United States v. Orona

724 F.3d 1297

UNITED STATES of America, Plaintiff–Appellee,

v.Raul Roger ORONA, Jr., Defendant–Appellant.

No. 12–2129.

United States Court of Appeals, Tenth Circuit.

July 31, 2013.

Dennis James Candelaria, Esq., Office of the Federal Public Defender, District of New Mexico, Las Cruces, NM, for the Defendant–Appellant.

James Robert Wolfgang Braun (Kenneth J. Gonzales and Laura Fashing with him on the briefs), Office of the United States Attorney, District of New Mexico, Albuquerque, NM, for the Plaintiff–Appellee.

Before BRISCOE, Chief Judge, SEYMOUR and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Raul Roger Orona, Jr., appeals from his conviction and sentence for being a felon in possession of a firearm. Orona was sentenced to 198 months' imprisonment under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). He argues that the use of a juvenile adjudication as a predicate offense for ACCA purposes violates the Eighth Amendment's prohibition against cruel and unusual punishment. We disagree. We conclude that Orona has not established that a national consensus exists against the use of juvenile adjudications to enhance a subsequent adult sentence. Further, because the full punishment of a sentence imposed pursuant to a recidivist statute is related to the crime of conviction rather than to any prior offenses, Orona's reliance on precedent establishing that juveniles are less culpable than adults is misplaced. We also reject Orona's claim that the residual clause of ACCA is unconstitutionally vague. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

Following a three-day jury trial, Orona was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). A pre-sentence investigation report (“PSR”) prepared for Orona calculated a base offense level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2) because Orona had at least two previous felony convictions for a crime of violence or a controlled substance offense. The PSR noted that Orona had been convicted of extortion and aggravated assault in December 2002, and of aggravated fleeing a law enforcement officer in January 2009, both in New Mexico state court. Because of his extensive criminal history, including three juvenile adjudications, eight adult convictions, and three other arrests, Orona had a criminal history category of V. With an offense level of 24, Orona would be subject to an advisory Guidelines range of 92 to 115 months' imprisonment. See U.S.S.G. § 5, pt. A.

Based on Orona's status as an armed career offender, however, the PSR recommended that he be sentenced with a base offense level of 33 pursuant to U.S.S.G. § 4B1.4(a) and 18 U.S.C. § 924(e). In addition to the two state cases noted supra,the PSR also identified a juvenile adjudication from 2000 in which Orona admitted to four counts of aggravated assault with a firearm and one count of shooting at or from a motor vehicle. Orona was arrested on these charges when he was seventeen years old. He was represented by counsel before the Fifth Judicial District, Children's Court Division, in Roswell, New Mexico, and was committed to Children, Youth & Families Department custody for a period of two years. As an armed career offender, Orona's advisory Guidelines range was 210 to 262 months' imprisonment, with a statutory minimum of 180 months.

Orona objected to the PSR, arguing that the use of a juvenile adjudication as a predicate conviction for ACCA purposes violates the Eighth Amendment. The probation office responded that juvenile adjudications qualify as predicate offenses under § 924(e)(2). It also noted that even if the juvenile adjudication did not qualify, Orona could nevertheless be sentenced as an armed career offender by substituting his 2002 adult conviction for shooting at or from a motor vehicle as the third predicate offense. In addition to his juvenile adjudication contention, Orona argued that the residual clause of ACCA is unconstitutionally vague. And he requested a downward variance if the district court rejected his constitutional arguments.

At sentencing, the district court concluded that a sentence under ACCA was constitutional, but stated it was persuaded that “defendant has somewhat less culpability” given that one of his predicate offenses occurred when he was a juvenile. The court elected to vary downward one level and sentenced Orona to 198 months' imprisonment and five years of supervised release. Orona timely appealed.

II

We review de novo whether a criminal sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. United States v. Williams, 576 F.3d 1149, 1165 (10th Cir.2009). As the Supreme Court explained in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the Eighth Amendment bars “the imposition of inherently barbaric punishments under all circumstances” and punishments that are “disproportionate to the crime” committed. Id. at 2021.

The Court's cases addressing the proportionality of sentences fall within two general classifications. The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty.

Id.

Although the second line of analysis had previously only been applied in the death penalty context, the Court explained that the categorical approach was appropriate in Graham, which concerned sentencing juvenile offenders to life without parole for non-homicide crimes, because “a sentencing practice itself is in question.” Id. at 2022. That is, the “case implicate[d] a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes.” Id. at 2022–23.

Orona asserts a categorical challenge rather than a proportionality claim based on his particular facts and circumstances. He argues that the sentencing practice of using juvenile adjudications as predicate offenses for ACCA violates the Eighth Amendment. Such challenges are subject to the following analysis:

The Court first considers objective indicia of society's standards, as expressed in legislative enactments and state practice to determine whether there is a national consensus against the sentencing practice at issue. Next, guided by the standards elaborated by controlling precedents and by the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose, the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution.

Id. at 2022 (quotations and citations omitted).¹

A

As to the first prong of this test, “the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures.” Atkins v. Virginia, 536 U.S. 304, 312, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (quotation omitted). Orona argues that there is “arguably” a national consensus against using juvenile adjudications as predicate offenses. He relies on a law review note for this proposition:

[F]orty-one states had habitual offender statutes. Of those states, California and Texas were the only states which permitted a juvenile adjudication to qualify as a strike. Nineteen states explicitly prohibited the use of juvenile adjudications as a strike, five by statute, and fourteen through judicial determination. In the remaining twenty states that were silent on the issue, each contained language in its criminal statutes indicating that prior juvenile adjudications may not be used towards adult criminal sentences.

Joseph I. Goldstein–Breyer, Note, Calling Strikes before He Stepped to the Plate: Why Juvenile Adjudications Should Not Be Used To Enhance Adult Sentences, 15 Berkeley J.Crim. L. 65, 88 (2010). As Orona acknowledges, however, another note concludes that “the mixed-bag of jurisdictions' policies and practices on using juvenile-age convictions for recidivism purposes demonstrates the lack of a national consensus regarding this particular sentencing regime.” Christopher Walsh, Note, Out of the Strike Zone: Why Graham v. Florida Makes It Unconstitutional To Use Juvenile–Age Adjudications as Strikes To Mandate Life Without Parole under § 841(b)(1)(A), 61 Am. U.L.Rev. 165, 187 (2011).

Following an independent review of states' sentencing practices, we agree with the latter conclusion: states have not reached a meaningful consensus regarding the manner in which juvenile adjudications may be considered in adult sentencing proceedings. The Goldstein–Breyer quotation above relies on figures listed in an amicus brief submitted in People v. Nguyen, 46 Cal.4th 1007, 95 Cal.Rptr.3d 615, 209 P.3d 946 (2009). See Goldstein–Breyer, supra, at 88 & nn. 170–74 (citing Brief of Amicus Curiae Criminal Def. Clinic, Mills Legal Clinic of Stanford Law Sch. on Behalf of Respondent, Nguyen, 46 Cal.4th 1007, 95 Cal.Rptr.3d 615, 209 P.3d 946 [hereinafter, “Clinic Brief”] ). However, the Clinic Brief looked only to state statutes that “closely parallel[ ] the structure of California's Three Strikes law” and explicitly excludes “context-specific statutes that allow individual prior convictions or their equivalents to function as enhancements for specific instant offenses.” Clinic Brief at 3 n. 3.

ACCA, however, does not closely parallel the statute at issue in Nguyen.Nguyen concerned California Penal Code § 667, which provided for lengthy mandatory minimum sentences if a defendant with two qualifying prior felonies was convicted of any instant felony. Cal.Penal Code § 667(e)(2)(A) (2008); ²see also Lockyer v. Andrade, 538 U.S. 63, 67, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (“Under California's three strikes law, any felony can constitute the third strike, and thus can subject a defendant to a term of 25 years to life in prison.”). ACCA, in contrast,...