                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-28-2006

USA v. Jackson
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2580




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 05-2580


                           UNITED STATES OF AMERICA

                                            v.

                              DENISE OLIVIA JACKSON,
                                              Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                               D.C. Crim. 04-cr-00201
                District Judge: The Honorable Christopher C. Conner


                       Submitted Under Third Circuit LAR 34.1(a)
                                  February 10, 2006


         Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges


                           (Opinion Filed: February 28, 2006)


                                        OPINION




BARRY, Circuit Judge

      Appellant Denise Olivia Jackson appeals her sentence for a violation of 18 U.S.C.

§ 1001. She claims that the District Court erroneously calculated her criminal history
category under the U.S. Sentencing Guidelines (“U.S.S.G.”). It did not. Accordingly, we

will affirm.

       Appellant pled guilty to making a false statement to an agency or department of the

United States in violation of 18 U.S.C. § 1001. In the presentence investigation report,

appellant was assigned a total offense level of ten and a criminal history category of III

based on four criminal history points. The resulting guideline range was ten to sixteen

months. Appellant objected to three of the four criminal history points: one each for

convictions for failure to pay a local tax, for scattering rubbish, and for violation of

Pennsylvania’s compulsory school attendance law. At the sentencing hearing, the District

Court removed the point assigned for the scattering rubbish offense, lowering appellant’s

criminal history category to II and guideline range to eight to fourteen months. The

District Court granted the government’s oral motion for a downward departure based on

substantial assistance and sentenced appellant to six months in prison followed by one

year of supervised release.

       Appellant filed a timely notice of appeal.1 In her brief to this Court, she renewed

her objections to the assignment of criminal history points for her convictions under

Pennsylvania’s compulsory school attendance law and for failure to pay a local tax. We



   1
    We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and
“review sentencing decisions for unreasonableness.” United States v. Booker, 125 S. Ct.
738, 767 (2005). The District Court’s interpretation of the now-advisory guidelines is
subject to de novo review. Cf. United States v. Irvin, 369 F.3d 284, 285 n.2 (3d Cir.
2004).

                                              2
need only address the former.

       Section 4A1.1(c) of the guidelines authorized the District Court to add one

additional point, up to a maximum of four points, for each of appellant’s prior

convictions. Section 4A1.2(c)(1), however, provides in pertinent part that

       Sentences for misdemeanor and petty offenses are counted, except as
       follows:
                                       ***
       (2) Sentences for the following prior offenses and offenses similar to them,
       by whatever name they are known, are never counted:
                                           ***
       Juvenile status offenses and truancy

       Appellant argues that her conviction under Pennsylvania’s compulsory school

attendance law is a crime that “involved truancy” and was “based on elementally similar

conduct” as a juvenile status offense. In support of that argument, she cites our decision

in United States v. Elmore, 108 F.3d 23 (3d Cir. 1997), where we observed:

       The apparent concern of Guidelines section 4A1.2(c)(1) in excluding from
       consideration “offenses similar to” the enumerated offenses “by whatever
       name they are known” is that an offense . . . should not be considered
       merely because that offense is denominated differently under state law.
       Accordingly, we follow the approach of the Court of Appeals for the First
       Circuit in [United States v. Unger, 915 F.2d 759, 763 & n.5 (1st Cir. 1990)],
       and focus only upon the elements of the offenses as statutorily defined.

Id. at 27 (citations and footnote omitted). The First Circuit in Unger

       reject[ed] outright the idea that state law determines whether an offense
       runs afoul of section 4A1.2(c)(2), and thus decline[d] appellant's invitation
       to plumb the nuances of Rhode Island's statutory scheme. . . . The
       classification of an offense as within or without the ambit of section
       4A1.2(c) as a whole, or either of its subsections, is a question of federal


                                              3
         law, not state law, notwithstanding that the predicate offense and
         punishment are defined by state law. . . . We believe that, to ascertain the
         scope of section 4A1.2(c)(2), we should look to the substance of the
         underlying state offense in order to determine whether it falls within the
         proscription. In this case, the conduct underlying defendant's three juvenile
         adjudications consisted of (1) breaking and entering with intent to commit
         larceny, (2) receiving stolen goods, and (3) assault and battery. Under no
         stretch of the imagination can these malefactions be considered “status
         offenses” like, say, hitchhiking, truancy, loitering, or vagrancy.

Unger, 915 F.2d at 762-63 (citations and footnotes omitted).

         Here, the “substance of the underlying state offense” was appellant’s failure to

take reasonable steps to ensure her child’s attendance at school.2 This is not a juvenile

status offense, nor is it truancy, for purposes of the federal sentencing scheme. Although

“‘[j]uvenile status offense’ is not defined in the sentencing guidelines,” United States v.

Webb, 218 F.3d 877, 880 (8th Cir. 2000), there is no dispute that appellant committed the

crime as an adult, and she concedes that, “[a]s noted by the sentencing court, the



   2
       See 24 P.S. § 13-1333:
         (a)(1) Every parent, guardian, or person in parental relation, having control
         or charge of any child or children of compulsory school age, who shall fail
         to comply with the provisions of this act regarding compulsory attendance,
         shall on summary conviction thereof, be sentenced to pay a fine, for the
         benefit of the school district in which such offending person resides, not
         exceeding three hundred dollars ($300) and to pay court costs or be
         sentenced to complete a parenting education program offered and operated
         by a local school district, medical institution or other community resources,
         and, in default of the payment of such fine and costs or completion of the
         parenting program by the person so offending, shall be sentenced to the
         county jail for a period not exceeding five (5) days . . . .
                                              ***


                                               4
exception has been construed to require, inter alia, that the crime was committed when

the defendant was a juvenile.” (Appellant’s Br. at 15) (citing United States v. Correa,

114 F.3d 314, 318 (1st Cir. 1997).) 3

         Likewise, truancy is defined as a particular type of juvenile status offense. See

Black’s Law Dictionary 1508 (6th ed. 1990) (defining “truancy” as the “[w]ilful and

unjustified failure to attend school by one who is required to attend. It is a punishable

offense within the juvenile system in some states and, in others, it is the basis of a petition

for a child in need of services”). Appellant was not the one required to attend school.

Her offense was based on a failure to take measures to ensure her child’s attendance.

That offense arose out of her status as an adult responsible for a child, and was not

“similar” to a juvenile status offense or truancy in any meaningful way. The District

Court’s assignment of a criminal history point for this conduct was, therefore, not in

error.

         We need not address appellant’s arguments regarding her local tax offense. Even

if that conviction were removed from the calculus, her criminal history category and

guideline range would be unaffected. See U.S.S.G. ch. 5, pt. A (sentencing table).




   3
    See Correa, 114 F.3d at 318-19 (defining a ‘juvenile status offense’: “(1) the
defendant committed the crime as a juvenile; (2) the conduct would have been lawful if
engaged in by an adult; and (3) the offense is not serious”) (citations omitted); see also
United States v. Webb, 218 F.3d 877, 880 (8th Cir. 2000) (affirming district court’s
determination that offense committed at age nineteen did not constitute a “juvenile status
offense”).

                                               5
Accordingly, we will affirm.




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