                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-19-2006

USA v. McKoy
Precedential or Non-Precedential: Precedential

Docket No. 05-2461




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"USA v. McKoy" (2006). 2006 Decisions. Paper 792.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/792


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                               PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ____________

                           No. 05-2461
                          ____________

                UNITED STATES OF AMERICA

                                  v.

                      RICARDO MCKOY,
                                Appellant
                         ____________

          On Appeal from the United States District Court
                 for the District of New Jersey
               D.C. Crim. Action No. 04-cr-00205
                (Honorable Anne E. Thompson)
                         ____________

            Submitted Under Third Circuit LAR 34.1(a)
                         April 25, 2006

 Before: FUENTES, STAPLETON, and ALARCÓN,* Circuit
                      Judges.

                      (Filed: June 19, 2006)

David E. Schafer, Esquire
Julie A. McGrain, Esquire
Office of Federal Public Defender
22 South Clinton Avenue
Station Plaza #4, 4th Floor
Trenton, New Jersey 08609



      *
       The Honorable Arthur L. Alarcón, Senior Judge, United
States Court of Appeals for the Ninth Circuit, sitting by
designation.
       Counsel for Appellant

George S. Leone, Esquire
Office of United States Attorney
970 Broad Street, Room 700
Newark, New Jersey 07102

       Counsel for Appellee
                        ____________

                   OPINION OF THE COURT
                        ____________

ALARCÓN, Circuit Judge.

        Ricardo McKoy appeals from the District Court’s order
sentencing him to the ten-year statutory minimum for conspiracy
to distribute and possess with intent to distribute crack cocaine. He
contends that the District Court erred in failing to sentence him
below the statutory minimum pursuant to 18 U.S.C. § 3553(f). We
affirm.

                                 I

        On January 20, 2005, Mr. McKoy pled guilty to conspiracy
to distribute and possess with intent to distribute crack cocaine in
violation of 21 U.S.C. § 846. Mr. McKoy stipulated that the
amount of cocaine base involved in the conspiracy was between 50
and 150 grams. This amount triggered a minimum sentence of ten
years under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).

       The Presentence Report (“PSR”) calculated a sentencing
range of 108 to 135 months under the United States Sentencing
Guidelines. The ten-year statutory minimum raised this range to
120 to 135 months. 21 U.S.C. § 841(a)(1), (b)(1)(A). The PSR
concluded that Mr. McKoy was not eligible for relief from the ten-
year mandatory minimum pursuant to § 3553(f). The PSR
indicated that Mr. McKoy had four criminal history points based
on adjudications of juvenile delinquency. Mr. McKoy had
received varying combinations of probation, fines, community
service and counseling at juvenile court proceedings. Had he not

                                 2
received the criminal history points for his juvenile dispositions,
Mr. McKoy would have qualified for relief under § 3553(f).

       The District Court imposed the statutory minimum sentence
of 120 months on April 29, 2005. The District Court noted that it
was bound by the statutory minimum, but for which it would have
imposed a lower sentence. Mr. McKoy filed a timely notice of
appeal on May 5, 2005. We have jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                 II

        Mr. McKoy argues that the District Court incorrectly treated
his juvenile court dispositions as “sentences” for purposes of
calculating his criminal history points. He also contends that under
New Jersey law, his juvenile dispositions were “diversions,” which
are excluded from the criminal history calculation pursuant to
U.S.S.G. § 4A1.2(f). Finally, he argues that the District Court
erred in concluding that it did not have the discretion, under United
States v. Booker, 543 U.S. 220 (2005), to impose a sentence below
the statutory minimum. Our review of the District Court's
interpretation of the Sentencing Guidelines and constitutional
questions is plenary. United States v. Lennon, 372 F.3d 535, 538
(3d Cir. 2004). We review the District Court’s finding of facts for
clear error. Id.

       Under § 3553(f), “the court shall impose a sentence pursuant
to the guidelines promulgated by the United States Sentencing
Commission . . . without regard to any statutory minimum
sentence” when certain conditions are met. One condition is that
the defendant must “not have more than 1 criminal history point,
as determined under the sentencing guidelines.” Id. at § 3553(f)(1).
The Sentencing Guidelines in turn instruct the courts to assign “1
[criminal history] point under § 4A1.1(c) for each adult or juvenile
sentence imposed within five years of the defendant’s
commencement of the instant offense.” U.S.S.G. § 4A1.2(d)(2)(B).




                                 3
                                  A

       Mr. McKoy first argues that his juvenile record consists
only of “dispositions,” not “sentences.” “Under the New Jersey
Code of Juvenile Justice, juveniles who are adjudicated delinquent
are not sentenced but rather are subject to a ‘dispositional
hearing.’” United States v. Moorer, 383 F.3d 164, 169 n.3 (3d Cir.
2004) (citing N.J. Stat. Ann. § 2A:4A-41) (emphasis added). Mr.
McKoy argues that under the plain language of the Sentencing
Guidelines, only prior sentences bar relief under § 3553(f). See
U.S.S.G. § 4A1.2(a)(1), (d)(2)(B).

        Mr. McKoy’s argument is flawed because it relies on state
law terminology. In determining what constitutes a “prior
sentence” under the Sentencing Guidelines, courts must look to
federal, not state law. See, e.g., United States v. Morgan, 390 F.3d
1072, 1074 (8th Cir. 2004); United States v. Williams, 176 F.3d
301, 311 (6th Cir. 1999); United States v. Gray, 177 F.3d 86, 93
(1st Cir. 1999).

       This Court held in United States v. Bucaro, 898 F.2d 368
(3d Cir. 1990), that a defendant’s Pennsylvania state adjudications
of juvenile delinquency may be used to calculate his sentencing
range under the Sentencing Guidelines, even though “Pennsylvania
does treat an adjudication of juvenile delinquency differently from
a criminal conviction.” Id. at 370, 372. Similarly, in Williams, 176
F.3d at 301, the defendant argued that “his juvenile convictions
should not have been counted toward his total criminal history
score under the Sentencing Guidelines because Ohio law does not
consider these violations to be ‘convictions’ or ‘sentences.’” Id. at
311. The Sixth Circuit reasoned that federal, not state law, governs
how a juvenile adjudication is treated. It held that “[r]egardless of
how [the defendant’s] offenses of assault and manslaughter are
categorized under Ohio law, they are considered sentences under
federal law.” Id.; see also United States v. Kirby, 893 F.2d 867,
868 (6th Cir. 1990) (per curiam) (same).

       Under federal law, “prior sentence” is defined as “any
sentence previously imposed upon adjudication of guilt, whether
by guilty plea, trial, or plea of nolo contendere, for conduct not part
of the instant offense.” U.S.S.G. § 4A1.2(a)(1). For offenses

                                  4
committed before the age of 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.

Id. at n.7. The Guidelines explicitly include offenses committed
before the age of eighteen and instruct courts to:

              (A) add 2 points under § 4A1.1(b) for
              each adult or juvenile sentence to
              confinement of at least sixty days if
              the defendant was released from such
              confinement within five years of his
              commencement of the instant offense;
              (B) add 1 point under § 4A1.1(c) for
              each adult or juvenile sentence
              imposed within five years of the
              defendant's commencement of the
              instant offense not covered in (A).

Id. § 4A1.2(d). The Application Notes to the Sentencing
Guidelines explain that § 4A1.2(d) is intended to reduce disparity
caused by varying state juvenile systems and varying availability
of juvenile records among the states. Id. at n.7. The Sentencing
Guidelines intended to encompass all juvenile offenses meeting the
criteria of § 4A1.2(d).

       Accepting Mr. McKoy’s argument would undermine the
larger goal of the Sentencing Guidelines to accomplish uniformity
in sentencing. As the Government correctly points out, if New
Jersey juvenile court “dispositions” are not treated as “sentences”
under the Sentencing Guidelines, defendants would be immune
from receiving criminal history points for juvenile offenses
committed in New Jersey, yet would receive points for juvenile
offenses committed in other states.

                                5
        The District Court properly considered Mr. McKoy’s
juvenile “dispositions” as “sentences” under the Sentencing
Guidelines and § 3553(f). In accordance with federal law, the
punishments Mr. McKoy received as a juvenile were sentences
“imposed upon adjudication of guilt” regardless of the terminology
New Jersey used to describe them.

                                 B

        Mr. McKoy next contends that his juvenile court
dispositions cannot be counted as criminal history points because
they are “diversionary.” The Sentencing Guidelines provide that
“[d]iversions from the judicial process without a finding of guilt
(e.g., deferred prosecution) are not counted . . . a diversion from a
juvenile court is not counted.” U.S.S.G. § 4A1.2(f).

        Only two cases have considered what constitutes a
diversionary juvenile court disposition under § 4A1.2(f). In United
States v. Crawford, 83 F.3d 964 (8th Cir. 1996), the Sixth Circuit
summarily rejected the argument that a juvenile sentence of
probation and community service should not be counted under §
4A1.2(f). It reasoned that the defendant “had completed the
probation and community service, and thus discharged the sentence
imposed.” Id. at 966. The First Circuit addressed a similar
situation in United States v. DiPina, 230 F.3d 477 (1st Cir. 2000).
In DiPina, the court rejected an argument that a Rhode Island
juvenile court delinquency disposition imposing an eighteen-month
term in the custody of the Rhode Island Training School was a
diversionary disposition. Id. at 483-84. The court reasoned that
“[t]here was no deferral in the prosecution, adjudication, or
sentencing . . . and DiPina was sentenced to imprisonment.” Id. at
483. The court further noted that the Rhode Island statutory
scheme provided for a type of juvenile disposition involving
deferred prosecution, which the juvenile court chose not to employ
in Mr. DiPina’s case. Id. at 484.

       Mr. McKoy seeks to distinguish his situation from the facts
before the court in DiPina. He argues that Mr. DiPina was
“sentenced” in a juvenile proceeding, whereas Mr. McKoy was
subject to a “dispositional hearing.” See id. at 481. As discussed
above, the state law nomenclature for a juvenile offense is

                                 6
irrelevant to the interpretation of the Sentencing Guidelines. See
id. at 484 (“[I]t is federal law, not Rhode Island law, that controls
the analysis of whether the heroin disposition was diversionary.”).
Moreover, Mr. McKoy’s juvenile disposition does not fit the
definition of “diversion” applied in DiPina because there was “[n]o
deferral in the prosecution” at Mr. McKoy’s dispositional hearing.
Id. at 483. New Jersey law, like the Rhode Island law in DiPina,
provides for a type of deferred prosecution disposition, which the
juvenile court did not impose on Mr. McKoy. N.J. Stat. Ann.
2A:4A-43(b) (juvenile court may adjourn entry of a disposition for
up to twelve months to determine “whether the juvenile makes a
satisfactory adjustment”); DiPina, 230 F.3d at 484. Because Mr.
McKoy’s juvenile dispositions did not involve any form of deferred
prosecution, they were not diversionary. They were correctly
included in the calculation of Mr. McKoy’s criminal history points.

                                 C

       Finally, Mr. McKoy argues that the District Court should
have treated § 3553(f) as advisory because failure to do so violates
the Sixth Amendment under United States v. Booker, 543 U.S. 220
(2005). In Booker, the Supreme Court held that 18 U.S.C.
§ 3553(b)(1), which required courts to follow the federal
Sentencing Guidelines, violated the Sixth Amendment because it
made sentence enhancements dependant on facts not proved to a
jury beyond a reasonable doubt. Id. at 249-50, 258. The Court
remedied this constitutional infirmity by excising §§ 3553(b)(1)
and 3742(e), effectively rendering the Sentencing Guidelines
advisory. Id. at 259. The Court left the remainder of § 3553 in
tact–including § 3553(f). Id. at 264-65. However, § 3553(f) states
that courts “shall impose a sentence pursuant to the guidelines
promulgated by the United States Sentencing Commission . . .
without regard to any statutory minimum sentence” if certain
factors are fulfilled. 18 U.S.C. § 3553(f) (emphasis added). It also
requires a district court to consult the Sentencing Guidelines in
order to determine the defendant’s eligibility for a lower sentence.
§ 3553(f)(1). Mr. McKoy argues that this mandatory language
forces courts to apply the Sentencing Guidelines, and thus violates
Booker. He argues that the District Court should have treated the
requirements of § 3553(f) as advisory to the extent they reference
the Sentencing Guidelines.

                                 7
       Those courts of appeals that have considered this issue have
rejected this argument. United States v. Brehm, 442 F.3d 1291,
1300 (11th Cir. 2006); United States v. Barrero, 425 F.3d 154,
157-58 (2d Cir. 2005); United States v. Bermúdez, 407 F.3d 536,
544-45 (1st Cir. 2005); United States v. Payton, 405 F.3d 1168,
1173 (10th Cir. 2005); United States v. Vieth, 397 F.3d 615, 620
(8th Cir. 2005). We agree with our sister courts.

        Booker is inapplicable to situations in which the judge finds
only the fact of the prior conviction. Booker, 543 U.S. at 244;
Apprendi v. New Jersey, 530 U.S. 466, 489 (2000) (“Other than the
fact of a prior conviction, any 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.” (emphasis
added)).

              [T]he district court’s findings with
              respect to the length of the sentence
              imposed also fall within the exception
              for the fact of a prior conviction
              because those facts are ‘sufficiently
              interwoven with the facts of the prior
              crimes that Apprendi does not require
              different factfinders and different
              burdens of proof’ for their
              determination.

Barrero, 425 F.3d 154, 157-58 (2d Cir. 2005). Here, the District
Court found only that Mr. McKoy had been sentenced under New
Jersey law. This is permitted by Booker. Id.

        The authority upon which Mr. McKoy relies to argue that
the District Court found facts regarding his sentences is
distinguishable. In each case, Shepard v. United States, 544 U.S.
13 (2005), United States v. Washington, 404 F.3d 834 (4th Cir.
2005), and United States v. Ngo, 406 F.3d 839 (7th Cir. 2005), the
district court found facts about the underlying circumstances of the
defendant’s crime. In Shepard, the district court examined the
circumstances of the prior convictions to determine whether they
were for “generic burglary.” Shepard, 125 S. Ct. at 1257-58. In
Washington, the court examined the prior conviction to determine

                                 8
if it was a crime of violence. Washington, 404 F.3d at 836-38.
Similarly, in Ngo, the district court considered the facts of the prior
conviction to determine whether they had been consolidated for
sentencing or part of a common scheme or plan. Ngo, 406 F.3d at
842. The court of appeals concluded that it was consistent with the
Sixth Amendment for the district court to consider whether the
cases had been consolidated. Id. at 843. The district court could
make the factual determination “by resorting only to information
with the ‘conclusive significance’ of a prior judicial record.” Id.
(quoting Shepard, 125 S. Ct. at 1262). However, the court held
that the question whether the crimes were part of a common
scheme or plan involved the type of fact-finding from which the
district court was precluded. As in Shepard, it involved an inquiry
into the circumstances of the prior conviction. Id. at 843. Here, the
District Court was not called upon to consider the underlying
circumstances of Mr. McKoy’s prior sentences to determine that
they counted towards Mr. McKoy’s criminal history.

        Interpreting § 3553(f) as advisory would effectively excise
that section from the statute. Brehm, 442 F.3d at 1300 (“to treat
calculation of safety valve eligibility criteria as advisory would, in
effect, excise 18 U.S.C. § 3553(f)”). In Booker, the Court
considered the constitutionality of the remaining subsections of
§ 3553, including § 3553(f), and declined to excise any except for
§ 3553(b)(1). Booker, 543 U.S. at 259 (“the remainder of the Act
satisfies the Court’s constitutional requirements”). Effectively
excising one of the remaining subsections would be inconsistent
with Booker. The District Court properly considered Mr. McKoy’s
juvenile dispositions in calculating his criminal history points
under the Sentencing Guidelines, and correctly denied Mr. McKoy
relief under § 3553(f).

      For the foregoing reasons, we will we will affirm the
judgment of the District Court.




                                  9
