                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                             _______________________

                            Nos. 98-3646SD, 98-3930SD
                            _______________________

United States of America,                 *
                                          *
              Appellee,                   *
                                          * On Appeal from the United
         v.                               * States District Court
                                          * for the District of
                                          * South Dakota.
A. J.,                                    *
                                          *
              Appellant.                  *
                                     ___________

                              Submitted: June 15, 1999
                                  Filed: September 8, 1999
                                   ___________

Before RICHARD S. ARNOLD and LOKEN, Circuit Judges, and BYRNE,1 District
      Judge.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.


       After pleading guilty to an act of juvenile delinquency, involuntary manslaughter,
in violation of 18 U.S.C. §§ 1112(a), 5032, and 1153, A.J., a minor, was given
probation until the age of twenty-one. After A.J. violated the conditions of her



         1
       The Hon. William Matthew Byrne, Jr., United States District Judge for the
Central District of California, sitting by designation.
probation, the District Court2 revoked her probation and sentenced her to imprisonment
until the age of twenty-one. A.J. appeals the sentence, arguing that the District Court
erred in determining her sentence because the Court failed to consider the policy
statements in chapter 7 of the United States Sentencing Guidelines, and because the
sentence was not based on accurate information.3 We do not agree with A.J.'s
arguments, and we therefore affirm the judgment of the District Court.

       On March 4, 1995, A.J., then age sixteen, was involved in a drunk driving
accident. The car A.J. was driving flipped over, and one of the passengers was thrown
from the car and killed. A.J.'s blood alcohol content was over the legal limit at the time
of the accident. She pleaded guilty to involuntary manslaughter and was sentenced to
probation until she turned twenty-one. The conditions of A.J.'s probation prohibited
her from consuming any alcoholic beverages and from operating a motor vehicle
without prior written approval of her probation officer. A.J. violated both of these
conditions, on two separate occasions. On February 17, 1998, and again on August 8,
1998, A.J. consumed alcoholic beverages and then drove a motor vehicle. She was
eighteen at the time of the first of these two incidents, and nineteen at the time of the
second incident. The District Court revoked A.J.'s probation on the basis of these
violations, and sentenced A.J. to imprisonment until the age of twenty-one, a sentence
of approximately nineteen months.




      2
        The Hon. Lawrence L. Piersol, United States District Judge for the Southern
District of South Dakota.
      3
       After A.J. filed her notice of appeal, she learned that the Bureau of Prisons
could not place her where the Court had recommended. A.J. then filed a motion with
the District Court for reconsideration of her sentence. The Court denied her motion for
reconsideration, A.J. filed a notice of appeal of that decision, and the two appeals were
then consolidated.

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       A.J. argues that the District Court's failure to consider the policy statements in
chapter 7 of the Sentencing Guidelines rendered her sentence unlawful. A.J. faces at
least two hurdles in making this argument. First, as A.J. recognizes, the Guidelines do
not apply to juveniles. A juvenile cannot, however, receive a sentence of imprisonment
longer than the sentence which a court could impose on a similarly situated adult. See
18 U.S.C. § 5037(c). See also United States v. R.L.C., 503 U.S. 291, 306-07 (1992).
Determining the maximum sentence a similarly situated adult would be subject to may
require application of the Guidelines. This means only that a sentencing court may
have to consider the Guidelines to determine the upper limit of the sentence which can
be imposed on a juvenile, on the basis of the sentencing range the Guidelines provide
for an adult. It does not require "plenary application of the Guidelines to juvenile
delinquents." R.L.C., 503 U.S. at 307.

         A court may sentence a juvenile to probation under 18 U.S.C. § 5037(a).
Section 5037 also indicates that §§ 3563, 3564, and 3565 apply to juvenile probation
orders. See 18 U.S.C. § 5037(b). Section 3565, in turn, governs revocation of
probation and states that a court can "revoke the sentence of probation and resentence
the defendant under subchapter A." Id. § 3565(a)(2). A provision in subchapter A,
§ 3553(a), lists the factors a court should consider in determining a sentence. The
factors include "any pertinent policy statement issued by the Sentencing Commission
. . .." Id. § 3553(a)(5). The pertinent policy statement relevant to probation violations
is chapter 7 of the Sentencing Guidelines.

        A.J. argues, therefore, that the District Court should have considered the
Guidelines when it sentenced her, even though the Guidelines do not apply to juveniles.
During the revocation and sentencing hearing, A.J.'s attorney asked if there was going
to be a "guideline determination." Hearing Tr. 14. The Court said no. See id. at 15.
Chapter 7 of the Guidelines provides policy statements on probation violation and
revocation. There is nothing mandatory about the policy statements, however, and this
is the second hurdle that A.J. faces. Even if the Court had considered the Guidelines,

                                          -3-
chapter 7 is not binding upon the Court.    See United States v. Hensley, 36 F.3d 39,
41-42 (8th Cir. 1994).

       There is no reason whatever to suppose that the Court would have imposed a
shorter sentence if it had considered the policy statements. The Court examined this
case in detail and carefully explained its reasoning. A.J.'s offense had cost another
person her life. She was given probation, which was a humane and lenient sentence.
She then betrayed the trust the Court had placed in her, not once but twice. The first
time, her pickup truck ended up in a ditch. The second time, she was driving without
lights at 3:00 a.m. She had been drinking both times. Even accepting defendant's
argument that a sentence of three to nine months would have been recommended by the
policy statement, an upward departure, which is effectively what occurred, was plainly
within the Court's discretion.4

      In a recent Fifth Circuit case, the Court used slightly different reasoning in
considering probation-revocation sentencing for juveniles. See United States v. Sealed
Appellant, 123 F.3d 232, 234 (5th Cir. 1997). The starting point – § 5037 – remains
the same. Section 5037 refers to § 3565, which, as we have already explained, refers
to subchapter A for resentencing a defendant after probation revocation. In Sealed
Appellant, however, the Court held that because the defendants were juveniles, they
should be sentenced under § 5037, rather than under subchapter A. The Court vacated
a sentence imposing a term of supervised release because § 5037 does not authorize
supervised release for juveniles. Id. at 235. Even if we followed this scheme in


      4
         Another perspective, but one leading to the same result, is obtained if we ask
what sentence A.J. would have received for the underlying offense if she had been an
adult. The answer, taking into account a two-point downward departure for acceptance
of responsibility, is 16 months. See U.S.S.G. § 2A1.4(a)(2) and Sentencing Table.
A.J.'s initial sentence, probation, was a substantial downward departure. On revocation
of probation, an upward departure may be warranted if the original sentence was the
result of a downward departure. U.S.S.G. § 7B1.4, App. Note 4.

                                           -4-
sentencing A.J., the result would be the same. Section 5037 indicates that a juvenile's
detention sentence cannot exceed the maximum term that would be authorized if the
juvenile had been convicted as an adult. A.J.'s sentence meets this requirement.

        A.J. also argues that the District Court had inaccurate information when it
sentenced her, violating her due-process rights. The Court recommended that A.J. be
placed at Chamberlain Academy in South Dakota, near her home, or a similar facility,
to serve her detention sentence. The Bureau of Prisons did not place A.J. at
Chamberlain because she was over eighteen, and Chamberlain, a state institution, could
not accept her under state law. The Bureau indicated that it would place A.J. in a
facility near Houston, Texas. A.J. argues that if the Court had known that A.J. could
not be placed at Chamberlain, the Court would never have made that recommendation.
But that is all it was – a recommendation. It is up to the Bureau to make the placement
decision. When the Court was informed of the problem with Chamberlain, it declined
to change the sentence. There was no error in this decision.

     The sentence imposed by the District Court was not unreasonable. The
judgment of the District Court is affirmed.

      We express our appreciation to appointed counsel for A.J. for her diligent efforts
in behalf of her client.

      A true copy.

             Attest:

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




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