                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3832
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
M.R.M.,                                 *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: June 12, 2007
                                Filed: January 25, 2008
                                 ___________

Before LOKEN, Chief Judge, ARNOLD and COLLOTON, Circuit Judges.
                              ___________

COLLOTON, Circuit Judge.

      M.R.M. was adjudicated a juvenile delinquent after she admitted committing
an assault with a dangerous weapon in Indian Country, in violation of 18 U.S.C.
§§ 113(a)(6), 1153, and 5032. The district court1 ordered her committed to official
detention until the age of twenty-one. M.R.M. appeals the disposition, and we affirm.




      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
       On September 17, 2004, M.R.M, then sixteen years old, was with three female
acquaintances when an unknown man assaulted her. Rather than come to M.R.M.’s
aid during the assault, her acquaintances left the scene. Three days later, M.R.M. was
at a house on the Pine Ridge Indian Reservation when she learned that one of the girls
present during the assault was planning to visit. Still angry that the girl had
abandoned her when she was attacked, M.R.M. met the girl at the door of the house
with a baseball bat in hand. M.R.M. then attacked the girl with the bat, first hitting
her in the forehead, and then chasing her out of the house while continuing to hit her
until she took refuge in a vehicle. The victim suffered a four-and-a-half inch
laceration on her forehead, a fractured hand that required surgery, and numerous
bumps and welts on her body.

       A two-count information charged M.R.M. under the Federal Juvenile
Delinquency Act (“FJDA”) with assault resulting in serious bodily injury, and assault
with a dangerous weapon. She admitted the latter charge, and at the dispositional
hearing, the government recommended that M.R.M. be placed on probation for three
years. The district court instead ordered M.R.M. committed to official detention until
her twenty-first birthday, which resulted in a term of detention of thirty-four months
and twenty days.

       We have jurisdiction to review a sentence pronounced under the FJDA to
determine whether it was “imposed in violation of law” or is “plainly unreasonable.”
18 U.S.C. § 3742(a)(1), (4); United States v. K.R.A., 337 F.3d 970, 978 (8th Cir.
2003). The district court enjoys “broad discretion” when sentencing juvenile
offenders under the FJDA, K.R.A., 337 F.3d at 978 – indeed, broader discretion than
when sentencing an adult. The advisory sentencing guidelines place an upper limit
on the term of official detention that may be imposed, 18 U.S.C. § 5037(c)(1), (c)(2);
United States v. R.L.C., 503 U.S. 291, 306-07 (1992), but the sentencing guidelines,
even in their advisory capacity, do not apply to juveniles. Id. at 307 n.7; USSG
§ 1B1.12; see 28 U.S.C. § 995(a)(19) (providing that the Sentencing Commission

                                         -2-
shall have power to “study the feasibility of developing guidelines for the disposition
of juvenile delinquents”). Nor does the statute governing juvenile dispositions, 18
U.S.C. § 5037(c), incorporate the adult sentencing factors set forth at 18 U.S.C.
§ 3553(a). Cf. United States v. Silva, 443 F.3d 795, 798-99 (11th Cir. 2006)
(explaining that a different section of the FJDA governing juvenile probation orders,
18 U.S.C. § 5037(b), applies 18 U.S.C. § 3565, which in turn directs the court to
consider the factors set forth in § 3553(a)); United States v. A.J., 190 F.3d 873, 875
(8th Cir. 1999) (same). Although we have found reference to some of the § 3553(a)
factors useful in determining whether a district court permissibly considered certain
evidence as relevant in a juvenile proceeding, United States v. D.A.L.D., 469 F.3d 727,
730 (8th Cir. 2006), we have not declared that a district court must balance all of the
§ 3553(a) factors in making a juvenile disposition. See id. (affirming juvenile
disposition where “the district court cited only the section 3553(a) factors that it
deemed relevant”). To require, for example, that the district court consider the
sentencing ranges set forth in the applicable sentencing guidelines would conflict with
the decision of Congress to refrain from applying the guidelines to juvenile
delinquency proceedings. Cf. United States v. Hernandez-Martinez, 485 F.3d 270,
273-74 (5th Cir.) (concluding that “plainly unreasonable” standard of review under
18 U.S.C. § 3742(a)(4) for sentences after revocation of supervised release is not
identical to “unreasonableness” standard under United States v. Booker, 543 U.S. 220
(2005), for original sentences, in part because Congress provided that only some of
the factors set forth in § 3553(a) also apply in revocation proceedings), cert. denied,
128 S. Ct. 325 (2007).

       M.R.M. relies on the need to avoid unwarranted sentence disparities, 18 U.S.C.
§ 3553(a)(6), in arguing that the term of official detention ordered by the district court
was plainly unreasonable. She contends that this disposition varies from how
similarly-situated juveniles have been treated in other reported cases. The court’s
obligation and capacity to avoid excessive sentence disparities, however, depends on
the existence of a benchmark like the advisory guideline range from which to measure

                                           -3-
potential disparities. United States v. Maloney, 466 F.3d 663, 668 (8th Cir. 2006).
Because there is no such benchmark in juvenile proceedings, and because § 5037(c)
does not direct the court to consider § 3553(a)(6) in arriving at a juvenile disposition,
we reject M.R.M.’s contention that a particular term of official detention would be
“plainly unreasonable” if it caused sentence disparity with other similarly-situated
juveniles. Sentence disparities are part and parcel of a dispositional process in which
neither Congress nor the Sentencing Commission has elected to provide direction
beyond setting an upper limit for a period of official detention. Congress simply has
not seen fit to direct that a district court must take into account the decisions of other
courts – either through the aggregating work of the Sentencing Commission or by
some sort of independent survey – in fashioning a juvenile disposition.2

       M.R.M. also contends that the district court unreasonably failed to consider
whether official detention was the least-restrictive disposition available. She derives
this proposed mandate from the Ninth Circuit’s decision in United States v. Juvenile,
347 F.3d 778 (9th Cir. 2003), which held that “implicit in the structure and purposes
of the FJDA” is the requirement that “[y]outh who are adjudged to be delinquent
under the FJDA must . . . be confined in the least-restrictive environment that will
support their continued rehabilitation.” Id. at 785-86. We have never adopted the
Ninth Circuit’s standard, and we decline to do so here. The plain language of the
FJDA imposes no least-restrictive disposition requirement, and the structure of the
statute is ambiguous at best. Rehabilitation is one purpose of the FJDA, see 18 U.S.C.

      2
        Even assuming sentence disparity was a basis for finding unreasonableness in
a juvenile proceeding, the information cited by M.R.M. is insufficient to demonstrate
a plainly unreasonable disparity. M.R.M. presents a survey of juvenile cases reported
in the federal appellate courts over the last twenty years. We have no information,
however, concerning what percentage of the total juvenile dispositions are represented
by this survey, or how these examples compare to the dispositions in other cases. In
many of the cited cases, moreover, we cannot adequately compare M.R.M. with the
juvenile in question without the benefit of a full sentencing record and consideration
of the myriad factors that might have influenced the district courts.

                                           -4-
§§ 5035, 5039, but it is not the only purpose served by adjudications of juvenile
delinquency. While the Supreme Court in R.L.C. did not accept the proposition that
Congress entirely abandoned the rehabilitative model for juveniles in the Sentencing
Reform Act of 1984, the Court appeared to recognize that Congress moved away from
an exclusive focus on rehabilitation, allowing only that the statute does not
“completely reject rehabilitative objectives.” R.L.C., 503 U.S. at 298-99 (emphasis
added). Nothing in the statute precludes the district courts from giving due
consideration, for example, to protection of the public or deterrence.

        In any event, the district court adequately considered rehabilitation in this case.
The court noted that “[t]he purpose of a hearing on a sentencing for a juvenile
defendant is to attempt, if possible, to provide some leadership” so that the young
person might “straighten around her life.” (S. Tr. 12). The court emphasized to
M.R.M. that “I don’t find any joy in sending an 18-year-old intelligent young lady
into federal custody, but what I want is a solution in your life.” (Id.). After
considering the nature of the offense and M.R.M’s personal history, the court
concluded that detention was necessary so that M.R.M. might “learn to live by the
rules.” (Id. at 14). The court encouraged her to attend counseling while incarcerated
so that she could improve her life and eventually “be a credit . . . to [her] community.”
(Id. at 15). The court adequately considered the statutory purpose of rehabilitation
and reasonably explained why the chosen disposition would further that purpose.3




      3
        M.R.M. also argues that the court erred by failing to obtain information about
the facility at which she would be confined. Cf. United States v. Patrick V., 359 F.3d
3, 13 (1st Cir. 2004). This argument was not raised in the district court, and we find
no plain error warranting relief. The parties agreed in post-argument submissions that
M.R.M. is detained at the Western South Dakota Juvenile Services Center in Rapid
City, and we see no reason to believe that information about the Center would have
changed the district court’s decision about official detention. See A.J., 190 F.3d at
876.

                                           -5-
       M.R.M. also argues that the sentence was contrary to law or plainly
unreasonable because the district court relied on impermissible factors. M.R.M. did
not object at sentencing to any of the statements that she now disputes. As a
consequence, the district court had no opportunity to clarify its comments or to correct
any potential error in the first instance. Nor was the district court prompted to explain
whether the comments had any effect on the ultimate disposition of the case.
Accordingly, we review M.R.M.’s complaints about the district court’s remarks under
a plain error standard. Fed. R. Crim. P. 52(b); United States v. Lopez-Flores, 444 F.3d
1218, 1221 (10th Cir. 2006); United States v. Wiley, 509 F.3d 474, 479-80 (8th Cir.
2007) (Gruender, J., concurring). To obtain relief, she must show that the district
court made an obvious error, that there is a reasonable probability that the error
affected the outcome, and that failure to correct the error would seriously affect the
fairness, integrity, or public reputation of judicial proceedings. See United States v.
Olano, 507 U.S. 725, 732-36 (1993).

       One belated objection relates to the district court’s comments about M.R.M.’s
record of prior arrests during 2003 and 2004 for public intoxication (three times), a
curfew violation, disorderly conduct, driving without a permit, and malicious
mischief. (PSR ¶ 30). The court stated that while it realized that M.R.M.’s criminal
history was “only in category one” under the advisory guidelines, she had sustained
“other arrests in Indian Country,” and that “arrests do not impact the guidelines, but
they do show what kind of person you’ve been.” (S. Tr. 11).

      We do not think M.R.M. has established that the district court, in reciting these
comments, made a plain error. Congress has provided that “[n]o limitation shall be
placed on the information concerning the background, character, and conduct of a
person convicted of an offense which a court of the United States may receive and
consider for purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661; see
Williams v. New York, 337 U.S. 241 (1949); D.A.L.D., 469 F.3d at 730 (district court
may properly consider “history and characteristics” of defendant, as defined in

                                          -6-
§ 3553(a), when determining juvenile disposition). When sentencing an adult, “a
judge may appropriately conduct an inquiry broad in scope, largely unlimited either
as to the kind of information he may consider, or the source from which it may come,”
see United States v. Tucker, 404 U.S. 443, 446 (1972), and the range of information
available for consideration when rendering a juvenile disposition certainly is not any
narrower. While the Sentencing Commission has advised that a prior arrest record
itself shall not be considered for purposes of an “upward departure” under the
guidelines, see USSG § 4A1.3(a)(3), the Commission has not seen fit to declare a
record of arrests entirely irrelevant to sentencing, cf. id. § 5H1.10, and, in any event,
neither an advisory guideline range nor an upward departure from it applies in this
juvenile case.

       M.R.M. argues nonetheless that the district court’s decision was “plainly
unreasonable,” because the court appeared to make an inference about M.R.M.’s
character from a series of arrests, none of which led to a conviction. Even in the adult
context, there is ambiguity in the law concerning whether a district court may consider
a series of arrests as a factor in determining a sentence. We said in dicta in United
States v. Bailey, 547 F.2d 68 (8th Cir. 1976), that a “sentencing judge may look at an
arrest record for background information,” but “must not equate arrests as evidence
of prior wrongdoing.” Id. at 71. The Seventh Circuit later addressed the matter
directly, however, holding that a robbery defendant’s arrest record “was within the
wide latitude of information the judge can consider when sentencing, especially
considering the number of prior arrests dealing with burglary (eight) and theft or
robbery (two others).” United States v. Harty, 930 F.2d 1257, 1267 (7th Cir. 1991).
The First Circuit recently held that a lone arrest is not evidence that the person
arrested actually committed any criminal conduct, but was equivocal on the
permissibility of drawing an inference about character from a longer record:
“Although a series of past arrests might legitimately suggest a pattern of unlawful
behavior even in the absence of any convictions, [the defendant] was arrested only a
single time, more than a decade ago.” United States v. Zapete-Garcia, 447 F.3d 57,

                                          -7-
61 (1st Cir. 2006) (emphasis added). Cf. Schware v. Board of Examiners, 353 U.S.
232, 241 (1956) (stating, in a civil context, that the mere fact of an arrest “has very
little, if any, probative value in showing that [the] arrestee has engaged in any
misconduct”).

       In a juvenile dispositional hearing, there is arguably a stronger case for
permitting a judge to consider a series of prior arrests. While the FJDA does not focus
exclusively on rehabilitation, the law presumes that juveniles are amenable to
rehabilitation, and a court may have even wider latitude than in an adult sentencing
to consider the entirety of a juvenile’s background in determining the most appropriate
disposition. One state supreme court, for example, has held that juveniles are not
entitled to an automatic expunction of their arrest records, because without them, “it
is obvious that neither law enforcement nor the juvenile court would ever have a true
picture of the developing pattern of any juvenile.” Monroe v. Tielsch, 525 P.2d 250,
251 (Wash. 1974); see also P.W.G. v. State, 682 So.2d 1203, 1208 (Fla. App. 1st Dist.
1996) (sister court’s constitutional decision that a prior arrest record may not be
considered in juvenile proceeding “resulted from failure to recognize the fundamental
differences between the juvenile delinquency and adult criminal systems”), aff’d, 702
So.2d 488, 491 (Fla. 1997). Informal dispositions are common in juvenile matters:
“Nearly half of all cases referred to juvenile court intake are handled informally.”
Howard Snyder and Melissa Sickmund, Juvenile Offenders and Victims: 2006
National Report, Office of Juvenile Justice and Delinquency Prevention, U.S. Dept.
of Justice 104 (2006). Consistent with the national norm, the Oglala Sioux Tribal
Code provides that if a juvenile admits the facts of the charged offense, the juvenile
court may refer the matter to a counselor or other designated court official, who will
informally dispose of the case. Oglala Sioux Tribal Code, Ch. 5, § 5.17 (1996).
While it undoubtedly is the better practice for a court to make findings about
underlying facts, rather than to rely merely on a series of arrests, the realities of the
juvenile justice system lead us to hesitate before declaring that it is obviously wrong



                                          -8-
for a judge to infer a troubled past in the case of a juvenile delinquent with a series of
past arrests.

        In this case, moreover, other undisputed facts tend to support the district court’s
apparent inference about M.R.M.’s character. For example, in addition to three arrests
for public intoxication, it is undisputed that M.R.M. consumed alcohol three to four
times per month prior to her incarceration for the instant offense, and that she
experienced blackouts, hangovers, physical problems, and loss of control as a result
of her alcohol consumption. (PSR ¶ 41). She smoked approximately two “dime bags”
of marijuana per day between the ages of 13 and 14, continuing through August 2006.
(Id. ¶ 42). M.R.M.’s own mother advised the court that prior to the assault that gave
rise to these proceedings, M.R.M. “stopped going to school and started drinking and
getting into more and more trouble.” (Addendum to PSR).

       We need not reach a definitive conclusion here about whether a sentencing
judge in a juvenile proceeding may properly draw inferences about a juvenile’s
character from a series of prior arrests alone. It suffices for present purposes to
conclude that the district court’s comment in this case, viewed in the context of the
entire record, did not amount to a plain and obvious error that warrants reversal when
the objection is raised for the first time on appeal. See United States v. Ristine, 335
F.3d 692, 695 (8th Cir. 2003) (concluding that district court did not commit plain
error, despite contrary precedent from another circuit, where “the current law
concerning this issue is unsettled”).

       M.R.M. next objects to the district judge’s mention of his own personal
experiences with young persons unrelated to the case, citing the judge’s statement that
he had “buried three young people,” and his brief discussion of the circumstances of
their deaths. (S. Tr. 12). After these comments, the court warned M.R.M. that “if you
keep going . . . the direction that you’re going, [your parents] will have to bury you
some day.” (Id. at 13). We interpret these statements to express the court’s view that

                                           -9-
a period of detention was warranted to teach M.R.M. to “live by the rules” so that she
could avoid the negative consequences of future delinquent or criminal acts. This
conclusion was based on adequate evidence in the record, and the court’s brief
personal reference was not improper in the context of a broader discussion tethered
to the record.

       M.R.M. also directs our attention to the court’s statement that “[y]ou got in
trouble even though it probably was not your fault, but within a few days after your
plea you’re back in trouble again. True, you’re the victim.” (S. Tr. 11-12). Earlier
in the hearing, the court asked M.R.M. whether she suffered an assault within three
or four days of her plea, in which she lost some teeth or parts of teeth. After M.R.M.
gave what the transcript describes as an undefined “indication” in response, the court
asked how the assault made her feel, and M.R.M. replied, “Not good. . . . I felt really
low inside.” (S. Tr. 10). M.R.M. argues that the court improperly blamed her for
being the victim of an assault.

       We are unsure what the court meant by the cryptic remark that M.R.M. was “in
trouble again,” because the evidence of record does not provide any further
explanation of an assault or altercation that occurred after M.R.M. entered her plea.
Whatever its meaning, this brief statement is not plain error that warrants reversal. It
is not clear what significance, if any, the court attached to its observation, especially
since the court noted that the trouble was “probably not your fault,” and that M.R.M.
was the victim. And there was ample evidence to support the court’s disposition,
including the violent nature of the offense, M.R.M.’s history of drug and alcohol use,
including a relapse during a previous rehabilitation program, and M.R.M.’s troubled
family life.

      Given the broad discretion afforded the district courts in the disposition of
juvenile adjudications, and the plain error standard applicable to certain of M.R.M.’s
objections, we conclude that the period of official detention ordered in this case was

                                          -10-
not contrary to law or plainly unreasonable. Accordingly, the judgment of the district
court is affirmed. The government’s unopposed motion to expand the appellate record
is granted.

ARNOLD, Circuit Judge, dissenting.

       I would remand this case to the district court for resentencing because I believe
that drawing inferences about M.R.M.'s character from her arrest record is contrary
to law and plainly unreasonable. The Supreme Court has said that "[t]he mere fact
that a man has been arrested has little, if any, probative value in showing that he has
engaged in any misconduct. An arrest shows nothing more than that someone
probably suspected the person apprehended of an offense." Schware v. Board of Bar
Examiners, 353 U.S. 232, 241 (1956) (footnote omitted). In other words, an arrest
provides an insufficiently reliable basis for concluding that a person has committed
illegal conduct. That no doubt is why U.S.S.G. § 4A1.3(a)(3) specifically prohibits
courts from considering a prior arrest in determining whether a departure is warranted
because of an understatement of a defendant's criminal history. It is noteworthy, too,
that this guideline provision contains no exception for a series of arrests, cf. United
States v. Juvenile PWM, 121 F.3d 382, 384-85 (8th Cir. 1997), and we said years ago
in United States v. Bailey, 547 F.2d 68, 71 (8th Cir. 1976), that a sentencing judge
"must not equate arrests as evidence of prior wrongdoing."

       The continuing vitality of this elementary rule, founded on considerations of
due process, can hardly be in doubt: Less than two months ago, the Second Circuit
held squarely that "a bare-bones indictment, without more, is insufficient to support
a factual underpinning for sentencing purposes" and that "a charge ... , standing alone
and without independent substantiation, cannot be the basis upon which a criminal
punishment is imposed." United States v. Juwa, 508 F.3d 694, 701 (2d Cir. 2007); see
also Brothers v. Dowdle, 817 F.2d 1388, 1390 (9th Cir. 1987).



                                         -11-
       The proposition that an arrest is an unreliable indication of criminal conduct is
therefore so firmly fixed in the case law that the district court was obviously wrong
to neglect it in passing sentence on M.R.M. I conclude, moreover, that there is a
reasonable probability that the error affected the sentence in this case because the
district court told M.R.M. at sentencing that her arrests "show what kind of person
you've been." Finally, this is the kind of error that seriously affects the fairness and
public reputation of judicial proceedings, United States v. Olano, 507 U.S. 725, 736
(1993), because it undermines a bedrock legal principle on which juries in criminal
cases are routinely instructed, usually twice, namely that a mere criminal charge is not
evidence of guilt and that to give it weight deprives a criminal defendant of the
presumption of innocence. See, e.g., Eighth Circuit Model Criminal Jury Instructions
§§ 1.01, 3.05. This is a long-established and fundamental rule of law, see Coffin v.
United States, 156 U.S. 432, 453-56 (1895), and one with which every American
citizen is familiar. Failing to give it effect is unfair and bound to erode the public's
confidence in the criminal process.

      I would therefore remand this case to the district court for resentencing and I
respectfully dissent from the court's judgment.
                        ______________________________




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