FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEMARIO F. EDWARDS,

Defendant-Appellant.

No. 12-10204

D.C. No.

2:11-cr-00357-

LDG-PAL-1

OPINION

Appeal from the United States District Court

for the District of Nevada

Lloyd D. George, Senior District Judge, Presiding

Submitted June 14, 2013*

Submission Withdrawn

Resubmitted August 8, 2013

San Francisco, California

Filed August 15, 2013

Before: Mary M. Schroeder, Kenneth F. Ripple,**

and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Schroeder

* The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

** The Honorable Kenneth F. Ripple, Senior United States Circuit Judge

for the Seventh Circuit, sitting by designation.
2 UNITED STATES V. EDWARDS

SUMMARY***

Criminal Law

The panel vacated a sentence and remanded for

resentencing without any enhancement for a prior “crime of

violence” conviction.

Rejecting the defendant’s challenge to the

constitutionality of U.S.S.G. § 4A1.2(d)(2)(A), which assigns

criminal history points for crimes committed when the

defendant was a juvenile, the panel held that the Eighth

Amendment permits courts to use prior juvenile convictions

to increase the sentence of an adult convicted of a crime.

The panel noted the government’s concession that the

Nevada attempted burglarystatute, Nev. Rev. Stat. § 205.060,

is not a divisible statute and that the modified categorical

approach is therefore inapplicable under Descamps v. United

States, 133 S. Ct. 2276 (2013). Observing that the

government has never contended in this litigation that the

burglary statute is categorically a crime of violence under

U.S.S.G. § 4B1.2, the panel vacated the crime-of-violence

enhancement under U.S.S.G. § 2K2.1(a)(4)(A).

 

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. EDWARDS 3

COUNSEL

Chad A. Bowers, Las Vegas, Nevada, for DefendantAppellant.

Daniel G. Bogden, United States Attorney, Robert L. Ellman,

Appellate Chief, Adam M. Flake, Assistant United States

Attorney, District of Nevada, Las Vegas, Nevada, for

Plaintiff-Appellee.

OPINION

SCHROEDER, Circuit Judge:

DeMario Edwards appeals his 46-month sentence

following a guilty plea for possession of a firearm by a felon

in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). The

principal issue on appeal is the constitutionality of a provision

of the federal Sentencing Guidelines that assigns criminal

history points for crimes that were committed when the

defendant was a juvenile. U.S. Sentencing Guidelines

(“U.S.S.G.”) § 4A1.2(d)(2)(A). Edwards contends that

considering such crimes in sentencing adults is contraryto the

Supreme Court’s Eighth Amendment cases limiting the

degree of criminal punishment of juveniles. See Miller v.

Alabama, 132 S. Ct. 2455 (2012); Graham v. Florida,

130 S. Ct. 2011 (2010); Roper v. Simmons, 543 U.S. 551

(2005). Joining the unanimously held view of our sister

circuits, we conclude that the Eighth Amendment permits

courts to use prior juvenile convictions to increase the

sentence of an adult convicted of a crime.
4 UNITED STATES V. EDWARDS

Edwards further challengesthe district court’s finding that

his prior conviction for attempted burglary under Nevada law

was a “crime of violence” under the modified categorical

approach, thereby increasing the base offense level for

purposes of the Sentencing Guidelines. The district court

looked beyond the elements of the Nevada burglary statute to

the charging document and guilty plea to hold that Edwards’s

conduct, in attempting to burglarize an occupied apartment,

created a risk of physical injury and was therefore a crime of

violence. While this appeal was pending, however, the

Supreme Court limited application of the modified

categorical approach and held that courts may not use

judicially noticeable documents to identify facts underlying

a prior conviction. See Descamps v. United States, 133 S. Ct.

2276 (2013). The government concedes that the application

of the modified categorical approach in this case would be

contrary to Descamps, and it has never contended that a

Nevada burglary conviction is a categorical crime of

violence. We must therefore vacate and remand for

resentencing without the “crime of violence” enhancement.

BACKGROUND

In his short life, Edwards, who is now 23 years old, has

accumulated a long and serious criminal history. He was

twice convicted as a juvenile, at ages 14 and 16, of felony

robbery with a deadly weapon. At age 17, he was convicted

as a juvenile for felony possession of marijuana with the

intent to sell.

Edwards has continued his criminal activity into

adulthood. At age 19, he was charged with attempted

burglary under Nevada law. In the charging document, the

State alleged that Edwards had “willfully, unlawfully and
UNITED STATES V. EDWARDS 5

feloniously attempt[ed] to enter, with intent to commit

larceny, that certain [apartment] building . . . occupied by [the

victim].” Edwards pleaded guilty to the offense and was

sentenced to 18 months probation.

While on probation for attempted burglary, parole officers

found Edwards in possession 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 guilty.

In calculating criminal history, the Sentencing Guidelines

impose a two-point increase for each adult or juvenile

conviction before the defendant was 18 years old, that had a

maximum sentence of at least 60 days and occurred within

the five years preceding the commission of the crime for

which the defendant is being sentenced. U.S.S.G.

§ 4A1.2(d)(2)(A). The pre-sentence report found that two of

Edwards’s juvenile convictions—robbery with a deadly

weapon at age 16 and possession of marijuana with the intent

to sell at age 17—met these requirements. The report further

recommended that the district court find that Edwards’s

attempted burglary offense was a “crime of violence” as

defined by U.S.S.G. § 4B1.2, resulting 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 arguments, ruled that counting the

juvenile convictions to determine criminal history was

permissible. The court further held that, pursuant to the

judicially noticeable documents, Edwards’s Nevada

attempted burglary conviction involved a risk of physical

injury to the victim and was therefore a “crime of violence.” 
6 UNITED STATES V. EDWARDS

The court based its decision on Edwards’s guilty plea to

attempting to burglarize an occupied apartment. On appeal,

Edwards challenges the assignment of criminal history points

for juvenile convictions pursuant to the Sentencing

Guidelines and the finding that his attempted burglary plea

under Nevada law was for a “crime of violence.”

DISCUSSION

I. Consideration of Juvenile Criminal History in

Determining the Sentence for an Adult Convicted of a

Crime Does Not Violate the Eighth Amendment

Edwards contends that his juvenile crimes should not

have been used to calculate his criminal history score and, as

a result, his sentence. He argues 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 the death penalty to

individuals who committed a capital offense prior to age 18,

and Roper’s progeny, Graham, 130 S. Ct. at 2034, where the

Court held that a life without parole sentence for juveniles

convicted of non-homicide offenseswas unconstitutional, and

Miller, 132 S. Ct. at 2475, where the Court held that statutes

mandating life without parole sentences are unconstitutional

as applied to juveniles.

We reject Edwards’s contention and hold that these recent

Eighth Amendment cases do not prevent the district court

from assigning criminal history points for juvenile

convictions. In so holding, we join the unanimous view of

our sister circuits, which have affirmed the use of juvenile

convictions to determine criminal history of adults. See

United States v. Graham, 622 F.3d 445, 461–64 (6th Cir.
UNITED STATES V. EDWARDS 7

2010) (affirming use of prior juvenile drug conviction in

determining sentence under 21 U.S.C. § 841(b)(1)(A));

United States v. Scott, 610 F.3d 1009, 1018 (8th Cir. 2010)

(same); United States v. Mays, 466 F.3d 335, 339–40 (5th

Cir. 2006) (same); United States v. Salahuddin, 509 F.3d 858,

863–64 (7th Cir. 2007) (upholding sentence increase under

the Armed Career Criminal Act based on juvenile criminal

history); United States v. Wilks, 464 F.3d 1240, 1242–43

(11th Cir. 2006) (same).

The Supreme Court’s recent Eighth Amendment

jurisprudence on criminal punishment for juvenile conduct is

animated by the concern that individuals are less culpable for

conduct that they engaged in as juveniles as compared with

adult conduct. As the Court stated in Roper, “[t]he

susceptibility of juveniles to immature and irresponsible

behavior means their irresponsible conduct is not as morally

reprehensible as that of an adult.” 543 U.S. at 570 (internal

quotation marks omitted). The Court was further concerned

with the harshness and disproportionality of death and life

without parole sentences, the elimination of the possibility of

rehabilitation, and the emerging consensus against 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.

EnhancingEdwards’s sentence for adult criminal conduct

because he committed crimes as a juvenile does not implicate

any of these concerns. The conduct for which Edwards is

being punished occurred while he was an adult, not a juvenile

as in Roper, Graham, and Miller. His adult culpability with

regard to the crime for which he is being sentenced therefore

is not diminished. As the Eighth Circuit noted, Roper and

Graham “established constitutional limits on certain

sentences for offenses committed by juveniles”—not for
8 UNITED STATES V. EDWARDS

offenses committed as an adult. Scott, 610 F.3d at 1018. 

Moreover, the prior juvenile convictions do not serve as a

predicate for a life sentence, as has been criticized in a threestrikes situation. See United States v. Graham, 622 F.3d at

469–70 (Merritt, J., dissenting). There has also been no

showing, like that the Court observed in Roper, of an

emerging national or international consensus against this type

of sentencing enhancement. In fact, as the Fifth Circuit has

said, “at the federal level, sentences are routinely enhanced

under the sentencing guidelines based upon juvenile

convictions.” Mays, 466 F.3d at 340.

II. The District Court’s Application of the Modified

Categorical Approach to Determine that Edwards’s

Prior Attempted Burglary Conviction was for a

“Crime of Violence” Does Not Survive Descamps

Under the Sentencing Guidelines, individuals convicted

of firearm offenses are subject to an enhancement to a base

offense level of 20 if they have been previously convicted of

a “crime of violence.” U.S.S.G. § 2K2.1(a). The Guidelines

define “crime of violence” as any offense that either “has as

an element the use, attempted use, or threatened use of

physical force against the person of another” or “is burglary

of a dwelling, arson, or extortion, involves the use of

explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another.” U.S.S.G.

§ 4B1.2(a).

Edwards pleaded guilty to attempted burglary in violation

of Nevada law. See Nev. Rev. Stat. § 205.060. Edwards

argued that his conviction was not for a crime of violence

because attempted burglary does not create a risk of injury. 

The district court looked beyond the elements of the Nevada
UNITED STATES V. EDWARDS 9

offense to the judicially noticeable charging document and

guilty plea in reaching its conclusion that Edwards’s actual

conduct was the attempted burglary of an occupied

apartment, which created a risk of physical injury and was

therefore a crime of violence pursuant to U.S.S.G. § 4B1.2(a).

Under our law prior to the Supreme Court’s recent

decision in Descamps, we would have affirmed this

conclusion, as the attempted burglary of an occupied

apartment presents a risk of face-to-face confrontation

between the burglar and the potential victim, a bystander, or

a police officer that may come to investigate. See United

States v. Park, 649 F.3d 1175, 1179 (9th Cir. 2011); see also

United States v. Terrell, 593 F.3d 1084, 1093–94 (9th Cir.

2010); United States v. Mayer, 560 F.3d 948, 961 (9th Cir.

2009).

But Descamps has now limited the use of the modified

categorical approach. It 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 court is attempting to determine the set of elements to

which the defendant pleaded guilty. Descamps, 133 S. Ct. at

2285. The government concedes in a supplemental brief

addressing Descamps, however, that for the purposes of this

case the Nevada attempted burglary statute is not a divisible

statute and that the modified categorical approach is therefore

inapplicable. The government has further never contended in

this litigation that the burglary statute is categorically a crime

of violence. We must therefore vacate Edwards’s sentence

and remand for resentencing without the “crime of violence”

enhancement.
10 UNITED STATES V. EDWARDS

CONCLUSION

We find no error with respect to the district court’s

calculation of Edwards’s criminal history, but we

nevertheless VACATE the sentence and REMAND the

matter for resentencing without any enhancement to the

offense level for a prior “crime of violence” conviction.