                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-19-2003

USA v. Jones
Precedential or Non-Precedential: Precedential

Docket No. 02-2392




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                                  PRECEDENTIAL

                                             Filed June 19, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                           No. 02-2392


                UNITED STATES OF AMERICA
                                 v.
                        LESTER JONES,
                                   Appellant

      On Appeal from the United States District Court
         for the Western District of Pennsylvania
                   (D.C. No. 01-cr-00136)
          District Judge: Hon. Donald E. Ziegler

                    Argued March 11, 2003
              Before: SLOVITER, NYGAARD and
                  ALARCON,* Circuit Judges

                     (Filed: June 19, 2003)

                         Shelley Stark
                         Karen Sirianni Gerlach (Argued)
                         Renee Pietropaolo
                         Office of Federal Public Defender
                         Pittsburgh, PA l5222
                           Attorneys for Appellant



  * Honorable Arthur L. Alarcon, Senior Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
                              2


                      Mary Beth Buchanan
                      Bonnie R. Schlueter
                      Constance M. Bowden
                      Kelly R. Labby (Argued)
                      Office of United States Attorney
                      Pittsburgh, PA l5219
                        Attorneys for Appellee


                 OPINION OF THE COURT

SLOVITER, Circuit Judge.
  In this appeal by Lester Jones challenging the
enhancement of his sentence pursuant to the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e), we consider a
question of first impression for this court — whether a prior
nonjury juvenile adjudication can count as a prior
conviction for purposes of the exception to Apprendi v. New
Jersey, 530 U.S. 466 (2000).

                              I.

                       BACKGROUND
  Jones was indicted in the Western District of
Pennsylvania with one count of being a previous felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2) and (e). Initially, he pleaded not guilty but
thereafter changed his plea to guilty. During the change of
plea hearing, the Government summarized its evidence
against Jones. Three witnesses claimed that on April 10,
2000, Jones went to an apartment in Pittsburgh,
Pennsylvania where he displayed two guns, one of which he
discharged twice. Thereafter, Jones threatened the
occupants and fled the apartment with $10,000 in cash
and some clothing. When the police caught Jones, they
recovered the stolen clothing, $10,000 in cash, and two
guns, a Taurus and a Smith & Wesson. Experts matched
                               3


two casings and a bullet found in the apartment to the
Taurus gun.1
   A defendant convicted of being a felon in possession of a
firearm is subject to a sentence of a maximum of 10 years
imprisonment under 18 U.S.C. § 924(a)(2). However, the
ACCA mandates a minimum sentence of 15 years
imprisonment for anyone convicted of being a felon in
possession in violation of 18 U.S.C. § 922(g)(1) who is found
to have three previous convictions for a violent felony or
serious drug offense. 18 U.S.C. § 924(e). The District Court
noted that Jones had two adult state felony drug
convictions and one prior juvenile adjudication for a violent
crime, thereby constituting the necessary three prior
convictions for application of the ACCA. Thereafter, the
District Court ordered Jones to pay a special assessment in
the sum of $100 and sentenced him to a 15 year term of
imprisonment followed by a 4 year term of supervised
release. This appeal followed.
  Before us, Jones argues that the ACCA cannot apply to
him. He does not dispute that his adult drug convictions
qualify as prior convictions for purposes of the ACCA.
Instead, Jones raises both statutory and constitutional
challenges to the use of his prior juvenile adjudication for
enhancement purposes. First, Jones argues that his
juvenile adjudication does not constitute a “violent felony”
under the ACCA when applying the “categorical approach”
as enunciated in our recent decision in United States v.
Richardson, 313 F.3d 121 (3d Cir. 2002). Next, Jones
contends that because he was not afforded the right to a
jury trial during his juvenile adjudication, that adjudication
cannot qualify for the so-called “prior conviction exception”
articulated by the Supreme Court in Apprendi v. New
Jersey, 530 U.S. 466 (2000). Although neither the Supreme
Court nor this court has addressed this issue, two other
courts of appeals have rendered differing opinions on this
precise question, thereby creating a circuit split. Finally,
Jones alleges that his prior juvenile adjudication cannot be
used for enhancement purposes because the certified

1. Jones admitted to possessing the Taurus gun but denied robbing
anyone.
                                4


records from his juvenile adjudication do not demonstrate
that he was afforded the right to counsel or waived such
right.
  Jones asks us to vacate his sentence and remand for
resentencing with instructions that he be sentenced
without the application of the ACCA.

                               II.

                          DISCUSSION
A.   Jurisdiction and Standard of Review
   We have jurisdiction to hear this appeal pursuant to 18
U.S.C. §§ 1291 and 3742(a). This appeal presents purely
legal questions, over which we exercise plenary review. See
United States v. Preston, 910 F.2d 81, 84 (3d Cir. 1990).
B.   Jones’ Statutory Claim
   We first consider Jones’ allegation that the statutory
elements underlying his prior juvenile adjudication do not
constitute a “violent felony” under the ACCA because we
need not address his constitutional claims if we are
persuaded by this statutory claim. In relevant part, the
ACCA reads:
     (1) In the case of a person who violates section 922(g)
     of this title and has three previous convictions . . . for
     a violent felony or a serious drug offense, or both . . .
     such person shall be fined not more than $25,000 and
     imprisoned not less than fifteen years . . .
     (2)     As used in this subsection —
     . . .
     (B) the term “violent felony” means any crime
     punishable by imprisonment for a term exceeding one
     year, or any act of juvenile delinquency involving the
     use or carrying of a firearm, knife, or destructive device
     that would be punishable by imprisonment for such
     term if committed by an adult, that —
                               5


    (i) has as an element the use, attempted use, or
    threatened use of physical force against the person of
    another;
    (ii) is burglary, arson, or extortion, involves use of
    explosives, or otherwise involved conduct that presents
    a serious potential risk of physical injury to another;
    and
    (C) the term “conviction” includes a finding that a
    person has committed an act of juvenile delinquency
    involving a violent felony.
18 U.S.C. § 924(e).
   To decide Jones’ statutory claim, we must examine the
offenses for which he was adjudicated delinquent as a
juvenile by the Court of Common Pleas of Allegheny
County. These were simple assault, aggravated assault, and
a violation of Pennsylvania’s Uniform Firearms Act, offenses
we explore more fully below.
   Relying on our recent decision in United States v.
Richardson, 313 F.3d 121 (3d Cir. 2002), Jones claims that
his juvenile adjudication fails to constitute a “violent felony”
as described under the ACCA. In Richardson, we held that
when a juvenile adjudication is invoked to enhance a
sentence under the ACCA, the sentencing court must use
the same “categorical approach” as prescribed by the
Supreme Court in Taylor v. United States, 495 U.S. 575
(1990), for prior adult convictions. 313 F.3d at 122. The
categorical approach requires the court to look only to the
fact of conviction and the statutory definition of the prior
offense to determine whether the defendant committed an
offense which may be used for enhancement purposes. Id.
at 125. The court is not to consider the actual conduct in
which the juvenile engaged and make a factual
determination as to whether the juvenile committed the
offense. Id.
   Explaining the ease with which the sentencing court can
apply the categorical approach to determine whether the
offense statutorily qualifies as a “violent felony” under the
ACCA, we noted that “all it would have had to do would be
to review the Pennsylvania criminal statutes underlying the
                                     6


juvenile adjudication” and see whether those statutes have
as a necessary element “the use or carrying of a firearm,
knife, or destructive device” required for a juvenile
adjudication to count as a predicate offense under the
ACCA. Id. at 127. In Richardson, the “necessary element”
was not present in the statutes underlying the defendant’s
juvenile adjudication and thus, we vacated the sentence
and remanded for resentencing. Id. at 127-28.
   Jones’ sentencing preceded our decision in Richardson
and the District Court did not apply the categorical
approach. Before us, the parties disagree as to how the
categorical approach should be applied in Jones’ case.
Jones argues that to constitute a “violent felony” under the
ACCA, the court must consider each statute underlying
Jones’ juvenile adjudication separately and at least one of
the statutes must contain both requirements of the ACCA:
“the use or carrying of a firearm, knife, or destructive
device” and the use or threatened use of force. The
Government rejects Jones’ contention that the sentencing
court is to parse out each charge underlying an act of
juvenile delinquency and view it in isolation to determine
whether one charge — alone — includes elements of both
carrying a firearm and the use, attempted use, or
threatened use of physical force. Instead, it argues that
under the categorical approach, the sentencing court
should view the underlying charges collectively to determine
whether the ACCA’s statutory elements are met. In defining
“violent felony,” the ACCA itself fails to definitively indicate
whether the statutes underlying a juvenile adjudication
should be viewed individually or in the aggregate. See 18
U.S.C. § 924(e)(2)(B).
  Under either party’s interpretation, the categorical
approach    directs an  examination    of  the  plain
language of the statutes underlying Jones’ juvenile
adjudication, including simple assault,2 aggravated

2. Pennsylvania’s statute for simple assault, 18 Pa. Cons. Stat. Ann.
§ 2701, provides, in relevant part:
    (a)   Offense defined. — A person is guilty of assault if he:
    (1) attempts to cause or intentionally, knowingly or recklessly
    causes bodily injury to another;
                                    7


assault,3    and    a   violation       of   Pennsylvania’s     Uniform

    (2) negligently causes bodily injury to another with a deadly
    weapon;
    (3) attempts by physical menace to put another in fear of imminent
    serious bodily injury; or
    (4) conceals or attempts to conceal a hypodermic needle on his
    person and intentionally or knowingly penetrates a law enforcement
    officer or an officer or an employee of a correctional institution,
    county jail or prison, detention facility or mental hospital during the
    course of an arrest or any search of the person.
3. Pennsylvania’s statute for aggravated assault, 18 Pa. Cons. Stat. Ann.
§ 2702, provides in relevant part:
    (a) Offense defined. — A person is guilty of aggravated assault if
    he:
    (1) attempts to cause serious bodily injury to another, or causes
    such injury intentionally, knowingly or recklessly under
    circumstances manifesting extreme indifference to the value of
    human life;
    (2) attempts to cause or intentionally, knowingly or recklessly
    causes serious bodily injury to any of the officers, agents, employees
    or other persons enumerated in subsection (c) or to an employee of
    an agency, company or other entity engaged in public
    transportation, while in the performance of duty;
    (3) attempts to cause or intentionally or knowingly causes bodily
    injury to any of the officers, agents, employees or other persons
    enumerated in subsection (c), in the performance of duty;
    (4) attempts to cause or intentionally or knowingly causes bodily
    injury to another with a deadly weapon;
    (5) attempts to cause or intentionally or knowingly causes bodily
    injury to a teaching staff member, school board member or other
    employee, including a student employee, of any elementary or
    secondary publicly-funded educational institution, any elementary
    or secondary private school licensed by the Department of
    Education or any elementary or secondary parochial school while
    acting in the scope of his or her employment or because of his or
    her employment relationship to the school; or
    (6) attempts by physical menace to put any of the officers, agents,
    employees or other persons enumerated in subsection (c), while in
    the performance of duty, in fear of imminent serious bodily injury.
                                   8


Firearms Act.4 Jones argues that although the statutory
elements of these three offenses require either “the use or
carrying of a firearm, knife, or destructive device,” or the
use or threatened use of force, none of them individually
requires both. It follows, according to Jones, that his
juvenile adjudication does not constitute a “violent felony”
under 18 U.S.C. § 924(e)(2).
  In an effort to buttress his case, during oral argument
counsel for Jones urged us to consider not only Richardson
but also United States v. Galo, 239 F.3d 572 (3d Cir. 2001).
In Galo, a case dealing with sentencing enhancements
under 18 U.S.C. § 2251(d) and not the ACCA, a divided
panel of this court held that the district court erred in
enhancing defendant’s sentence because defendant had not
previously been convicted of violating a law relating to the
sexual exploitation of children as required by the relevant
statute for enhancement purposes. Id. at 583-84. Holding
that the district court should not have considered
defendant’s prior conduct, the court concluded that under
the categorical approach, the sentencing court “should have
focused only on the statutory definitions of those prior
convictions.” Id. at 582. A reading of the Galo court’s
conclusion, indeed a reading of the entire opinion, provides
no support for Jones’ contention that the categorical
approach mandates a piecemeal statutory examination.
Galo merely states that the categorical approach precludes

4. Pennsylvania’s Uniform Firearms Act, 18 Pa. Cons. Stat. Ann. § 6106,
provides in relevant part:
    (a)   Offense defined. —
    (1) Except as provided in paragraph (2), any person who carries a
    firearm in any vehicle or any person who carries a firearm concealed
    on or about his person, except in his place of abode or fixed place
    of business, without a valid and lawfully issued license under this
    chapter commits a felony of the third degree.
    (2) A person who is otherwise eligible to possess a valid license
    under this chapter but carries a firearm in any vehicle or any
    person who carries a firearm concealed on or about his person,
    except in his place of abode or fixed place of business, without a
    valid and lawfully issued license and has not committed any other
    criminal violation commits a misdemeanor of the first degree.
                               9


the sentencing court from engaging in a fact-finding
expedition and instead requires an examination of the
statutory elements underlying the defendant’s prior
conviction. Id. at 581-82. Thus, Jones’ reliance on Galo is
misplaced.
   As for Richardson, it too fails to support Jones’ narrow
vision of the categorical approach. Focusing on whether to
use the categorical approach over and above a fact-finding
approach, the Richardson court said little about how to
apply the categorical approach, thus admittedly leaving us
with little guidance as to the issue before us. This is not to
say that we are altogether without direction. The
Richardson court did state that a review of the statutes
underlying the defendant’s juvenile adjudication would
make clear that “none of the offenses . . . had as a
necessary element ‘the use or carrying of a firearm, knife,
or destructive device.’ ” Richardson, 313 F.3d at 127
(emphasis added). This statement, in our view, provides
support for the Government’s argument that the statutes
underlying Jones’ juvenile adjudication should be viewed
collectively to determine whether they statutorily constitute
a “violent felony” for purposes of the ACCA.
  Considering Richardson in tandem with a commonsense
reading of the ACCA, we conclude that when applying the
categorical approach to a juvenile adjudication for purposes
of sentencing enhancement, a sentencing court may
consider all the statutory elements underlying the juvenile
adjudication collectively. After all, “violent felony” is defined
as “any act of juvenile delinquency involving the use or
carrying of a firearm” and has as an element the use or
attempted use of force. 18 U.S.C. § 924(e)(2)(B). Jones was
adjudicated delinquent for various offenses, and we reject
his argument that the categorical approach requires a
piecemeal examination of each offense.
  Viewing the statutes underlying Jones’ prior juvenile
adjudication collectively, it is apparent that together they
require the carrying of a firearm and the use, attempted
use, or threatened use of force. Jones himself acknowledges
that simple assault and aggravated assault both require the
use or threatened use of force while the Uniform Firearms
Act requires the use of a firearm. Jones was adjudicated
                              10


delinquent based on these three statutes, which together
constitute a “violent felony” under the ACCA. As such, we
conclude that even though the District Court did not apply
the categorical approach in the current case, its
enhancement of Jones’ sentence under the ACCA did not
offend the categorical approach. Rejecting Jones’ statutory
claim, we turn now to his constitutional challenges.
C.    Apprendi v. New Jersey
     1.   The Circuit Split
   Jones’ next claim presents us with one of the many
issues deriving from the Supreme Court’s decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi,
the Supreme Court held that a fact that “increases the
penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” 530 U.S. at 490. The Court, however,
provided the following well-noted exception: a fact of a prior
conviction can be used to increase the penalty for a crime
beyond the prescribed statutory maximum even if it is not
submitted to the jury and proved beyond a reasonable
doubt. Id. The question before us, then, is whether a prior
juvenile adjudication, albeit nonjury, qualifies as a “prior
conviction” for purposes of the Apprendi exception.
Although this court has never answered this specific
question, we consider the views of the two federal courts of
appeals that previously have addressed the issue.
   In United States v. Tighe, a majority of a panel for the
United States Court of Appeals for the Ninth Circuit framed
the issue before it as follows: “do prior juvenile
adjudications, which do not afford the right to a jury trial,
fall within the ‘prior conviction’ exception to Apprendi’s
general rule that a fact used to increase a defendant’s
maximum penalty must be submitted to a jury and proved
beyond a reasonable doubt?” 266 F.3d 1187, 1193 (9th Cir.
2001). The majority answered the question in the negative,
holding that the prior conviction exception to Apprendi’s
general rule must be limited to prior convictions that were
themselves obtained through proceedings that included the
right to a jury trial and proof beyond a reasonable doubt.
Id. at 1194. The court acknowledged that at “first blush” it
                             11


would appear that a juvenile adjudication would fit within
Apprendi’s exception, but it decided that appearance
dissipates when considering the constitutional differences
between adult and juvenile convictions, such as the lack of
a right to jury trials in most juvenile cases. Id. at 1192-93.
  The court examined the scope of the term “conviction” as
used by the Supreme Court in Apprendi and the cases
leading up to Apprendi. Id. at 1193. Specifically, it focused
on two passages from Supreme Court decisions explaining
the distinctiveness of prior convictions. The first passage
came from Jones v. United States, 526 U.S. 227 (1999), a
precursor to Apprendi, and reads as follows:
    One basis for that constitutional distinctiveness [of
    prior convictions] is not hard to see: unlike virtually
    any other consideration used to enlarge the possible
    penalty for an offense . . . a prior conviction itself must
    itself have been established through procedures
    satisfying the fair notice, reasonable doubt and jury
    trial guarantees.
Tighe, 266 F.3d at 1193-94 (quoting Jones, 526 U.S. at
249).
The Tighe court next quoted the following passage from
Apprendi itself:
    There is a vast difference between accepting the validity
    of a prior judgment of conviction entered in a
    proceeding in which the defendant had the right to a
    jury trial and the right to require the prosecutor to
    prove guilt beyond a reasonable doubt, and allowing
    the judge to find the required fact under a lesser
    standard of proof.
Id. at 1194 (quoting Apprendi, 530 U.S. at 496).
  Based on these two passages, the Tighe court decided
that juvenile adjudications that do not afford the right to a
jury trial and require a beyond-a-reasonable-doubt burden
of proof do not fit within Apprendi’s exception for prior
convictions. Id. at 1194.
  The dissenting panel member accused the Tighe majority
of taking language from Jones and “mak[ing] the quantum
                              12


leap” to hold that in order for a prior conviction to support
a sentencing enhancement, it must have been subject to
fair notice, reasonable doubt, and the right to a jury trial.
Id. at 1200 (Brunetti, J., dissenting). According to the
dissenter, simply because one part of this “fundamental
triumvirate of procedural protections” — the right to a jury
trial — is absent, the majority removes juvenile
adjudications from the ACCA’s grasp. Id. Furthermore,
according to the dissenting judge, the excerpted language
from Jones simply denotes Congress’ constitutional power
to treat prior convictions as sentencing factors subject to a
lesser standard of proof because the defendant received all
process that was due when convicted — for adults that
includes the right to a jury trial; for juveniles, it does not.
Id.
   Last year, a unanimous panel for the Court of Appeals for
the Eighth Circuit flatly rejected Tighe in holding that a
prior nonjury juvenile adjudication qualifies as an exception
under Apprendi. See United States v. Smalley, 294 F.3d
1030 (8th Cir. 2002), cert. denied, 123 S. Ct. 870 (2003).
Smalley, like the defendant in the case before us and that
in Tighe, was charged with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). After Smalley
pleaded guilty, the district court applied the ACCA and
sentenced him to 15 years incarceration. Smalley appealed,
alleging that the district court erred in enhancing his
sentence based on prior juvenile adjudications.
  In holding that prior juvenile adjudications can “rightly”
be characterized as “prior convictions” for Apprendi
purposes, the Smalley court rejected the reasoning
employed in Tighe. Id. at 1032-33. In so doing, the court
refused to read Apprendi as creating a bright line rule
whereby proof beyond a reasonable doubt, fair notice, and
a right to a jury trial are all necessary procedural
safeguards that must be present before qualifying for the
Apprendi exemption. Id. at 1032.
  Instead of relying on the “narrow parsing of words,” the
Smalley court examined the reality of actual juvenile
adjudications to determine whether they are sufficiently
reliable so as to not offend constitutional rights if used to
qualify for the Apprendi exception. Id. at 1033. The court
                              13


noted that juvenile defendants receive process that has
been held to satisfy constitutional standards, including the
right to notice, right to counsel, right to confront and cross-
examine witnesses, and the privilege against self-
incrimination. Id. Furthermore, to convict a juvenile, a
judge must find guilt beyond a reasonable doubt. Id. The
court found these procedural safeguards to be sufficient for
purposes of the Apprendi exception. Id. In short, the
Smalley court concluded that the absence of the right to a
jury trial does not automatically disqualify juvenile
adjudications for purposes of the Apprendi exception.
  2.   The Current Appeal
   Lester Jones urges us to adopt the reasoning and holding
from the Ninth Circuit’s majority opinion in Tighe.
According to Jones, the Tighe court relied on the “clear
mandate of Supreme Court case law.” Appellant’s Br. at 27.
Undoubtedly, this is a grave overstatement, if not a
misstatement, of the law. Jones concedes that the Supreme
Court cases relied on by the Tighe court never addressed
the precise issue presented before us. Furthermore, Jones
fails to direct us to any Supreme Court language
articulating this alleged mandate. In any event, it is clear
that to date, the Supreme Court has not held that prior
nonjury juvenile adjudications cannot count as prior
convictions for purposes of Apprendi’s exception.
   The Government, on the other hand, urges us to adopt
the reasoning of the Eighth Circuit in Smalley. It notes that
in McKeiver v. Pennsylvania, 403 U.S. 528 (1971), the
Supreme Court held that due process does not require
providing juveniles with the right to a jury trial. It follows,
according to the Government, that when a juvenile is
adjudicated guilty beyond a reasonable doubt in a bench
trial that affords all the due process protections that are
required, the adjudication should be counted as a
conviction for purposes of subsequent sentencing under the
ACCA. We agree.
  Like the Smalley court, we find nothing in Apprendi or
Jones, two cases relied upon by the Tighe court and Lester
Jones on this appeal, that requires us to hold that prior
nonjury juvenile adjudications that afforded all required
                              14


due process safeguards cannot be used to enhance a
sentence under the ACCA.
   It follows that if Lester Jones was afforded all the
procedural safeguards that he is constitutionally due, the
District Court properly enhanced his sentence pursuant to
the ACCA. A prior nonjury juvenile adjudication that was
afforded all constitutionally-required procedural safeguards
can properly be characterized as a prior conviction for
Apprendi purposes. We proceed to consider Lester Jones’
claim that his particular juvenile adjudication was
procedurally deficient.
D.   Jones’ Sixth Amendment Claim
  The Sixth Amendment of the United States Constitution
guarantees criminal defendants the right to counsel in both
state and federal courts. See Gideon v. Wainwright, 372
U.S. 335, 339-40 (1963). Jones claims that the District
Court violated his Sixth Amendment right to counsel by
enhancing his sentence based upon his prior juvenile
adjudication because records for that adjudication do not
indicate that he was represented by counsel and do not
show that he waived his right. He contends that we must
therefore vacate his sentence and remand for resentencing
with instructions to the District Court to sentence him
without applying the ACCA.
   As a preliminary matter, we note that Jones does not
allege that he was not represented by counsel during his
juvenile adjudication. Instead, he argues that where, as
here, the certified records from a prior conviction do not
show that the defendant was represented by counsel, there
is a presumption that the defendant was denied his right to
counsel. For this proposition, Jones relies on the Supreme
Court’s decision in Burgett v. Texas, 389 U.S. 109 (1967).
  In Burgett, the defendant was charged in a five-count
indictment. The first count charged assault and the
remaining counts alleged prior felonies pursuant to Texas’
recidivist statutes that would have subjected the defendant
to an enhanced sentence upon conviction of count one. The
State offered two differing certified copies of one of the prior
convictions. The first version of the prior conviction read:
“Came the Assistant Attorney-General for the State and the
                             15


Defendant in proper person and without Counsel.” Id. at
112 (emphasis added). After the defendant objected to the
introduction of the prior conviction on the ground that he
was not represented by counsel, the State offered another
certified copy of the same prior conviction which again
stated that defendant had appeared “in proper person” but
which did not include the additional words “without
counsel.” Id. The State failed to offer an explanation for the
differing versions. According to the Supreme Court, the
certified records, on their face, created a presumption that
the defendant in that case was denied his right to counsel
and thus, his conviction was void. Id. at 114. Furthermore,
the Court noted that the presumption of waiver of counsel
could not be deemed from a silent record. Id. at 114-15.
   This case is different. Here, the Government claims that
Jones was afforded all required procedural protections
during his juvenile adjudication. It argues that Jones has
done no more than state that his records failed to indicate
whether he had counsel, was denied counsel, or waived his
right to counsel. According to the Government, Jones has
the burden of establishing that his prior conviction suffers
a constitutional infirmity. Otherwise, the presumption of
regularity attaches to the conviction. We agree with the
Government that Parke v. Raley, 506 U.S. 20 (1992),
forecloses Jones’ argument that his silent record as to
counsel automatically shifts the burden to the Government
to prove that he was afforded counsel or waived that right.
  Twenty-five years after its decision in Burgett, the
Supreme Court took pains to narrow the scope of that
decision. In Parke, a state prisoner, after exhausting his
state remedies, petitioned for a writ of habeas corpus in a
federal district court seeking a vacatur of his state court
sentence that had been enhanced due to two prior
convictions based on guilty pleas. The prisoner claimed that
because his records contained no transcripts of the prior
plea proceedings, it could not be determined whether his
plea was entered knowingly and intelligently. The Parke
Court addressed the defendant’s argument that Burgett
stood for the proposition that a previous conviction used to
enhance punishment is presumptively void if waiver of a
claimed constitutional right does not appear on the face of
                              16


the record. Placing Burgett in its proper historical context,
the Court opted not to “read the decision so broadly,” and
noted that in Burgett, the defendant’s conviction was
entered before the Court had recognized state criminal
defendants’ federal constitutional right to counsel in the
watershed decision of Gideon v. Wainwright, 372 U.S. 335
(1965). Parke, 506 U.S. at 31. Accordingly, one could
reasonably presume that the defendant in Burgett did not
waive a right he had not yet been held to possess. Id. The
Court held that the same presumption did not apply to the
defendant in Parke, who sought relief based on an
unavailable record on collateral review. Id. The Court
further noted that even when a collateral attack on a final
conviction rests on constitutional grounds, the presumption
of regularity that attaches to final judgments makes it
appropriate to assign the burden of proof to the defendant.
Id.
   Like the Court in Parke, we see no reason why it would
be unreasonable to attach the presumption of regularity to
a record silent as to the presence of counsel, as the events
occurred for Jones several decades after the Supreme Court
recognized the constitutional right to counsel for all
criminal defendants. Furthermore, it is of no import for our
purposes that Parke was a habeas case rather than a
sentencing case. See United States v. Gray, 177 F.3d 86,
90-91 (1st Cir. 1999) (finding that even in a sentencing
case, Parke foreclosed argument that record silent as to
counsel shifts burden to Government to prove right to
counsel was either afforded or waived). As the presumption
of regularity attached to Jones’ juvenile adjudication, we
reject his argument that the Government must prove that
he was either afforded his right to counsel or waived that
right.
  On a final note, we have no reason to doubt that Jones
was provided other procedural safeguards during his
juvenile adjudication. Although Jones makes no additional
challenges to his juvenile adjudication, we nonetheless note
that the certified record from that adjudication provides us
with ample reason to believe it was procedurally sound. The
record reads: “[A]fter a full hearing, the Court finds by proof
beyond a reasonable doubt that [Lester Jones] has
                              17


committed the . . . delinquent acts” for which he was
adjudicated delinquent as a juvenile. Supp. App. at 1
(emphasis added). Thus, it is beyond dispute that the court
in Jones’ juvenile adjudication employed the proper
standard — that of reasonable doubt — before adjudicating
him delinquent. At all events, there is nothing in Jones’
record that leads us to believe his juvenile adjudication did
not provide him with adequate procedural safeguards.

                             III.

                       CONCLUSION
  For the foregoing reasons, we will affirm the District
Court’s judgment of sentence.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
