                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                    PUBLISH                    February 11, 2013
                                                              Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                 Clerk of Court

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.                                                     No. 11-6342
 PAUL EVERETT RICH, III,

        Defendant-Appellant.



        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF OKLAHOMA
                   (D.C. No. 5:11-CR-00098-F-1)


William P. Earley, Assistant Federal Public Defender, Office of the Federal
Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.

Suzanne Mitchell, Assistant United States Attorney (Sanford C. Coats, United
States Attorney, and Ashley Altshuler, Assistant United States Attorney, with her
on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.


Before BRISCOE, Chief Judge, HOLLOWAY and HARTZ, Circuit Judges.


BRISCOE, Chief Judge.



      Defendant Paul Everett Rich, III, pled guilty to one count of felon in

possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).
Because he had been convicted of three predicate offenses, he qualified for

enhanced punishment under the Armed Career Criminal Act (ACCA), 18 U.S.C. §

924(e), and was sentenced to the mandatory minimum of 180 months’

imprisonment. Rich now appeals the imposition of the sentencing enhancement

claiming: 1) his juvenile adjudication was “dismissed” by Oklahoma courts and

should not be counted as a prior conviction under the ACCA; and 2) the ACCA

violates substantive due process by considering these older, juvenile

adjudications. We affirm.

                                         I

      In March 2011, Oklahoma City police officers took Rich into custody after

security officers detained him for bringing a firearm into a local club. They

found in Rich’s possession one Bersa, Model 380 Thunder .380 caliber pistol and

six rounds of .380 caliber ammunition. A federal grand jury subsequently

indicted Rich for one count of felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1). He pled guilty without a plea agreement on May 4, 2011.

      Prior to sentencing, the government informed Rich it planned to seek an

enhanced sentence under the ACCA. Under 18 U.S.C. § 924(e)(1), the

government can invoke an enhanced sentence when a defendant has three

previous convictions for violent felonies and/or serious drug crimes. The

predicate convictions alleged against Rich included a juvenile adjudication for

robbery with a dangerous weapon for conduct occurring on September 18, 1991.

                                         2
      Rich challenged the use of this juvenile adjudication for ACCA purposes.

First, he argued that although he had been adjudicated a delinquent, a judge later

entered an order dismissing the case. Rich contended that his juvenile

adjudication no longer qualifies as a conviction for purposes of the ACCA.

Second, he argued that the use of this twenty-year-old crime committed when he

was 14 years old violated his constitutional right to substantive due process.

      At a sentencing hearing on December 19, 2011, the district court rejected

these arguments. The court said its reading of Oklahoma precedent suggested the

dismissal of Rich’s juvenile action merely meant the state court was terminating

its jurisdiction, and not that the dismissal rendered the “previous adjudication in

that juvenile case a nullity ab initio.” ROA Vol. III at 20. Regarding the

substantive due process claim, the court expressed sympathy with Rich’s position,

noting “there is something unsettling about visiting serious consequences on a

defendant at the age this defendant is that are triggered by something he did when

he was 14 years old.” Id. at 19. But the court ultimately viewed itself

“constrained” by the this circuit’s precedent. Id. The court held the juvenile

adjudication qualified as a predicate conviction under the ACCA and sentenced

Rich to the fifteen-year mandatory minimum.

                                          II

      The Armed Career Criminal Act provides enhanced sentences for a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1) who has three prior

                                          3
“violent felony” or “serious drug offense” convictions. 18 U.S.C. § 924(e)(1).

The ACCA defines “conviction” as “includ[ing] a finding that a person has

committed an act of juvenile delinquency involving a violent felony.” 18 U.S.C.

§ 924(e)(2)(C). In addition, the ACCA defines “violent felony” as:

            any crime punishable by imprisonment for a term exceeding
            one year, or any act of juvenile delinquency involving the use
            or carrying of a firearm, knife, or destructive device that would
            be punishable by imprisonment for such term if committed by
            an adult, that—
                   (i) has as an element the use, attempted use, or
                   threatened use of physical force against the person of
                   another; or
                   (ii) is burglary, arson, or extortion, involves use of
                   explosives, or otherwise involves conduct that presents a
                   serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). Under 18 U.S.C. § 921(a)(20), “what constitutes a

conviction of [any crime punishable by imprisonment for a term exceeding one

year] shall be determined in accordance with the law of the jurisdiction in which

the proceedings were held.”

      Rich asserts that his juvenile adjudication cannot qualify as a predicate

offense under the ACCA because a state court judge entered an order

“dismissing” his juvenile case, which he contends rendered “the ‘finding’” that he

committed an act of juvenile delinquency a nullity. Aplt. Br. at 8, 12. We do not

agree. While this case was pending on appeal, we rejected a similar argument

made by the defendant in United States v. Washington, No. 11-6339, ___ F.3d

___ (10th Cir. Dec. 28, 2012). Addressing Oklahoma’s use of the word “dismiss”

                                         4
in its statutory scheme and caselaw, we were not persuaded that, in the absence of

evidence to the contrary, the decision of an Oklahoma court to “dismiss” a

juvenile case after adjudication meant anything more than the court was

terminating its jurisdiction. Thus, we held “dismissal of Defendant’s juvenile

adjudication following his five-month term of probation did not constitute

expungement or setting aside of the conviction for ACCA purposes.” Id. at 11.

Even if Washington were not binding on this panel, we find its reasoning

persuasive. As Rich presents no convincing evidence that “dismissal” meant

something different in his case, we must reject this argument. 1

                                         III

      Alternatively, Rich argues that the ACCA violates his Fifth Amendment

rights. He contends the sentencing enhancement deprives him of substantive due

process because it places no limits on the age of predicate convictions. Looking

to old convictions, he says, lacks a rational basis with the purported goal in

“removing currently dangerous felons from society.” Aplt. Br. at 14-15. He

notes that both the Federal Rules of Evidence and Sentencing Guidelines place

limits on the use of old convictions. In addition, he cites to Supreme Court

decisions that have incorporated into their analysis concerns about how the



      1
         We note, however, that we find no merit in the government’s argument
that 18 U.S.C. § 924(e)(2)(C) somehow bars Rich from challenging whether his
juvenile adjudication remained in force.

                                          5
immaturity of minors can blind youths to the consequences of their actions and

make proceedings involving juveniles unreliable. 2

      Under the Fifth Amendment, the due process clause provides that no person

shall “be deprived of life, liberty, or property, without due process of law.”

Substantive due process protects individuals from government conduct that

“shocks the conscience or interferes with rights implicit in the concept of ordered

liberty.” United States v. Salerno, 481 U.S. 739, 746 (1987) (citation and

quotations omitted). As is pertinent to this case, “[d]ue process requires only that

a sentencing scheme be rational.” United States v. Bredy, 209 F.3d 1193, 1197


      2
        As the Supreme Court said in Graham v. Florida, 130 S. Ct. 2011, 2032
(2010) (citations omitted):

                    Another problem with a case-by-case approach is that it
             does not take account of special difficulties encountered by
             counsel in juvenile representation. As some amici note, the
             features that distinguish juveniles from adults also put them at
             a significant disadvantage in criminal proceedings. Juveniles
             mistrust adults and have limited understandings of the criminal
             justice system and the roles of the institutional actors within it.
             They are less likely than adults to work effectively with their
             lawyers to aid in their defense. Difficulty in weighing
             long-term consequences; a corresponding impulsiveness; and
             reluctance to trust defense counsel seen as part of the adult
             world a rebellious youth rejects, all can lead to poor decisions
             by one charged with a juvenile offense. These factors are
             likely to impair the quality of a juvenile defendant’s
             representation. A categorical rule avoids the risk that, as a
             result of these difficulties, a court or jury will erroneously
             conclude that a particular juvenile is sufficiently culpable to
             deserve life without parole for a nonhomicide.


                                          6
(10th Cir. 2000). 3

      Although we might not permit the use of stale convictions if we were

writing the law—or we might at least limit the age of convictions considered—we

cannot say Congress’s decision to allow the use of these older convictions shocks

the conscience. We have long held the ACCA “itself does not place any time

period restriction on prior convictions considered for sentence enhancement,”

noting “[o]ther circuits have uniformly rejected arguments that a limitation exists

or should be created.” United States v. Lujan, 9 F.3d 890, 893 (10th Cir. 1993).

Although we have not addressed a substantive due process challenge to this

feature of the ACCA in any published opinion, we have rejected it in an

unpublished opinion, see United States v. Robinson, 304 Fed. App’x. 746, 753-54

(10th Cir. 2008), as have other circuits in published opinions. See, e.g., United

States v. Preston, 910 F.2d 81, 89 (3d Cir. 1990) (“Our construction of § 924(e)

[as placing no limit on age of convictions] poses no constitutional problem in this

respect. Neither the Due Process Clause of the Fifth Amendment nor any other


      3
          Rich suggests in his brief that the legislation needs to be “narrowly
drawn.” Aplt. Br. at 21. It is not clear why this would be. Narrow tailoring is
typically only associated with heightened levels of scrutiny. Erwin Chemerinsky,
Constitutional Law 539-543 (3d ed. 2006). Rich cites for support only a First
Amendment case, Sable Communications of Calif., Inc. v. FCC, 492 U.S. 115
(1989), where the government banned “indecent as well as obscene interstate
commercial telephone communications.” Id. at 117. Content-based speech
restrictions are “presumptively invalid and subject to strict scrutiny.” Ysursa v.
Pocatello Educ. Ass’n, 555 U.S. 353, 358 (2009) (quotation omitted). Rich does
not explain why Sable would be relevant here.

                                         7
constitutional provision prohibits such a construction for sentencing purposes.”).

While these cases are not binding precedent, the opinions of these jurists that the

law does not violate the constitution counsels against our concluding that the law

is irrational or shocks the conscience. Further, we have rejected a similar

challenge regarding the federal “three strikes” statute, which, like the ACCA,

permits the government to rely on older convictions. Bredy, 209 F.3d at 1197-98

(using eighteen-year-old and twenty-seven-year-old armed bank robbery

convictions as predicates did not violate substantive due process). And we did so

even though the statute imposes harsher penalties than the ACCA, requiring a

sentence of life in prison, as opposed to a mandatory minimum of fifteen years.

18 U.S.C. § 3559(c).

      The arguments Rich advances do not bring our rejection of his substantive

due process challenge into question. The fact that the Federal Rules of Evidence

and Sentencing Guidelines choose to treat older convictions differently than more

recent ones does not make it irrational for Congress to have a different view when

it comes to the sentencing of repeat offenders who use firearms. The same goes

for a district court judge who chooses to exercise his discretion in granting a

young offender leniency. These more sympathetic approaches might fit some

criminal justice contexts, but we conclude Congress did not violate the Fifth

Amendment by taking a different approach when drafting this portion of its




                                          8
federal gun laws. 4

      Finally, we are unpersuaded that we should alter this approach when

considering the more narrow question of whether using older juvenile

adjudications as predicate convictions violates substantive due process. First, the

Supreme Court typically has expressed its concerns about the unformed minds of

juveniles when addressing Eighth Amendment challenges raised by juvenile

defendants to death penalty sentences and sentences for life without parole.

These extraordinary sentences “share some characteristics . . . that are shared by

no other sentences.” Graham v. Florida, 130 S. Ct. 2011, 2027 (2010). Life

without parole “deprives the convict of the most basic liberties without giving

hope of restoration, except perhaps by executive clemency—the remote

possibility of which does not mitigate the harshness of the sentence.” Id. And

sentencing someone to death is, obviously, even more severe. Woodson v. North

Carolina, 428 U.S. 280, 305 (1976) (“Death, in its finality, differs more from life


      4
         This does not necessarily mean that the use of certain juvenile
adjudications as predicate convictions could not raise constitutional concerns.
The Ninth Circuit, for instance, has held that a district court violated Apprendi v.
New Jersey, 530 U.S. 466 (2000), when it considered a nonjury juvenile
adjudication a predicate offense under the ACCA. United States v. Tighe, 266
F.3d 1187, 1195 (9th Cir. 2001). But “[t]he majority of circuits that have
examined the question of whether the absence of a jury trial prevents the use of a
juvenile adjudication to enhance a sentence under the ACCA have concluded that
there is no such barrier.” Welch v. United States, 604 F.3d 408, 426 (7th Cir.
2010). We have no need to address the issue here. Rich received a jury trial and
does not challenge this part of the use of his predicate juvenile adjudication as
constitutionally deficient.

                                         9
imprisonment than a 100-year prison term differs from one of only a year or

two.”). True, the Court also mentioned immaturity in a sentencing case, Gall v.

United States, 552 U.S. 38, 58 (2007), but that was only in affirming a district

court’s exercise of discretion, not in imposing a constitutional mandate. Id.

(“Given the dramatic contrast between Gall’s behavior before he joined the

conspiracy and his conduct after withdrawing, it was not unreasonable for the

District Judge to view Gall’s immaturity at the time of the offense as a mitigating

factor, and his later behavior as a sign that he had matured and would not engage

in such impetuous and ill-considered conduct in the future.”).

       Second, all of these cases involve sentences imposed directly for crimes

committed while the defendants were young. In the case before us, an adult

defendant faced an enhanced sentence for a crime he committed as an adult.

While it may be troubling that a district judge is forced to impose such a stiff

mandatory penalty based in part on a juvenile adjudication that was entered

twenty years prior to the sentencing at issue, we cannot conclude that this “shocks

the conscience.” We must bear in mind the impetus for the passage of the ACCA:

punishing, and hopefully deterring, the recidivist criminal who commits violent

felonies. 5


       5
           As the Supreme Court has said:

               As suggested by its title, the Armed Career Criminal Act
                                                                      (continued...)

                                            10
      Further, although not argued by the government, we note the fact that the

twenty years that have passed since Rich’s juvenile adjudication actually cuts

against him because within that length of time Rich had the opportunity to reform.

The juvenile adjudication here triggered the enhanced sentence only after Rich

received two more predicate convictions as an adult and committed the most

recent felon-in-possession violation. Regardless of the inability of minors to fully

understand the consequences of their actions, adults facing enhanced sentences

based, only in part, on acts committed as juveniles have had the opportunity to

better understand those consequences but have chosen instead to continue to

offend. 6 Therefore, we also reject Rich’s substantive due process claim.

                                         IV

      We AFFIRM the sentence imposed by the district court.




      5
      (...continued)
            focuses upon the special danger created when a particular type
            of offender—a violent criminal or drug trafficker—possesses a
            gun. In order to determine which offenders fall into this
            category, the Act looks to past crimes. This is because an
            offender’s criminal history is relevant to the question whether
            he is a career criminal, or, more precisely, to the kind or
            degree of danger the offender would pose were he to possess a
            gun.
      Begay v. United States, 553 U.S. 137, 146 (2008) (citations omitted).
      6
        We note, however, that not all sentences based on past convictions are
necessarily constitutional. See, e.g., Solem v. Helm, 463 U.S. 277, 280-81, 284
(1983) (sentence of life imprisonment without parole for defendant’s seventh
nonviolent felony, passing a worthless check, violated the Eighth Amendment).

                                         11
