1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-30-1997

Impounded v.

Precedential or Non-Precedential:

Docket 96-7781

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Recommended Citation

"Impounded v." (1997). 1997 Decisions. Paper 141.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/141
Filed 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 Appellant
JAMES 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 of the 

United States government to prosecute him in federal court. 

The governing statute is 18 U.S.C. § 5032, which 

establishes a two-step procedure governing the transfer of 

juveniles from state to federal court for criminal 

prosecution. The appeal presents the important question, 

which has divided the circuits, whether the certification 

decision of the United States Attorney General or her 

designee -- the first-step in the transfer proceedings -- 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 prosecutor, we 

follow the majority circuit view and hold that we have 

jurisdiction to review only limited aspects of the 

certification decision, including whether the certification is 

proper in form, whether it was made in bad faith, and 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 question 

whether the prosecutor made a proper certification here, for 

the non-reviewable facets of the certification (that the Virgin 

Islands refuses to assume jurisdiction and that the case 

presents a substantial federal interest) are sufficient and 

sustain the certification. 

 2 
The second-step question, whether the district court 

properly allowed the transfer of the juvenile to adult status 

under the so-called mandatory transfer provisions of 

§ 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 use of 

physical force. Because the possession crime includes as an 

element of the offense the intent to use a dangerous 

weapon, and the commission of the crime will therefore 

present a substantial risk that physical force will be used, 

we hold that the possession crime satisfies the 

requirements of the § 5032 mandatory transfer provisions. 

The order of the district court transferring the juvenile's 

case to federal court will thus be affirmed. 

I. SECTION 5032 TRANSFERS 

In order to facilitate the understanding of the issues, we 

first describe the provisions in 18 U.S.C. § 5032 pertaining 

to the transfer of a juvenile from state authorities to a 

federal district court for criminal prosecution as an adult. 

Transfer proceedings are governed by a two-step process. 

The first step is certification by the Attorney General or her 

designee, normally a United States Attorney. The certifying 

party must certify either that 

(1) the juvenile court or other appropriate court of a 

State does not have jurisdiction or refuses to assume 

jurisdiction over said juvenile with respect to such 

alleged act of juvenile delinquency, (2) the State does 

not have available programs and services adequate for 

the needs of juveniles, or (3) the offense charged is a 

crime of violence that is a felony or [is] an offense 

[specifically enumerated in this paragraph], and that 

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 

_________________________________________________________________ 

1. We recognize that § 5032 might be read to mean that the certifying 

party must, in all cases, certify that there is a substantial federal 

interest. That reading, although plausible, is a function of inartful 

 3 
Contingent upon a proper certification, the federal

prosecutor may move in the appropriate district court for a 

transfer of the juvenile to adult status -- the second step in 

the transfer process. Section 5032 envisions two avenues 

by which a transfer may occur. First are the so-called 

permissive transfer provisions. Under the permissive 

transfer provisions, the district court may transfer a 

juvenile "if such court finds, after hearing, such transfer 

would be in the interest of justice." Id. To assess whether 

_________________________________________________________________ 

drafting of the statute. Following the phrase in the sentence that reads 

"the Attorney General, after investigation, certifies to the appropriate 

district court of the United States that" (emphasis added) there are three 

choices. Separating that phrase and the three choices from the 

substantial federal interest phrase are the words "and that" preceded by 

a comma. Simplifying the sentence, then, it reads as 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 containing the three 

choices; the "D" is the phrase containing the substantial federal interest. 

Thus, one might read the statute to require that the Attorney General 

certify everything following the two uses of the word "that," i.e., the 

Attorney General must always certify to the existence of a substantial 

federal interest. 

However, this reading does not comport with the legislative history of 

the 1984 amendment to § 5032 that added the language referring to 

crimes of violence and to a substantial federal interest. A Senate report 

stated that the 1984 amendment added a "third category to existing law 

that would permit the disposition of a case involving a juvenile charged 

with a serious felony by means of a Federal proceeding . . . if the 

Attorney General certifies that the offense is a felony crime of violence 

. . . and that there is a `substantial Federal interest 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, the 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' Manual § 9-8.110 

(1988). 

 4 
a transfer would be "in the interest of justice," the statute 

directs the court to examine: 

the age and social background of the juvenile; the 

nature of the alleged offense; the extent and nature of 

the juvenile's prior delinquency record; the juvenile's 

present intellectual development and psychological 

maturity; the nature of past treatment efforts and the 

juvenile's response to such efforts; the availability of 

programs designed to treat the juvenile's behavioral 

problems. 

Id.

The second avenue by which a juvenile may be 

transferred to adult status is by way of the mandatory 

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 charged 

offense after his sixteenth birthday; (2) the charged offense 

is a felony that has as an element the use of physical force 

or by its nature involves the risk of physical force, or is an 

offense specifically enumerated in the paragraph; and (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 up her 

sister. Just after the sister entered the car outside 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 father then 

went outside, but returned immediately to the house when 

he heard a gun shot. The two men drove off. The police 

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 juvenile, 

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 Islands ordered 

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

Then, pursuant to an agreement with the United States 

Attorney for the Virgin Islands, the Government of the 

Virgin Islands declined to prosecute the juvenile. Shortly 

thereafter, the United States Attorney filed an Information 

in the District Court of the Virgin Islands charging the 

juvenile with carjacking, robbery, use of a firearm during a 

crime of violence, and possession of a firearm during a 

crime of violence. The United States Attorney also made the 

requisite certification under § 5032, and moved under both 

the mandatory and permissive provisions of § 5032 to 

transfer the juvenile to adult status. 

The district court held a hearing to determine whether 

transfer to adult status was appropriate. The court

concluded that all three elements of § 5032's mandatory 

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 . . . involved a 

substantial risk that physical force [may be used] against 

. . . another"; and the juvenile had previously been found 

guilty of a violent crime. The court therefore ordered the 

transfer of the juvenile to adult status. 

The juvenile appeals from the district court's transfer 

order. Included in that appeal is a challenge to the § 5032 

certification. We will assume that the § 5032 certification is 

a prerequisite to the district court exercising jurisdiction 

over the transfer hearing. Therefore, whether the district 

court properly exercised jurisdiction over the § 5032 

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 pursuant 

to the collateral order doctrine. See In re A.M., 34 F.3d 153, 

155-56 (3d Cir. 1994). 

 6 
III. 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 impression 

for us, we do not write on a blank slate, for a number of 

Courts of Appeals have already published opinions on 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 appropriate state 

court had jurisdiction over the defendant.3 On appeal, 

Vancier argued that the certification was improper because 

there existed an "appropriate" state court with jurisdiction 

over him. The court noted, however, that § 5032 does not 

explicitly provide for judicial review of a certification, nor 

does it provide articulable standards against which a court 

could measure whether an appropriate state court could 

exercise jurisdiction over the juvenile. See id. at 1380. It 

concluded that, although the statute provides some 

limitations on the prosecutor's discretion to certify a 

juvenile for federal jurisdiction, those limitations 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 made by 

_________________________________________________________________ 

2. It is interesting to note that both Houses of Congress 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 Cong. § 101 (1997), 

and the Senate is actively deliberating about another version, see Violent 

and Repeat Juvenile Offender Act of 1997, S.10, 105th Cong. § 102(a) 

(1997). We understand, of course, that the legislation 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 such a case present 

a substantial federal interest. 

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

certification is unreviewable. See id. at 1381. 

Other circuits have reached a similar conclusion. The 

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 court did 

not have jurisdiction over the juvenile. See id. at 1477-78. 

The Eleventh Circuit suggested, however, that it could 

review a certification to ensure that the certifying party was 

authorized under the statute, that the certification was 

timely filed, and that it stated the appropriate statutory 

factors that give rise to federal jurisdiction. See id. at 1477. 

The court also suggested that it would be appropriate 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." United 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 one 

specifically enumerated. In United States v. Juvenile Male, 

923 F.2d 614 (8th Cir. 1991), the juvenile challenged 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 Vancier

and C.G. and then concluded that "[n]either of the . . . cases 

persuades us that we cannot review certification here." See

id. at 617. The Eighth Circuit believed both that it had a 

standard against which to judge the correctness of the 

certification (whether a crime is one of violence is a legal 

question) and that it was merely ensuring that the form of 

the certification was correct (a certification based on the 

type of crime charged must state one of the crimes 

enumerated in the statute (a crime of violence is an 

enumerated crime)). See id. at 617. 

 8 
We do not, however, read the Eighth Circuit as generally 

allowing review of a § 5032 certification, or departing from 

the general principles established in the cases cited above. 

Rather, the holding in Juvenile Male is limited to review of 

whether the crime for which the juvenile was charged was 

actually a crime of violence. The Eighth Circuit's reasoning 

is consistent with the opinions that have not allowed review 

of a § 5032 certification; those opinions focused on 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, as the 

Eighth Circuit pointed out, are not implicated by a

certification that a crime is one of violence, because 

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 whether the 

crime charged was one of violence. See id. at 866-67.4 

The 1984 amendments also added the language requiring 

that the Attorney General or her designee certify "that there 

is a substantial Federal interest in the case or the offense 

to warrant the exercise of Federal jurisdiction." 28 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 certification 

decisions, courts have been unimpressed with that 

contention and have held that this aspect of the 

certification decision, like the other aspects described 

above, is unreviewable. The Eleventh Circuit so held in 

United States v. I.D.P., 102 F.3d 507 (11th Cir. 1996), 

stressing that, although the statute provided a list of 

factors for a court to consider in determining whether to 

grant a motion to transfer, none was a factor by which a 

_________________________________________________________________ 

4. Interestingly, the court cited to Juvenile Male, but did not cite to 

Vancier. We assume that the court did not intend to overrule Vancier; 

therefore, we also assume that the court believed it 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. 

 9 
court could meaningfully determine whether there existed a 

substantial federal interest. See id. at 511. 

The court further reasoned that the determination 

whether a particular case presented a substantial federal 

interest was an administrative decision that turned on law 

enforcement considerations such as the general incidence 

of crime, the need for deterrence, enforcement priorities, 

and the like. See id. at 511-12. Such decisions, it noted, 

are best left to the prosecutors. Finally, the court examined 

the legislative history of the 1984 amendment, and 

concluded that this history suggested that Congress

intended the decision whether there existed a substantial 

federal interest to be left to the discretion of the 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 substantial 

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 certification 

was improper because the case did not present a 

substantial federal interest, and the district court denied 

his motion. The appeals court began by examining whether 

the district court had jurisdiction to review a § 5032 

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 Congress 

_________________________________________________________________ 

5. The court stated that "[i]t should be beyond serious argument that the 

courts should review compliance with the essentially technical 

requirements of § 5032, such as the proper certifying party, timeliness of 

the certification, inclusion of the statutory language, 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. There is no suggestion that 

the form of the certification is incorrect (for example, whether a 

prosecutor certified that the juvenile is charged with a crime not 

enumerated in the statute), that the certification was untimely filed, that 

an improper official made the certification, or that it was made in bad 

faith or for an improper purpose. Nor does evidence of such appear in 

the record. 

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

continued, it could find nothing in the statute that 

overcomes this strong presumption in favor of reviewability. 

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 Gutierrez de

Martinez v. Lamagno, ___ U.S. ___, 115 S. Ct. 2227 (1995), 

a case from which the concurrence also draws significant 

support, for the proposition that executive determinations 

are generally subject to judicial review. See Juvenile 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 for judicial 

review of § 5032 certifications, though it does provide 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., concurring). 

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 includes a 

list of factors a court is to consider when determining 

whether the motion to transfer the juvenile is appropriate. 

See id. at 1324-25.6 This lack of guidance suggested to 

Judge Wilkinson that Congress intended the determination 

whether to issue a certification to be left to the discretion 

of the Attorney General, limited only by the requirement 

that the case present a substantial federal interest. See id.

at 1325. 

Whether a case presents a substantial federal interest, 

Judge Wilkinson continued, turns on policy-based 

determinations of law enforcement priorities that are best 

left to the prosecutors. See id. Judge Wilkinson feared that 

allowing courts to review § 5032 certification decisions 

_________________________________________________________________ 

6. For permissive transfers, these factors include the six aspects of the 

"interest of justice" standard; for mandatory transfers, these factors 

include the age of the juvenile, the type of offense for which he has been 

charged, and his past criminal record. See supra at part I. 

 11 
would engender interbranch conflict as courts would

second-guess decisions decidedly executive (not judicial) in 

nature. See id. at 1325-26. Judge Wilkinson compared the 

§ 5032 certification decision to other, similar prosecutorial 

decisions that have traditionally been unreviewable. See id.

at 1326. Finally, Judge Wilkinson distinguished Gutierrez

de Martinez. He noted that in Gutierrez de Martinez the 

certification at issue was " `dispositive of a court 

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 certifications, 

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 federalism 

concerns implicated by § 5032 certifications upon which the 

concurring opinion relies. Whether a case presents a 

substantial federal interest does, of course, implicate 

federalism concerns. Such concerns, rooted in the debate 

over the proper relationship between the states and the 

federal government, are different in kind from law 

enforcement considerations. Concerns over law enforcement 

are best left to the discretion of prosecutors closest to these 

problems. Concerns over federalism, in contrast, might 

seem more properly considered by the courts. That review 

in contexts such as that presented here, however, depends 

on adequate statutory standards, and those standards are 

lacking. Even if they were present, the other factors 

weighing against judicial review of a certification of 

substantial federal interest (mentioned during our 

summary of the case law in the area) clearly prevail. 

The concurring opinion observes that the federal courts 

are experienced in making judgments as to matters such as 

_________________________________________________________________ 

7. Judge Wilkinson also noted that the Attorney General had argued in 

favor of judicial review. See Juvenile Male #1, 86 F.3d at 1326 n.2 

(Wilkinson, C.J., concurring). 

 12 
what 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 judgments 

within the framework of our jurisprudence.8 At all events, 

the exercise at issue here is more akin to policy making. 

The remaining rationale of the concurring opinion strikes 

us as somewhat ephemeral. It suggests that Congress

added the substantial federal interest requirement with the 

intent of reminding federal prosecutors of the strong 

interest the states have in juvenile justice. It also 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 their 

concern with the interests of federalism. These reasons 

seem speculative to us, and do not, in our view, reveal a 

congressional intent that the substantial federal interest 

certification be subject to judicial review. At all events, the 

arguments do not countervail the forceful contentions 

marshaled by our sister circuits in the opinions we have 

_________________________________________________________________ 

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 federal interest. That 

language, however, only provides examples. And, unfortunately, those 

examples are, for the most part, crimes that make up only a minuscule 

fraction of total federal crime, e.g., assaults on federal officials, hijacking, 

kidnaping, major espionage, and significant destruction of federal 

property. The only example given in the legislative history that deals with 

frequently occurring crimes is large-scale drug trafficking. It is 

interesting to note in this regard that federal courts have concurrent 

jurisdiction with the state courts over drug crimes, and the decision 

whether to prosecute drug crimes in the federal courts is generally left 

to the discretion of federal prosecutors. 

As an example of the difficulty presented by endeavoring to define 

standards against which phrases such as "substantial 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 the 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 for which the 

concurrence would call. See Judicial Conference of the United States, 

Long Range Plan for the Federal Courts 22-30 (1995). 

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

concurrence also notes that there must be a "finding" 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 Vancier and 

its progeny discussed above, and hold that, while we have 

jurisdiction to review a § 5032 certification only for 

technical defects, for whether a crime is one of violence, 

and for whether the certification was made in bad faith or 

for improper purposes, we have no jurisdiction to review 

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 there is 

a substantial federal interest.9 

B. Was the Certification Proper?

Having determined the extent of reviewability, we turn to 

the question whether the United States Attorney's § 5032 

certification was proper. The United States Attorney 

certified that the Virgin Islands had refused to exercise 

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 certification was 

improper for two reasons. First, he claims that one of the 

crimes for which he was charged, possession of a firearm, 

is not a crime of violence.10 Second, he contends that the 

case does not present a substantial federal interest. 

_________________________________________________________________ 

9. In our discussion, we have summarized precedent from other circuits 

addressing the reviewability of certifications based on the type of crime 

charged and based upon the lack of or refusal to assume jurisdiction 

over the juvenile by a state court. We are unaware of any court decision 

addressing a certification based upon the availability of services for the 

juvenile. It would appear, however, that such certifications should not be 

subject to review for the same reasons that we do not review whether 

there is a state court that will assume jurisdiction 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 arguing that the existence 

 14 
Under § 5032, the federal prosecutor need only certify to 

one of the following: (1) that there is no appropriate 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 there was 

a substantial federal interest sufficient to warrant the 

exercise of jurisdiction. Because the federal prosecutor here 

certified that no state court would exercise jurisdiction over 

the prosecution of the juvenile, which as we have explained 

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 need 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 as to 

effectively insulate the certification from our review. 

IV. MANDATORY TRANSFER UNDER § 5032 

We turn finally to the second step in the § 5032 exercise 

-- the question of the correctness of the district court's 

order transferring the juvenile to adult status. Our 

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 district court 

approved the transfer of the juvenile to federal district court 

under the so-called mandatory transfer provisions of 

§ 5032. Because the § 5032 mandatory transfer provisions 

require the district court to order a transfer given certain 

factual and legal predicates, we believe an abuse of 

discretion standard is inappropriate. Rather, we will subject 

_________________________________________________________________ 

of one non-violent crime amidst a slew of violent crimes renders the 

certification improper, at least with respect to that 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. 

 15 
the district court's legal conclusions to plenary review and 

its factual findings to clearly erroneous review. 

Under the mandatory transfer provisions, and contingent 

on a proper certification, a juvenile's case must be 

transferred to federal district court if three factors are 

present. First, the juvenile must have committed the 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 of 

physical force against the person of another, or[(2)] by its 

very nature, involves a substantial risk that physical force 

against the person of another may be used in committing 

the offense," or is one that has been enumerated in the 

statute. Third, the juvenile must previously have been 

convicted of a crime that satisfies the second factor. 

The juvenile does not challenge the district court's 

findings as to the first and third factors (he committed the 

act in question while he was seventeen years old, and he 

has previously been found guilty of robbery in thefirst 

degree). We see no reason to question them. Turning to the 

second factor, the juvenile was charged with violating 

§ 2251(a)(2), which prohibits the possession of dangerous 

weapons; Section 2251(a)(2) is a felony because it is 

punishable by a term of imprisonment greater than one 

year. See 18 U.S.C. § 1(1) (defining felony as "[a]ny offense 

punishable by death or imprisonment for a term exceeding 

one year"). The juvenile nonetheless contends that the 

possession crime for which he was charged still does not 

satisfy the second factor in the § 5032 mandatory transfer 

provisions.11 

_________________________________________________________________ 

11. The juvenile's argument assumes that for the purposes of § 5032 we 

may look only to the conduct alleged in the possession count to 

determine whether § 2251(a)(2) satisfies the requirements of the second 

part of the second factor of the § 5032 mandatory transfer provisions. In 

other words, the juvenile seems to assume that § 5032 requires a 

categorical approach, rather than a fact-specific approach, to 

determining whether a particular crime satisfies the § 5032 

requirements. That assumption draws support from our discussion of 

the definition of a crime of violence in the Sentencing Guidelines. See

United States v. Joshua, 976 F.2d 844, 850-56 (3d Cir. 1992). In Joshua, 

 16 
The crime challenged by the juvenile punishes those who, 

"with intent to use the same unlawfully against another, 

has, possesses, bears, transports, carries or has under 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). Clearly, 

§ 2251(a)(2) does not satisfy the requirements of the first 

part of the second factor, because no element of 

§ 2251(a)(2) involves the "use, attempted use, or threatened 

use of physical force." However, just as clearly, § 2251(a)(2) 

satisfies the requirements of the second part of the second 

factor, which requires that the charged offense by its very 

nature involves a "substantial risk that physical force . . . 

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 that 

physical force . . . may be used." Therefore, § 2251(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 crime of violence" 

because it creates a risk of the use of physical force. 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 requirements 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 of the victims, and, at 

some point, fired it, thereby creating a substantial 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 violence, though not 

defined in § 5032, is defined at 18 U.S.C. § 16. The language of the 

second factor of the § 5032 mandatory transfer provisions 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 substantial 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 requirements of the 

second part of the second factor of the § 5032 mandatory transfer 

provisions. 

 17 
satisfies the second factor of the § 5032 mandatory transfer 

provisions.13 

_________________________________________________________________ 

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 crimes 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 injury to another" is a crime 

of violence. See id. § 4B1.2(1)(ii). Prior to the amendment, this definition 

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 crime 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-possession 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 threat 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 activity 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 guidelines. 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-possession 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 imply intent to use. The 

intent to use, in turn, creates the substantial risk of the use of physical 

force. The amendment to the Guidelines eliminated the inferential leap 

courts had been taking in interpreting § 922(g)(1); in other words, the 

Sentencing Commission made it impermissible for a court 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 intended to use the 

weapon. The amendment did not, however, affect the reasoning that the 

intent to use a weapon created a substantial risk of the use of physical 

 18 
Because we believe the district court did not err in 

finding that each of the three mandatory transfer provision 

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. 

_________________________________________________________________ 

force. At least a part of the reasoning of the felon-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, requires proof of the very 

element that courts interpreting § 922(g)(1) had been 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 physical force. We do so 

here. 

 19 
WEIS, Circuit Judge, concurring. 

I. 

Analysis of the scope of judicial review of the 

government's certification under the Juvenile Delinquency 

Act, 18 U.S.C. § 5032, must begin with the following 

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 believe that 

such was the purpose of Congress.' " Gutierrez de Martinez

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 was 

susceptible to divergent interpretations, the Court adopted 

a construction consistent with "traditional understandings 

and basic principles: that executive determinations

generally are subject to judicial review and that mechanical 

judgments are not the kind federal courts are set up to 

render." Id. at 2236. 

Using Lamagno as a guide, the question is whether there 

is "persuasive reason" to believe that Congress intended to 

limit the scope of judicial review of section 5032 

certifications to technical compliance and prosecutorial bad 

faith. Not only do careful studies of the statutory language 

and its legislative history fail to reveal a convincing ground 

to limit judicial review, they also disclose Congress' 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 interest in 

the case or the offense," the prosecution may proceed 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 juvenile 

delinquency proceedings, the Senate Committee stated: 

 20 
The essential concepts of the 1974 Act are that juvenile 

delinquency matters should generally be handled by 

the States and that criminal prosecution of juvenile 

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 conduct 

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 grounded on a 

"finding" that 

the nature of the offense or the circumstances of the 

case give rise to special Federal concerns. Examples of 

such cases could include an assault on, or 

assassination of, a federal official, an aircraft hijacking, 

a kidnaping where State boundaries are crossed, a 

major espionage or sabotage offense, participation in 

large-scale drug trafficking, or significant and willful 

destruction of property belonging to the United States. 

Id. at 389 reprinted in id. at 3529. 

By requiring a certification by the Attorney General, 

Congress emphasized that the decision to place a juvenile 

case within federal jurisdiction must be neither casual nor 

routine, but should be carefully considered. The existence 

of this restraint is in sharp contrast to the typical adult 

criminal case in which a federal prosecutor may choose 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, significantly, is 

unfettered by a certification requirement. 

Rather than extend such unlimited discretion to the

prosecutor's decision to initiate juvenile proceedings in 

federal court, Congress included the certification 

requirement to remind federal prosecutors of the strong 

interests that states have in juvenile justice. That 

 21 
consideration leads to the related inference that, rather 

than being adverse to judicial review, Congress approves it 

as a method of enforcing its policy in favor of state 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 "finding" 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 General 

has delegated to the United States Attorney in the 

appropriate district the authority to provide the requisite 

certification. The certification process, therefore, is not 

administered at the national level, but is applied in a local 

context where parochial concerns become more influential. 

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 complexities of 

federalism. Given the experience of the federal bench in 

questions of federal-state relations, it would be expected 

that Congress would vest oversight of these important 

procedures in the judiciary rather than in the local United 

States Attorney. At the very least, that inference should 

govern absent a clear indication to the contrary from 

Congress. 

The strong language in Lamagno favoring judicial review 

differs dramatically from the view taken by the Courts 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 certifications under 

18 U.S.C. § 5032. Both pre-dated Lamagno and, 

consequently, their persuasive value has been substantially 

undermined. In addition, the "substantial federal interest" 

qualification, which was added to the Juvenile Delinquency 

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 Circuit 

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

holding that the courts may not review certifications to 

determine the existence of a substantial federal interest. In 

its review of the legislative history, I.D.P. observed that the 

Senate Report referred to a predecessor bill that set forth 

standards for the Attorney General to follow. The Court, 

however, did not discuss the fact that the earlier bill 

contained a provision barring judicial review of 

certifications -- a provision that eventually was removed. In 

my view, the deliberate deletion of that prohibition not only 

shows that Congress knew how to ban review if it wished 

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 federal 

jurisdiction had been expanded in the 1984 amendments to 

the Juvenile Delinquency Act. Viewing the legislative history 

as inconsistent with the grant of unreviewable discretion to 

the prosecutor, Juvenile Male #1 held that the strong 

presumption in favor of judicial review so forcefully 

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 substantive 

review. See C.G., 736 F.2d at 1478; Vancier, 515 F.2d at 

1380. This reasoning is somewhat puzzling. It implies that 

the United States Attorneys will be able to apply the statute 

despite the absence of standards, but that the courts are 

unable to cope with the task of review in similar 

circumstances. If the federal prosecutors had the same 

broad discretion as they do when adult prosecutions are 

contemplated, that rationale might be justified. But, as 

noted earlier, Congress made it clear that the federal 

prosecutor's authority in the juvenile delinquency setting 

remains limited. Moreover, judicial deference is especially 

questionable here because at stake are issues of federalism 

 23 
and the limitations of federal prosecutorial authority -- 

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, which 

explicitly stated that "the Federal Government will continue 

to defer to State authorities for less serious juvenile 

offenses," addresses this concern. The Senate Report cited 

certain examples of offenses raising special federal 

interests. Although Congress did not repeat these 

standards in the statute itself, they are helpful guideposts, 

and there is no indication that Congress intended them to 

inform the prosecutor's decision, but not the court's. 

Finally, the search for a substantial federal interest 

cannot be any more difficult than, for example, "the judicial 

struggle to interpret the Commerce Clause during the 

transition from the economic system the Founders knew to 

the single, national market still emergent in our own era." 

United States v. Lopez, 115 S.Ct. 1624, 1634 (1995) 

(Kennedy, J., concurring). Whether the interpretative 

question is constitutional or statutory, the judiciary must 

provide an answer no matter how nebulous the standard. I 

believe that the federal courts have both the competence 

and the duty to review the certifications in section 5032 

and that we should undertake that task in this case. 

II. 

I agree with the majority that the dispositive issue in this 

case is whether it was properly transferred under clause (1) 

of § 5032 because the Territorial Government had 

relinquished jurisdiction. To arrive at its conclusion, the 

majority says it is bound to accept the certification's 

statement to that effect because it is unreviewable. 

Rather than simply accept the United States Attorney's 

certification on its face, I have reviewed the record and 

found that it provides undisputed evidence that the

Attorney General of the Virgin Islands abandoned its 

prosecution of the juvenile and so informed the United 

States Attorney. I perceive no difference between a state's 

refusal to assume jurisdiction from the outset, see United

 24 
States 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 conflict of the 

sovereigns' interests. When the state agrees to step aside, 

federalism concerns fade into the background. The 

certification therefore withstands review. 

In addition, I fully agree with the majority's opinion that, 

after assuming jurisdiction, the district court properly 

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