for purposes of the ACCA.

Instead, Jones raises both statutory and constitutional

challenges to the use of his prior juvenile adjudication for

enhancement purposes. First, Jones argues that his

juvenile adjudication does not constitute a “violent felony”

under the ACCA when applying the “categorical approach”

as enunciated in our recent decision in United States v.

Richardson, 313 F.3d 121 (3d Cir. 2002). Next, Jones

contends that because he was not afforded the right to a

jury trial during his juvenile adjudication, that adjudication

cannot qualify for the so-called “prior conviction exception”

articulated by the Supreme Court in Apprendi v. New

Jersey, 530 U.S. 466 (2000). Although neither the Supreme

Court nor this court has addressed this issue, two other

courts of appeals have rendered differing opinions on this

precise question, thereby creating a circuit split. Finally,

Jones alleges that his prior juvenile adjudication cannot be

used for enhancement purposes because the certified

1. Jones admitted to possessing the Taurus gun but denied robbing

anyone. 

3
records from his juvenile adjudication do not demonstrate

that he was afforded the right to counsel or waived such

right. 

Jones asks us to vacate his sentence and remand for

resentencing with instructions that he be sentenced

without the application of the ACCA. 

II.

DISCUSSION

A. Jurisdiction and Standard of Review

We have jurisdiction to hear this appeal pursuant to 18

U.S.C. §§ 1291 and 3742(a). This appeal presents purely

legal questions, over which we exercise plenary review. See

United States v. Preston, 910 F.2d 81, 84 (3d Cir. 1990).

B. Jones’ Statutory Claim

We first consider Jones’ allegation that the statutory

elements underlying his prior juvenile adjudication do not

constitute a “violent felony” under the ACCA because we

need not address his constitutional claims if we are

persuaded by this statutory claim. In relevant part, the

ACCA reads:

(1) In the case of a person who violates section 922(g)

of this title and has three previous convictions . . . for

a violent felony or a serious drug offense, or both . . .

such person shall be fined not more than $25,000 and

imprisoned not less than fifteen years . . . 

(2) As used in this subsection — 

. . . 

(B) the term “violent felony” means 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 — 

4
(i) has as an element the use, attempted use, or

threatened use of physical force against the person of

another; 

(ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involved conduct that presents

a serious potential risk of physical injury to another;

and 

(C) the term “conviction” includes a finding that a

person has committed an act of juvenile delinquency

involving a violent felony.

18 U.S.C. § 924(e). 

To decide Jones’ statutory claim, we must examine the

offenses for which he was adjudicated delinquent as a

juvenile by the Court of Common Pleas of Allegheny

County. These were simple assault, aggravated assault, and

a violation of Pennsylvania’s Uniform Firearms Act, offenses

we explore more fully below. 

Relying on our recent decision in United States v.

Richardson, 313 F.3d 121 (3d Cir. 2002), Jones claims that

his juvenile adjudication fails to constitute a “violent felony”

as described under the ACCA. In Richardson, we held that

when a juvenile adjudication is invoked to enhance a

sentence under the ACCA, the sentencing court must use

the same “categorical approach” as prescribed by the

Supreme Court in Taylor v. United States, 495 U.S. 575

(1990), for prior adult convictions. 313 F.3d at 122. The

categorical approach requires the court to look only to the

fact of conviction and the statutory definition of the prior

offense to determine whether the defendant committed an

offense which may be used for enhancement purposes. Id.

at 125. The court is not to consider the actual conduct in

which the juvenile engaged and make a factual

determination as to whether the juvenile committed the

offense. Id.

Explaining the ease with which the sentencing court can

apply the categorical approach to determine whether the

offense statutorily qualifies as a “violent felony” under the

ACCA, we noted that “all it would have had to do would be

to review the Pennsylvania criminal statutes underlying the

5
juvenile adjudication” and see whether those statutes have

as a necessary element “the use or carrying of a firearm,

knife, or destructive device” required for a juvenile

adjudication to count as a predicate offense under the

ACCA. Id. at 127. In Richardson, the “necessary element”

was not present in the statutes underlying the defendant’s

juvenile adjudication and thus, we vacated the sentence

and remanded for resentencing. Id. at 127-28. 

Jones’ sentencing preceded our decision in Richardson

and the District Court did not apply the categorical

approach. Before us, the parties disagree as to how the

categorical approach should be applied in Jones’ case.

Jones argues that to constitute a “violent felony” under the

ACCA, the court must consider each statute underlying

Jones’ juvenile adjudication separately and at least one of

the statutes must contain both requirements of the ACCA:

“the use or carrying of a firearm, knife, or destructive

device” and the use or threatened use of force. The

Government rejects Jones’ contention that the sentencing

court is to parse out each charge underlying an act of

juvenile delinquency and view it in isolation to determine

whether one charge — alone — includes elements of both

carrying a firearm and the use, attempted use, or

threatened use of physical force. Instead, it argues that

under the categorical approach, the sentencing court

should view the underlying charges collectively to determine

whether the ACCA’s statutory elements are met. In defining

“violent felony,” the ACCA itself fails to definitively indicate

whether the statutes underlying a juvenile adjudication

should be viewed individually or in the aggregate. See 18

U.S.C. § 924(e)(2)(B). 

Under either party’s interpretation, the categorical

approach directs an examination of the plain

language of the statutes underlying Jones’ juvenile

adjudication, including simple assault,2 aggravated

2. Pennsylvania’s statute for simple assault, 18 Pa. Cons. Stat. Ann.

§ 2701, provides, in relevant part: 

(a) Offense defined. — A person is guilty of assault if he: 

(1) attempts to cause or intentionally, knowingly or recklessly

causes bodily injury to another; 

6
assault,3

 and a violation of Pennsylvania’s Uniform

(2) negligently causes bodily injury to another with a deadly

weapon; 

(3) attempts by physical menace to put another in fear of imminent

serious bodily injury; or 

(4) conceals or attempts to conceal a hypodermic needle on his

person and intentionally or knowingly penetrates a law enforcement

officer or an officer or an employee of a correctional institution,

county jail or prison, detention facility or mental hospital during the

course of an arrest or any search of the person. 

3. Pennsylvania’s statute for aggravated assault, 18 Pa. Cons. Stat. Ann.

§ 2702, provides in relevant part: 

(a) Offense defined. — A person is guilty of aggravated assault if

he: 

(1) attempts to cause serious bodily injury to another, or causes

such injury intentionally, knowingly or recklessly under

circumstances manifesting extreme indifference to the value of

human life; 

(2) attempts to cause or intentionally, knowingly or recklessly

causes serious bodily injury to any of the officers, agents, employees

or other persons enumerated in subsection (c) or to an employee of

an agency, company or other entity engaged in public

transportation, while in the performance of duty; 

(3) attempts to cause or intentionally or knowingly causes bodily

injury to any of the officers, agents, employees or other persons

enumerated in subsection (c), in the performance of duty; 

(4) attempts to cause or intentionally or knowingly causes bodily

injury to another with a deadly weapon; 

(5) attempts to cause or intentionally or knowingly causes bodily

injury to a teaching staff member, school board member or other

employee, including a student employee, of any elementary or

secondary publicly-funded educational institution, any elementary

or secondary private school licensed by the Department of

Education or any elementary or secondary parochial school while

acting in the scope of his or her employment or because of his or

her employment relationship to the school; or 

(6) attempts by physical menace to put any of the officers, agents,

employees or other persons enumerated in subsection (c), while in

the performance of duty, in fear of imminent serious bodily injury.

7
Firearms Act.4

 Jones argues that although the statutory

elements of these three offenses require either “the use or

carrying of a firearm, knife, or destructive device,” or the

use or threatened use of force, none of them individually

requires both. It follows, according to Jones, that his

juvenile adjudication does not constitute a “violent felony”

under 18 U.S.C. § 924(e)(2). 

In an effort to buttress his case, during oral argument

counsel for Jones urged us to consider not only Richardson

but also United States v. Galo, 239 F.3d 572 (3d Cir. 2001).

In Galo, a case dealing with sentencing enhancements

under 18 U.S.C. § 2251(d) and not the ACCA, a divided

panel of this court held that the district court erred in

enhancing defendant’s sentence because defendant had not

previously been convicted of violating a law relating to the

sexual exploitation of children as required by the relevant

statute for enhancement purposes. Id. at 583-84. Holding

that the district court should not have considered

defendant’s prior conduct, the court concluded that under

the categorical approach, the sentencing court “should have

focused only on the statutory definitions of those prior

convictions.” Id. at 582. A reading of the Galo court’s

conclusion, indeed a reading of the entire opinion, provides

no support for Jones’ contention that the categorical

approach mandates a piecemeal statutory examination.

Galo merely states that the categorical approach precludes

4. Pennsylvania’s Uniform Firearms Act, 18 Pa. Cons. Stat. Ann. § 6106,

provides in relevant part: 

(a) Offense defined. — 

(1) Except as provided in paragraph (2), any person who carries a

firearm in any vehicle or any person who carries a firearm concealed

on or about his person, except in his place of abode or fixed place

of business, without a valid and lawfully issued license under this

chapter commits a felony of the third degree. 

(2) A person who is otherwise eligible to possess a valid license

under this chapter but carries a firearm in any vehicle or any

person who carries a firearm concealed on or about his person,

except in his place of abode or fixed place of business, without a

valid and lawfully issued license and has not committed any other

criminal violation commits a misdemeanor of the first degree. 

8
the sentencing court from engaging in a fact-finding

expedition and instead requires an examination of the

statutory elements underlying the defendant’s prior

conviction. Id. at 581-82. Thus, Jones’ reliance on Galo is

misplaced. 

As for Richardson, it too fails to support Jones’ narrow

vision of the categorical approach. Focusing on whether to

use the categorical approach over and above a fact-finding

approach, the Richardson court said little about how to

apply the categorical approach, thus admittedly leaving us

with little guidance as to the issue before us. This is not to

say that we are altogether without direction. The

Richardson court did state that a review of the statutes

underlying the defendant’s juvenile adjudication would

make clear that “none of the offenses . . . had as a

necessary element ‘the use or carrying of a firearm, knife,

or destructive device.’ ” Richardson, 313 F.3d at 127

(emphasis added). This statement, in our view, provides

support for the Government’s argument that the statutes

underlying Jones’ juvenile adjudication should be viewed

collectively to determine whether they statutorily constitute

a “violent felony” for purposes of the ACCA. 

Considering Richardson in tandem with a commonsense

reading of the ACCA, we conclude that when applying the

categorical approach to a juvenile adjudication for purposes

of sentencing enhancement, a sentencing court may

consider all the statutory elements underlying the juvenile

adjudication collectively. After all, “violent felony” is defined

as “any act of juvenile delinquency involving the use or

carrying of a firearm” and has as an element the use or

attempted use of force. 18 U.S.C. § 924(e)(2)(B). Jones was

adjudicated delinquent for various offenses, and we reject

his argument that the categorical approach requires a

piecemeal examination of each offense. 

Viewing the statutes underlying Jones’ prior juvenile

adjudication collectively, it is apparent that together they

require the carrying of a firearm and the use, attempted

use, or threatened use of force. Jones himself acknowledges

that simple assault and aggravated assault both require the

use or threatened use of force while the Uniform Firearms

Act requires the use of a firearm. Jones was adjudicated

9
delinquent based on these three statutes, which together

constitute a “violent felony” under the ACCA. As such, we

conclude that even though the District Court did not apply

the categorical approach in the current case, its

enhancement of Jones’ sentence under the ACCA did not

offend the categorical approach. Rejecting Jones’ statutory

claim, we turn now to his constitutional challenges. 

C. Apprendi v. New Jersey 

1. The Circuit Split

Jones’ next claim presents us with one of the many

issues deriving from the Supreme Court’s decision in

Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi,

the Supreme Court held that a 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.” 530 U.S. at 490. The Court, however,

provided the following well-noted exception: a fact of a prior

conviction can be used to increase the penalty for a crime

beyond the prescribed statutory maximum even if it is not

submitted to the jury and proved beyond a reasonable

doubt. Id. The question before us, then, is whether a prior

juvenile adjudication, albeit nonjury, qualifies as a “prior

conviction” for purposes of the Apprendi exception.

Although this court has never answered this specific

question, we consider the views of the two federal courts of

appeals that previously have addressed the issue. 

In United States v. Tighe, a majority of a panel for the

United States Court of Appeals for the Ninth Circuit framed

the issue before it as follows: “do prior juvenile

adjudications, which do not afford the right to a jury trial,

fall within the ‘prior conviction’ exception to Apprendi’s

general rule that a fact used to increase a defendant’s

maximum penalty must be submitted to a jury and proved

beyond a reasonable doubt?” 266 F.3d 1187, 1193 (9th Cir.

2001). The majority answered the question in the negative,

holding that 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.

Id. at 1194. The court acknowledged that at “first blush” it

10
would appear that a juvenile adjudication would fit within

Apprendi’s exception, but it decided that appearance

dissipates when considering the constitutional differences

between adult and juvenile convictions, such as the lack of

a right to jury trials in most juvenile cases. Id. at 1192-93.

The court examined the scope of the term “conviction” as

used by the Supreme Court in Apprendi and the cases

leading up to Apprendi. Id. at 1193. Specifically, it focused

on two passages from Supreme Court decisions explaining

the distinctiveness of prior convictions. The first passage

came from Jones v. United States, 526 U.S. 227 (1999), a

precursor to Apprendi, and reads as follows: 

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 itself must

itself have been established through procedures

satisfying the fair notice, reasonable doubt and jury

trial guarantees.

Tighe, 266 F.3d at 1193-94 (quoting Jones, 526 U.S. at

249).

The Tighe court next quoted the following passage from

Apprendi itself: 

There is a vast difference between accepting the validity

of a prior judgment of conviction entered in a

proceeding in which the defendant had the right to a

jury trial and the right to require the prosecutor to

prove guilt beyond a reasonable doubt, and allowing

the judge to find the required fact under a lesser

standard of proof. 

Id. at 1194 (quoting Apprendi, 530 U.S. at 496). 

Based on these two passages, the Tighe court decided

that juvenile adjudications that do not afford the right to a

jury trial and require a beyond-a-reasonable-doubt burden

of proof do not fit within Apprendi’s exception for prior

convictions. Id. at 1194. 

The dissenting panel member accused the Tighe majority

of taking language from Jones and “mak[ing] the quantum

11
leap” to hold that in order for a prior conviction to support

a sentencing enhancement, it must have been subject to

fair notice, reasonable doubt, and the right to a jury trial.

Id. at 1200 (Brunetti, J., dissenting). According to the

dissenter, simply because one part of this “fundamental

triumvirate of procedural protections” — the right to a jury

trial — is absent, the majority removes juvenile

adjudications from the ACCA’s grasp. Id. Furthermore,

according to the dissenting judge, the excerpted language

from Jones simply denotes Congress’ constitutional power

to treat prior convictions as sentencing factors subject to a

lesser standard of proof because the defendant received all

process that was due when convicted — for adults that

includes the right to a jury trial; for juveniles, it does not.

Id.

Last year, a unanimous panel for the Court of Appeals for

the Eighth Circuit flatly rejected Tighe in holding that a

prior nonjury juvenile adjudication qualifies as an exception

under Apprendi. See United States v. Smalley, 294 F.3d

1030 (8th Cir. 2002), cert. denied, 123 S. Ct. 870 (2003).

Smalley, like the defendant in the case before us and that

in Tighe, was charged with being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). After Smalley

pleaded guilty, the district court applied the ACCA and

sentenced him to 15 years incarceration. Smalley appealed,

alleging that the district court erred in enhancing his

sentence based on prior juvenile adjudications. 

In holding that prior juvenile adjudications can “rightly”

be characterized as “prior convictions” for Apprendi

purposes, the Smalley court rejected the reasoning

employed in Tighe. Id. at 1032-33. In so doing, the court

refused to read Apprendi as creating a bright line rule

whereby proof beyond a reasonable doubt, fair notice, and

a right to a jury trial are all necessary procedural

safeguards that must be present before qualifying for the

Apprendi exemption. Id. at 1032. 

Instead of relying on the “narrow parsing of words,” the

Smalley court examined the reality of actual juvenile

adjudications to determine whether they are sufficiently

reliable so as to not offend constitutional rights if used to

qualify for the Apprendi exception. Id. at 1033. The court

12
noted that juvenile defendants receive process that has

been held to satisfy constitutional standards, including the

right to notice, right to counsel, right to confront and crossexamine witnesses, and the privilege against selfincrimination. Id. Furthermore, to convict a juvenile, a

judge must find guilt beyond a reasonable doubt. Id. The

court found these procedural safeguards to be sufficient for

purposes of the Apprendi exception. Id. In short, the

Smalley court concluded that the absence of the right to a

jury trial does not automatically disqualify juvenile

adjudications for purposes of the Apprendi exception. 

2. The Current Appeal

Lester Jones urges us to adopt the reasoning and holding

from the Ninth Circuit’s majority opinion in Tighe.

According to Jones, the Tighe court relied on the “clear

mandate of Supreme Court case law.” Appellant’s Br. at 27.

Undoubtedly, this is a grave overstatement, if not a

misstatement, of the law. Jones concedes that the Supreme

Court cases relied on by the Tighe court never addressed

the precise issue presented before us. Furthermore, Jones

fails to direct us to any Supreme Court language

articulating this alleged mandate. In any event, it is clear

that to date, the Supreme Court has not held that prior

nonjury juvenile adjudications cannot count as prior

convictions for purposes of Apprendi’s exception. 

The Government, on the other hand, urges us to adopt

the reasoning of the Eighth Circuit in Smalley. It notes that

in McKeiver v. Pennsylvania, 403 U.S. 528 (1971), the

Supreme Court held that due process does not require

providing juveniles with the right to a jury trial. It follows,

according to the Government, that when a juvenile is

adjudicated guilty beyond a reasonable doubt in a bench

trial that affords all the due process protections that are

required, the adjudication should be counted as a

conviction for purposes of subsequent sentencing under the

ACCA. We agree. 

Like the Smalley court, we find nothing in Apprendi or

Jones, two cases relied upon by the Tighe court and Lester

Jones on this appeal, that requires us to hold that prior

nonjury juvenile adjudications that afforded all required

13
due process safeguards cannot be used to enhance a

sentence under the ACCA. 

It follows that if Lester Jones was afforded all the

procedural safeguards that he is constitutionally due, the

District Court properly enhanced his sentence pursuant to

the ACCA. A prior nonjury juvenile adjudication that was

afforded all constitutionally-required procedural safeguards

can properly be characterized as a prior conviction for

Apprendi purposes. We proceed to consider Lester Jones’

claim that his particular juvenile adjudication was

procedurally deficient. 

D. Jones’ Sixth Amendment Claim 

The Sixth Amendment of the United States Constitution

guarantees criminal defendants the right to counsel in both

state and federal courts. See Gideon v. Wainwright, 372

U.S. 335, 339-40 (1963). Jones claims that the District

Court violated his Sixth Amendment right to counsel by

enhancing his sentence based upon his prior juvenile

adjudication because records for that adjudication do not

indicate that he was represented by counsel and do not

show that he waived his right. He contends that we must

therefore vacate his sentence and remand for resentencing

with instructions to the District Court to sentence him

without applying the ACCA. 

As a preliminary matter, we note that Jones does not

allege that he was not represented by counsel during his

juvenile adjudication. Instead, he argues that where, as

here, the certified records from a prior conviction do not

show that the defendant was represented by counsel, there

is a presumption that the defendant was denied his right to

counsel. For this proposition, Jones relies on the Supreme

Court’s decision in Burgett v. Texas, 389 U.S. 109 (1967).

In Burgett, the defendant was charged in a five-count

indictment. The first count charged assault and the

remaining counts alleged prior felonies pursuant to Texas’

recidivist statutes that would have subjected the defendant

to an enhanced sentence upon conviction of count one. The

State offered two differing certified copies of one of the prior

convictions. The first version of the prior conviction read:

“Came the Assistant Attorney-General for the State and the

14
Defendant in proper person and without Counsel.” Id. at

112 (emphasis added). After the defendant objected to the

introduction of the prior conviction on the ground that he

was not represented by counsel, the State offered another

certified copy of the same prior conviction which again

stated that defendant had appeared “in proper person” but

which did not include the additional words “without

counsel.” Id. The State failed to offer an explanation for the

differing versions. According to the Supreme Court, the

certified records, on their face, created a presumption that

the defendant in that case was denied his right to counsel

and thus, his conviction was void. Id. at 114. Furthermore,

the Court noted that the presumption of waiver of counsel

could not be deemed from a silent record. Id. at 114-15. 

This case is different. Here, the Government claims that

Jones was afforded all required procedural protections

during his juvenile adjudication. It argues that Jones has

done no more than state that his records failed to indicate

whether he had counsel, was denied counsel, or waived his

right to counsel. According to the Government, Jones has

the burden of establishing that his prior conviction suffers

a constitutional infirmity. Otherwise, the presumption of

regularity attaches to the conviction. We agree with the

Government that Parke v. Raley, 506 U.S. 20 (1992),

forecloses Jones’ argument that his silent record as to

counsel automatically shifts the burden to the Government

to prove that he was afforded counsel or waived that right.

Twenty-five years after its decision in Burgett, the

Supreme Court took pains to narrow the scope of that

decision. In Parke, a state prisoner, after exhausting his

state remedies, petitioned for a writ of habeas corpus in a

federal district court seeking a vacatur of his state court

sentence that had been enhanced due to two prior

convictions based on guilty pleas. The prisoner claimed that

because his records contained no transcripts of the prior

plea proceedings, it could not be determined whether his

plea was entered knowingly and intelligently. The Parke

Court addressed the defendant’s argument that Burgett

stood for the proposition that a previous conviction used to

enhance punishment is presumptively void if waiver of a

claimed constitutional right does not appear on the face of

15
the record. Placing Burgett in its proper historical context,

the Court opted not to “read the decision so broadly,” and

noted that in Burgett, the defendant’s conviction was

entered before the Court had recognized state criminal

defendants’ federal constitutional right to counsel in the

watershed decision of Gideon v. Wainwright, 372 U.S. 335

(1965). Parke, 506 U.S. at 31. Accordingly, one could

reasonably presume that the defendant in Burgett did not

waive a right he had not yet been held to possess. Id. The

Court held that the same presumption did not apply to the

defendant in Parke, who sought relief based on an

unavailable record on collateral review. Id. The Court

further noted that even when a collateral attack on a final

conviction rests on constitutional grounds, the presumption

of regularity that attaches to final judgments makes it

appropriate to assign the burden of proof to the defendant.

Id.

Like the Court in Parke, we see no reason why it would

be unreasonable to attach the presumption of regularity to

a record silent as to the presence of counsel, as the events

occurred for Jones several decades after the Supreme Court

recognized the constitutional right to counsel for all

criminal defendants. Furthermore, it is of no import for our

purposes that Parke was a habeas case rather than a

sentencing case. See United States v. Gray, 177 F.3d 86,

90-91 (1st Cir. 1999) (finding that even in a sentencing

case, Parke foreclosed argument that record silent as to

counsel shifts burden to Government to prove right to

counsel was either afforded or waived). As the presumption

of regularity attached to Jones’ juvenile adjudication, we

reject his argument that the Government must prove that

he was either afforded his right to counsel or waived that

right. 

On a final note, we have no reason to doubt that Jones

was provided other procedural safeguards during his

juvenile adjudication. Although Jones makes no additional

challenges to his juvenile adjudication, we nonetheless note

that the certified record from that adjudication provides us

with ample reason to believe it was procedurally sound. The

record reads: “[A]fter a full hearing, the Court finds by proof

beyond a reasonable doubt that [Lester Jones] has

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committed the . . . delinquent acts” for which he was

adjudicated delinquent as a juvenile. Supp. App. at 1

(emphasis added). Thus, it is beyond dispute that the court

in Jones’ juvenile adjudication employed the proper

standard — that of reasonable doubt — before adjudicating

him delinquent. At all events, there is nothing in Jones’

record that leads us to believe his juvenile adjudication did

not provide him with adequate procedural safeguards. 

III.

CONCLUSION

For the foregoing reasons, we will affirm the District

Court’s judgment of sentence. 

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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