          United States Court of Appeals
                      For the First Circuit

No. 09-1322

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                         WINSTON McGHEE,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Douglas P. Woodlock, U.S. District Judge]


                              Before
                       Lynch, Chief Judge,
               Boudin and Howard, Circuit Judges.


     J. Martin Richey, Federal Defender Office, on supplemental
brief for appellant.
     Nina Goodman, Appellate Section, Criminal Division, U.S.
Department of Justice, Carmen Milagros Ortiz, United States
Attorney, Timothy E. Moran, Assistant United States Attorney,
Lanny A. Breuer, Assistant Attorney General, and Greg D. Andres,
Acting Deputy Assistant Attorney General, on supplemental brief for
appellee.



                          June 22, 2011
           BOUDIN, Circuit Judge.      Winston McGhee was convicted of

drug crimes committed in July 2006 and at sentencing determined to

be a career offender, U.S.S.G. § 4B1.1 (2008), based in part on a

prior state youthful offender adjudication. On appeal, we affirmed

both the conviction and the resulting sentence, United States v.

McGhee, 627 F.3d 454, 461 (1st Cir. 2010), noting that the career

offender designation was compelled by United States v. Torres, 541

F.3d 48 (1st Cir. 2008), cert. denied, 129 S. Ct. 1987 (2009).

           McGhee then petitioned for panel rehearing and rehearing

en banc to challenge Torres.     The government then conceded that

Torres' holding was incorrect, but it defended McGhee's sentence on

other grounds.    After consulting with the en banc judges, this

panel granted panel rehearing to reconsider Torres ourselves--a

practice   occasionally   used      in    this    circuit     in      special

circumstances1--the en banc request then being dismissed as moot.

           Career offender status, which affects both the guideline

range and criminal history category, requires that the defendant

has committed "at least two prior felony convictions of either a

crime of violence or a controlled substance offense."              U.S.S.G.

§   4B1.1(a).     The   commentary       on   guideline     section     4B1.2

("Definitions of Terms Used in Section 4B1.1") provides that



     1
      See United States v. Holloway, 630 F.3d 252, 255 n.2 (1st
Cir. 2011); United States v. Dowdell, 595 F.3d 50, 62 n.8 (1st Cir.
2010); Gallagher v. Wilton Enters., Inc., 962 F.2d 120, 124 n.4
(1st Cir. 1992) (per curiam).

                                 -2-
"'[p]rior felony conviction' means a prior adult federal or state

conviction for an offense punishable by death or imprisonment for

a term exceeding one year, regardless of whether such offense is

specifically designated as a felony and regardless of the actual

sentence imposed."             Id. § 4B1.2 cmt. n.1 (emphasis added).2             It

continues:

                  A conviction for an offense committed at age
                  eighteen or older is an adult conviction. A
                  conviction for an offense committed prior to
                  age eighteen is an adult conviction if it is
                  classified as an adult conviction under the
                  laws of the jurisdiction in which the
                  defendant was convicted (e.g., a federal
                  conviction for an offense committed prior to
                  the defendant's eighteenth birthday is an
                  adult   conviction  if   the  defendant   was
                  expressly proceeded against as an adult).

Id. (emphasis added).

                  Torres held that a prior offense committed before age 18

could        be     counted        towards    career    offender    status    without

consideration of the state's classification of the offense.                      541

F.3d        at    51-52.      It    reached    this    conclusion   because   another

application note to section 4B1.2 provides that "[t]he provisions

of § 4A1.2 [governing criminal history generally] . . . are

applicable to the counting of convictions under § 4B1.1." U.S.S.G.

§ 4B1.2 cmt. n.3.


        2
      "[C]ommentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline." Stinson v. United
States, 508 U.S. 36, 38 (1993).

                                              -3-
            Sections 4A1.1 and 4A1.2 are concerned with counting and

weighting sentences of imprisonment to establish a defendant's

criminal history category--one of the two variables that fixes the

guideline   sentencing     range;    section   4A1.2(d)   determines   which

sentences for offenses committed prior to age 18 should be excluded

by asking whether defendant was "convicted as an adult" and what

length and kind of sentence were imposed.          An application note to

section 4A1.2 states:

            Section 4A1.2(d) covers offenses committed
            prior to age eighteen.    Attempting to count
            every juvenile adjudication would have the
            potential for creating large disparities due
            to the differential availability of records.
            Therefore, for offenses committed prior to age
            eighteen, only those that resulted in adult
            sentences of imprisonment exceeding one year
            and one month, or resulted in imposition of an
            adult or juvenile sentence or release from
            confinement on that sentence within five years
            of the defendant's commencement of the instant
            offense are counted.     To avoid disparities
            from jurisdiction to jurisdiction in the age
            at   which  a   defendant   is  considered   a
            "juvenile," this provision applies to all
            offenses committed prior to age eighteen.

§ 4A1.2 cmt. n.7 (emphasis added).

            Because of the cross-reference, Torres assumed that this

provision, governing the calculation of criminal history points,

was   sufficient    to   determine   career    offender   predicates   under

section 4B1.       And, as Torres had committed his latest offense

within five years of what he claimed to be a juvenile offense, the




                                      -4-
court held that it was "immaterial whether Torres was classified as

an adult under [state] law."      541 F.3d at 52.

          Although the maze of provisions is assuredly confusing,

there is now a consensus that Torres misread them.3               For career

offender purposes, a conviction for an offense committed before age

18 counts only if "it is classified as an adult conviction under

the laws of" that jurisdiction, U.S.S.G. § 4B1.2 cmt. n.1; by

contrast, ordinary criminal history is computed under section 4A1

by a different rule, which seeks more uniformity as to offenses

committed before 18, id. § 4A1.2 cmt. n.7 (quoted above).

          The career offender provision is the one at issue both in

Torres and in this case.    Its specific and unqualified reliance on

how the state "classified" the conviction cannot be undone by

pointing to a general cross-reference in the career offender

provisions   to   a   different   set    of   provisions,   one    of   which

(application note 7) takes a contrasting approach and counts for

ordinary criminal history points juvenile convictions that occurred

within five years of the later offense.           Torres is therefore no

longer to be followed in this circuit.



     3
      The Acting Solicitor General started down this line by
calling the Torres theory "somewhat doubtful," Brief for the United
States in Opposition at 10, Torres v. United States, 129 S. Ct.
1987 (2009) (mem.) (No. 08-8227), while defending the outcome on
other grounds, and the government's brief responding to the
petition for rehearing en banc in this case states that the Torres
"holding misconstrues the career-offender provisions of the
Sentencing Guidelines and should be corrected."

                                   -5-
          There is disagreement among the circuits on a related set

of issues involving the interplay of the career offender provisions

with application note 7,4 but these divisions do not affect the

outcome here, and it will be time enough to address them when they

arise in a concrete case with briefing on the issue.     What does

remain to be decided in this case is whether McGhee's prior

conviction critical to his designation as a career offender is

"classified" as an "adult conviction" under Massachusetts law.

          McGhee had two prior offenses counted towards his career

offender determination, both committed prior to age 18: he was

adjudicated delinquent as a youthful offender for armed robbery and

assault with a deadly weapon committed when he was 15, and he was

convicted in adult court of assault and battery with a dangerous

weapon committed when he was 17.

          McGhee objects only to counting the youthful offender

adjudication for armed robbery, arguing that it is not "classified"

as an adult conviction under Massachusetts law.   In applying many

provisions of the federal sentencing statutes and guidelines, the

state's labels are not determinative; a uniform treatment is sought

in federal sentencing, 28 U.S.C. § 991(b)(1)(B) (2006), and in


     4
      Compare United States v. Mason, 284 F.3d 555, 558-62 (4th
Cir. 2002) (holding that an offense for which the defendant
received an adult conviction but a juvenile sentence was not a
career offender predicate), with United States v. Carrillo, 991
F.2d 590, 593-95 (9th Cir.), cert. denied, 510 U.S. 883 (1993)
(holding that an adult sentence is any sentence imposed after an
adult conviction).

                               -6-
various contexts the federal courts disregard state labels and

employ a uniform federal test where terms like "burglary" or

"felony" drive guideline calculations.5

          Doubtless influenced by this case law, several circuits

have sought to decide whether "an adult conviction" took place by

applying solely objective criteria, framed by the federal courts,

to the circumstances surrounding a state conviction, including the

events underlying the conviction and factors such as the forum,

procedure, sentence, and time served.     E.g., United States v.

Jones, 415 F.3d 256, 263-64 (2d Cir. 2005); United States v.

Pinion, 4 F.3d 941, 944-45 (11th Cir. 1993).

          However, the language of the commentary to the guideline

in this instance does place more emphasis than has occurred in

other contexts on whether the conviction is "classified" as an

adult offense "under the laws of the jurisdiction" of conviction,

U.S.S.G. § 4B1.2 cmt. n.1, undermining any presumption in favor of

a federal standard that disregards state labels.   See Dickerson v.

New Banner Inst., Inc., 460 U.S. 103, 119-20 (1983); United States



     5
      See, e.g., United States v. DeLuca, 17 F.3d 6, 8-9 (1st Cir.
1994) (defining "extortion" for career offender status under
sections 4B1.1 and 4B1.2); United States v. Aymelek, 926 F.2d 64,
71-72 (1st Cir. 1991) (defining "felony" for offense conduct under
section 2L1.2(b)(1)); United States v. Unger, 915 F.2d 759, 762-63
(1st Cir. 1990), cert. denied, 498 U.S. 1104 (1991) (computing
criminal history under section 4A1.2); see also Taylor v. United
States, 495 U.S. 575, 590-92 (1990) (defining "burglary" for the
purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e)
(2006)).

                               -7-
v. Turley, 352 U.S. 407, 411 (1957).    There may well be limits to

how far state labels even here can override circumstances, but ours

is not an extreme case.

           Massachusetts law originally provided that defendants

between 7 and 17 were subject only to adjudication as a delinquent

child in the juvenile justice system, unless the court after a

hearing transferred the defendant to the criminal justice system,

finding that trial as an adult was appropriate.    Mass. Gen. Laws

ch. 119, §§ 52, 58, 58B, 61 (1994) (amended 1996).    But prior to

McGhee's offense, the transfer regime was repealed and a new

category--"youthful offender"--was added, governing offenses except

murder.   1996 Mass. Acts 898, 905.

           Youthful offenders are those who, between 14 and 17,

commit offenses for which adults could be imprisoned and also have

been previously committed to the Department of Youth Services, have

committed an offense involving the infliction or threat of serious

bodily harm, or have committed certain firearms violations.   Mass.

Gen. Laws ch. 119, § 52 (2008).    McGhee's offense could result in

imprisonment for an adult and involved the threat of bodily harm,

and so he was under Massachusetts law a youthful offender rather

than merely a juvenile delinquent.

           Youthful offenders may be indicted, Mass. Gen. Laws ch.

119, § 54, may suffer harsher sentences up to and including an

adult sentence, id. § 58, and their records are open to the public,


                                  -8-
id. § 60A; but jurisdiction of the matter remains in juvenile

court, id. § 52, 58, and youthful offenders, like delinquent

children, "as far as practicable, . . . shall be treated, not as

criminals, but as children in need of aid, encouragement and

guidance," id. § 53. The proceedings, the statute provides, "shall

not be deemed criminal proceedings."     Id.

           A wholly objective assessment would conclude that in the

armed robbery case McGhee was treated, in several respects, much

like an adult: he was indicted, sentenced to an extended term of

probation, and upon violations of probation was held twice in an

adult jail.   Yet, the venue was the Roxbury Juvenile Court, the

probation was with the Department of Youth Services, and McGhee was

released from the department's custody at age 21; and, of course,

state law says that these are not "deemed criminal proceedings"

under state law.

           We conclude that Massachusetts has "classified" "youthful

offender" adjudications differently from "adult convictions," and

McGhee's adjudication is not a career offender predicate.        Accord

United States v. Peguero-Martinez, Criminal No. 10-10132-PBS, 2010

WL 4955587, at *2, *4 (D. Mass. Nov. 30, 2010).     This is a judgment

call, but Massachusetts' nomenclature clearly distinguishes between

youthful offenders and adults, and to the extent that objective

criteria   apply,   the   treatment   accorded   under   state   law   is

significantly different than that given adult offenders.


                                  -9-
          At sentencing, the district court quite properly treated

McGhee as a career offender because Torres bound it to do so, but

we now must treat that retrospectively as error.               However, the

government argues that even if we reject its position that McGhee's

disputed conviction was an adult conviction, the district court's

error was harmless.   This is a close call in light of remarks made

by the district court at the sentencing, but on balance we think

that a remand is still warranted.

          Career   offender   status    usually   causes   a    significant

increase in the guideline range, U.S.S.G. § 4B1.1, which even post-

Booker often influences the final sentence, see United States v.

Booker, 543 U.S. 220, 245-46 (2005).         Here, McGhee's guideline

range should have been 92 to 115 months, but it was increased to

210 to 262 months by the career offender designation. The district

court granted a downward variance and sentenced him to 96 months'

imprisonment.

          In explaining the sentence, the district judge stated:

          I thought this was a ten-year case, if that,
          and I, also, recognize that . . . [McGhee] was
          the subject of a substantial period of dead
          time . . . . Now, that suggests that I have
          to move outside of the Guideline system, and I
          do, by reference to the factors in Section
          3553.

After subtracting 24 months of dead time during which McGhee was

imprisoned awaiting trial in a case for which a nolle prosequi was

ultimately entered, the court arrived at the 96-month sentence.


                                 -10-
            "[O]nce   the   court   of   appeals   has   decided   that   the

district court misapplied the Guidelines, a remand is appropriate

unless the reviewing court concludes, on the record as a whole,

that the error was harmless, i.e., that the error did not affect

the district court's selection of the sentence imposed."           Williams

v. United States, 503 U.S. 193, 203 (1992); see also Fed. R. Crim.

P. 52(a).   Given the transcript, McGhee's sentence might well have

been the same regardless of the career offender designation, but we

are not certain enough to find harmless error.

            The government relies on United States v. Teague, 469

F.3d 205 (1st Cir. 2006).     There, as here, the district court found

the defendant to be a career offender but imposed a sentence well

below the career offender range.           This court disagreed with the

designation but held the error harmless because the district judge

had made clear that the designation had not mattered--only the

circumstances of the prior crimes and Teague's overall criminal

role had been considered.      Id. at 209-10.

            The district court in our case explained his variant

sentence, which was well below the career guideline range, but we

think the transcript is less clear than it was in Teague that the

career offender designation was entirely irrelevant; that the

sentence here was below the career offender range cannot alone be

dispositive since the designation can be influential even if not




                                    -11-
treated as controlling.   And it is easy enough to let the district

court decide the matter for itself.

          McGhee's sentence is vacated and the matter is remanded

for resentencing.

          It is so ordered.




                               -12-
