                             United States Court of Appeals
                                 for the eighth circuit
                                      ___________

                                  Nos. 96-3564/3903
                                     ___________

           United States of America,         *
                                             *
                Appellee,                    *    Appeals from the United
States
                                             *    District Court for the
District
                v.                           * of South Dakota.
                                             *
           Juvenile PWM,                     *
                                             *
                Appellant.                   *
                                        ___________

                                 Submitted:       May 23, 1997

                                       Filed:   August 1, 1997
                                        ___________

           Before RICHARD S. ARNOLD, Chief Judge, and BOWMAN and MORRIS
                SHEPPARD ARNOLD, Circuit Judges.
                                      ___________

           MORRIS SHEPPARD ARNOLD, Circuit Judge.

                PWM, a juvenile, appeals two sentences imposed on him.      We
           reverse and remand for resentencing.

                In a proceeding pursuant to 18 U.S.C. § 5032, PWM, a
sixteen-
           year-old, admitted to being a juvenile delinquent because he
had
           stolen firearms from a firearms dealer, an act made criminal by
           18 U.S.C. § 922(u), and had possessed and sold stolen firearms
in
           violation of 18 U.S.C. § 922(j).      After being released on bond,
he
           failed to
          appear at his sentencing hearing, an act for which he was
charged
          with being a juvenile delinquent for violating 18 U.S.C.
          § 3146(a)(1). He later admitted to this charge as well.       The
          district court sentenced him to custody until he
reached
          the age of
          twenty-one in both cases, the maximum sentence that can be
imposed
          on a juvenile who is less than eighteen years old.   See 18
U.S.C.
          § 5037(c)(1)(A).
               In sentencing PWM, the district court recognized that in
the
          firearms case the guideline range for an adult defendant would
have
          been four to ten months imprisonment, and that in the
failure-to-
          appear case it would have been six to twelve months. But
because
          the district court believed that these ranges were arrived at
on
          the basis of a criminal history category that did not
adequately
          reflect the seriousness of PWM's past criminal conduct, it felt
it
          appropriate to depart upward. In the sentencing hearing in the
          firearms case, the district judge remarked that PWM "is
basically
          a career criminal at a very young age," and adverted to his
"most
          extensive criminal history," but did not specifically state to
what
          criminal conduct of PWM's it was referring, except to say that
"of
          course he continued [it] while out on bond." To justify the
          sentence in the failure-to-appear case, the district court
          specifically relied on paragraphs 17 through 29 of the relevant
          presentence report, which briefly described nine tribal-court
          charges of which PWM had been convicted and three criminal
cases
          that were pending against him in tribal court (two of these
last
          being for conduct that he had allegedly engaged in while on
bond).
               In United States v. R.L.C., 503 U.S. 291 (1992), the
Supreme
          Court considered the meaning of 18 U.S.C. § 5037(c)(1)(B),
which
          fixes the maximum term of someone adjudicated a juvenile
delinquent
         at "the maximum term that would be authorized if the juvenile
had
         been tried and convicted as an adult," unless that term would
carry
         the juvenile past his twenty-first birthday. The Court held
that
         this statute required a sentencing court in a juvenile case to
         employ the sentencing guidelines to determine the range of the
         sentence to which an adult would be exposed if he or she had
         committed the adult counterpart of the relevant offense, and
that
         the upper limit of that range




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         marked the maximum sentence to which a juvenile could be
subjected.
         Id. at 306. The Court also observed, however, that "the upper
         limit of the proper Guideline range [sets] the maximum term for
         which a juvenile may be committed to official detention, absent
         circumstances that would warrant departure under [18 U.S.C.]
         § 3553(b)" (emphasis supplied). Id. at 307 .
              The government argues that R.L.C. allows a district court
         unfettered discretion in a juvenile case to exceed the top of
the
         guideline range to which an adult would be subject, once the
court
         lawfully determines that § 3553(b) authorizes it to depart. In
         other words, the government's position is that in deciding how
much
         to depart in a juvenile case, the district court is not bound
by
         the procedures that we have outlined in cases such as United
States
         v. Day, 998 F.2d 622, 625 (8th Cir. 1993), cert. denied, 511
U.S.
         1130 (1994), which require a court, in sentencing an adult, to
         "proceed along the criminal history axis of the sentencing
matrix,
         comparing the defendant's criminal history with the criminal
         histories of other offenders in each higher category," in order
to
         fix and justify the extent of a departure.
              We agree with the government that a juvenile does not have
to
         receive the same sentence that an adult who committed a
         corresponding offense would receive, and, indeed, the Court
         emphasized in R.L.C., 503 U.S. at 307, that its holding did
"not
         require plenary application of the Guidelines to juvenile
         delinquents." But it does no violence to this principle to
require
         a sentencing court to follow the procedures established in Day
in
         order to determine the maximum sentence that an appropriately
         comparable adult would have received, in order to fix the upper
         limit of the juvenile's sentence. This, we believe, is exactly
         what R.L.C. and § 5037(c)(1)(B) require, because otherwise a
         juvenile's maximum possible sentence would not be the same as
that
         of a similarly situated adult, a result the statute was enacted
to
         avoid.

             Furthermore, as we have already indicated, in departing
upward
         the district court considered not just the nine tribal-court
         adjudications outlined in the presentence report,




                                        -3-
          but also three charges that were pending in tribal court, two
of
          which were laid for acts committed while PWM was on bond
pending
          sentencing on the firearms charge. In United States v. Joshua,
          40 F.3d 948, 953 (8th Cir. 1994), we pointed out that charges
that
          are merely pending against a defendant may not be counted as
part
          of the defendant's criminal history unless the defendant admits
to
          the criminal conduct underlying the charge.   In this case, PWM
did
          not admit the underlying conduct, and consequently it was error
for
          the district court to take it into account in determining
whether
          and how much to depart.

               We therefore vacate the sentences, remand the cases for
          resentencing, and direct the district court to utilize the
          procedures established in Day and similar cases to determine an
          appropriate guideline for PWM, without reference to charged
conduct
          to which he has not admitted or which the government does not
prove
          by a preponderance of the evidence, in order to fix the upper
limit
          of the sentence for which he is eligible.

              A true copy.

                   Attest:

                        CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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