FILED 

United States Court of Appeals 

Tenth Circuit 

PUBLISH APRS 2005 

UNITED STATES COURT OF APPEALS PATRICK FISHER 

Clerk 

TENTH CIRCUIT 

UNITED ST ATES 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), Albuquerque, New Mexico, for PlaintiffAppellee. 

Alonzo J. Padilla, Assistant Federal Public Defender, Albuquerque, New Mexico, 

for Defendant-Appellant. 

Before EBEL, BALDOCK, and LUCERO, Circuit Judges. 

BALDOCK, Circuit Judge. 

The Government filed a sealed superceding information charging Defendant 

McQuade Q., a juvenile, with two counts of aggravated sexual abuse in violation 

of the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042. Count I 

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charged McQuade with forcibly raping a thirteen-year old girl when he was 

seventeen years old. See 18 U.S.C. §§ 2241(a), 2246(2)(A). Count II charged 

McQuade with forcibly raping an eleven-year old girl 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 evidentiary hearing and found that 

transferring McQuade to adult status would be "in the 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 with involved the forcible rape 

of different young girls and one offense was particularly violent; (3) McQuade 

has an extensive juvenile criminal history; (4) McQuade suffers from, among 

other things, a low IQ, extreme anti-social personality 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 County Youth Detention Center 

(SFCYDC); and (6) although McQuade's behavior in the SFCYDC has improved, 

1 "When determining whether to transfer a juvenile to adult status, the court 

may assume the truth of the government's allegations 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). 

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he has not shown any improvement with his extensive psychological problems. 

The court further found that neither the SFCYDC nor any other juvenile 

facilities have the appropriate programs to treat McQuade's psychological 

problems. Instead, the court found that a federal correctional institution would 

have the best programs to treat McQuade. The court concluded "[i]t will be 

necessary to provide intensive, expert treatment of McQuade Q.'s psychological 

factors for a period that will extend beyond McQuade Q. 's twenty-first birthday." 

Accordingly, the court, after indicating "this to be a most difficult decision," 

granted the Government's motion to proceed against McQuade as an adult. 

On appeal, Mc Quade argues the district court erred when it: ( 1) failed to 

give proper weight to McQuade's upbringing and failed to find the first four 

statutory factors under § 5032 weighed in favor of juvenile treatment and 

rehabilitation; (2) failed to recognize the significance of McQuade's educational 

and behavioral improvement at the SFCYDC; and (3) improperly focused on the 

unavailability of psychological therapy in juvenile treatment facilities. We have 

jurisdiction under the collateral order doctrine, see United States v. Angelo D., 

88 F.3d 856, 857-58 (10th Cir. 1996), and review the 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 deferential. The 

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defendant bears "a heavy burden" in seeking to overturn the district court's 

decision. Id. at 590. "A district court abuses its discretion in deciding whether to 

transfer a juvenile to adult status when it fails to make the required factual 

findings or when its factual findings are clearly erroneous." Id. The district 

court's decision may not be overturned simply because an appellate court might 

have reached a different conclusion had it considered the matter in the first 

instance. Id. Applying this standard, and after carefully reviewing the record, we 

affirm. 

I. 

"The purpose of the federal juvenile delinquency process 'is to remove 

juveniles from the ordinary criminal process in order to avoid the stigma of a 

prior criminal conviction and to encourage treatment 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 district court must 

balance this important interest against the need to protect the public from 

dangerous individuals. Id. Juvenile adjudication is presumed appropriate unless 

the government establishes that prosecution as an adult 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 district courts in determining 

whether transfer to adult status is "in the interest of justice": (1) the age and 

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social background of the juvenile; (2) the nature of the alleged offense; (3) the 

extent and nature of the juvenile's prior delinquency record; (4) the juvenile's 

present intellectual development and psychological maturity; (5) the nature of past 

treatment efforts and the juvenile's response to such efforts; and (6) the 

availability of programs designed to treat the juvenile's behavioral problems. 

18 U.S.C. § 5032. A district court must consider and make findings with respect 

to each factor. Id. The district court is not required, however, to give 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 specific factor favors or disfavors 

transfer." Id. 

II. 

In this case, McQuade asks us to re-weigh the six statutory factors such that 

we might reach a different result than the district court. We decline to do so. The 

district court carefully considered each of the factors listed in § 5032, and as the 

Government opines, "did exactly what the Juvenile Delinquency Act requires." 

The court balanced each of the factors and concluded 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 court required "to state whether 

each specific factor favors or disfavors transfer." See id. 

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In examining each factor, the court first recognized that McQuade has 

suffered an unfortunate background and has spent "the majority of his upbringing 

... in foster care or in a school dormitory." The court found McQuade's mother 

provided no parental support and that his father "served as a bad adult example." 

The court then recognized that "[ t ]he lack of parental love and support has 

resulted in a number of McQuade Q.'s severe psychological problems." The 

record fully supports the court's findings. 

When discussing the second and third factors, the court found the offense 

for which McQuade was charged involved "the forcible rape of different young 

girls" and one offense "was particularly violent and resulted in significant, 

multiple injuries to the girl." The court also throughly reviewed McQuade's prior 

delinquency record and found that he has been charged with numerous juvenile 

offenses. Although the court indicated most of McQuade's prior offenses were 

non-violent, McQuade has a history of regular fighting at school. Again, the 

record fully supports the court's findings. 

Next, the court made explicit findings under the fourth factor involving 

McQuade's present intellectual development and psychological maturity. The 

record shows McQuade was diagnosed with Fetal Alcohol Syndrome at the age of 

six and testimony at the transfer hearing indicated that such a diagnosis may 

render McQuade "less amenable to treatment, especially in juvenile treatment 

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facilities." Further, relying upon the report and testimony of Dr. Samuel Roll, a 

clinical psychologist, the court found McQuade suffers from, among other things, 

"an extreme anti-social personality disorder, is unable to appreciate the 

wrongfulness and harmfulness of his actions, exhibits frequent loss of control of 

sexual and aggressive impulses, [and] has narcissistic tendencies."2 Dr. Roll 

testified that juveniles suffering from narcissism are more difficult to treat than 

juveniles who do not exhibit narcissistic tendencies. 

The record further supports the court's findings under the fifth statutory 

factor involving the nature of past treatment and McQuade's response to such 

treatment. Specifically, the court noted that efforts to treat McQuade's 

psychological problems have been minimal. The record shows McQuade briefly 

attended anger management and alcohol abuse counseling in the past but stopped 

attending for personal reasons. Although the court recognized McQuade's 

educational efforts have improved at the SFCYDC and McQuade "has not shown 

2 The Supreme Court recently noted in Roper v. Simmons,_ U.S._,_, 

125 S.Ct. 1183, 1197 (2005), that general rules of psychiatry prohibit psychiatrists 

"from diagnosing any patient under 18 as having antisocial personality disorder." 

The Court's dicta is irrelevant in this case for three reasons. First, Dr. Roll 

explicitly testified at the transfer hearing that the rules of psychiatry do not 

prohibit anything; rather, it "is a guideline for clinicians." 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, Mc Quade, in his opening brief, 

admits he "suffers from severe anti-social personality disorder." 

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the pattern of misconduct that preceded his incarceration," Mc Quade' s 

"incarceration at the [SFCYDC] has not corrected or improved his psychological 

problems, especially his extreme anti-social personality disorder." Dr. Roll 

testified that even after eight months of treatment at the SFCYDC, McQuade "still 

shows severe deficiencies" and that his "prognosis is very bad." 

Lastly, the court found under the sixth factor that juvenile facilities are not 

equipped to handle McQuade's necessary long-term psychological treatment. 

Although McQuade argues the sixth factor only requires the unavailability of 

programs to treat a juvenile's "behavioral" problems rather than psychological 

problems, the district court logically concluded McQuade's psychological 

problems are directly related to his behavioral problems. 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 statutory 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 that juvenile facilities are 

not capable of handling Mc Quade' s psychological treatment. Dr. Roll testified: 

I think this man who has suffered this much, including separation 

from his mother right at the age when you begin to develop a 

conscience at three years old, really is going to need long-term 

treatment. And I think he is going to need treatment by highly 

trained people. Usually, unfortunately, at juvenile centers we spend 

less on our juveniles than we do on the adults, we don't have people 

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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 least four to five years and juvenile 

facilities are simply not equipped to handle that need. The testimony of Dr. 

Elliott J. Rapaport, also a clinical psychologist, supports Dr. Roll 's conclusions. 

Dr. Rapaport testified that juvenile facilities "don't have the kind of licensed 

psychologist on staff that would be required to engage in three-day-a-week 

intensive psychotherapy towards the end of changing personality." Accordingly, 

the court properly concluded, based upon the report and recommendation of Dr. 

Roll, that the interest of justice required the transfer 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 carefully 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 light 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 granting the Government's motion to 

transfer McQuade to adult status. 

AFFIRMED. 

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