F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

D E M A R I O F

. E D W

A R D S , Defendant-Appellant

. N o. 12-10204

D.C. No. 2:11-cr-00357- L DG-PAL -1

OPI NI ON

A ppeal from the United States District Court for the District of Nevada L loy d D. Georg e, Senior District J udg e, Presiding

Submitted J une 14, 2013 * Submission W ithdrawn Resubmitted Aug ust 8, 2013 San F rancisco, California

F iled Aug ust 15, 2013

B efore: Mary

M. Schroeder, Kenneth F . Ripple, * * and Consuelo M. Callahan, Circuit J udg es.
Opinion by

J udg e Schroeder

* T h e p a n e l u na n im o u sly co n clu d es th is case is su itab le f o r d ecisio n

w ith o u t o ral arg u

m en t. S ee Fed . R. A pp . P . 3 4 (a)(2 ).

** T h e H o n o rab le Ken n eth F. Rip p le, S en io r Un ited States Circu it J u dg e f o r th e Sev en t

h Circu it, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. E D W A R D S 2

SUMMARY * * *

Crim inal Law

T h e panel vacated a sentence and remanded fo r resentencing without any enhancement for a prior “crime o f violence” conviction.

R e j e c t i n g t h e d e f

e n d a n t ’ s c h a l l e n g e t o t h e constitutionality of U.S.S.G. § 4A1.2(d)(2)(A), which as sig ns criminal history points for crimes committed when the defendant was a juvenile, th e p a n e l held that the Eig hth Amendment permits courts to use prior juvenile convictions to increase the sentence of an adult convicted of a crime.

The panel noted the g overnment’s concession that t h e Nevada a ttempted burg lary statute, Nev. Rev. Stat. § 205.060, is not a divisible statute and that the modified categ orical approach is therefore inapplicable under Descamps v. United State s , 133 S. Ct. 2276 (2013). Observing that the
g overnment has never contended in this litig ation that the burg lary statute is categ orically a cr i m e of violence under U.S.S.G. § 4 B 1.2, the panel vacated the crime-of-v i o l e nce enhancement under U.S.S.G. § 2K2.1(a)(4)(A).

*** T h is su

m m ary co n stitu

tes n o p art o f

th e o p in io n

o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. E D W A R D S 3

COUNSEL

Chad A. B owers, L as V eg as, Nevada, for D efendantAppellant.

Daniel G. B og d en, U nited States Attorney
, Robert L

. Ellman, Appellate Chief, A dam M. F lake, Assis t a nt United States Attorney
, D istrict of N evada, L as Veg as, Nevad a , for Plaintiff-Appellee.

OP INION

SCHROEDER, Circuit J udg e:

DeMario Edwards a

ppeals h i s 4 6-month sentence following a g u ilty p lea for possession o f a firearm by a felon in violation of 1 8 U.S.C. §§ 922(g )(1) & 92 4 ( a) ( 2 )

. The principal issue on appeal is the constitutionality of a provision of the federal Sentencing Guidelines that ass i gn s criminal history points f

o r crimes that were committed when the defendant was a juvenile. U.S. Sen tencing Guidelines (“U.S.S.G.”) § 4A1.2(d)(2)(A). Edwards cont e n ds that considering such crimes in sentencing adults is contrary to the Supreme Court’s Eig hth Amendment cases limiting the deg ree of criminal punishment of juveni l e s. See Miller v

. Alabama
, 132 S. Ct. 2455 (2012); Gr aham v. Florida
, 130 S. Ct

. 2 0 1 1 (2010); Roper v. Simmons
, 543 U.S. 551 (2005). J oining the u n a n i mously held view of our sister circuits, we conclude that the Eig hth Amendment permits
courts to use prior juveni l e convictions to increase the sentence of an adult convicted of a crime.U N I T E D S T A T E S V

. E D W A R D S 4

Edwards further c h a l l e n g e s the district court’s finding that his prior conviction f

or attempted burg lary under Nevada law

was a “crime of v iolence” under the modified ca t e go r i cal approach, thereby incr e a s ing the base offense level for
purposes of the Sentencing Guidelines. The district co u r t looked b ey ond the elements of the Nevada burg lary statute to the charg ing document and g uilty p lea to hold that E dwards’s conduct, in atte m p t i ng to burg lariz e an occupied apartment, created a r isk of phy sical injury and was therefore a crime o f violence. W hile this appeal was pendi n g, however, the Supreme Court l imited application of the modified categ orical approach a

n d held that c ourts ma y not use judicially notice a b l e documents to identify f acts underly

ing

a prior conviction. See Descamps v. United States
, 133 S. Ct. 2276 (2013). The g overnment concedes that the application of the modified categ orical approach in th i s c a s e would be contrary to D escamps , and it has n e ver contended that a Nevada b urg lary conviction is a categ orical crime o f violence. We must therefore vacate a n d remand for resentencing

without the “crime of violence” enhancement.

BACK G ROUND

I n h i s short life, Edwards, who is now 23 y ears old, h a s

a c cumulated a long and serious c riminal history

. He was twice convicted as a j u v e n i le, at ag es 1 4 and 16, of felony robbery with a deadly

weapon. At ag e 17, he was convicted

as a juvenile for felony possession of marijuan a w ith the intent to sell.

Edwards has continued his criminal activity into adulthood. At ag e 19, he was c harg ed with attempt ed burg lary under Nevada law. I n the charg ing document
, t h e S tate alleg ed that E d

wards had “willfully
, unlawfully a n dU N I T E D S T A T E S V

. E D W A R D S 5

feloniously attempt[ ed] to enter, with intent to commit larceny
, that certain [ apartment] building

. . . occupied b y [ the victim] .” Edwards p leaded g uilty to the offense and was sentenced to 18 months probation.

W h ile on probation for attempted burg lary
, parole of f i c e rs found Edwards in po s s es sion of a stolen .45 caliber pistol. This led to the indictment in this case for possession of a firearm by a convicted felon in violation of 18 U .S.C. §§ 922(g )(1) and 924(a)(2). Edwards pleaded g uilty

.

I n calculating criminal history
, the Sentencing Guidelines impos e a two-point increase for each adult or juvenile conviction before the defendant was 18 y ears old, that had a

max imum sentence of at leas t 6 0 day s a nd occurred within the five y ears preceding the commission of the crime for which the defendant i s being sentenced. U.S.S.G. § 4A1.2(d)(2)(A). T h e pre-sentence report f ound that two o f Edwards’s j u v e nile convictions—robbery with a deadly
weapon at ag e 16 and possession of marijuana with the intent
to sell at ag e 17—met these r e q uirements. The report f

urther

re c o m m e nded that the district court find that E dwards’s attempt ed burg lary o ffense was a “crime of violence” a s defined by U.S.S.G. § 4B 1.2, r esulting in a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A).

The district court sentenced Edwards to 46 months
, the bottom of the Guidelines range

. The court, rejecting Edwards’s constitutional arg uments, ruled that counting the juvenile convict i o n s to determine criminal history was permissible. The court fur t h er held that, pursuant to the j u d i c i a l l y n oticeable documen t s , E d w a r d s ’ s N e v a d a

a ttempted burg lary conviction involved a risk of phy s i c al injury to the victim and w as therefore a “crime of violence.”U N I T E D S T A T E S V

. E D W A R D S 6

The court based its decision on Edwards’s guilty plea to attempting to burg lariz e an occupied apartment. On appeal, Edwards c halleng es the assig nment of criminal history points for juvenile convictions pursuan t t o the Sentencing Guidelines and the findin g t hat his attempted burg lary plea under Nevada law was for a “crime of violence.”

D ISCUSSION

I. Consideration of Juvenile Crim inal History in Determ ining the Sentence for an Adult Convicted of a Crim e Does Not Violate the Eighth Am endm ent

Edwards c ontends that his juvenile crimes should not have been u sed to calculate h is criminal history score and, a s

a result, his sentence. He ar gu e s that the use of these adjudications is unconstitutional under the Supreme Court’s
recent decision in Roper
, 543 U.S. at 569–70, where the Court struck down the application of t h e d e at h p enalty to individuals who committed a capital offense prior to ag e 18, and Roper ’s prog eny , Graham
, 130 S. Ct. at 2034, w here the Court held that a life without p arole sentence for juveniles convicted of non-homicide o f f e n s e s w a s u

n c o n s titutional, a

nd Miller
, 1 32 S. Ct. at 2475, w here the Court h eld that statutes mandating life without parole sentences are unconstitutional as applied to juveniles.

W e reject Edwards’s c ontention and h old that these recent Eig hth Amendm e n t cases do not prevent the d istrict court from assig n in g cr iminal history points for juvenile convictions. I n so holding, w e join the unanimous view o f

our sister circuits, which h ave affirmed t h e u se of juvenile convictions to determine criminal history of adults. See United States v. Graham
, 622 F

. 3d 445, 461–64 (6th Cir.U N I T E D S T A T E S V

. E D W A R D S 7

2010) (affirming u se of prior juvenile drug conviction in determi n i n g sentence under 21 U.S.C. § 841(b)(1)(A)); United States v. Scott
, 610 F .3 d 1009, 1018 (8th Cir. 2 010) ( s ame); United States v. Mays
, 466 F .3d 335, 339–4 0 ( 5 t h Cir. 2 006) ( same); United States v

. Salahuddin
, 509 F .3d 858, 863–64 (7th Cir. 2007) ( u p holding sentence increase under the A r m e d Career Criminal Act based o n juvenile criminal histor y ) ; U

nited States v

. W

ilks
, 464 F .3d 1240, 1242–43 (11th Cir. 2006) (same).

Th e Supreme Court’s recent Eig hth A mendment jurisprudence o n criminal punishment for juvenile conduct is animated by the concern that individuals are less culpable for conduct that they eng ag ed in as juveniles as c o m p a red with adult c onduct. As t h e C o u r t stated in Roper
, “[ t] he susceptibility of juveniles to imma t u r e and irresponsible behavior means their irresponsible conduct is not as morally reprehensi b l e a s t h at of an adult.” 543 U.S. at 570 (internal quotation marks omitted). The Court was further concerned with the harshness a

nd disproportionali t y o f death and life without p arole sentences, the elimination of the possibility o f rehabilitation, and the emerg ing consensus ag ainst such harsh punishments for juveniles. Miller
, 132 S. Ct. at 2465–66; Graham , 130 S. Ct. at 2027–30; Roper , 543 U.S. at 575–78.

Enhancing Edwards’s sentence for adult criminal conduct because he c ommitted c rimes as a juvenile does not implicate
any of the s e c oncerns. T h e conduct for which Edwards is being punished occurred while he was a n adult, not a juvenile as in Roper
, Graham , and M iller . His adult culpability with
reg ard to the c rime for which he is being sentenced therefore is not diminished. As the E ig hth Circuit noted, R o per a nd Graham “e s t a blished constitutional limits o n c ertain
sentences for offenses committed by juvenile s ”—not forU N I T E D S T A T E S V

. E D W A R D S 8

offenses committed a s a n adult. Scott
, 610 F .3d at 1018. M oreover, the prior juvenile convictions d o not serve as a predicate for a life sentence, as has been criticiz ed in a threest rikes situation. See United States v. Graham
, 622 F .3d at 469–70 (Merritt, J
., dis s e n t ing ). T here has also been no showing
, like that the Court observed in Ro p e r , o f an emerg ing national or international c onsensus ag ainst this ty pe of senten ci n g enhancement. I n fact, a s the F ifth Circuit has

sa i d
, “at the federal level, sentences are routinely enhanced under th e s entencing g uidelines based upon juvenile convictions.” Mays , 466 F .3d at 340.

II. The D i s trict Court’s Application of the Modif ied Categorical Approach to Determ ine that Edw a rds’s P rior A t tem pted Burglary C onviction w as f or a “Crim e of

Violence” Does Not Survive Descam ps

Under the Sentencing G uidelines, individuals convicted of firearm offenses are subject to an enha ncement to a base offense level of 2 0 if they h ave been previously convicted o f

a “crime of violence.” U .S.S.G. § 2K2.1(a). The Guidelines define “crime of violence” as any offense that either “has a s

an elem en t the use, a ttempted u se, or threatened use o f phy sical force ag ai n s t t h e person of another” or “is burg lary of a dwelling
, ar s o n , o r ex tortion, involves the use o f

ex p losives, or otherwise involves conduct tha t p resents a serious potential risk o f phy sical injury to another.” U.S.S.G. § 4B 1.2(a).

Edwards p leaded g uilty to attempted burg lary in violation of Nevada law. See Nev. R e v

. S t at. § 205.060. Edwards
arg ued that his conviction was not for a crime of violence because a ttempted burg lary d oes n ot c reate a risk of injury

. The district court looked bey ond the elements of the NevadaU N I T E D S T A T E S V

. E D W A R D S 9

o f f e n se to the judicially noticeable charg ing document a n d
g uilty plea i n r e a ching its conclusion that Edwards’s actual conduct was the attempted b u rg lary of an occupied

a p artment, which created a r isk of phy sical injury a nd w a s therefore a crime of violence pursuant to U.S.S.G. § 4B 1.2(a).

Under our law prior to the Supreme Court’s recent decision in Descamps
, we would h ave affirmed this concl u s ion, as the attempted burg lary of an occupied apartment presents a risk of face-to-face confrontat ion between the burg lar and the potential victim, a by stander, or

a police officer that may come to investig ate. S e e United States v. Park
, 649 F .3d 1175, 1179 (9th Cir. 2011); see also United States v. Terrell
, 5 9 3 F .3d 1084, 109 3–94 (9th Cir. 2010); U nited States v. Mayer
, 5 60 F .3d 948
, 9 6 1 (9th Cir. 2009).

Bu t D e scamps has now limited the use of the modified

c a t e go rical approach. I t is appropriate to look to judicially noticeable documents only where the state statute at issue is divisible, that is when it has multiple, alternative elements, and the c ourt is attempting to determine the set of elements to which the defendant pleaded g uilty

. Descamps
, 133 S. Ct. at 2285. The g overnment concedes in a supplemental brief addressing Descamps , however, that for the purposes of this

case the Nevada attempted burg lary statute is n ot a d ivisible
statute and that the modified categ o rical a pproach is therefore inapplicable. The g overnment h as further never contended in this litig ation that the burg lary statute is categ orically a crime of violence. W e must therefore vacate Edwards’s s e ntence and remand for resentencing without the “crime of violence” enhancement.U N I T E D S T A T E S V

. E D W A R D S 10

CONCLUSION

W e f ind no error w ith respect to the district court’s calculation of Edwards’s criminal history
, b u t we nevertheless VACATE the sentence a n d REMAND the
matter for r esentencing w ithout any enhancement to the offense level for a prior “crime of violence” conviction.