                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                              )
UNITED STATES OF AMERICA                      )
                                              )
                                              )
                                              )
       v.                                     )       Criminal Action No. 10-015 (RMC)
                                              )
DAVON PEYTON,                                 )
                                              )
               Defendant.                     )
                                              )



                                 MEMORANDUM OPINION

               For the policy reasons articulated by the D.C. Circuit in United States v. Johnson, 28

F.3d 151 (D.C. Cir. 1994), this Court granted the Government’s motion to treat Defendant Davon

Peyton’s juvenile adjudication for distribution of cocaine as a prior conviction for a felony drug

offense for purposes of triggering the 240 month minimum mandatory sentencing enhancement

pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851. Upon further reflection and study of the Circuit’s

decision, the Court determines that it erred. The Court writes this memorandum to explain its

reasoning.

                                            I. FACTS

               On July 14, 2009, officers of the Metropolitan Police Department (MPD) responded

to 401 K Street N.W., Apt. # 620, in Washington D.C., to investigate a drug complaint. The officers

were aware that Defendant Davon Peyton resided at the apartment with his grandmother, who was

the lessee. The officers received permission from Mr. Peyton’s grandmother to search the living
room area where his belongings were located to determine whether any narcotics were present.1 The

officers recovered a shoe box that contained approximately 70 grams of cocaine base, also known

as crack, and approximately 25 grams of marijuana. Also found inside the box was over $4,000 in

U.S. currency and a cellular telephone which belonged to Mr. Peyton.

               On January 20, 2010, Mr. Peyton was arrested inside his grandmother’s apartment

pursuant to an arrest warrant, issued after he had been indicted for unlawful possession with intent

to distribute 50 grams or more of cocaine base and unlawful possession with intent to distribute

cannabis. The arresting officers recovered a 9-mm semi-automatic pistol, a plate containing a

razorblade and approximately 1.5 grams of crack cocaine, a clear plastic bag containing 100 empty

small ziplock bags, and approximately two grams of marijuana from inside a kitchen cabinet.

               On January 26, 2010, Mr. Peyton was charged in a five-count superseding indictment,

adding unlawful possession with intent to distribute crack and marijuana and possessing a firearm

during a drug-trafficking offense, all related to the January 20, 2010 search.

               Previously, however, on June 4, 2008, Mr. Peyton was adjudicated guilty of the felony

offense of unlawful distribution of cocaine in the Superior Court of the District of Columbia, Family

Division, Case No. 2008-DEL-1339. He was committed to the District of Columbia Department of

Youth and Rehabilitative Services. The record does not reveal whether Mr. Peyton spent time in a

halfway house, a correctional facility, or elsewhere.

               On May 12, 2010, the Government, pursuant to 21 U.S.C. § 851, filed an Information



       1
           Mr. Peyton was not present, having been arrested and detained approximately two days
earlier in connection with an unrelated offense. Under the circumstances, his permission for the
search was neither sought nor necessary. United States v. Wilson, No. 06-3128, 2010 U.S. App.
LEXIS 10558, at *94-95 (D.C. Cir. May 25, 2010).

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as to Prior Conviction, informing the Court and Defendant that it intended to rely upon Mr. Peyton’s

prior juvenile conviction to subject him to the enhanced penalty provisions of 21 U.S.C. §

841(b)(1)(A). That statute provides in relevant part, “If any person commits [a violation of this

section] after a prior conviction for a felony drug offense has become final, such person shall be

sentenced to a term of imprisonment which may not be less than 20 years and not more than life

imprisonment . . . .” 21 U.S.C. § 841(b)(1)(A).

               Mr. Peyton is now nineteen years old.

                                          II. ANALYSIS

               The parties dispute whether Mr. Peyton’s juvenile “adjudication” by a judge without

a jury can serve as a prior “conviction” for purposes of § 841(b)(1)(A). Mr. Peyton argues that all

but one of the cases relied upon by the Government concern the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e), which specifically permits the use of juvenile adjudications, while §§

841(b)(1)(A) and 851 do not. See 18 U.S.C. § 924(e)(2)(C) (“the term ‘conviction’ includes a

finding that a person has committed an act of juvenile delinquency . . .”). He contends that reliance

on cases addressing application of prior juvenile delinquency matters for enhancement to a

mandatory minimum under the ACCA is seriously flawed. See United States v. Huggins, 467 F.3d

359, 361 (3d Cir. 2006) (“we see no reason to write [a juvenile delinquency exception] to [the §

841(b)(1)] provision where Congress has not seen fit to do so”); see also United States v. Ivory, 2010

U.S. Dist. LEXIS 54057, at *11-17 n.3 (D. Kan. Feb. 26, 2010) (“Because Congress did not

explicitly include adjudications of juvenile delinquency in the definition of felony drug offense

convictions under the Controlled Substances Act, the Court likely would decline to read such

adjudications into the statutory definition.”); but cf. United States v. Deandrade, 633 F. Supp. 2d 1


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(S.D.N.Y. 2008) (finding that juvenile adjudications may be used to enhance a mandatory minimum

under § 841(b)(1)(A) by reference to ACCA caselaw).

                The Court is guided by the analysis of the D.C. Circuit in United States v. Johnson,

28 F.3d 151 (D.C. Cir.1994). The question in Johnson was the propriety of the Sentencing

Commission’s direction at United States Sentencing Guidelines § 4A1.2(d) that points should be

assessed for a defendant’s juvenile record when calculating his criminal history category. Id. at 153.

Mr. Johnson not insensibly asked “how ‘criminal history’ under [28 U.S.C.] § 994(d)(10) can

include his juvenile offenses when D.C. Code Ann. § 16-2318 states that a juvenile adjudication ‘is

not a conviction of a crime.’” Id. at 154. In response, the Circuit drew a clear line between a juvenile

adjudication not followed by further criminal misconduct and recidivism:

           As we said in [United States v.] McDonald, “setting aside a conviction may
           allow a youth who has slipped to regain his footing by relieving him of the
           social and economic disabilities associated with a criminal record . . . . But
           if a juvenile offender turns into a recidivist, the case for conferring the
           benefit dissipates . . . . Society’s stronger interest is in punishing
           appropriately an unrepentant criminal.” 991 F.2d [866,] 872 [(D.C. Cir.
           1993)]. Under the D.C. Code, therefore, a court may take into account the
           defendant’s juvenile record in determining his sentence for crimes he
           committed as an adult . . . . A defendant with a juvenile record may not
           have been “convicted,” but the defendant nevertheless “violated a
           provision of the criminal law,” Matter of W.A.F., 573 A.2d 1264, 1267
           (D.C. 1990).
                   ....

           . . . . When yesterday’s juvenile delinquent becomes today’s adult criminal
           the reasons behind society’s earlier forbearance disappear. The question
           before the sentencing court is what punishment to mete out to an adult
           criminal, not how to treat and rehabilitate a youthful offender.

Id. at 154, 155 (emphasis added).

                This Court initially interpreted the policy behind Johnson to direct the use of a



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defendant’s juvenile record for all sentencing decisions. However, the Circuit’s recognition that a

juvenile “may not have been ‘convicted,’” id., cannot be squared with the requirement of §

841(b)(1)(A) that “a prior conviction for a felony drug offense has become final” for the

enhancement to be operative. Mr. Peyton’s prior juvenile adjudication will be recognized at

sentencing, should he be convicted or enter a plea in the instant matter, but without a “conviction”

arising from his juvenile crime, he is not exposed to the particular enhancement sought by the

Government under § 841(b)(1)(A) .

                                       III. CONCLUSION

               For the reasons stated above, the Government’s Motion to Treat Defendant’s Juvenile

Adjudication as a Prior Conviction for a Felony Drug Offense Pursuant to 21 U.S.C. §§ 841(b)(1)(A)

and 851 [Dkt. #16] will be denied. A memorializing Order accompanies this Memorandum Opinion.




Date: June 10, 2010                                          /s/
                                              ROSEMARY M. COLLYER
                                              United States District Judge




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