## F I L E D United States Court of Appeals Tenth Circuit 

### APR 5 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 04-2145 MCQUADE Q. (a juvenile), Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. No. CR-03-2155-JP)
Kyle T. Nayback, Assistant United States Attorney ( David C. Iglesias, United States Attorney, with him on the briefs), Albuquerq ue, New Mexico, for PlaintiffAppellee. Alonzo J. Padilla, Assistant Federal Public Defende r, Albuquerque, New Mexico, for Defendant-Appellant.

Before EBEL , BALDOCK , and LUCERO , Circuit Judges.

BALDOCK , Circuit Judge. The Government filed a sealed superceding informati on charging Defendant McQuade Q., a juvenile, with two counts of aggravat ed sexual abuse in violation of the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042. Count I1 “When determining whether to transfer a juvenile t o adult status, the court

may assume the truth of the government’s allegation s regarding the defendant’s commission of the crime.” United States v. Anthony Y. , 172 F.3d 1249, 1251 n.1 (10th Cir. 1999) (internal quotation omitted). 2 charged McQuade with forcibly raping a thirteen-yea r old girl when he was seventeen years old. See 18 U.S.C. §§ 2241(a), 2246(2)(A). Count II charge d McQuade with forcibly raping an eleven-year old gir l when he was sixteen years old. See id. 1 The Government moved to proceed against McQuade as an adult under 18 U.S.C. § 5032. The district court held an evide ntiary hearing and found that transferring McQuade to adult status would be “in t he interest of justice.” See 18 U.S.C. § 5032. The court specifically found that: (1) neither of McQuade’s parents provided parental support or guidance, both drank heavily, and were neglectful; (2) the offense McQuade was charged wit h involved the forcible rape of different young girls and one offense was partic ularly violent; (3) McQuade has an extensive juvenile criminal history; (4) McQ uade suffers from, among other things, a low IQ, extreme anti-social persona lity disorder, and may suffer from Fetal Alcohol Syndrome; (5) McQuade’s treatment for his psychological problems has been minimal but his educational efforts and behavior have improved since his incarceration in the Santa Fe Co unty Youth Detention Center (SFCYDC); and (6) although McQuade’s behavior in th e SFCYDC has improved,3

he has not shown any improvement with his extensive psychological problems. The court further found that neither the SFCYDC norany other juvenile facilities have the appropriate programs to treat M cQuade’s psychological problems. Instead, the court found that a federal correctional institution would have the best programs to treat McQuade. The courtconcluded “[i]t will be necessary to provide intensive, expert treatment of McQuade Q.’s psychological factors for a period that will extend beyond McQuad e Q.’s twenty-first birthday.” Accordingly, the court, after indicating “this to b e a most difficult decision,” granted the Government’s motion to proceed against McQuade as an adult. On appeal, McQuade argues the district court erred when it: (1) failed to give proper weight to McQuade’s upbringing and fail ed to find the first four statutory factors under § 5032 weighed in favor of juvenile treatment and rehabilitation; (2) failed to recognize the signifi cance of McQuade’s educational and behavioral improvement at the SFCYDC; and (3) i mproperly focused on the unavailability of psychological therapy in juvenile treatment facilities. We have jurisdiction under the collateral order doctrine, s ee United States v. Angelo D. , 88 F.3d 856, 857-58 (10th Cir. 1996), and review th e district court’s decision for an abuse of discretion. See United States v. Leon, D. M. , 132 F.3d 583, 589-90 (10th Cir. 1997). Our review of § 5032 transfer decisions is highly d eferential. The4

defendant bears “a heavy burden” in seeking to overturn the district court’s decision. Id. at 590. “A district court abuses its discretion i n deciding whether to transfer a juvenile to adult status when it fails t o make the required factual findings or when its factual findings are clearly e rroneous.” Id. The district court’s decision may not be overturned simply becau se an appellate court might have reached a different conclusion had it consider ed the matter in the first instance. Id. Applying this standard, and after carefully revie wing the record, we affirm.
I. “The purpose of the federal juvenile delinquency pr ocess ‘is to remove juveniles from the ordinary criminal process in ord er to avoid the stigma of a prior criminal conviction and to encourage treatmen t and rehabilitation.’” United States v. Anthony Y. , 172 F.3d 1249, 1251-52 (10th Cir. 1999) (quoting United States v. Brian N. , 900 F.2d 218, 220 (10th Cir. 1990)). The distric t court must balance this important interest against the need to protect the public from dangerous individuals. Id. Juvenile adjudication is presumed appropriate unl ess the government establishes that prosecution as an a dult is warranted in the interest of justice. Id. ; see also Leon, D. M. , 132 F.3d at 589. Section 5032 provides six factors to guide districtcourts in determining whether transfer to adult status is “in the interes t of justice”: (1) the age and5

social background of the juvenile; (2) the nature o f the alleged offense; (3) the extent and nature of the juvenile’s prior delinquen cy record; (4) the juvenile’s present intellectual development and psychological maturity; (5) the nature of past treatment efforts and the juvenile’s response to su ch efforts; and (6) the availability of programs designed to treat the juve nile’s behavioral problems. 18 U.S.C. § 5032. A district court must consider a nd make findings with respect to each factor. Id. The district court is not required, however, to g ive equal weight to each factor. Leon, D. M. , 132 F.3d at 589. Instead, the court “may balance them as it deems appropriate.” Id. (internal citation omitted). “Also, the court is not required to state whether each specifi c factor favors or disfavors transfer.” Id.
II. In this case, McQuade asks us to re-weigh the six s tatutory factors such that we might reach a different result than the districtcourt. We decline to do so. The district court carefully considered each of the fac tors listed in § 5032, and as the Government opines, “did exactly what the Juvenile D elinquency Act requires.” The court balanced each of the factors and conclude d they weighed in favor of McQuade’s transfer to adult status. The court was not required to give particular weight to one factor over another nor was the courtrequired “to state whether each specific factor favors or disfavors transfer.” See id.6

In examining each factor, the court first recognize d that McQuade has suffered an unfortunate background and has spent “t he majority of his upbringing . . . in foster care or in a school dormitory.” Th e court found McQuade’s mother provided no parental support and that his father “s erved as a bad adult example.” The court then recognized that “[t]he lack of paren tal love and support has resulted in a number of McQuade Q.’s severe psychol ogical problems.” The record fully supports the court’s findings. When discussing the second and third factors, the c ourt found the offense for which McQuade was charged involved “the forcibl e rape of different young girls” and one offense “was particularly violent an d resulted in significant, multiple injuries to the girl.” The court also thr oughly reviewed McQuade’s prior delinquency record and found that he has been charg ed with numerous juvenile offenses. Although the court indicated most of McQ uade’s prior offenses were non-violent, McQuade has a history of regular fight ing at school. Again, the record fully supports the court’s findings. Next, the court made explicit findings under the fo urth factor involving McQuade’s present intellectual development and psyc hological maturity. The record shows McQuade was diagnosed with Fetal Alcoh ol Syndrome at the age of six and testimony at the transfer hearing indicated that such a diagnosis may render McQuade “less amenable to treatment, especia lly in juvenile treatment2 The Supreme Court recently noted in Roper v. Simmo ns , __ U.S. __, __,

125 S.Ct. 1183, 1197 (2005), that general rules of psychiatry prohibit psychiatrists “from diagnosing any patient under 18 as having ant isocial personality disorder.” The Court’s dicta is irrelevant in this case for th ree reasons. First, Dr. Roll explicitly testified at the transfer hearing that t he rules of psychiatry do not prohibit anything; rather, it “is a guideline for c linicians.” Second, Dr. Roll testified that McQuade was never actually diagnosed with an anti-social personality disorder; instead, he simply possesses “all of the behavioral requirements, even though he is not 18.” Lastly, M cQuade, in his opening brief, admits he “suffers from severe anti-social personal ity disorder.” 7 facilities.” Further, relying upon the report and testimony of Dr. Samuel Roll, a clinical psychologist, the court found McQuade suff ers from, among other things, “an extreme anti-social personality disorder, is un able to appreciate the wrongfulness and harmfulness of his actions, exhibi ts frequent loss of control of sexual and aggressive impulses, [and] has narcissis tic tendencies.” 2 Dr. Roll testified that juveniles suffering from narcissism are more difficult to treat than juveniles who do not exhibit narcissistic tendencie s. The record further supports the court’s findings un der the fifth statutory factor involving the nature of past treatment and M cQuade’s response to such treatment. Specifically, the court noted that effo rts to treat McQuade’s psychological problems have been minimal. The reco rd shows McQuade briefly attended anger management and alcohol abuse counsel ing in the past but stopped attending for personal reasons. Although the courtrecognized McQuade’s educational efforts have improved at the SFCYDC and McQuade “has not shown8

the pattern of misconduct that preceded his incarce ration,” McQuade’s “incarceration at the [SFCYDC] has not corrected orimproved his psychological problems, especially his extreme anti-social person ality disorder.” Dr. Roll testified that even after eight months of treatmentat the SFCYDC, McQuade “still shows severe deficiencies” and that his “prognosis is very bad.” Lastly, the court found under the sixth factor thatjuvenile facilities are not equipped to handle McQuade’s necessary long-term ps ychological treatment. Although McQuade argues the sixth factor only requi res the unavailability of programs to treat a juvenile’s “behavioral” problem s rather than psychological problems, the district court logically concluded Mc Quade’s psychological problems are directly related to his behavioral pro blems. Accordingly, the treatment of one over another would not facilitate McQuade’s recovery.
See Anthony Y , 172 F.3d at 1252-53 (indicating the sixth statuto ry factor simply addresses the availability of “treatment programs” in general and does not distinguish between “behavioral” or “psychological” treatment programs). Further, the record supports the court’s finding th at juvenile facilities are not capable of handling McQuade’s psychological tre atment. Dr. Roll testified: I think this man who has suffered this much, includ ing separation from his mother right at the age when you begin to develop a conscience at three years old, really is going to n eed long-term treatment. And I think he is going to need treatme nt by highly trained people. Usually, unfortunately, at juvenil e centers we spend less on our juveniles than we do on the adults, we don’t have people9

who are well-trained, who have PhDs, who have long- term internships and post doctorates. Dr. Roll continued and testified that McQuade will require treatment one to three times a week by a licensed psychologist for at leas t four to five years and juvenile facilities are simply not equipped to handle that n eed. The testimony of Dr. Elliott J. Rapaport, also a clinical psychologist, supports Dr. Roll’s conclusions. Dr. Rapaport testified that juvenile facilities “do n’t have the kind of licensed psychologist on staff that would be required to eng age in three-day-a-week intensive psychotherapy towards the end of changing personality.” Accordingly, the court properly concluded, based upon the reportand recommendation of Dr. Roll, that the interest of justice required the tra nsfer of McQuade to adult status because federal correctional institutions have the best programs and staffing to treat McQuade.
III. The record establishes that the district court care fully considered each of the statutory factors and made a difficult decision as to how to weigh them. Even if the decision might not have been our own, in lig ht of the deference we afford the district court, the court’s decision must stand . Accordingly, we hold the district court did not abuse its discretion in gran ting the Government’s motion to transfer McQuade to adult status.
AFFIRMED.