                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 05-30410
                Plaintiff-Appellee,                D.C. No.
               v.                              CR-05-00001-2-
JUVENILE,                                            SEH
             Defendant-Appellant.
                                                 OPINION

         Appeal from the United States District Court
                 for the District of Montana
          Sam E. Haddon, District Judge, Presiding

                    Argued and Submitted
                May 4, 2006—Portland, Oregon

                       Filed June 22, 2006

    Before: A. Wallace Tashima and William A. Fletcher,
    Circuit Judges, and Louis H. Pollak,* District Judge.

                    Opinion by Judge Pollak




   *The Honorable Louis H. Pollak, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.

                                6943
6946               UNITED STATES v. JUVENILE


                          COUNSEL

Palmer A. Hoovestal, Helena, Montana, for the appellant.

Lori Harper Suek, OFFICE OF THE US ATTORNEY, Bil-
lings, Montana, for the appellee.


                          OPINION

POLLAK, District Judge:

   This case requires us to decide whether, when deciding a
motion to transfer a juvenile to adult status pursuant to 18
U.S.C. § 5032 for criminal prosecution, a district court must
assume the juvenile defendant committed the crime with
which he is charged. For the reasons that follow, we hold that
the district court may indulge such an assumption but is not
required to do so. If the district court chooses to assume guilt,
it must confine the assumption to the elements of the offense
charged.

            I.   Factual and Procedural History

   The juvenile appellant in this case, to whom we will refer
as T.J.S., was charged, along with a co-defendant, with first
degree murder by Information. The charge against T.J.S.
arises from events occurring on June 18, 2004 on the Rocky
Boy’s Indian Reservation near Box Elder, Montana. The
details of that day’s events are, of course, in dispute.

  The government’s account is as follows. T.J.S., who was 15
years old at the time, was drinking alcohol with three of his
                      UNITED STATES v. JUVENILE                       6947
friends on the evening of June 18, 2004 when one member of
the group suggested they go pick up Alton Alexander so he
could buy beer for the group. T.J.S. rejected that idea,
expressing some disdain for Alexander as a “rat” because
Alexander had recently foiled an attempt by T.J.S. and others
to steal a car. Later in the evening, T.J.S. obtained a length of
pipe and suggested beating up Alexander. T.J.S. and the other
boys were also carrying knives. The group went to Alexan-
der’s house and invited him to go drinking with them, which
he agreed to do. The four boys drove Alexander to a nearby
dump site. While they were in the car, T.J.S. accused Alexan-
der of being a rat, and Alexander exited the car and attempted
to flee. T.J.S. and the other boys chased him down, beat him
with a pipe, cut and stabbed him with knives, and ran over
him with their car as they left the scene. Alexander was found
dead at the dump site less than an hour after he was seen get-
ting into the car with T.J.S. and his friends. The cause of
Alexander’s death was determined to be blunt force injuries
to the head and stab wounds to the head and trunk.

   T.J.S. does not deny most of the government’s account of
events leading up to the confrontation with Alexander at the
dump site. However, he claims that he did not plan the attack
on Alexander. In fact, he claims that, after picking up the pipe
and putting it in the car, he blacked out and did not wake up
until after the boys had picked up Alexander and were on
their way to the dump site. He claims that he did not even
know Alexander. He also claims that his role in the attack was
limited to punching Alexander with his fists.

   The government moved to transfer T.J.S.’s case for prose-
cution as an adult pursuant to the discretionary transfer provi-
sion of 18 U.S.C. § 5032.1 The district court later ordered a
   1
     18 U.S.C. § 5032 states, in pertinent part as follows: “[W]ith respect
to a juvenile fifteen years and older alleged to have committed an act after
his fifteenth birthday which if committed by an adult would be a felony
that is a crime of violence . . . criminal prosecution on the basis of the
alleged act may be begun by motion to transfer of the Attorney General
in the appropriate district court of the United States, if such court finds,
after hearing, such transfer would be in the interest of justice.”
6948               UNITED STATES v. JUVENILE
psychological examination of T.J.S. T.J.S. also retained his
own expert, who filed a report with the district court. The dis-
trict court held an evidentiary hearing on the motion to trans-
fer. The court indicated that it had received and would
consider the psychological evaluations mentioned above, and
testimony was heard from the FBI investigator in charge of
the case and some of T.J.S.’s relatives, including his mother,
brothers, grandmother, and step-grandfather.

   Some days after the hearing, the district court issued its
Findings of Fact, Conclusions of Law, and an Order granting
the government’s motion to transfer. The district court
addressed each of six factors which Congress, in 18 U.S.C.
§ 5032, has directed district courts to consider in “assessing
whether a transfer would be in the interest of justice: the age
and social background of the juvenile; the nature of the
alleged offense; the extent and nature of the juvenile’s prior
delinquency record; the juvenile’s present intellectual devel-
opment and psychological maturity; the nature of past treat-
ment efforts and the juvenile’s response to such efforts; [and]
the availability of programs designed to treat the juvenile’s
behavioral problems.”

   In considering T.J.S.’s “social background,” the district
court found, inter alia, that T.J.S. may have been abused by
his father as a child, and that his social group and activities
reflected a desire to appear “tough.” As to “the nature of the
offense,” the district court found, inter alia, that T.J.S. initi-
ated the attack on Alexander, that T.J.S. brought the pipe that
was used in the attack, that T.J.S. was carrying a knife when
the group went to get Alexander, that the group of boys beat
Alexander with a pipe and stabbed him with knives, and that
T.J.S.’s description of the attack was detached and that he
attempted to minimize his involvement. The district court
found that T.J.S. had a “prior delinquency record” consisting
of a number of incidents of malicious mischief, disorderly
conduct, and attempted car theft. With respect to T.J.S.’s “in-
tellectual development and psychological maturity,” the dis-
                   UNITED STATES v. JUVENILE                6949
trict court found that T.J.S. performed well in school when he
applied himself, that he had some weak reality perception,
and that he presented an above-average risk of violent crimi-
nal activity. The district court found that T.J.S. had not been
the object of any “past treatment efforts.” Finally, the district
court found that substantial treatment programs were avail-
able, both for juveniles and adults, in the Bureau of Prison’s
local facilities, but that T.J.S. had expressed no serious inter-
est in any therapeutic programs.

   The district court also entered conclusions of law, among
which were determinations that the crime charged was a
crime of violence and that “[t]he Court must assume, for pur-
poses of a transfer determination, that the juvenile committed
the offense charged in the Information” (emphasis added) (cit-
ing United States v. Nelson, 68 F.3d 583, 589 (2d Cir. 1995)).

   Based on its findings of fact and law, the district court con-
cluded that prosecution of T.J.S. as an adult was warranted.
The district court emphasized the vicious nature of the offense
and expressed its belief that T.J.S. had planned the attack in
retaliation for Alexander’s role in foiling T.J.S.’s attempt to
steal a car. T.J.S.’s actions suggested a “significant level of
mental development and capacity” and substantial “skills at
manipulation which enabled him to lead and persuade others
to participate in the crime.” The district court recognized that
T.J.S. had a difficult childhood and that he had not received
prior treatment, but the court stated that “the stark reality
remains that T.J.S.’s planning of and participation in a delib-
erate murder, brutally and callously carried out, make inevita-
ble the conclusion that he is a violent and dangerous person
who expresses little or no recognition of or acceptance of
responsibility for his actions and from whom society must be
protected.” The district court found little promise of rehabili-
tation and concluded on the record as a whole that transfer to
adult status was appropriate.

  T.J.S. filed a timely notice of appeal.
6950                   UNITED STATES v. JUVENILE
           II.   Jurisdiction and Standard of Review

   The district court had jurisdiction over this matter pursuant
to 18 U.S.C. § 3231. We exercise jurisdiction over this inter-
locutory appeal in accordance with United States v. Gerald
N., 900 F.2d 189, 190-91 (9th Cir. 1990).

   The decision to transfer a juvenile to adult status is within
the sound discretion of the district court and will not be dis-
turbed absent an abuse of discretion. United States v. Doe, 94
F.3d 532, 536 (9th Cir. 1996). The district court abuses its
discretion when it fails to make the required findings or when
the findings it does make are clearly erroneous.2 Id. It also
abuses its discretion when it bases its ruling on an erroneous
view of the law. See Koon v. United States, 518 U.S. 81, 100
(1996) (“A district court by definition abuses its discretion
when it makes an error of law.”).

  Questions of statutory and constitutional interpretation are
reviewed de novo. See United States v. Juvenile, 228 F.3d
987, 989 (9th Cir. 2000).

                           III.    Discussion

A.     Legal Standards for Transfer

   [1] The Federal Juvenile Delinquency Act (FJDA), 18
U.S.C. §§ 5031 et seq., permits the criminal prosecution of a
juvenile if: 1) it is alleged that the juvenile committed the
offense after his fifteenth birthday; 2) the offense would be a
felony crime of violence if committed by an adult; and 3) it
  2
    While recognizing the foregoing well-settled standard of review,
T.J.S.’s brief urges this court to “go beyond a deferential ‘abuse of discre-
tion’ standard” and “weigh the prospect of rehabilitation de novo.” He
suggests that the presumption in favor of retaining juvenile status justifies
a less deferential standard of review. However, he cites no case in support
of his position, and we are aware of none. We will adhere to this court’s
established standard of review, as articulated above.
                    UNITED STATES v. JUVENILE                  6951
is in the interest of justice to prosecute the juvenile as an
adult. 18 U.S.C. § 5032; see also United States v. Brandon P.,
387 F.3d 969, 976 (9th Cir. 2004). “The statute clearly intends
a presumption of juvenile treatment, and the government
bears the burden of establishing that transfer is warranted.”
United States v. A.R., 38 F.3d 699, 706 (3d Cir. 1994). In con-
sidering whether transfer is in the interest of justice, the dis-
trict court, as noted above, is required to make findings with
respect to the six factors enumerated in § 5032. The weight to
be given each factor is a matter within the discretion of the
district court, and the court is not required to specify whether
it regards each factor as weighing for or against transfer.
Brandon P., 387 F.3d at 977. Transfer is proper when the risk
of harm posed by affording the defendant more lenient treat-
ment within the juvenile justice system outweighs the defen-
dant’s chance for rehabilitation. Doe, 94 F.3d at 536.

   [2] Transfer proceedings are not designed to determine
whether a juvenile defendant is guilty, but rather are designed
to predict the possibility of rehabilitation if in fact the juvenile
is found guilty of the crime alleged. Id.; United States v. Alex-
ander, 695 F.2d 398, 401 (9th Cir. 1982).

B.   The District Court’s Findings of Fact

   [3] T.J.S. contends that the district court erred in making
the following findings: 1) that T.J.S. was carrying a knife; 2)
that T.J.S. instigated the attempted theft of a car; 3) that T.J.S.
continues to minimize the seriousness of the offense; 4) that
T.J.S. has expressed no significant interest in any therapeutic
programs; and 5) that T.J.S. planned and led a brutal attack
and hence that his danger to society overshadows any mini-
mal chance that he can be rehabilitated. T.J.S. also argues that
the district court erred by failing to make the following find-
ings: 1) that T.J.S. had no intent to use the pipe when he
found it and placed it in the car; and 2) that there was no evi-
dence that T.J.S. struck Alexander with a pipe, stabbed or cut
Alexander, or drove a car over Alexander. We have reviewed
6952               UNITED STATES v. JUVENILE
the record, and we find evidence therein to support each affir-
mative finding of the district court that T.J.S. challenges on
appeal. We do not find in the record evidence that suffices to
compel the district court to make the findings T.J.S. contends
that the district court should have made. We conclude that the
district court’s factual findings were not clearly erroneous. Cf.
Doe, 94 F.3d at 536.

C.     T.J.S.’s Due Process Claim

   T.J.S. also contends that the district court violated his right
to due process by assuming that he committed the offense.
T.J.S. argues that a criminal defendant is entitled to a pre-
sumption of innocence at all stages of a criminal case and that
the district court’s refusal to presume T.J.S.’s innocence for
purposes of the transfer motion violated T.J.S.’s right to due
process.

   [4] T.J.S.’s argument runs counter to the great weight of
authority. Every circuit that has considered the issue has held
that a district court may assume that the juvenile committed
the alleged offense for purposes of transfer proceedings.
United States v. Welch, 15 F.3d 1202, 1208 (1st Cir. 1993)
(“[T]he district court . . . may assume, without receiving evi-
dence, that the government’s factual allegations relating to the
character of the offense are true.”); United States v. Doe, 871
F.2d 1248, 1250 n.1 (5th Cir. 1989) (“For purposes of a trans-
fer hearing, the district court may assume the truth of the
offense as alleged.”); In re Sealed Case, 893 F.2d 363, 369
(D.C. Cir. 1990) (“While a juvenile can contest evidence
offered by the government for five of § 5032’s six ‘interest of
justice’ categories, a judge is entitled to assume that the juve-
nile committed the offense charged for the purpose of the
transfer hearing.”); United States v. Juvenile LWO, 160 F.3d
1179, 1181 n.1 (8th Cir. 1998) (“A district court may assume
the truth of the alleged offense at a transfer hearing . . . and
we have so stated the facts as alleged.”); United States v.
Leon, D.M., 132 F.3d 583, 589-90 (10th Cir. 1997) (“[I]n
                      UNITED STATES v. JUVENILE                       6953
making the transfer decision, the court may assume the truth
of the government’s allegations regarding the defendant’s
commission of the charged crime.”); United States v. A.R., 38
F.3d 699, 703 (3d Cir. 1994) (“[T]he district court ‘is entitled
to assume that the juvenile committed the offense charged for
the purpose of the transfer hearing.’ ”). While this court has,
in dicta, spoken approvingly of this practice, we have not had
occasion to rule on whether the district court may assume that
the accused juvenile is guilty of the offense or offenses set
forth in the charging instrument. See United States v. Miguel,
338 F.3d 995, 1003 n.23 (9th Cir. 2003) (“The transfer statute
suggests that assuming the truth of the allegations is entirely
appropriate.”).

   [5] In considering this question we find the views of the
D.C. Circuit in In re Sealed Case to be especially instructive.
In that case, the court, after ruling that “a judge is entitled to
assume that the juvenile committed the offense charged,”
went on to observe that “[s]uch a presumption is not inconsis-
tent with a juvenile’s due process rights because the trial itself
functions as a corrective for any reliance on inaccurate allega-
tions made at the transfer stage.” 893 F.2d at 369. The court
noted that, when a juvenile defendant is tried as an adult and
found not guilty, the defendant is returned to juvenile status
and thus suffers no harm from any erroneous attribution of
guilt in the transfer proceedings. See id.

   [6] We agree with the reasoning of In re Sealed Case, and
we therefore hold that a district court may, consistent with
due process, assume a juvenile’s guilt of the crime charged
for purposes of a § 5032 transfer motion.3
  3
   T.J.S. also makes an argument based on Apprendi v. New Jersey, 530
U.S. 466 (2000). T.J.S. contends that the decision to transfer a juvenile to
adult status for criminal prosecution requires factual findings and
increases the maximum available punishment for the crime within the
meaning of Apprendi. See id. at 490. This argument is foreclosed by our
decision in United States v. Miguel, 338 F.3d 995 (9th Cir. 2003), in which
6954                   UNITED STATES v. JUVENILE
   [7] In so holding, we note two constraints. First, a district
court that assumes the guilt of the accused juvenile may not
expand that assumption beyond the offense or offenses
charged in the information. Second, the authority of a district
court to assume the guilt of the accused juvenile is permis-
sive, not mandatory. For example, if the district court has
doubts about the defendant’s guilt based on the evidence pres-
ented pursuant to the motion for transfer, the court may take
those doubts into account in ruling on the motion. In the case
before us the district court appears to have supposed that it
was required to assume the accused’s guilt. The court wrote
that it “must assume, for purposes of a transfer determination,
that the juvenile committed the offense charged in the Infor-
mation.” (Citing United States v. Nelson, 68 F.3d at 589).4

we held that transferring a juvenile to adult status for criminal prosecution
does not implicate Apprendi. Id. at 1004 ( “ ‘[t]he transfer statute does not
per se increase punishment; it merely establishes a basis for district court
jurisdiction.’ Thus, we have refused to view the transfer statute as one that
increases the potential penalties for a crime.”)
   4
     Nelson was a transfer proceeding in which the Second Circuit was of
the view that the district court, in analyzing “the nature of the offense
alleged” (the second of the six statutory factors a district court must con-
sider) “undertook an unwarranted examination of the strength of the gov-
ernment’s evidence,” an “evaluation which served to minimize the
seriousness of the offense and its importance in the overall assessment of
interest of justice in this case.” 68 F.3d at 589. In order to guard against
“unwarranted examination [by district courts in transfer proceedings] of
the strength of the government’s evidence,” the Second Circuit, citing In
re Sealed Case, supra, and Doe (5th Cir.), supra, stated: “We think that
it is the better practice for the district court simply to assume that, for the
purposes of the transfer hearing, the juvenile committed the offense
charged in the Information.” 68 F. 3d at 589. We surmise that it was this
statement by the Nelson court that led the district court in the case at bar
to conclude that the Second Circuit’s rule is that in a transfer proceeding
the district court is required to assume the guilt of the accused juvenile.
While the Second Circuit’s language can be read as directive, we need not
attempt to divine its meaning. As stated in the text, above, we follow the
D.C. Circuit’s view that a district court is free to assume the juvenile’s
guilt; however, we see no reason to require a district court to do so.
                        UNITED STATES v. JUVENILE           6955
Given that there is language in Nelson that can be read as
requiring a district court in a transfer proceeding to assume
the accused juvenile’s guilt,5 and given the absence of any
contrary guidance from this court, we think it entirely under-
standable that the district court proceeded as it did. But under
these circumstances, and bearing in mind that “[t]he statute
clearly intends a presumption of juvenile treatment, and the
government bears the burden of establishing that transfer is
warranted,” A.R., 38 F.3d at 706, we hold that remand is in
order, so that the district court, advised that it has discretion
to assume or to decline to assume the accused juvenile’s guilt,
will be in a position to exercise that discretion and to reexam-
ine the statutory factors bearing on transfer in the light of the
district court’s full discretionary authority.

                           IV.   Conclusion

   [8] For the foregoing reasons, the order of the district court
transferring juvenile T.J.S. to adult status pursuant to 18
U.S.C. § 5032 is vacated, and this matter is remanded to the
District Court for further proceedings in harmony with this
opinion.

  VACATED AND REMANDED.




  5
   See note 4, supra.
