                                                                              FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                                      PUBLISH
                                                                          July 31, 2013
                     UNITED STATES COURT OF APPEALS
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff–Appellee,

 v.                                                        No. 12-2129
 RAUL ROGER ORONA, JR.,

       Defendant–Appellant.




                    Appeal from the United States District Court
                          for the District of New Mexico
                         (D.C. No. 5:11-CR-01385-BB-1)


Dennis James Candelaria, Esq., Office of the Federal Public Defender, District of New
Mexico, Las Cruces, New Mexico, 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, New
Mexico, 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,
                                            -2-
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
                                            -3-
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, 130

S. Ct. 2011 (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-
                                               -4-
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

       1
         It is unclear to us that a categorical challenge is viable for sentences other than
life imprisonment or death. See Miller v. Alabama, 132 S. Ct. 2455, 2463 (2012) (noting
that in one line of Eighth Amendment precedent, the Court “has adopted categorical bans
on sentencing practices based on mismatches between the culpability of a class of
offenders and the severity of a penalty”). But see id. at 2470 (“In considering categorical
bars to the death penalty and life without parole, we ask as part of the analysis whether
objective indicia of society’s standards, as expressed in legislative enactments and state
practice, show a national consensus against a sentence for a particular class of offenders.”
(quotations omitted)). However, the government does not challenge Orona’s categorical
argument on this basis, and thus we assume without deciding that a categorical challenge
may be leveled against a term-of-years sentence.

                                              -5-
of contemporary values is the legislation enacted by the country’s legislatures.” Atkins v.

Virginia, 536 U.S. 304, 312 (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
                                            -6-
People v. Nguyen, 209 P.3d 946 (Cal. 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, 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);2 see also Lockyer v. Andrade, 538 U.S.

63, 67 (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, provides for an enhanced sentence only with respect to an individual who:

(1) unlawfully possesses a firearm or ammunition; and (2) “has three previous

convictions . . . for a violent felony or a serious drug offense.” 18 U.S.C. §§ 924(e)(1),

922(g). In other words, ACCA is a “context-specific statute[] that allow[s] individual

prior convictions or their equivalents to function as enhancements for specific instant


       2
      The California statute has since been amended by Proposition 36, effective
November 7, 2012.


                                             -7-
offenses,” Clinic Brief at 3 n.3, and falls outside the data set discussed in the Goldstein-

Breyer note. We accordingly reject Orona’s reliance on this piece of scholarship.3

       Looking more broadly to states’ use of juvenile adjudications in adult sentencing

proceedings does not indicate a clear consensus. Two states treat juvenile adjudications

as convictions for purposes of broadly applicable habitual offender statutes. See Cal.

Penal Code § 667(d)(3); Tex. Penal Code § 12.42(f). At least seventeen others allow

prior juvenile adjudications to enhance a sentence in at least some circumstances. See

Del. Code tit. 16, § 4751B(2) (juvenile adjudications for certain crimes may be counted

as prior convictions resulting in aggravated sentences for drug possession); 720 Ill.

Comp. Stat. 5/24-1.6(a)(3)(D) (unlawful use of a weapon treated as an aggravated felony

if “the person possessing the weapon was previously adjudicated a delinquent minor . . .

for an act that if committed by an adult would be a felony”); Mich. Comp. Laws

§ 257.625(9), (25) (providing for increased sentences for driving under the influence if

the defendant has certain prior convictions, defined by Mich. Comp. Laws § 257.8a(a) to

include “a juvenile adjudication, probate court disposition, or juvenile disposition for a

violation that if committed by an adult would be a crime”); Tenn. Code § 40-35-

108(b)(3)(B) (providing that “a finding or adjudication that a defendant committed an act

as a juvenile that would constitute a Class A or Class B felony if committed by an adult


       3
         We also note that the Clinic Brief reached a definitive conclusion as to the
validity of using juvenile adjudications to enhance adult sentences in only twenty-one of
the forty-one states it considered. Clinic Brief at 4.

                                             -8-
shall be considered as a prior conviction for the purposes of” determining whether a

defendant is a career offender subject to enhanced sentencing); People v. Mazzoni, 165

P.3d 719, 722-23 (Colo. App. 2006) (“[A] sentencing court may determine, without

benefit of a jury finding, facts regarding juvenile adjudications and use them as a basis to

impose an aggravated range sentence.” (noting Col. Rev. Stat. § 19-1-103(2)); Nichols v.

State, 910 So. 2d 863, 864-65 (Fla. Dist. Ct. App. 2005) (per curiam) (approving use of

prior juvenile dispositions in “calculating the lowest permissible sentence permitted by

the appellant’s scoresheet . . . [under] Florida Rule of Criminal Procedure

3.704(d)(14)(B)”); Ryle v. State, 842 N.E.2d 320, 321 (Ind. 2005) (“Since nearly the

beginning of our present criminal code, Indiana courts have recognized that criminal

behavior reflected in delinquent adjudications can serve as the basis for enhancing an

adult criminal sentence.”); State v. Bruegger, 773 N.W.2d 862, 885-86 (Iowa 2009)

(discussing Iowa Code § 901A.1(f)(2), which defines “prior conviction” to include

adjudications of delinquency for purposes of imposing enhanced recidivist sentencing

under Iowa Code § 901A.2(3), but remanding for an evidentiary hearing on defendant’s

as-applied Eighth Amendment challenge); State v. Harris, 269 P.3d 820, 832 (Kan. 2012)

(rejecting argument that “prior juvenile adjudications must have been pleaded in the

charging document and proven to a jury beyond a reasonable doubt because they were

facts increasing the penalty for a crime beyond the prescribed statutory maximum”);

Commonwealth v. Anderson, 963 N.E.2d 704, 717 (Mass. 2012) (“By adopting the

definition of ‘violent crime’ in [Mass. Gen. Laws ch. 140, § 121], in the sentencing
                                            -9-
enhancement provisions of [Mass. Gen. Laws ch. 269, § 10G], with its reference to acts

of delinquency, the Legislature reflected its intention to define a juvenile adjudication as

a ‘conviction,’ as that term is used in § 10G [which is similar to ACCA].”); State v.

McFee, 721 N.W.2d 607, 613-14 (Minn. 2006) (en banc) (“While originally juvenile

adjudications could not be used in any other proceeding, the legislature has now provided

for use of juvenile adjudications as predicate offenses and as enhancements in a variety of

criminal contexts.” (citation omitted)); State v. Leeper, 565 S.E.2d 1, 7-8 (N.C. 2002)

(affirming death sentence imposed upon jury finding of statutory aggravating factor “that

defendant had been previously adjudicated delinquent in a juvenile proceeding for an

offense that would have been a felony involving the use of or threat of violence to the

person had defendant been a[n] adult”); State v. Adkins, 951 N.E.2d 766, 770 (Ohio

2011) (Ohio Rev. Code § 2901.08 “made clear that for enhancement purposes, courts

could consider a juvenile adjudication as a conviction” subject to certain exceptions);

State v. Harris, 118 P.3d 236, 243-44 (Or. 2005) (en banc) (the legislature may “choose[]

to designate, inter alia, a prior nonjury juvenile adjudication as an element that increases

the seriousness of a crime or lengthens a criminal sentence, so long as the existence of

that prior adjudication is proved to a jury, or such a requirement is knowingly waived”

(footnotes omitted)); Commonwealth v. Moore, 937 A.2d 1062, 1068 (Pa. 2007) (“[A]

juvenile adjudication may be considered as a ‘conviction’ for purposes of establishing

that a defendant has a significant history of felony convictions pursuant to the [Pa. Cons.

Stat. § 9711(d)(9)] aggravating factor.”); Carter v. Commonwealth, 562 S.E.2d 331, 335
                                            -10-
(Va. Ct. App. 2002) (construing mandatory minimum sentence under Va. Code § 18.2-

308.2 to apply if a defendant is shown to have certain prior juvenile adjudications); State

v. Weber, 149 P.3d 646, 650, 653 (Wash. 2006) (en banc) (concluding that juvenile

adjudications need not be proven to a jury even though inclusion of “juvenile

adjudications in [a defendant’s] offender score would undeniably increase his maximum

sentence above the sentence supported by the jury’s verdict”).

       At least twenty-three additional states permit the sentencing court to consider prior

juvenile adjudications in selecting a sentence within a statutory range. See Alaska Stat.

§ 12.55.155(c)(19) (sentencing outside a presumptive range, but within a statutory range,

permissible if “the defendant’s prior criminal history includes an adjudication as a

delinquent for conduct that would have been a felony if committed by an adult”); Ky.

Rev. Stat. § 532.055 (“Juvenile court records of adjudications of guilt of a child for an

offense that would be a felony if committed by an adult . . . may be used during the

sentencing phase of a criminal trial; however, the fact that a juvenile has been adjudicated

delinquent of an offense that would be a felony if the child had been an adult shall not be

used in finding the child to be a persistent felony offender . . . .”); Me. Rev. Stat. tit. 15,

§ 3308(2) (“[A]ny court subsequently sentencing the juvenile after the juvenile has

become an adult may consider only murder and Class A, Class B and Class C offenses

committed by the juvenile . . . .”); Md. Code Regs. § 14.22.01.10(B)(2) (including certain

juvenile delinquency adjudications in calculating the offender score for purposes of state

sentencing guidelines); N.Y. Family Ct. Act § 381.2(2) (notwithstanding the general rule
                                              -11-
barring juvenile adjudication records, “another court, in imposing sentence upon an adult

after conviction may receive and consider the records and information on file with the

family court, unless such records and information have been sealed”); N.D. Cent. Code

§ 27-20-33 (“The disposition of a child and evidence adduced in a hearing in juvenile

court may not be used against the child in any proceeding in any court other than a

juvenile court, whether before or after reaching majority, except for impeachment or in

dispositional proceedings after conviction of a felony for the purposes of a presentence

investigation and report.”); Okla. Stat. tit. 22, § 982 (presentence investigation reports to

include “prior juvenile and criminal records”); R.I. Gen. Laws § 14-1-40(b) (“Any

finding of delinquency based upon acts which would constitute a felony, if committed by

an adult, shall be available to the attorney general for use in its recommendations to any

court in sentencing and that record may be taken into consideration for the purposes of

sentencing.”); S.D. Codified Laws § 23A-27A-2 (in considering death sentence, jury

shall consider “prior criminal or juvenile record of the defendant”); Vt. Stat. tit. 33,

§ 5117(b)(1)(C) (permitting the use of juvenile adjudication records by a “court in which

a person is convicted of a criminal offense for the purpose of imposing sentence upon or

supervising the person”); Wis. Stat. § 938.35 (prior juvenile adjudication records may be

considered “[i]n sentencing proceedings after conviction of a felony or misdemeanor and

then only for the purpose of a presentence investigation”); Ex Parte Thomas, 435 So. 2d

1324, 1326 (Ala. 1982) (per curiam) (“[A] prior youthful offender adjudication is

properly considered in determining the sentence to be imposed within the statutory range
                                             -12-
for a later crime for which the defendant has been convicted. That same youthful

offender determination, however, may not be considered a prior felony conviction, as

contemplated by the Habitual Offender Act, so as to bring the defendant within the

purview of the higher sentence categories of that Act.”); Vanesch v. State, 16 S.W.3d

306, 310 (Ark. Ct. App. 2000) (“The Arkansas Code clearly permits the introduction of

evidence of juvenile adjudications in the sentencing phase of trial when the requirements

of Ark. Code Ann. § 16-97-103(3) are satisfied.”); State v. Christensen, 828 P.2d 332,

333 (Idaho Ct. App. 1992) (affirming sentence based in part on the fact that defendant

“had committed various offenses as a juvenile which were equivalent to first degree

burglary, grand theft, probation violation and other crimes”); State v. Stanton, 929 So. 2d

137, 142 (La. Ct. App. 2006) (although Louisiana Supreme Court has held that a juvenile

adjudication may not be used as a predicate offense under the habitual offender statute,

“[t]here is nothing in the law that prohibits a trial court judge from considering the fact

that a convicted felon had a criminal record as a juvenile in determining what sentence to

impose”); Callins v. State, 975 So. 2d 219, 229 (Miss. 2008) (en banc) (noting that

defendant’s sentence was based in part on consideration of juvenile adjudications);

Mason v. State, 368 S.W.3d 182, 185 (Mo. Ct. App. 2012) (certain juvenile offenses must

be included in presentence investigative report under Mo. Rev. Stat. § 211.321.1); State

v. Phillips, 159 P.3d 1078, 1082 (Mont. 2007) (stating that “juvenile records may be

noted in a [presentence investigation report], and considered at sentencing”); State v.

Albers, 758 N.W.2d 411, 418 (Neb. 2008) (affirming sentence based in part on
                                            -13-
defendant’s numerous juvenile dispositions); State v. Bieniek, 985 A.2d 1251, 1256 (N.J.

2010) (per curiam) (approving trial court’s consideration of the fact that “defendant had a

juvenile record going back to when he was sixteen years old” in setting a sentence for an

adult); State v. Moreno, 113 P.3d 992, 994 (Utah Ct. App. 2005) (sentence informed by

presentence investigation report that includes information regarding defendant’s juvenile

adjudications); State v. Tyler, 565 S.E.2d 368, 375 (W. Va. 2002) (per curiam) (“[T]he

lower court had rightfully considered the violent and dangerous nature of the crimes

committed, as well as the pre-sentence report which included information concerning the

defendant’s juvenile larceny charge, a history of substance abuse, and a dishonorable

discharge from the Navy.”); Wayt v. State, 912 P.2d 1106, 1109 (Wyo. 1996) (“A

defendant’s juvenile record and his adult record, including dismissed charges, are

important clues to his character and are worthy of consideration for sentencing

purposes.”).

       As the foregoing indicates, states vary tremendously in the degree to which they

permit a prior juvenile adjudication to impact sentencing following a subsequent adult

conviction. The vast majority of states—at least forty-two by our count—allow a trial

court to consider prior juvenile adjudications in fashioning a sentence. And in more than

a third of states, prior juvenile adjudications increase the statutory penalties available for

an adult defendant in a subsequent case in certain instances.

       Although there is no consensus regarding whether prior juvenile adjudications

may be considered at sentencing following an adult conviction, the question is
                                             -14-
significantly closer if we frame the issue as whether a juvenile adjudication may be used

to increase a statutory sentencing range following an adult conviction. See generally

Apprendi v. New Jersey, 530 U.S. 466, 481 (2000) (distinguishing between factors that a

judge may consider “in imposing sentence within statutory limits in the individual case”

and those that alter the statutory range (emphasis omitted)). As the Court noted in

Kennedy v. Louisiana, 554 U.S. 407 (2008), it has found a national consensus against

execution of the mentally ill and one against execution of juvenile offenders based in part

on the fact that thirty states barred each practice. Id. at 425 (citing Atkins v. Virginia,

536 U.S. 304, 313-15 (2002), and Roper v. Simmons, 543 U.S. 551, 564 (2005)). These

numbers are quite similar to those uncovered by our research: including those that are

silent on the issue, it appears that thirty-one states do not enhance statutory sentencing

ranges based on prior juvenile adjudications.

       However, the Atkins Court relied “not so much the number of these States” but

upon “the consistency of the direction of change.” 536 U.S. at 315. Between 1990 and

2001, the Court noted, sixteen states prohibited the execution of the mentally ill while no

state moved in the opposite direction. Id. at 314-15. The Court further relied on the fact

that execution of the mentally retarded was exceedingly rare in states that permitted the

practice; only five states had executed such defendants in recent years. Id. at 316.

Similarly, in Roper, the Court noted that only six states had executed a juvenile offender

since 1989, and only three since 1995. 543 U.S. at 564-65. And the Court relied on

“significant” change in the number of states permitting the practice: “The number of
                                             -15-
States that have abandoned capital punishment for juvenile offenders . . . is smaller than

the number of States that abandoned capital punishment for the mentally retarded . . . yet

we think the same consistency of direction of change has been demonstrated.” Id. at 566.

The Court adopted a similar line of analysis in Graham, in which it concluded a national

consensus counseled against the imposition of life without parole sentences on juvenile

offenders despite the fact that thirty-seven states permitted the practice. Noting that

“[a]ctual sentencing practices are an important part of the Court’s inquiry into

consensus,” Graham, 130 S. Ct. at 2023 (citation omitted), the Court relied on the

infrequency with which such sentences were actually imposed, id. at 2024 (only 123 such

sentences were being served nationwide, with a majority imposed by a single state).

       Orona does not offer any evidence regarding the frequency with which juvenile

adjudications are used to enhance subsequent adult sentences, although it is his burden to

establish that a national consensus exists. See Stanford v. Kentucky, 492 U.S. 361, 373

(1989) overruled on other grounds by Roper, 543 U.S. at 574. Unable to conclude that a

national consensus exists on the matter, and given our determination that approximately

two-thirds of states do not appear to use juvenile adjudications to increase the statutorily

available sentencing ranges for subsequent adult convicts, we will proceed to the second

prong of the categorical analysis.

                                             B

       “Community consensus, while entitled to great weight, is not itself determinative

of whether a punishment is cruel and unusual.” Graham, 130 S. Ct. at 2026 (quotation
                                            -16-
omitted). Instead, courts must apply their independent judgment in interpreting the

Eighth Amendment. Id. In doing so, we must consider “the culpability of the offenders

at issue in light of their crimes and characteristics, along with the severity of the

punishment in question” and “whether the challenged sentencing practice serves

legitimate penological goals.” Id.

       Orona argues that the practice of using a juvenile adjudication as a predicate

offense under ACCA conflicts with the Supreme Court’s holdings regarding juvenile

offenders in Roper and Graham. In the former case, the Court concluded that the

imposition of the death penalty upon juvenile offenders violates the Eighth Amendment.

Roper, 543 U.S. at 560. It reached this conclusion based in large part on the differences

between juveniles and adults. Juveniles, the Court held, have “a lack of maturity and an

underdeveloped sense of responsibility.” Id. at 569 (alteration and quotation omitted).

They “are more vulnerable or susceptible to negative influences and outside pressures,

including peer pressure.” Id. And the “personality traits of juveniles are more transitory,

less fixed.” Id. at 570. These differences “render suspect any conclusion that a juvenile

falls among the worst offenders.” Id. Juvenile offenders must be considered less

culpable because they “have a greater claim than adults to be forgiven for failing to

escape negative influences in their whole environment,” and “a greater possibility exists

that a minor’s character deficiencies will be reformed.” Id. The Graham Court extended

this logic, prohibiting the imposition of mandatory life without parole sentences for non-

homicide juvenile offenders. 130 S. Ct. at 2034. This holding was again based on the
                                             -17-
“fundamental differences between juvenile and adult minds.” Id. at 2026. And in Miller,

the Court held that mandatory life without parole sentences for juveniles are entirely

impermissible for the same reasons. 132 S. Ct. at 2464.

       Orona argues that the use of a juvenile adjudication as a predicate offense under

ACCA similarly violates the Eighth Amendment because juveniles are less morally

culpable. The problem with this line of argument is that it assumes Orona is being

punished in part for conduct he committed as a juvenile. This assumption is unfounded.

The Supreme Court “consistently has sustained repeat-offender laws as penalizing only

the last offense committed by the defendant.” Nichols v. United States, 511 U.S. 738,

747 (1994) (quotation omitted). “When a defendant is given a higher sentence under a

recidivism statute . . . 100% of the punishment is for the offense of conviction. None is

for the prior convictions or the defendant’s status as a recidivist.” United States v.

Rodriquez, 553 U.S. 377, 386 (2008) (quotation omitted).

       Unlike the defendants in Roper and Graham, Orona is being punished for his adult

conduct. As we recently explained in rejecting a substantive due process challenge to

ACCA’s use of juvenile adjudications, the cases upon which Orona relies “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.” United States v. Rich, 708 F.3d 1135, 1140 (10th Cir. 2013). A

juvenile’s lack of maturity and susceptibility to negative influences, see Roper, 543 U.S.

at 569, cannot explain away Orona’s decision to illegally possess a firearm when he was
                                            -18-
twenty-eight years old. And the third factor identified by the Court as differentiating

juvenile and adult offenders, the greater likelihood “that a minor’s character deficiencies

will be reformed,” id. at 570, cuts against Orona’s argument. Unlike defendants who

receive severe penalties for juvenile offenses and are thus denied “a chance to

demonstrate growth and maturity,” Graham, 130 S. Ct. at 2029, ACCA recidivists have

been given an opportunity to demonstrate rehabilitation, but have elected to continue a

course of illegal conduct, see Rich, 708 F.3d at 1141 (“[A]dults 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.”).

       In United States v. Banks, 679 F.3d 505 (6th Cir. 2012), the Sixth Circuit reached

a similar conclusion in holding that a conviction committed by a juvenile who is tried as

an adult could be used under ACCA consistent with the Eighth Amendment. It

distinguished Graham’s culpability rationale, noting that the defendant, “33 years old at

the time of his felon-in-possession offense, remained fully culpable as an adult for his

violation and fully capable of appreciating that his earlier criminal history could enhance

his punishment.” Id. at 508. The Eighth Circuit has applied the same reasoning. See

United States v. Scott, 610 F.3d 1009, 1018 (8th Cir. 2010) (“Scott was twenty-five years

old at the time he committed the conspiracy offense in this case. . . . The Court in

Graham did not call into question the constitutionality of using prior convictions, juvenile

or otherwise, to enhance the sentence of a convicted adult.”). And several pre-Graham

cases rejected the argument that juvenile conduct should not be counted as an ACCA
                                            -19-
predicate offense. See United States v. Salahuddin, 509 F.3d 858, 864 (7th Cir. 2007)

(“[T]he Eighth Amendment does not prohibit using a conviction based on juvenile

conduct to increase a sentence under the armed career criminal provisions.”); United

States v. Wilks, 464 F.3d 1240, 1243 (11th Cir. 2006) (reaching the same conclusion).

       Orona also argues that the use of juvenile adjudications under ACCA does not

serve “legitimate penological goals.” Graham, 130 S. Ct. at 2026. We disagree. The

Court has repeatedly held that retribution and incapacitation are legitimate penological

goals. See, e.g., id. at 2028. Both are served by ACCA. The government “is justified in

punishing a recidivist more severely than it punishes a first offender.” Solem v. Helm,

463 U.S. 277, 296 (1983). This is because “an offense committed by a repeat offender is

often thought to reflect greater culpability and thus to merit greater punishment.”

Rodriquez, 553 U.S. at 385; see also Ewing v. California, 538 U.S. 11, 29 (2003) (“In

weighing the gravity of Ewing’s offense, we must place on the scales not only his current

felony, but also his long history of felony recidivism. Any other approach would fail to

accord proper deference to the policy judgments that find expression in the legislature’s

choice of sanctions.”).

       ACCA’s consideration of juvenile adjudications also serves the government’s

interest in incapacitating recidivist offenders who possess firearms illegally. “[A] second

or subsequent offense is often regarded as more serious because it portends greater future

danger and therefore warrants an increased sentence for purposes of deterrence and

incapacitation.” Rodriquez, 553 U.S. at 385; see also United States v. Angelos, 433 F.3d
                                            -20-
738, 751 (10th Cir. 2006) (“[T]he lengthy sentences mandated by § 924(c) were intended

by Congress to (a) protect society by incapacitating those criminals who demonstrate a

willingness to repeatedly engage in serious felonies while in possession of firearms.”).

       Orona argues that a Guidelines sentence of 92-115 months, which would apply

absent ACCA’s fifteen-year mandatory minimum, would be sufficient to meet these

penological goals. But our review of Congress’ decision as to the adequacy of

punishment is quite circumscribed. “[I]f the punishment has some connection to a valid

penological goal,” the question is whether “the punishment is . . . grossly

disproportionate in light of the justification offered.” Graham, 130 S. Ct. at 2029. “[T]he

point at which a recidivist will be deemed to have demonstrated the necessary

propensities and the amount of time that the recidivist will be isolated from society are

matters largely within the discretion of the punishing jurisdiction.” Rummel v. Estelle,

445 U.S. 263, 285 (1980).

       Orona has not shown that ACCA’s statutory minimum, which is approximately

five years longer than his already lengthy advisory Guidelines range, is grossly

disproportionate. ACCA addresses the very serious danger of recidivist felons in

possession of firearms. See Angelos, 433 F.3d at 751 (affirming a fifty-five-year

sentence under § 924(c) despite Eighth Amendment challenge based in part on the need

to “protect society by incapacitating those criminals who demonstrate a willingness to

repeatedly engage in serious felonies while in possession of firearms”). By enacting

ACCA, Congress intended to “infuse federal law enforcement into efforts at curbing and
                                            -21-
‘incapacitating’ ‘armed, habitual (career) criminals.’ Only persons who are illegally in

possession of a firearm and who have been convicted previously of three violent felonies

or serious drug offenses are subject to its minimum fifteen-year sentence.” United States

v. Gilliard, 847 F.2d 21, 26 (1st Cir. 1988) (quoting H.R. Rep. No. 1073, at 2 (1984),

reprinted in 1984 U.S.C.C.A.N. 3661, 3662)). Other circuits have held that mandatory

ACCA sentences are not grossly disproportionate to the offense of being a felon in

possession of a firearm. See, e.g., United States v. Presley, 52 F.3d 64, 68 (4th Cir. 1995)

(“[A] fifteen-year sentence under ACCA is neither disproportionate to the offense nor

cruel and unusual punishment, and thus does not violate the Eighth Amendment.”);

United States v. Johnson, 22 F.3d 674, 683 (6th Cir. 1994) (“Under the totality of the

circumstances, the fifteen-year sentence does not constitute cruel and unusual

punishment.”). Having rejected Orona’s argument that he is less culpable for his present

offense based on the juvenile predicate offense, we see no reason to depart from that view

with respect to Orona’s specific Eighth Amendment challenge.4 We accordingly hold


       4
         Orona also argues that juvenile adjudications are less reliable because they do
not include the right to a jury under the Fourteenth Amendment. See McKeiver v.
Pennsylvania, 403 U.S. 528, 545 (1971) (plurality opinion). This argument seems to
raise due process rather than Eighth Amendment concerns. However, Orona cannot rely
on the rule announced in McKeiver because his juvenile adjudication occurred in New
Mexico, where juveniles have the right to a jury under the state constitution. See Peyton
v. Nord, 437 P.2d 716, 725 (N.M. 1968) (per curiam) (“A juvenile charged with violation
of a state law, as therein provided, is entitled to a trial by jury in juvenile court . . . if the
offense was one which would be triable by jury if committed by an adult.”); see also
State v. Eric M., 925 P.2d 1198, 1200 (N.M. 1996) (“We confirm the holding of [a prior
case] that a child has a constitutional right to a trial by jury and is to be accorded that
                                                                                  Continued . . .
                                              -22-
that the use of Orona’s juvenile adjudication as a predicate offense for ACCA purposes

does not violate the Eighth Amendment’s ban on cruel and unusual punishment.

                                            III

       In addition to his Eighth Amendment claim, Orona contends that the residual

clause of ACCA is unconstitutionally vague. We review whether a statute is

unconstitutionally vague de novo. United States v. Michel, 446 F.3d 1122, 1135 (10th

Cir. 2006). “The void-for-vagueness doctrine provides that a penal statute must define

the criminal offense with sufficient definiteness that ordinary people can understand what

conduct is prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement.” Id. (quotation omitted).

       ACCA defines “violent felony” as including any crime that is “burglary, arson, or

extortion, involves use of explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another.” § 924(e)(2)(B). In Begay v. United

States, 553 U.S. 137 (2008), the Supreme Court held that felony driving under the

influence did not qualify because it was not “roughly similar, in kind as well as in degree

of risk posed” to the listed examples. Id. at 143-44. In particular, the Court noted that

the “listed crimes all typically involve purposeful, violent, and aggressive conduct.” Id.

right absent a waiver.” (quotation omitted)). “As a general rule, if there is no
constitutional defect in the application of the statute to a litigant, he does not have
standing to argue that it would be unconstitutional if applied to third parties in
hypothetical situations.” Cnty. Court of Ulster Cnty. v. Allen, 442 U.S. 140, 155 (1979).
Because Orona had the right to a jury trial in his juvenile adjudication, we need not
consider the hypothetical defendant who lacked such a right.

                                            -23-
at 144 (quotation omitted). “[U]nlike the example crimes, the conduct for which the

drunk driver is convicted (driving under the influence) need not be purposeful or

deliberate.” Id. at 145.

       Just a few years later, the Court held that the crime of fleeing from a law

enforcement officer qualified as a predicate offense under ACCA. See Sykes v. United

States, 131 S. Ct. 2267 (2011). The Court rejected the defendant’s argument, based

largely on Begay, that “ACCA predicates [must] be purposeful, violent, and aggressive in

ways that vehicle flight is not.” 131 S. Ct. at 2275. “Begay involved a crime akin to

strict liability, negligence, and recklessness crimes,” the Court explained, “and the

purposeful, violent, and aggressive formulation was used in that case to explain the

result.” Id. at 2276. The Court dismissed the importance of the “purposeful, violent, and

aggressive” language that appeared dispositive in Begay, noting that the phrase “has no

precise textual link to the residual clause.” Id. at 2275. Instead, the Court held that the

crime at issue qualified because it was “not a strict liability, negligence, or recklessness

crime” and was “similar in risk to the listed crimes.” Id. at 2276.

       Orona argues that the Court’s shifting jurisprudence on the proper test used to

determine whether a crime qualifies under the residual clause renders the statute

impermissibly vague. In James v. United States, 550 U.S. 192 (2007), Justice Scalia

argued in dissent that ACCA’s residual clause was incomprehensible based on the

manner in which the Court had interpreted it. Id. at 214 (Scalia, J., dissenting). The

majority rejected this conclusion:
                                             -24-
       While ACCA requires judges to make sometimes difficult evaluations of
       the risks posed by different offenses, we are not persuaded by Justice
       Scalia’s suggestion—which was not pressed by James or his amici—that
       the residual provision is unconstitutionally vague. The statutory
       requirement that an unenumerated crime “otherwise involv[e] conduct that
       presents a serious potential risk of physical injury to another” is not so
       indefinite as to prevent an ordinary person from understanding what
       conduct it prohibits. Similar formulations have been used in other federal
       and state criminal statutes.

Id. at 210 n.6 (citations omitted). Although this statement was dicta, “we are bound by

Supreme Court dicta almost as firmly as by the Court’s outright holdings, particularly

when the dicta is recent and not enfeebled by later statements.” United States v.

Serawop, 505 F.3d 1112, 1122 (10th Cir. 2007) (quotation omitted).

       Further, the Court reiterated in Sykes that the residual clause “states an intelligible

principle and provides guidance that allows a person to conform his or her conduct to the

law.” 131 S. Ct. at 2277 (quotation omitted). And in 2011, Justice Scalia dissented from

the denial of certiorari on this specific issue. See Derby v. United States, 131 S. Ct. 2858

(Scalia, J., dissenting from the denial of certiorari). Several circuit courts have held the

residual clause is not unconstitutionally vague. See United States v. Cowan, 696 F.3d

706, 708 (8th Cir. 2012); United States v. Jones, 689 F.3d 696, 704 (7th Cir. 2012);

United States v. Hudson, 673 F.3d 263, 268-69 (4th Cir. 2012). Orona does not direct us

to any opinion holding the opposite.

       Although we have previously noted that “[t]he Supreme Court’s holding in Sykes

is not a model of clarity,” United States v. Sandoval, 696 F.3d 1011, 1017 n.8 (10th Cir.

2012), we have nevertheless distilled a comprehensible test from the Court’s residual
                                             -25-
clause cases: “[A]fter Sykes, it is not necessary to reach Begay’s purposeful inquiry

when the mens rea of the offense requires intentional conduct. In such cases, we ask

instead whether the crime is similar in risk to the listed crimes in the ACCA.” United

States v. Maldonado, 696 F.3d 1095, 1103 (10th Cir. 2012) (quotations, citation, and

alteration omitted). We are persuaded by the Court’s consistent rejection of Orona’s

vagueness argument and the unanimous conclusion of our sibling circuits, and hold that

the residual clause is not impermissibly vague.

                                           IV

      For the foregoing reasons, Orona’s conviction and sentence are AFFIRMED.




                                           -26-
