           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         February 1, 2011
                                     No. 10-50719
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

SEALED DEFENDANT,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                 No. 7:10-CR-6-1




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       The defendant, a juvenile whom we call A.S., appeals an order granting
the government’s motion to transfer him to adult status for criminal prosecution.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                   No. 10-50719

We affirm.


                                         I.
        A.S.’s father, Armando, and his uncle, Francisco, worked for Jose “Chaco”
Gardea, a drug trafficker. Armando and Francisco had a dispute with Gardea
and another drug trafficker, Steven Soto, because Soto had recently usurped Ar-
mando’s position as Gardea’s right-hand man. Additionally, Armando believed
that Gardea had failed to compensate him for storing Gardea’s illegal drugs.
        A.S., Armando, Francisco, A.S.’s fifteen-year-old brother, and a seventeen-
year-old friend laid an ambush for Gardea and Soto. They waited in an alley be-
hind Armando’s and Francisco’s adjacent houses. When Gardea and Soto ar-
rived and began exiting their jeep, the five ambushers opened fire with about
160-180 rounds from assault rifles and shotguns. Gardea died of multiple
wounds, but Soto managed to survive the initial barrage by climbing into the
back seat of the jeep. Armando walked up to the jeep and fired two shots into
Soto’s head. The five assailants then left the scene. At the time, A.S. was 17
years, 8 months old.
        A.S. was arrested and charged with two counts of juvenile delinquency
pursuant to 18 U.S.C. § 5032. Count 1 alleged that A.S. fired a weapon into a
group of two or more persons and killed them in furtherance of a major drug of-
fense and with the intent to intimidate, harass, injure, and maim, which would
have been a crime in violation of 18 U.S.C. § 36 if he were an adult. Count 2 al-
leged that A.S. used a firearm to cause the deaths of Gardea and Soto in further-
ance of the crime of violence alleged in Count 1, which would have been a crime
in violation of 18 U.S.C. § 924(c) and (j) if he were an adult.
        The government filed a motion to transfer A.S. to adult status for criminal
prosecution. After an evidentiary hearing, the district court the granted the mo-
tion.


                                         2
                                  No. 10-50719

                                        II.
      We review “factual findings made by a district court considering a motion
to transfer a juvenile to adult status for clear error” and “the overall decision to
grant or deny the transfer motion for abuse of discretion.” United States v.
Sealed Appellant 1, 591 F.3d 812, 820 (5th Cir. 2009). “A finding of fact is clear-
ly erroneous when although there is enough evidence to support it, the reviewing
court is left with the definite and firm conviction that a mistake has been com-
mitted.” Id.
      In evaluating a requested transfer, a district court must consider the six
factors outlined in 18 U.S.C. § 5032: (1) the age and social background of the ju-
venile; (2) the nature of the alleged offense; (3) the extent and nature of the ju-
venile’s delinquency record; (4) his present intellectual development and psycho-
logical maturity; (5) the nature of past treatment efforts and the juvenile’s re-
sponse to such efforts; and (6) the availability of programs designed to treat his
behavioral problems. Not all factors must be weighted equally; “the seriousness
of the offense in particular may be given more weight than other factors in deter-
mining whether there is a realistic chance of rehabilitation and hence whether
transfer is appropriate.” Sealed Appellant 1, 591 F.3d at 820 (quotations and ci-
tation omitted).


                                        A.
      The district court conducted a thorough analysis, making detailed factual
findings on all six factors—as required by the statute. The court properly con-
cluded that factors (1), (2), (4), and (6) weighed in favor of transfer and that
factors (3) and (5) did not.
      As to the first factor, the age of the juvenile, A.S. was only four months
away from his eighteenth birthday. Regardless of his troubled upbringing, his
age weighs heavily in favor of a transfer.

                                         3
                                        No. 10-50719

       The second factor, the nature of the offense, weighs most heavily in favor
of a transfer. The alleged crimes were, as the district court described them, “hor-
rific.” A.S. and his compatriots lied in wait for two unarmed victims and killed
them in a barrage of bullets. That was a shocking act, regardless of A.S.’s age
or motivations.
       The district court also found that the fourth factor, the juvenile’s present
intellectual development and psychological maturity, weighed in favor of a trans-
fer. A.S. was evaluated by two psychologists, who concluded that his level of
maturity was similar to that of an adult. One psychologist determined his IQ to
be 103, and the other found it to be 95, both within the average range. Both psy-
chologists determined that A.S. did not suffer from mental illness or mental re-
tardation.
       Finally, the court found that the sixth factor, the availability of programs
designed to treat the juvenile’s behavioral problems, weighed in favor of a trans-
fer. Evidence showed that A.S. had aged out of the Texas state juvenile pro-
gram, because he was already over eighteen, and the nature of his offense re-
quired that he be held in a secure facility.1 The testimony was that there was
no place in Texas where he could receive treatment as a juvenile. A psychologist
also testified that A.S. would be better served in an adult facility.
       On appeal, however, A.S. argues that the district court actually failed to
consider the sixth factor. He contends that the court erred by evaluating the ju-
venile facilities available within the state system instead of looking to the oppor-
tunities available in the federal system. A.S. appears to place great emphasis
on the fact that, although the Texas juvenile system provides secure detention

       1
         According to the testimony, to be considered a juvenile in the Texas system, the incar-
cerated individual must be under 18. A.S., however, would have to be held in a secure facility
given the violent nature of his offense. The juvenile authority in Texas will hold individuals
in these secure detention facilities until they are 19, but at that point they would be trans-
ferred to the adult detention system. A.S. will soon be 19, so those secure facilities do not con-
stitute a viable option as a juvenile treatment facility for him.

                                                4
                                        No. 10-50719

only for persons under the age of 19, the federal system includes programs that
are available until he turns 21.
       A.S. has a fundamental misunderstanding of the federal juvenile detention
system. As the district court found, the federal government contracts with state,
local, and private entities to house, and provide treatment for, juveniles. Fur-
thermore, by statute, an effort must be made to “commit a juvenile to a foster
home or community-based facility located in or near his home community.” See
18 U.S.C. § 5039. This is why the district court considered the evidence of the
Texas juvenile system when it was ruling on this motion—the Texas state juven-
ile system was where the federal government would attempt to place A.S. if he
were committed for juvenile detention.2
       Perhaps the district court could have given some consideration to the feasi-
bility of committing A.S. to a facility within a system that would have a place for
someone of his age, but given the statutory goal of placing a juvenile in a facility
near his come community, it was not clearly erroneous for the court to find that
there were no available programs to treat A.S.’s behavioral problems.3


       2
         A.S. also argues that a transfer must be denied if the government fails to address any
one of the six factors. See United States v. John Doe, 94 F.3d 532 (9th Cir. 1996); United States
v. A.J.M., 685 F.Supp. 1192 (D.N.M. 1988). This circuit has not yet decided that issue, al-
though the fact that the statute requires the consideration of six factors suggests that evidence
must be before the district court on those six; otherwise, there is little for the court to “con-
sider.” Whether the government is still required to present evidence on a factor where there
is already evidence on that factor from another source is an open question in this circuit. It
is not necessary, however, to decide that issue here. Irrespective of whether the government
was required to produce evidence on all six factors, it presented at least some evidence on all
six, including the availability of juvenile treatment programs near A.S.’s home community.
       3
         We assume arguendo that the court did not consider the availability of juvenile deten-
tion programs outside A.S.’s home community. There is evidence in the record, however, that
the court actually did consider the availability of other programs. During the hearing on the
motion, the court stated that (1) “that may be more of an issue for the Court to sort that out,”
and (2) the court had obtained a directory of Bureau of Prison contract juvenile facilities across
the United States. Thus, there was evidence regarding the availability of all possible juvenile
treatment programs. This provides even more support for the conclusion that the court did not
clearly err in finding that there were no available treatment programs for A.S.

                                                5
                                  No. 10-50719

      To summarize: We agree with the district court that four of the six factors
weigh in favor of a transfer to adult prosecution. Evidence on all six factors was
considered, but the district court properly placed great emphasis on the horrific
nature of the offense and A.S.’s age at the time of the offense. Given the factual
findings on those two issues, as well as A.S.’s present intellectual development
and maturity and the unavailability of programs designed to treat his behavioral
problems, it was not an abuse of discretion to grant the government’s motion to
transfer A.S. to adult prosecution.
      AFFIRMED.




                                        6
