                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1489
                                   ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of South Dakota.
Juvenile Male N.R.,                   *
                                      *      [UNPUBLISHED]
            Defendant-Appellant.      *
                                 ___________

                             Submitted: October 16, 2001

                                  Filed: December 3, 2001
                                   ___________

Before WOLLMAN, Chief Judge, LAY and RILEY, Circuit Judges.
                             ___________

PER CURIAM.

        N.R. killed Ron Randall, his stepfather by common law marriage, on January
22, 2000, at approximately 11:00 p.m. on the Pine Ridge Indian Reservation while
helping him change a flat tire on a vehicle in front of the family trailer. No motive
was attributed to the violent crime in which the then sixteen year old N.R. used the
blunt end of an axe to strike Randall. Earlier that day Randall and N.R. purchased
beer and other alcohol. They drove around the reservation and consumed the alcohol,
later returning home. After the crime occurred, N.R.’s mother locked the door to the
trailer and called 911. N.R. broke into the trailer and pursued his mother and
attempted to choke her and her two younger children, ages five and six. The mother
was able to escape from N.R. and he subsequently left. N.R. was discovered shortly
thereafter unconscious in an abandoned building.

       N.R. was charged by superseding information with second degree murder in
violation of 18 U.S.C. §§ 1111, 1153, and 5032. The Government filed a certificate
for juvenile proceedings and thereafter moved to transfer the matter into adult court
pursuant to 18 U.S.C. § 5032. On February 12, 2001, the Honorable Karen E.
Schreier, United States District Judge, entered an order granting the Government’s
motion to transfer N.R. to district court proceedings as an adult.

       Under 18 U.S.C. § 5032, the court is directed to hold a hearing to determine
whether, in the interests of justice, to transfer a juvenile for adult prosecution. The
court is required to make findings as to each of six factors: 1) the age and social
background of the juvenile, 2) the nature of the alleged offense, 3) the extent and
nature of the juvenile’s prior delinquency record, 4) the juvenile’s present intellectual
development and psychological maturity, 5) the nature of past treatment efforts and
the juvenile’s response to such efforts, and 6) the availability of programs designed
to treat the juvenile’s behavioral problems. Id. The court then balances the findings.
United States v. Juvenile J.G., 139 F.3d 584, 586 (8th Cir. 1998). The weight
accorded to the individual factors is not predetermined, rather, the district court may
weigh each as it deems appropriate. United States v. Doe, 871 F.2d 1248, 1254-55
(5th Cir. 1989).

       The district court addressed each of the § 5032 factors. The district court found
N.R.’s age and social background, as well as his insignificant juvenile record,
weighed in favor of prosecuting N.R. as a juvenile. Yet, it found the nature of the
offense, a homicide, weighed heavily in favor of prosecuting him as an adult. The
defense was the homicide took place while N.R. suffered a psychotic break from
reality and was in the midst of a toxic delirium. Although the district court found
that N.R. was suffering from a psychotic disorder, the court found N.R.’s inability to

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control his behavior, even with the assistance of prescribed medications, favored
prosecuting N.R. as an adult. It found N.R.’s noncompliance with past treatment and
the unlikely prospect of successful future treatment presented a great risk of harm to
those around him and to society in general. The district court also found the number
of juvenile facilities that accept violent juvenile offenders between the ages of
eighteen and twenty-one are limited; only two programs were identified as willing to
take N.R. if sentenced as a juvenile. Further, there is limited time left to rehabilitate
N.R. since he is eighteen.1 Based on its analysis of the § 5032 factors, the district
court concluded they weighed in favor of prosecuting N.R. as an adult.

       Our standard of review of the district court’s decision is abuse of discretion.2
Juvenile J.G., 139 F.3d at 586; United States v. A.W.J., 804 F.2d 492, 493 (8th Cir.
1986). The factual findings underlying the decision are reviewed for clear error.
United States v. G.T.W., 992 F.2d 198, 199 (8th Cir. 1993); United States v. Parker,
956 F.2d 169, 171 (8th Cir. 1992). The clearly erroneous standard of review is highly
deferential; the district court’s account of the evidence should not be overturned if it
is plausible in light of the view of the record in the entirety. Amadeo v. Zant, 486
U.S. 214, 223 (1988); see also Anderson v. City of Bessemer City, 470 U.S. 564, 573
(1985) (“‘A finding is “clearly erroneous” when although there is evidence to support
it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.’”) (quoting United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948)).




      1
          N.R.’s date of birth is September 15, 1983.
      2
       N.R. bears a heavy burden because few, if any courts have found the district
court abused its discretion by failing to properly balance the enumerated factors.
United States v. Juvenile Male #1, 47 F.3d 68, 71 (8th Cir. 1995) (“Indeed, no court
of appeals has ever found that a district court abused its discretion by failing to
balance properly the six statutory factors.”).

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        N.R. urges that the district court’s decision was an abuse of discretion, due in
part to factual findings that were clearly erroneous. Under the nature of the offense
factor, the district court found N.R. and Randall had been fighting prior to the assault.
Further, the court found the “alleged conduct in committing this homicide weighs
heavily in favor of prosecuting him as an adult. Not only was the attack with the axe
upon Randall vicious, but N.R. would also have killed [his mother] and his brother
and sister if [she] hadn’t outmaneuvered him.” United States v. Juvenile Male N.R.,
No. 00-50007-01, slip op. at 5 (W.D. S.D. Feb. 12, 2001) (internal citations omitted).
 N.R. counters that he was suffering a psychotic break from reality, he let his mother
go and the threats to his brother and sister “show just how out of his mind he was
. . . .” Appellant’s Brief at 24. There is sufficient evidence in the record, which
includes initial statements made to the authorities by N.R. and his mother, to conclude
the facts found under the nature of the offense were not clearly erroneous.

      In examining N.R.’s present intellectual development and psychological
maturity the court found that

      [i]n light of N.R.’s past failures following treatment for his alcohol and
      substance abuse, it is highly probable that N.R. would not remain on his
      psychiatric medication. N.R.’s psychosis, in an unmedicated state,
      presents a grave risk of harm to those around him and to society in
      general. Even in a medicated state, N.R. has not been able to control his
      behavior.

Juvenile Male N.R., No. 00-50007-01, slip op. at 7. N.R. argues this finding is
erroneous because N.R. has neither been properly medicated nor was evidence
adduced that N.R. would not stay on his medication. The Government’s expert
testified that N.R. was prescribed Zyprexa and Zoloft, still his non-compliance with
the program treatment continued. The defense expert contended N.R. was not
medicated, because he was not administered the correct prescription at the necessary
dosage. The district court’s finding under the factor of intellectual development and

                                          -4-
psychological maturity is not clearly erroneous because the district court can properly
credit testimony of one witness over another. See United States v. Womack, 191 F.3d
879, 885 (8th Cir. 1999) (“A credibility determination by the district court is
‘virtually unreviewable on appeal.’”) (quoting United States v. Martin, 28 F.3d 742,
745-46 (8th Cir. 1994)); United States v. Heath, 58 F.3d 1271, 1275 (8th Cir. 1995)
(“A district court’s decision to credit a witness’s testimony over that of another can
almost never be a clear error unless there is extrinsic evidence that contradicts the
witness’s story . . . .”). In addition, the district court could extrapolate from prior
failed rehabilitation attempts, including those while medicated, that N.R. would not
stay on his medication.

       N.R. contends the finding pertaining to his response to previous treatment is
clearly erroneous. The district court found N.R. was not amenable to treatment due
to his failed past treatment history. N.R. alleges the finding “completely ignore[s]
the opinion of [the defense expert] and the fact that N.R. was not treated for his
underlying severe mental illness.” Appellant’s Brief at 36. The district court did take
into account the previous non-treatment of N.R.’s psychological illness. Yet, in light
of N.R.’s failure to complete two prior programs and his relapse shortly after
completion of one program, the district court’s finding under this factor is not clearly
erroneous.

       We have reviewed the arguments of the Government and the defendant
pertaining to the district court’s exercise of discretion and, although another judge in
reviewing similar facts might have reached a different conclusion than Judge
Schreier, we cannot say that Judge Schreier abused her discretion in ordering the
transfer. See, e.g., United States v. Juvenile Male #1, 47 F.3d 68, 71 (1995) (“This
Court will not upset a district court’s determination simply because we would have
reached a different conclusion had we considered the matter in the first instance.”).
Under an abuse of discretion standard, this court exercises authority to reverse only
when the district court’s judgment is not based upon legal principles. Agostoni v.

                                          -5-
Felton, 521 U.S. 203, 238 (1997); see also United States v. Taylor, 487 U.S. 326, 336
(1988) (“[D]iscretionary choices are not left to a court’s ‘inclination, but to its
judgment; and its judgment is to be guided by sound legal principles.’”) (quoting
Albemarle Paper Co. v. Moody, 422 U.S. 405, 416 (1975)). This principle of
deferential appellate review was succinctly stated by Justice Cardozo and reiterated
by Justice Frankfurter in Brown v. Allen, 344 U.S. 443, 496 (1953), “[d]iscretion
without a criterion for its exercise is authorization of arbitrariness.”

       Although equitable arguments can be made on both sides, we cannot say that
the district court’s ruling did not rest upon legal criterion and judgment; therefore, the
exercise of discretion in the present case does not admit of abuse.

      Judgment AFFIRMED.

      A true copy.

             Attest:

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




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