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. e du/thir dc ir c uit_1997/141Filed June 30, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 96-7781

IMPOUNDED (Juvenile R.G., Appellant)

On Appeal From the District Court of the Virgin Islands (Division of St. Croix) (D.C.Crim No. 96-cr-00046)

Argued: April 9, 1997

Before: BECKER, ROTH, and WEIS, Circuit Judges

.

(Filed June 30, 1997)

THURSTON T. McKELVIN, ESQUIRE
Federal Public Defender MELODY M. WALCOTT, ESQUIRE (ARGUED)
Assistant Federal Public Defender
P.O. Box 3450 Christiansted, St. Croix U.S. Virgin Islands 00822

Attorneys for AppellantJAMES A. HURD, JR., ESQUIRE

United States Attorney RICHARD M. PRENDERGAST, ESQUIRE (ARGUED) Assistant United States Attorney 1108 King Street - Suite 201 Christiansted, St. Croix U.S. Virgin Islands 00820

Attorneys for Appellees

OPINION OF THE COURT

BECKER, Circuit Judge

.

This appeal by a juvenile defendant charged with a number of serious crimes challenges the authority o f the United States government to prosecute him in federa l court. The governing statute is 18 U.S.C. § 5032, which establishes a two-step procedure governing the tran sfer of juveniles from state to federal court for criminal prosecution. The appeal presents the important ques tion, which has divided the circuits, whether the certifi cation decision of the United States Attorney General or h er designee -- the first-step in the transfer proceedi ngs -- is reviewable by a federal court.

Because we believe that the core of the decision to certify is one left to the discretion of the federal prosec utor, we follow the majority circuit view and hold that we h ave jurisdiction to review only limited aspects of the certification decision, including whether the certi fication is proper in form, whether it was made in bad faith, a nd the purely legal question whether the juvenile has been charged
with a crime of violence.

Our conclusion as to our limited ability to review a certification decision effectively resolves the que stion whether the prosecutor made a proper certification here, for the non-reviewable facets of the certification (tha t the Virgin Islands refuses to assume jurisdiction and that the case presents a substantial federal interest) are suffic ient and
sustain the certification.

2The second-step question, whether the district cour t properly allowed the transfer of the juvenile to ad ult status under the so-called mandatory transfer provisions o f § 5032, turns on whether the possession crime with which the juvenile was charged, see V.I. Code Ann. tit. 14, § 2251(a)(2), involves a substantial risk of the us e of physical force. Because the possession crime includ es as an element of the offense the intent to use a dangerou s weapon, and the commission of the crime will theref ore present a substantial risk that physical force will be used, we hold that the possession crime satisfies the requirements of the § 5032 mandatory transfer provi sions. The order of the district court transferring the ju venile's
case to federal court will thus be affirmed.

I. SECTION 5032 TRANSFERS

In order to facilitate the understanding of the iss ues, we first describe the provisions in 18 U.S.C. § 5032 p ertaining to the transfer of a juvenile from state authoritie s to a federal district court for criminal prosecution as an adult. Transfer proceedings are governed by a two-step pro cess. The first step is certification by the Attorney Gen eral or her designee, normally a United States Attorney. The ce rtifying party must certify either that

(1) the juvenile court or other appropriate court o f a State does not have jurisdiction or refuses to assu me jurisdiction over said juvenile with respect to suc h alleged act of juvenile delinquency, (2) the State does not have available programs and services adequate f or the needs of juveniles, or (3) the offense charged is a crime of violence that is a felony or [is] an offen se [specifically enumerated in this paragraph], and th at
there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.

18 U.S.C. § 5032.1

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1. We recognize that § 5032 might be read to mean t hat the certifying party must, in all cases, certify that there is a s ubstantial federal interest. That reading, although plausible, is a fu nction of inartful

3Contingent upon a proper certification, the federal

prosecutor may move in the appropriate district cou rt for a transfer of the juvenile to adult status -- the sec ond step in the transfer process. Section 5032 envisions two av enues by which a transfer may occur. First are the so-cal led permissive transfer provisions. Under the permissiv e transfer provisions, the district court may transfe r a juvenile "if such court finds, after hearing, such transfer would be in the interest of justice." Id. To assess whether

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drafting of the statute. Following the phrase in th e sentence that reads "the Attorney General, after investigation, certifi es to the appropriate
district court of the United States that " (emphasis added) there are three choices. Separating that phrase and the three choic es from the substantial federal interest phrase are the words " and that " preceded by a comma. Simplifying the sentence, then, it reads a s follows: "the Attorney General, after investigation, certifies to the appropriate district
court of the United States that [A, B, or C], and that

[D]." (emphasis added) The "A, B, or C" represents the phrase conta ining the three choices; the "D" is the phrase containing the subst antial federal interest. Thus, one might read the statute to require that th e Attorney General certify everything following the two uses of the wo rd "that," i.e., the Attorney General must always certify to the existen ce of a substantial
federal interest.

However, this reading does not comport with the leg islative history of the 1984 amendment to § 5032 that added the languag e referring to
crimes of violence and to a substantial federal int erest. A Senate report stated that the 1984 amendment added a "third categ ory to existing law that would permit the disposition of a case involvi ng a juvenile charged with a serious felony by means of a Federal proceed ing . . . if the Attorney General certifies that the offense is a fe lony crime of violence
. . . and that there is a `substantial Federal inte rest in the case or offense to warrant the exercise of Federal jurisdiction.' " S. Rep. No. 98-225, at 389 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3529 (footnote omitted). Thus, we believe that the proper reading of § 5032 includes the substantial federal interest requirement within the third category of choices to which the Attorney General must certify. In other words, using the same representation as that used above, t he certifying party must certify to (A), (B), or (C and D). Our reading comports with that of the Ninth Circuit, see United States v. Doe , 13 F.3d 302, 304 n.1 (9th Cir. 1993), and the Department of Justice, see 3(a) United States Department of Justice, United States Attorneys' Man ual § 9-8.110 (1988).

4a transfer would be "in the interest of justice," t he statute
directs the court to examine:

the age and social background of the juvenile; the nature of the alleged offense; the extent and natur e of the juvenile's prior delinquency record; the juveni le's present intellectual development and psychological maturity; the nature of past treatment efforts and the juvenile's response to such efforts; the availabili ty of programs designed to treat the juvenile's behaviora l problems.

Id.

The second avenue by which a juvenile may be transferred to adult status is by way of the mandat ory transfer provisions. Pursuant to § 5032, a district court
shall transfer the juvenile if three factors are present : (1) the juvenile committed the act underlying the charg ed offense after his sixteenth birthday; (2) the charg ed offense is a felony that has as an element the use of physi cal force or by its nature involves the risk of physical forc e, or is an offense specifically enumerated in the paragraph; a nd (3) the juvenile has previously been found guilty of a crime that would satisfy factor (2). Id.

II. FACTS AND PROCEDURAL HISTORY

The core offense involves a carjacking. In January 1995, a young woman drove to her parents' house to pick u p her
sister. Just after the sister entered the car outsi de the house, two masked men, one of whom was armed, approached the car and demanded the keys. The women complied and ran back inside the house. Their fathe r then went outside, but returned immediately to the house when he heard a gun shot. The two men drove off. The pol ice located the car the following day; a stereo system and a cellular phone had been stolen from the car.

One of the young women named the juvenile as her assailant. The Virgin Islands police located the ju venile, arrested him, and charged him with robbery, assault , and possession of a firearm during the commission of a crime of violence. The Territorial Court of the Virgin Islan ds ordered

5that the juvenile be prosecuted in that court as an adult.

Then, pursuant to an agreement with the United Stat es Attorney for the Virgin Islands, the Government of the Virgin Islands declined to prosecute the juvenile. Shortly thereafter, the United States Attorney filed an Inf ormation in the District Court of the Virgin Islands chargin g the juvenile with carjacking, robbery, use of a firearm during a crime of violence, and possession of a firearm duri ng a crime of violence. The United States Attorney also made the requisite certification under § 5032, and moved und er both the mandatory and permissive provisions of § 5032 t o transfer the juvenile to adult status.

The district court held a hearing to determine whet her transfer to adult status was appropriate. The court concluded that all three elements of § 5032's manda tory transfer provisions were met: the juvenile was more than sixteen years of age when the crime was alleged to have been committed; each of the crimes for which he was charged had as an element "the use, attempted use, or threatened use of physical force . . . or . . . inv olved a substantial risk that physical force [may be used] against . . . another"; and the juvenile had previously bee n found guilty of a violent crime. The court therefore orde red the transfer of the juvenile to adult status.

The juvenile appeals from the district court's tran sfer order. Included in that appeal is a challenge to th e § 5032 certification. We will assume that the § 5032 certi fication is a prerequisite to the district court exercising jur isdiction over the transfer hearing. Therefore, whether the d istrict court properly exercised jurisdiction over the § 50 32 transfer hearing turns on whether the certification was proper. Although the order from which the juvenile appeals is not "final" for the purposes of 28 U.S.C.§ 1291 or 48 U.S.C. § 1613a(c), we have appellate jurisdiction p ursuant
to the collateral order doctrine. See In re A.M. , 34 F.3d 153, 155-56 (3d Cir. 1994).

6III. REVIEW OF THE PROSECUTOR'S § 5032

CERTIFICATION

A. Is a § 5032 Certification Reviewable?

As a threshold matter, we must determine whether we have jurisdiction to review the prosecutor's § 5032 certification. Although this is an issue of first i mpression for us, we do not write on a blank slate, for a num ber of Courts of Appeals have already published opinions o n the point, from which we draw instruction.2

The seminal case is United States v. Vancier , 515 F.2d 1378 (2d Cir. 1975). In Vancier , the United States Attorney had certified to the district court that no appropr iate state court had jurisdiction over the defendant.3 On appe al, Vancier argued that the certification was improper because there existed an "appropriate" state court with jur isdiction over him. The court noted, however, that § 5032 doe s not explicitly provide for judicial review of a certifi cation, nor does it provide articulable standards against which a court could measure whether an appropriate state court co uld exercise jurisdiction over the juvenile. See id. at 1380. It concluded that, although the statute provides some limitations on the prosecutor's discretion to certi fy a juvenile for federal jurisdiction, those limitation s do not afford the courts the power to review the exercise of that
discretion. See id. at 1380-81. Analogizing the certification
decision to other non-reviewable determinations mad e by

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2. It is interesting to note that both Houses of Co ngress are currently considering legislation that would amend § 5032 to make clear that the necessary certifications are not reviewable by any court. The House of Representatives has already passed a version of the legislation, see Juvenile Crime Control Act of 1997, H.R. 3, 105th C ong. § 101 (1997), and the Senate is actively deliberating about anoth er version, see Violent and Repeat Juvenile Offender Act of 1997, S.10, 105 th Cong. § 102(a) (1997). We understand, of course, that the legislat ion may change prior to enactment, if it is enacted at all.

3. At the time of the Vancier case, § 5032 did not contain the option to certify that the juvenile was charged with a crime of violence or with one of the enumerated crimes, or the requirement that s uch a case present
a substantial federal interest.

7law enforcement officials, the court held that the§ 5032

certification is unreviewable. See id. at 1381.

Other circuits have reached a similar conclusion. T he Eleventh Circuit, in United States v. C.G. , 736 F.2d 1474 (11th Cir. 1984), adopted the reasoning of Vancier and held
that a court could not review the correctness of a § 5032 certification asserting that an appropriate state c ourt did not have jurisdiction over the juvenile. See id. at 1477-78. The Eleventh Circuit suggested, however, that it co uld review a certification to ensure that the certifyin g party was authorized under the statute, that the certificatio n was timely filed, and that it stated the appropriate st atutory factors that give rise to federal jurisdiction. See id. at 1477. The court also suggested that it would be appropria te to inquire into whether the certification was made in bad
faith. See id. at 1478; see also United States v. Wellington

, 102 F.3d 499, 503-05 (11th Cir. 1996) (reaffirming the holding of C.G. ). Similarly, the Ninth Circuit held that "[w]here . . . a certificate was timely filed, and that certificate appeared regular on its face, the trial judge has no duty independently to investigate and determine if the certificate refers to the proper state court." Unit ed States v.
Gonzalez-Cervantes , 668 F.2d 1073, 1078 (9th Cir. 1981).

In 1984 Congress amended § 5032, adding the option that a prosecutor's certification could include the statement that the crime charged was one of violence or was o ne specifically enumerated. In United States v. Juveni le Male

, 923 F.2d 614 (8th Cir. 1991), the juvenile challeng ed the certification of the charged offense as a crime of violence.
See id. at 616. The court held that review of a § 5032 certification that the juvenile was charged with a crime of violence was appropriate. The court summarized Vanc ier
and C.G. and then concluded that "[n]either of the . . . ca ses persuades us that we cannot review certification he re." See
id. at 617. The Eighth Circuit believed both that it h ad a standard against which to judge the correctness of the certification (whether a crime is one of violence i s a legal question) and that it was merely ensuring that the form of the certification was correct (a certification base d on the type of crime charged must state one of the crimes enumerated in the statute (a crime of violence is a n enumerated crime)). See id. at 617.

8We do not, however, read the Eighth Circuit as gene rally

allowing review of a § 5032 certification, or depar ting from the general principles established in the cases cit ed above. Rather, the holding in Juvenile Male is limited to review of whether the crime for which the juvenile was charge d was actually a crime of violence. The Eighth Circuit's reasoning is consistent with the opinions that have not allow ed review of a § 5032 certification; those opinions focused o n different aspects of the certification decision, aspects that focused on prosecutorial discretion, and the lack of standards guiding review of the decision to certify. Such concerns, a s the Eighth Circuit pointed out, are not implicated by a certification that a crime is one of violence, beca use whether a crime is one of violence is determined by congressionally created statutory standards. See id

. at
617-18. Our view of Juvenile Male is bolstered by the
Second Circuit's recent decision in United States v . Doe , 49 F.3d 859 (2d Cir. 1995). In Doe , the Second Circuit also reviewed a § 5032 certification to determine whethe r the crime charged was one of violence. See id. at 866-67.4

The 1984 amendments also added the language requiri ng that the Attorney General or her designee certify " that there
is a substantial Federal interest in the case or th e offense to warrant the exercise of Federal jurisdiction." 2 8 U.S.C. § 5032. Although an argument can be made that this language introduced an articulable standard against which a court could review certain aspects of certificati on decisions, courts have been unimpressed with that contention and have held that this aspect of the certification decision, like the other aspects desc ribed above, is unreviewable. The Eleventh Circuit so hel d in
United States v. I.D.P. , 102 F.3d 507 (11th Cir. 1996), stressing that, although the statute provided a lis t of factors for a court to consider in determining whet her to grant a motion to transfer, none was a factor by wh ich a

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4. Interestingly, the court cited to Juvenile Male , but did not cite to
Vancier . We assume that the court did not intend to overru le Vancier ; therefore, we also assume that the court believed i t was acting consistently with Vancier . In other words, Doe can be read to mean that the Second Circuit allows review of some aspects of a § 5032 certification, but not others, the very conclusion we reach here.

9court could meaningfully determine whether there ex isted a

substantial federal interest. See id. at 511.

The court further reasoned that the determination whether a particular case presented a substantial f ederal
interest was an administrative decision that turned on law enforcement considerations such as the general inci dence of crime, the need for deterrence, enforcement prio rities,
and the like. See id. at 511-12. Such decisions, it noted, are best left to the prosecutors. Finally, the cour t examined the legislative history of the 1984 amendment, and concluded that this history suggested that Congress
intended the decision whether there existed a subst antial
federal interest to be left to the discretion of th e Attorney General, qualified by a number of limiting factors not
contained in the statute itself. See id. at 512-13.

The only case finding a certification of a substant ial
federal interest to be reviewable is United States v. Juvenile
Male #1 , 86 F.3d 1314 (4th Cir. 1996). In Juvenile Male #1

, the juvenile had moved to dismiss the case against him in federal court on the grounds that the § 5032 certif ication was improper because the case did not present a substantial federal interest, and the district cour t denied his motion. The appeals court began by examining wh ether the district court had jurisdiction to review a § 5 032
certification at all.5 It first noted that the lack of a specific provision calling for judicial review does not bar review, and asserted that there is a strong presumption that Co ngress

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5. The court stated that "[i]t should be beyond ser ious argument that the courts should review compliance with the essentiall y technical requirements of § 5032, such as the proper certifyi ng party, timeliness of the certification, inclusion of the statutory langu age, or the age of the juvenile." See Juvenile Male #1 , 86 F.3d at 1319 (citations omitted). We agree, and would add that we may review whether the certification was made in bad faith. We note that the appellant here does not challenge the § 5032 certification for technical defects. The re is no suggestion that the form of the certification is incorrect (for exa mple, whether a prosecutor certified that the juvenile is charged w ith a crime not enumerated in the statute), that the certification was untimely filed, that an improper official made the certification, or tha t it was made in bad faith or for an improper purpose. Nor does evidence of such appear in
the record.

10intends judicial review. See id. at 1319-20. And, the court

continued, it could find nothing in the statute tha t overcomes this strong presumption in favor of revie wability.
See id. at 1320. The court concluded its brief discussion by noting that it would give primary attention to the needs of rehabilitation in construing the juvenile statutes. See id. In reaching its conclusion, the court relied on Gutier rez de Martinez v. Lamagno , ___ U.S. ___, 115 S. Ct. 2227 (1995), a case from which the concurrence also draws signif icant support, for the proposition that executive determi nations are generally subject to judicial review. See Juven ile Male #1, 86 F.3d at 1319.

Chief Judge Wilkinson, in his concurring opinion,
reached the conclusion that such certifications are unreviewable. Judge Wilkinson began by noting that the statute contains no provision explicitly allowing f or judicial review of § 5032 certifications, though it does pro vide for judicial review of the second step -- the motion to transfer the juvenile. See United States v. Juvenile Male #1 , 86 F.3d 1314, 1324 (4th Cir. 1996) (Wilkinson, C.J., concur ring). More importantly, he stressed that the statute does not set out standards by which a court is to review the certification, whereas, in contrast, the statute in cludes a
list of factors a court is to consider when determi ning whether the motion to transfer the juvenile is appr opriate.
See id. at 1324-25.6 This lack of guidance suggested to Judge Wilkinson that Congress intended the determin ation
whether to issue a certification to be left to the discretion of the Attorney General, limited only by the requir ement that the case present a substantial federal interes t. See id.
at 1325.

Whether a case presents a substantial federal inter est, Judge Wilkinson continued, turns on policy-based determinations of law enforcement priorities that a re best left to the prosecutors. See id. Judge Wilkinson feared that allowing courts to review § 5032 certification deci sions

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6. For permissive transfers, these factors include the six aspects of the "interest of justice" standard; for mandatory trans fers, these factors include the age of the juvenile, the type of offens e for which he has been charged, and his past criminal record. See supra at part I.

11would engender interbranch conflict as courts would

second-guess decisions decidedly executive (not jud icial) in
nature. See id. at 1325-26. Judge Wilkinson compared the § 5032 certification decision to other, similar pro secutorial decisions that have traditionally been unreviewable . See id. at 1326. Finally, Judge Wilkinson distinguished Gut ierrez
de Martinez . He noted that in Gutierrez de Martinez the certification at issue was " `dispositive of a cour t controversy.' " Id. at 1326 n.2 (quoting Gutierrez de
Martinez , 115 S. Ct. at 2231).7 In such circumstances, judicial review is expected. However, § 5032 certif ications, Judge Wilkinson notes, are not dispositive of the controversy. See id. In other words, a § 5032 certification does not prevent judicial review of all aspects of the relevant case. The concerns animating the Court in
Gutierrez de Martinez , then, do not apply in§ 5032
certifications.

We agree with Judge Wilkinson's reasoning and observations, adding a few comments about the feder alism concerns implicated by § 5032 certifications upon w hich the concurring opinion relies. Whether a case presents a substantial federal interest does, of course, impli cate federalism concerns. Such concerns, rooted in the d ebate over the proper relationship between the states and the federal government, are different in kind from law
enforcement considerations. Concerns over law enfor cement are best left to the discretion of prosecutors clos est to these problems. Concerns over federalism, in contrast, mi ght seem more properly considered by the courts. That r eview in contexts such as that presented here, however, d epends on adequate statutory standards, and those standard s are lacking. Even if they were present, the other facto rs weighing against judicial review of a certification of substantial federal interest (mentioned during our summary of the case law in the area) clearly prevai l.

The concurring opinion observes that the federal co urts are experienced in making judgments as to matters s uch as

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7. Judge Wilkinson also noted that the Attorney Gen eral had argued in favor of judicial review. See Juvenile Male #1 , 86 F.3d at 1326 n.2 (Wilkinson, C.J., concurring).

12what constitutes a substantial federal interest. We do not

know specifically what the concurrence has in mind, but we know of no satisfactory formula for making such jud gments within the framework of our jurisprudence.8 At all events, the exercise at issue here is more akin to policy m aking.

The remaining rationale of the concurring opinion s trikes us as somewhat ephemeral. It suggests that Congress added the substantial federal interest requirement with the intent of reminding federal prosecutors of the stro ng interest the states have in juvenile justice. It al so draws support from the fact that the decision to certify has been delegated to local United States Attorneys who may be subject to parochial concerns, thereby lessening th eir
concern with the interests of federalism. These rea sons seem speculative to us, and do not, in our view, re veal a congressional intent that the substantial federal i nterest certification be subject to judicial review. At all events, the arguments do not countervail the forceful contentio ns marshaled by our sister circuits in the opinions we have

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8. The concurring opinion points to language in the legislative history of the 1984 amendments and suggests that such language provides some guidance as to what constitutes a substantial feder al interest. That language, however, only provides examples. And, unf ortunately, those examples are, for the most part, crimes that make u p only a minuscule fraction of total federal crime, e.g., assaults on federal officials, hijacking, kidnaping, major espionage, and significant destruc tion of federal property. The only example given in the legislative history that deals with frequently occurring crimes is large-scale drug tra fficking. It is interesting to note in this regard that federal cou rts have concurrent jurisdiction with the state courts over drug crimes , and the decision whether to prosecute drug crimes in the federal cou rts is generally left to the discretion of federal prosecutors.

As an example of the difficulty presented by endeav oring to define standards against which phrases such as "substantia l federal interest" can be measured, we suggest examining the Judicial Conference's attempts to draw the contours of the kinds of cases that ought to command the attention of federal courts. Despite th e years of effort that went into its drafting, the Long Range Plan for the Federal Courts ultimately adopted provisions that are quite broad, and scarcely provide the calipers for making the kind of determination f or which the
concurrence would call. See Judicial Conference of the United States, Long Range Plan for the Federal Courts 22-30 (1995)

.

13summarized (and, in large measure, endorsed). The

concurrence also notes that there must be a "findin g" of a substantial federal interest, and reasons that this suggests judicial determination. We find this argument unpersuasive.

We follow Judge Wilkinson's lead and that of Vancie r and its progeny discussed above, and hold that, while w e have jurisdiction to review a § 5032 certification only for technical defects, for whether a crime is one of vi olence,
and for whether the certification was made in bad f aith or for improper purposes, we have no jurisdiction to r eview the other aspects of a § 5032 certification, namely whether a state court will assume jurisdiction, whether the state has adequate programs for juveniles, and whether th ere is
a substantial federal interest.9

B. Was the Certification Proper?

Having determined the extent of reviewability, we t urn to the question whether the United States Attorney's § 5032 certification was proper. The United States Attorne y certified that the Virgin Islands had refused to ex ercise jurisdiction over the prosecution of the case, that the crimes for which the juvenile was charged were ones of violence, and that the case presented a substantial federal interest. The juvenile argues that the certificatio n was improper for two reasons. First, he claims that one of the crimes for which he was charged, possession of a fi rearm, is not a crime of violence.10 Second, he contends t hat the case does not present a substantial federal interes t.

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9. In our discussion, we have summarized precedent from other circuits addressing the reviewability of certifications base d on the type of crime charged and based upon the lack of or refusal to as sume jurisdiction over the juvenile by a state court. We are unaware of any court decision addressing a certification based upon the availabil ity of services for the juvenile. It would appear, however, that such certi fications should not be subject to review for the same reasons that we do n ot review whether there is a state court that will assume jurisdictio n over the prosecution of the case, i.e., the lack of statutory standards and the similarity of the
determination to unreviewable executive decisions.

10. The juvenile was also charged with crimes that are indisputably crimes of violence. The juvenile is effectively arg uing that the existence

14Under § 5032, the federal prosecutor need only cert ify to

one of the following: (1) that there is no appropri ate state court to exercise jurisdiction over the juvenile; ( 2) that the state has inadequate programs to address juvenile delinquency; or

(3) that the crime charged was a crime of violence or was enumerated in the statute, and ther e was a substantial federal interest sufficient to warran t the exercise of jurisdiction. Because the federal prose cutor here certified that no state court would exercise jurisd iction over the prosecution of the juvenile, which as we have e xplained is non-reviewable, there is no need also to certify that the juvenile has been charged with a crime of violence, and that
there existed a substantial federal interest. We ne ed not, therefore, discuss whether the challenged crime is one of
violence or whether a substantial federal interest is present.

In short, the federal prosecutor has fulfilled the statutory requirements of certification in such a manner so a s to effectively insulate the certification from our rev iew.

IV. MANDATORY TRANSFER UNDER § 5032

We turn finally to the second step in the § 5032 ex ercise -- the question of the correctness of the district court's order transferring the juvenile to adult status. Ou r standard for reviewing such an order is not clear. We have previously stated that we review the district court 's decision to transfer under the § 5032 permissive transfer provisions
for abuse of discretion. See United States v. A.R. , 38 F.3d 699, 702 (3d Cir. 1994). Here, however, the distric t court approved the transfer of the juvenile to federal di strict court under the so-called mandatory transfer provisions of § 5032. Because the § 5032 mandatory transfer provi sions require the district court to order a transfer give n certain factual and legal predicates, we believe an abuse o f discretion standard is inappropriate. Rather, we wi ll subject

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of one non-violent crime amidst a slew of violent c rimes renders the certification improper, at least with respect to th at one non-violent crime but possibly to all the charged crimes. We need not reach this question, however, because, as we will make clear in the text , the possession crime is clearly one of violence.

15the district court's legal conclusions to plenary r eview and

its factual findings to clearly erroneous review.

Under the mandatory transfer provisions, and contin gent on a proper certification, a juvenile's case must b e transferred to federal district court if three fact ors are present. First, the juvenile must have committed th e act in question after his sixteenth birthday. Second, the charged offense must be a felony that either "[(1)] has as an element thereof the use, attempted use, or threatened use o f physical force against the person of another, or[(2 )] by its very nature, involves a substantial risk that physi cal force against the person of another may be used in commit ting the offense," or is one that has been enumerated in the statute. Third, the juvenile must previously have b een convicted of a crime that satisfies the second fact or.

The juvenile does not challenge the district court' s findings as to the first and third factors (he comm itted the act in question while he was seventeen years old, a nd he has previously been found guilty of robbery in thef irst degree). We see no reason to question them. Turning to the second factor, the juvenile was charged with violat ing § 2251(a)(2), which prohibits the possession of dan gerous weapons; Section 2251(a)(2) is a felony because it is punishable by a term of imprisonment greater than o ne year. See 18 U.S.C. § 1(1) (defining felony as "[a]ny offens e punishable by death or imprisonment for a term exce eding one year"). The juvenile nonetheless contends that the possession crime for which he was charged still doe s not satisfy the second factor in the § 5032 mandatory t ransfer provisions.11

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11. The juvenile's argument assumes that for the pu rposes of § 5032 we may look only to the conduct alleged in the possess ion count to determine whether § 2251(a)(2) satisfies the requir ements of the second part of the second factor of the § 5032 mandatory t ransfer provisions. In other words, the juvenile seems to assume that § 50 32 requires a categorical approach, rather than a fact-specific a pproach, to determining whether a particular crime satisfies th e § 5032 requirements. That assumption draws support from ou r discussion of
the definition of a crime of violence in the Senten cing Guidelines. See
United States v. Joshua , 976 F.2d 844, 850-56 (3d Cir. 1992). In Joshua

,

16The crime challenged by the juvenile punishes those who,

"with intent to use the same unlawfully against another, has, possesses, bears, transports, carries or has u nder his proximate control, a dagger, dirk, dangerous knife, razor, stiletto, or any other dangerous or deadly weapon." V.I. Code Ann. tit. 14, § 2251(a)(2) (emphasis added). C learly, § 2251(a)(2) does not satisfy the requirements of t he first part of the second factor, because no element of § 2251(a)(2) involves the "use, attempted use, or t hreatened use of physical force." However, just as clearly, § 2251(a)(2) satisfies the requirements of the second part of th e second factor, which requires that the charged offense by its very nature involves a "substantial risk that physical f orce . . . may be used" during the commission of the crime. 12 Section § 2251(a)(2) includes as an element the intent to use a dangerous weapon. Certainly, if someone intends to use a dangerous weapon then there is "substantial risk th at physical force . . . may be used." Therefore, § 225 1(a)(2)

___________________________________________________ ______________

we held that "a sentencing court should look solely to the conduct alleged in the count of the indictment charging the offense of conviction
in order to determine whether that offense is a cri me of violence" because it creates a risk of the use of physical fo rce. Id. at 856. In our discussion, we assume, though do not hold, that we may not look beyond the possession count to determine if the req uirements of § 5032 are met. If we were to consider the charged conduct beyond the possession count, the requirements of § 5032 would surely be met; the juvenile brandished the weapon, pointed it at one o f the victims, and, at some point, fired it, thereby creating a substantia l risk of the use of physical force.

12. Our conclusion that § 2251(a)(2) is a crime of violence is supported by analogy to 18 U.S.C. § 16. The phrase crime of v iolence, though not defined in § 5032, is defined at 18 U.S.C. § 16. Th e language of the second factor of the § 5032 mandatory transfer prov isions tracks the language of § 16 in all relevant respects. Under § 16, a crime of violence means either "(a) an offense that has as an element the use, attempted use, or threatened use of physical force . . . or ( b) any other offense that is a felony and that, by its nature, involves subst antial risk that physical force against the person or property of another may be used in the course of committing the offense." Section 2251(a)( 2) satisfies the requirements of § 16(b), just as it satisfied the r equirements of the second part of the second factor of the § 5032 mand atory transfer provisions.

17satisfies the second factor of the § 5032 mandatory transfer provisions.13

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13. Experience with the career offender provisions of the Sentencing Guidelines is instructive in interpreting § 2251(a) (2). To qualify as a career offender under the Sentencing Guidelines, an offender, inter alia

, must have been convicted of two previous felony cri mes of violence or felony crimes involving controlled substances. See 1995 U.S.S.G. § 4B1.1. Pursuant to the Guidelines, a crime that " involves conduct that presents a serious potential risk of physical injur y to another" is a crime
of violence. See id. § 4B1.2(1)(ii). Prior to the amendment, this defin ition generated controversy when applied to the felon-in- possession of a
firearm crime. See 18 U.S.C. § 922(g)(1). Under § 922(g)(1), it is a crime for a person who has previously been convicted of a felony merely to possess a firearm. See id. "[A] substantial body of Circuit precedent" held that a felon-in-possession crime constituted a crim e of violence under
the Guidelines. Stinson v. United States , ___ U.S. ___, 113 S. Ct. 1913, 1916 & n.1 (1993).

Typical of the reasoning holding that a felon-in-po ssession crime is categorically a crime of violence is the discussion in United States v.
O'Neal , 910 F.2d 663 (9th Cir. 1990). In O'Neal , the court reasoned that an armed felon, without more, poses a substantial t hreat of the use of physical force. See id. at 667. In other words, mere possession of a weapon by a felon is enough, because by past deeds that felon has shown the willingness to engage in criminal activit y and this willingness may now include the use of the weapon he possesses. See id. ; see also
United States v. Stinson , 943 F.2d 1268, 1271-73 (11th Cir. 1991), vacated on other grounds , 113 S. Ct. 1913 (1993). In contrast, we had held that mere possession, without more, by a felon was not a crime of violence under the pre-amendment career offender gu idelines. See United
States v. Williams , 892 F.2d 296, 304 (3d Cir. 1989) Because of cases
like O'Neal , the Sentencing Commission amended the Application Notes to § 4B1.2 specifically to exclude the felon-in-pos session crime from the definition of crime of violence for purposes of the career offender guidelines. See 1992 U.S.S.G., App. C, Amend. 461.

The felon-in-possession crime cases are instructive here because they rely on the reasoning that mere possession may impl y intent to use. The intent to use, in turn, creates the substantial ris k of the use of physical
force. The amendment to the Guidelines eliminated t he inferential leap courts had been taking in interpreting § 922(g)(1); in other words, the Sentencing Commission made it impermissible for a c ourt to infer for the purposes of the career offender guidelines that the status of being a felon in possession of a weapon implied that the felon in tended to use the weapon. The amendment did not, however, affect the reasoning that the intent to use a weapon created a substantial risk o f the use of physical

18Because we believe the district court did not err i n

finding that each of the three mandatory transfer p rovision factors were present in this case, we hold that the court properly transferred the juvenile to federal court for criminal prosecutions.

The order of the district court will be affirmed.

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force. At least a part of the reasoning of the felo n-in-possession crime cases survives, the part we rely on here.

At all events, § 2251(a)(2) includes as an element the intent to use the weapon the individual possesses. (Section 922(g)(1) does not include intent as an element.) Section 2251(a)(2), then, re quires proof of the very element that courts interpreting § 922(g)(1) had be en inferring. With proof that a defendant intends to use the weapon he possesses, a court can look to the felon-in-possession crime cases to reason that such a defendant poses a substantial risk of the use of ph ysical force. We do so
here.

19WEIS, Circuit Judge , concurring.

I.

Analysis of the scope of judicial review of the government's certification under the Juvenile Delin quency Act, 18 U.S.C. § 5032, must begin with the followin g statement from the Supreme Court: "[W]e have stated time and again that judicial review of executive action` will not be cut off unless there is persuasive reason to bel ieve that such was the purpose of Congress.' " Gutierrez de M artinez v. Lamagno , 115 S.Ct. 2227, 2231 (1995) (quoting Abbott
Labs. v. Gardner , 387 U.S. 136, 140 (1967)). Conceding
that the statute under consideration in that case w as susceptible to divergent interpretations, the Court adopted
a construction consistent with "traditional underst andings and basic principles: that executive determinations generally are subject to judicial review and that m echanical judgments are not the kind federal courts are set u p to
render." Id. at 2236.

Using Lamagno as a guide, the question is whether there is "persuasive reason" to believe that Congress int ended to limit the scope of judicial review of section 5032 certifications to technical compliance and prosecut orial bad faith. Not only do careful studies of the statutory language and its legislative history fail to reveal a convin cing ground to limit judicial review, they also disclose Congre ss' deep concern for principles of federalism that might be jeopardized by overzealous federal prosecution.

The 1984 amendments to section 5032 expanded the bases for transferring a case from state to federal jurisdiction. If the felony offense is a "crime of violence" or one of those offenses specifically described in the amendments, and "there is a substantial Federal int erest in the case or the offense," the prosecution may proce ed in the
federal courts.

The Senate Report that accompanied the amendments acknowledged that the traditional policy of state predominance in this area survived. Explaining the narrow, federal inroad into state jurisdiction over juvenil e delinquency proceedings, the Senate Committee state d:

20The essential concepts of the 1974 Act are that juv enile

delinquency matters should generally be handled by the States and that criminal prosecution of juvenil e offenders should be reserved for only those cases involving particularly serious conduct by older juveniles. The Committee continues to endorse these concepts, but has determined that certain modifications in current law are necessary to allow an adequate Federal response to serious criminal condu ct on the part of juveniles.

S.Rep. 98-225 at 386 (1984) reprinted in 1984 U.S.C.C.A.N. 3182, 3526.

The Committee also cautioned that "a determination that there is a `substantial Federal interest' " be grou nded on a "finding" that

the nature of the offense or the circumstances of t he case give rise to special Federal concerns. Example s of such cases could include an assault on, or assassination of, a federal official, an aircraft h ijacking, a kidnaping where State boundaries are crossed, a major espionage or sabotage offense, participation in large-scale drug trafficking, or significant and wi llful destruction of property belonging to the United Sta tes.

Id . at 389 reprinted in id. at 3529.

By requiring a certification by the Attorney Genera l, Congress emphasized that the decision to place a ju venile case within federal jurisdiction must be neither ca sual nor routine, but should be carefully considered. The ex istence of this restraint is in sharp contrast to the typic al adult criminal case in which a federal prosecutor may cho ose to indict for a federal crime even when the underlying conduct may also violate state law. In such a situation, of course, the prosecutor enjoys wide discretion that, signifi cantly, is unfettered by a certification requirement.

Rather than extend such unlimited discretion to the prosecutor's decision to initiate juvenile proceedi ngs in federal court, Congress included the certification requirement to remind federal prosecutors of the st rong interests that states have in juvenile justice. Tha t

21consideration leads to the related inference that, rather

than being adverse to judicial review, Congress app roves it as a method of enforcing its policy in favor of sta te primacy in juvenile delinquency proceedings.

Additional support for this view is supplied by the
Committee's assertion that the determination of a
"substantial federal interest" be based on a "findi ng" of special federal concerns. Use of the term "finding" reasonably implies that a judicial proceeding was contemplated.

Finally, we should not discount the significance of 28 C.F.R. § 0.57 (1996), through which the Attorney Ge neral has delegated to the United States Attorney in the appropriate district the authority to provide the r equisite certification. The certification process, therefore , is not administered at the national level, but is applied in a local context where parochial concerns become more influe ntial.

Federal courts manage caseloads that are far more diverse than those of local federal prosecutors and , as a result, have a greater familiarity with the complex ities of federalism. Given the experience of the federal ben ch in questions of federal-state relations, it would be e xpected that Congress would vest oversight of these importa nt procedures in the judiciary rather than in the loca l United States Attorney. At the very least, that inference should govern absent a clear indication to the contrary fr om Congress.

The strong language in Lamagno favoring judicial review differs dramatically from the view taken by the Cou rts of Appeals in United States v. Vancier , 515 F.2d 1378 (2d Cir. 1975), and to a lesser extent, United States v. C.G

. , 736 F.2d 1474 (11th Cir. 1984). Those opinions take a restrictive approach to judicial review of certific ations under 18 U.S.C. § 5032. Both pre-dated Lamagno and, consequently, their persuasive value has been subst antially undermined. In addition, the "substantial federal i nterest" qualification, which was added to the Juvenile Deli nquency Act in 1984, also post-dates those two cases.

In United States v. I. D. P. , 102 F.3d 507, 511-13 (11th Cir. 1996), the Court of Appeals for the Eleventh C ircuit

22chose to follow C.G. , and to distinguish Lamagno , in

holding that the courts may not review certificatio ns to
determine the existence of a substantial federal in terest. In its review of the legislative history, I.D.P. observed that the Senate Report referred to a predecessor bill that s et forth standards for the Attorney General to follow. The C ourt, however, did not discuss the fact that the earlier bill contained a provision barring judicial review of certifications -- a provision that eventually was r emoved. In my view, the deliberate deletion of that prohibitio n not only shows that Congress knew how to ban review if it wi shed but also that it had rejected the proposal.

The Court of Appeals for the Fourth Circuit took a different approach than I.D.P. in United States v. Juvenile
Male #1 , 86 F.3d 1314 (4th Cir. 1996) when it relied upon the traditional congressional preference for having juvenile matters handled in state courts, even though federa l jurisdiction had been expanded in the 1984 amendmen ts to the Juvenile Delinquency Act. Viewing the legislati ve history as inconsistent with the grant of unreviewable disc retion to the prosecutor, Juvenile Male #1 held that the strong presumption in favor of judicial review so forceful ly reiterated in Lamagno must prevail. Id . at 1321. Although
the Juvenile Male #1 Court did not use the term "federalism," that consideration was at the core of its reasoning.

Those Courts that deny review of the certification process except for technical compliance and bad faith cite the lack of standards in the statutory language for substant ive
review. See C.G. , 736 F.2d at 1478; Vancier , 515 F.2d at 1380. This reasoning is somewhat puzzling. It impli es that the United States Attorneys will be able to apply t he statute despite the absence of standards, but that the cour ts are unable to cope with the task of review in similar circumstances. If the federal prosecutors had the s ame broad discretion as they do when adult prosecutions are contemplated, that rationale might be justified. Bu t, as noted earlier, Congress made it clear that the fede ral prosecutor's authority in the juvenile delinquency setting remains limited. Moreover, judicial deference is es pecially questionable here because at stake are issues of fe deralism

23and the limitations of federal prosecutorial author ity --

areas in which Congress reasonably could expect the courts' perspective to be more objective than that of the United States Attorneys.

The legislative history of the 1984 amendments, whi ch explicitly stated that "the Federal Government will continue to defer to State authorities for less serious juve nile offenses," addresses this concern. The Senate Repor t cited certain examples of offenses raising special federa l interests. Although Congress did not repeat these standards in the statute itself, they are helpful g uideposts, and there is no indication that Congress intended t hem to inform the prosecutor's decision, but not the court 's.

Finally, the search for a substantial federal inter est cannot be any more difficult than, for example, "th e judicial struggle to interpret the Commerce Clause during th e transition from the economic system the Founders kn ew to the single, national market still emergent in our o wn era." United States v. Lopez , 115 S.Ct. 1624, 1634 (1995) (Kennedy, J., concurring). Whether the interpretati ve question is constitutional or statutory, the judici ary must provide an answer no matter how nebulous the standa rd. I believe that the federal courts have both the compe tence and the duty to review the certifications in sectio n 5032
and that we should undertake that task in this case

.

II.

I agree with the majority that the dispositive issu e in this case is whether it was properly transferred under c lause (1) of § 5032 because the Territorial Government had relinquished jurisdiction. To arrive at its conclus ion, the majority says it is bound to accept the certificati on's
statement to that effect because it is unreviewable

.

Rather than simply accept the United States Attorne y's certification on its face, I have reviewed the reco rd and found that it provides undisputed evidence that the Attorney General of the Virgin Islands abandoned it s prosecution of the juvenile and so informed the Uni ted States Attorney. I perceive no difference between a state's refusal to assume jurisdiction from the outset, see United

24States v. Hill , 538 F.2d 1072, 1077 (4th Cir. 1976), and a

state's agreement to relinquish jurisdiction after charges have been filed. Neither situation presents a confl ict of the sovereigns' interests. When the state agrees to ste p aside, federalism concerns fade into the background. The
certification therefore withstands review.

In addition, I fully agree with the majority's opin ion that, after assuming jurisdiction, the district court pro perly invoked the mandatory transfer provision of section 5032 for treating defendant as an adult.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

25