United States Court of Appeals

 for the eighth circuit

 ___________

 

 Nos. 96-3564/3903

 ___________

 

 United States of America, *

 *

 Appellee, * Appeals from the United

States

 * District Court for the

District 

 v. * of South Dakota.

 *

 Juvenile PWM, *

 *

 Appellant. * 

 ___________

 

 Submitted: May 23, 1997

 

 Filed: August 1, 1997

 ___________

 

 Before RICHARD S. ARNOLD, Chief Judge, and BOWMAN and MORRIS 

 SHEPPARD ARNOLD, Circuit Judges.

 ___________

 

 MORRIS SHEPPARD ARNOLD, Circuit Judge.

 

 PWM, a juvenile, appeals two sentences imposed on him. We 

 reverse and remand for resentencing.

 

 In a proceeding pursuant to 18 U.S.C. § 5032, PWM, a

sixteen-

 year-old, admitted to being a juvenile delinquent because he

had 

 stolen firearms from a firearms dealer, an act made criminal by 

 18 U.S.C. § 922(u), and had possessed and sold stolen firearms

in 

 violation of 18 U.S.C. § 922(j). After being released on bond,

he 

 failed to

 
 

 

 

 

 
 

 appear at his sentencing hearing, an act for which he was

charged 

 with being a juvenile delinquent for violating 18 U.S.C. 

 § 3146(a)(1). He later admitted to this charge as well. The 

 district court sentenced him to custody until he 

reached 

 the age of 

 twenty-one in both cases, the maximum sentence that can be

imposed 

 on a juvenile who is less than eighteen years old. See 18

U.S.C. 

 § 5037(c)(1)(A).

 In sentencing PWM, the district court recognized that in

the 

 firearms case the guideline range for an adult defendant would

have 

 been four to ten months imprisonment, and that in the

failure-to-

 appear case it would have been six to twelve months. But

because 

 the district court believed that these ranges were arrived at

on 

 the basis of a criminal history category that did not

adequately 

 reflect the seriousness of PWM's past criminal conduct, it felt

it 

 appropriate to depart upward. In the sentencing hearing in the 

 firearms case, the district judge remarked that PWM "is

basically 

 a career criminal at a very young age," and adverted to his

"most 

 extensive criminal history," but did not specifically state to

what 

 criminal conduct of PWM's it was referring, except to say that

"of 

 course he continued [it] while out on bond." To justify the 

 sentence in the failure-to-appear case, the district court 

 specifically relied on paragraphs 17 through 29 of the relevant 

 presentence report, which briefly described nine tribal-court 

 charges of which PWM had been convicted and three criminal

cases 

 that were pending against him in tribal court (two of these

last 

 being for conduct that he had allegedly engaged in while on

bond). 

 In United States v. R.L.C., 503 U.S. 291 (1992), the

Supreme 

 Court considered the meaning of 18 U.S.C. § 5037(c)(1)(B),

which 

 fixes the maximum term of someone adjudicated a juvenile
delinquent 

 at "the maximum term that would be authorized if the juvenile

had 

 been tried and convicted as an adult," unless that term would

carry 

 the juvenile past his twenty-first birthday. The Court held

that 

 this statute required a sentencing court in a juvenile case to 

 employ the sentencing guidelines to determine the range of the 

 sentence to which an adult would be exposed if he or she had 

 committed the adult counterpart of the relevant offense, and

that 

 the upper limit of that range

 

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 marked the maximum sentence to which a juvenile could be

subjected. 

 Id. at 306. The Court also observed, however, that "the upper 

 limit of the proper Guideline range [sets] the maximum term for 

 which a juvenile may be committed to official detention, absent 

 circumstances that would warrant departure under [18 U.S.C.] 

 § 3553(b)" (emphasis supplied). Id. at 307 . 

 The government argues that R.L.C. allows a district court 

 unfettered discretion in a juvenile case to exceed the top of

the 

 guideline range to which an adult would be subject, once the

court 

 lawfully determines that § 3553(b) authorizes it to depart. In 

 other words, the government's position is that in deciding how

much 

 to depart in a juvenile case, the district court is not bound

by 

 the procedures that we have outlined in cases such as United

States 

 v. Day, 998 F.2d 622, 625 (8th Cir. 1993), cert. denied, 511

U.S. 

 1130 (1994), which require a court, in sentencing an adult, to 

 "proceed along the criminal history axis of the sentencing

matrix, 

 comparing the defendant's criminal history with the criminal 

 histories of other offenders in each higher category," in order

to 

 fix and justify the extent of a departure. 

 We agree with the government that a juvenile does not have

to 

 receive the same sentence that an adult who committed a 

 corresponding offense would receive, and, indeed, the Court 

 emphasized in R.L.C., 503 U.S. at 307, that its holding did

"not 

 require plenary application of the Guidelines to juvenile 

 delinquents." But it does no violence to this principle to

require 

 a sentencing court to follow the procedures established in Day

in 

 order to determine the maximum sentence that an appropriately 

 comparable adult would have received, in order to fix the upper 

 limit of the juvenile's sentence. This, we believe, is exactly 

 what R.L.C. and § 5037(c)(1)(B) require, because otherwise a 

 juvenile's maximum possible sentence would not be the same as

that 

 of a similarly situated adult, a result the statute was enacted

to 

 avoid. 

 

 Furthermore, as we have already indicated, in departing
upward 

 the district court considered not just the nine tribal-court 

 adjudications outlined in the presentence report,

 

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 but also three charges that were pending in tribal court, two

of 

 which were laid for acts committed while PWM was on bond

pending 

 sentencing on the firearms charge. In United States v. Joshua, 

 40 F.3d 948, 953 (8th Cir. 1994), we pointed out that charges

that 

 are merely pending against a defendant may not be counted as

part 

 of the defendant's criminal history unless the defendant admits

to 

 the criminal conduct underlying the charge. In this case, PWM

did 

 not admit the underlying conduct, and consequently it was error

for 

 the district court to take it into account in determining

whether 

 and how much to depart.

 

 We therefore vacate the sentences, remand the cases for 

 resentencing, and direct the district court to utilize the 

 procedures established in Day and similar cases to determine an 

 appropriate guideline for PWM, without reference to charged

conduct 

 to which he has not admitted or which the government does not

prove 

 by a preponderance of the evidence, in order to fix the upper

limit 

 of the sentence for which he is eligible.

 

 A true copy.

 

 Attest:

 

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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