                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 02-1322
                               ________________

United States of America,                *
                                         *
            Appellee,                    *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      District of South Dakota.
K. R. A.,                                *
                                         *           [PUBLISHED]
            Appellant.                   *

                               ________________

                               Submitted: June 14, 2002
                                   Filed: July 24, 2003
                               ________________

Before HANSEN,1 Chief Judge, BOWMAN and BYE, Circuit Judges.
                           ________________

HANSEN, Circuit Judge.

      This appeal requires us to examine the statutory sentencing scheme of the
Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042 (2000), as applied to
K.R.A., who was adjudicated a juvenile delinquent at the age of 15. After repeatedly


      1
       The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
violating the conditions of her probation, K.R.A. was eventually placed by the district
court2 in official detention until her 22nd birthday, essentially a term of
approximately 37 months. On appeal, K.R.A. contends her sentence was in error for
the following reasons: (1) the district court utilized the wrong statute by imposing the
sentence of official detention under 18 U.S.C. § 5037 rather than 18 U.S.C. § 3565;
(2) even if § 5037 was the appropriate statute for sentencing a juvenile after
revocation of probation, the district court incorrectly applied the statute by relying on
K.R.A.’s age at the time her probation was revoked rather than her age at the time it
was originally imposed; and (3) the district court abused its discretion in imposing an
upward departure. We disagree with each of K.R.A.’s arguments and, therefore,
affirm the judgment of the district court.

                                 I. BACKGROUND

      K.R.A. was adjudicated a juvenile delinquent at age 15 after she admitted to
committing the Class B felony of first-degree burglary by entering an occupied
residence at night with the intent to steal. Specifically, on July 17, 1998, K.R.A. and
two other individuals entered the home of a woman without permission, stole and
destroyed some of the woman’s personal property, and caused structural damage to
the home. Another female physically assaulted the victim in her bedroom.

       At the time of her original juvenile disposition in federal court, K.R.A. already
had been charged with several tribal violations and had been adjudicated a juvenile
delinquent in the Sisseton Wahpeton Tribal Court. On September 17, 1998, the
district court imposed a term of approximately 3-1/2 years probation (until her 19th
birthday–February 20, 2002) and a joint and several restitution obligation. On
December 8, 2000, a petition to revoke probation was filed after K.R.A. violated the


      2
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
                                           2
conditions of her probation by consuming alcohol, eluding law enforcement, stealing
a police car, driving a vehicle with a revoked driver’s license, and escaping from
custody. Acting contrary to what it said was its better judgment, the district court
continued K.R.A. on probation but extended it until she reached the age of 21
(February 20, 2004).

       On October 15, 2001, a second petition to revoke probation was filed after
K.R.A., then age 18, absconded from Glory House, a community treatment facility
where she had been placed, and failed to notify her probation officer of her change
in residence and employment within 72 hours as required under the conditions of her
probation. The district court revoked K.R.A.’s probation and imposed a term of
official detention until K.R.A.’s 22nd birthday, February 20, 2005, a revocation
sentence, as indicated, of approximately 37 months.

                                 II. DISCUSSION

      We review the district court's interpretation of the relevant statutes de novo.
United States v. Brings Plenty, 188 F.3d 1051, 1053 (8th Cir. 1999). Here, based
upon the provisions of 18 U.S.C. § 5037(c), the district court concluded it had the
authority to sentence K.R.A. to a term of official detention of up to 5 years. Section
5037(c), as it existed at the time of K.R.A.'s revocation proceeding, provides as
follows:

      The term for which official detention may be ordered for a juvenile
      found to be a juvenile delinquent may not extend–
            (1) in the case of a juvenile who is less than eighteen years
            old, beyond the lesser of –
                   (A) the date when the juvenile becomes
                   twenty-one years old; or
                   (B) the maximum term of imprisonment that
                   would be authorized if the juvenile had been
                   tried and convicted as an adult; or

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               (2) in the case of a juvenile who is between eighteen and
               twenty-one years old–
                      (A) who if convicted as an adult would be
                      convicted of a Class A, B, or C felony,
                      beyond five years; or
                      (B) in any other case beyond the lesser of–
                             (i) three years; or
                             (ii) the maximum term of
                             imprisonment that would be
                             authorized if the juvenile had
                             been tried and convicted as an
                             adult.

        In United States v. R.L.C., 503 U.S. 291, 306 (1992), the Supreme Court
construed the phrase "'the maximum term of imprisonment that would be authorized
if the juvenile had been tried and convicted as an adult'" found in § 5037(c)(1)(B) to
mean "the maximum length of sentence to which a similarly situated adult would be
subject if convicted of the adult counterpart of the offense and sentenced under the
statute requiring application of the Guidelines, [18 U.S.C.] § 3553(b)." The Court
made clear that "a sentencing court's concern with the Guidelines goes solely to the
upper limit of the proper Guideline range as setting the maximum term for which a
juvenile may be committed to official detention, absent circumstances that would
warrant a departure under § 3553(b)." Id. at 307. See also United States v. Juvenile
D.T., No. 99-4087, 2000 WL 1694066, at *1 (8th Cir. Nov. 14, 2000) (unpublished3)
("When revoking a juvenile defendant's sentence of probation, district courts have
authority to resentence the juvenile to a term of imprisonment, but the term may not
exceed the maximum term a similarly situated adult convicted of the same offense
could receive under the Guidelines."); United States v. A.J., 190 F.3d 873, 875 (8th
Cir. 1999) ("This means only that a sentencing court may have to consider the



      3
          We choose to cite to this unpublished opinion pursuant to 8th Cir. R. 28A(i).


                                            4
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.").

       The Sentencing Guidelines do not apply to juvenile offenders sentenced under
the Federal Juvenile Delinquency Act. USSG § 1B1.12, p.s.; R.L.C., 503 U.S. at 307
n.7. The requirement that a district court determine what the sentence for a similarly
situated adult defendant could be in order to determine the upper limit of the
juvenile's detention "does not require plenary application of the Guidelines to juvenile
delinquents." Id. at 307.

       Here, the district court, relying on § 5037(c)(2)(A), concluded that the upper
limit of the available period of detention for K.R.A. was 5 years (60 months), because
she was 18 at the time of the revocation and would have been convicted of a Class B
felony with a maximum statutory sentence of 25 years if she had been convicted as
an adult. However, the district court also did a Guidelines analysis and concluded
that before consideration of any grounds for an upward departure, a similarly situated
adult defendant would have been subject to a Guidelines imprisonment range of 15
to 21 months. The court also determined that an upward departure from that range
was warranted to about a 37-month sentence, and used that figure to impose the
revocation sentence on K.R.A. of detention until her 22nd birthday.

       K.R.A. argues that the district court erred by applying § 5037 instead of § 3565
when revoking her probation. We respectfully disagree. As we have previously
stated, and reaffirm now, § 5037 is the starting point for determining a dispositional
order in juvenile matters. A.J., 190 F.3d at 875. The court, after finding an individual
to be a juvenile delinquent, may suspend the findings of juvenile delinquency, enter
an order of restitution, place the juvenile on probation, or commit her to official
detention. 18 U.S.C. § 5037(a). Subsection (b) establishes the maximum terms for
which probation may be ordered and states that the provisions dealing with probation
“in sections 3563, 3564, and 3565 are applicable to an order placing a juvenile on

                                           5
probation.” 18 U.S.C. § 5037(b). These referenced sections relate to the granting,
modifying, and revoking of probation for adult offenders. Finally, under subsection
(c), the statute sets out the maximum terms for which official detention may be
ordered. 18 U.S.C. § 5037(c). Notwithstanding subsection (b)’s reference to § 3565
(which governs revocation of an adult offender's probation), we conclude that the
juvenile statutory sentencing scheme requires that the maximum terms of detention
for juveniles found in subsection (c) must be applied and observed when ordering a
juvenile into official detention as a probation revocation sanction.

        Our review of the record convinces us that the district court correctly looked
at § 5037 for its authority to enter a dispositional order requiring official detention
and for determining its maximum length. The court did err, however, in its
determination that it could enter an order of up to 5 years of detention. The upper
limit of detention for K.R.A., under the Supreme Court's holding in R.L.C., was the
Guidelines sentence that a similarly situated adult defendant could have received,
absent a departure authorized by § 3553(b), but not to exceed 5 years. Because
K.R.A.'s sentence of detention to her 22nd birthday is, as we determine infra, equal
to the 37-month prison sentence which a similarly situated adult defendant could have
received, the court's error in thinking it could have given K.R.A. 5 years of detention
was harmless. We address, infra, K.R.A.'s further argument that the district court's
departure decision itself was erroneous.

      Notwithstanding our holding that § 5037 establishes the maximum term of
detention which can be imposed, § 3565 still should be applied to determine the
appropriate revocation sentence within that maximum. Section 3565(a) provides as
follows:

      If the defendant violates a condition of probation at any time prior to the
      expiration or termination of the term of probation, the court may, after
      a hearing . . ., and after considering the factors set forth in section
      3553(a) to the extent that they are applicable–

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             (1) continue him on probation, with or without extending the term
             or modifying or enlarging the conditions; or
             (2) revoke the sentence of probation and resentence the defendant
             under subchapter A.

       Subchapter A consists of 18 U.S.C. §§ 3551 through 3559. Of importance here
is § 3553(a), which lists the statutory factors a court may consider in determining a
sentence, including “any pertinent policy statement issued by the Sentencing
Commission.” § 3553(a)(5). K.R.A. argues that had she been correctly resentenced
under subchapter A, the district court should have considered the policy statements
concerning revocation of probation and supervised release for adult offenders found
at USSG § 7B1.3-.4, p.s., which would have recommended imprisonment (detention)
for a term of 3 to 9 months.

        In general, policy statements interpreting sentencing guidelines are binding
on federal courts. Williams v. United States, 503 U.S. 193, 201 (1992); United
States v. Levi, 2 F.3d 842, 845 (8th Cir. 1993). The policy statements set forth in
Chapter 7 of the Sentencing Guidelines Manual, however, are not binding, but merely
advisory, because they do not interpret a guideline. See United States v. Tschebaum,
306 F.3d 540, 544 (8th Cir. 2002); A.J., 190 F.3d at 875; United States v. Hensley,
36 F.3d 39, 41-42 (8th Cir. 1994); Levi, 2 F.3d at 845. Thus, the district court was
not bound by the 3-to-9-month recommended sentence under § 7B1.4.

        Recognizing that neither § 7B1.3 nor .4 is binding, K.R.A. next argues the
district court should then have looked to the guideline range for K.R.A.'s original
offense. Here, as we have noted above, with an offense level of 14 for the burglary
and a criminal history category of I, an adult guideline range would have been 15 to
21 months. Because the original offense of conviction was a Class B felony, and the
applicable guideline range fell in Zone D of the Sentencing Table, an adult would not
have been eligible for probation. 18 U.S.C. § 3561. K.R.A.'s sentence to probation,
if it had been given to an adult, would have been a substantial downward departure.

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K.R.A. asserts that if she were an adult, her sentence to detention should not have
been more than 21 months.

       In assessing this argument, we need again to keep in mind that the Guidelines
themselves do not apply directly to juveniles. R.L.C., 503 U.S. at 307. We have
already determined, ante at 4-6, that the Guidelines are to be used to determine the
upper limit of a juvenile's sentence to detention, but we are convinced that they are
not to be used to determine where within the maximum period of detention authorized
by § 5037 a particular juvenile should be sentenced, which is what K.R.A. really
seeks.

       We find K.R.A.’s reliance upon our decision in United States v. Iversen, 90
F.3d 1340 (8th Cir. 1996), to be misplaced. There, in addressing the maximum
sentence available for violation of probation by a non-juvenile defendant, we stated
that under § 3565(a)(2) the district court was required to “resentence the defendant
under subchapter A,” which in general requires the court to sentence defendants in
accordance with the Sentencing Guidelines. Id. at 1345. We further noted that the
amendment to this section in 1994 did “not alter the district court’s power to sentence
a probation violator within the range of sentences available at the time of the initial
sentence.” Id. at n.6. We, however, have not read Iversen to require the district court
to sentence an adult defendant within the original Guidelines sentencing range, when
revoking probation. See Tschebaum, 306 F.3d at 543 ("We believe, however, that
neither Iverson nor § 3565(a) requires a court to sentence a defendant within the
original sentencing range when his or her probation is revoked.")

      Lastly with respect to this argument, we agree with the government that,
although the district court did not specifically reference sections 3553(a) or 3565
during the January 17, 2002 dispositional hearing, the court nonetheless substantially
complied with the requirements of the statutes. The transcript of the August 20, 2001
revocation hearing demonstrates that the district court was well aware of the statutory

                                          8
factors governing revocation, and we logically presume that the court remained
equally aware of them 5 months later when making the detention decision.

       We also conclude that the district court properly applied § 5037 by using
K.R.A.’s age at the time of the probation revocation hearing (18), as opposed to her
age at the time of the initial dispositional hearing (15). The statute plainly states,
using the present tense, that the relevant maximum term for official detention shall
be based upon a juvenile “who is less than eighteen” or “who is between eighteen and
twenty-one.” The statute does not refer to the age the juvenile was when she
committed the original offense or when she was originally placed on probation. Thus,
based on the plain meaning of the statutory language, we conclude that the juvenile’s
age at the time of the imposition of official detention is the correct age to use when
determining the maximum term of official detention under § 5037(c).

       As noted by the Fifth Circuit, this interpretation of the statute avoids the
unreasonable result where a revocation 2 months before a juvenile’s 21st birthday
would yield, at most, a 2-month sentence. See United States v. Female Juvenile, 103
F.3d 14, 17 (5th Cir. 1996) (“It is nonsensical to suppose that as a defendant draws
nearer the age of twenty-one, the allowable penalty that a court may impose for
violation of probation shrinks correspondingly."), cert. denied, 522 U.S. 824 (1997);
see also United States v. G.C.A., 83 F. Supp.2d 253, 254-55 (D. P.R. 2000)
(concurring with Fifth Circuit’s analysis of § 5037).

      K.R.A.'s final argument is that the district court's 37-month detention sentence
was an unjustified upward departure from both the 3-to-9-month range recommended
in USSG § 7B1.4, and the 15-to-21-month range determined by the Sentencing
Guidelines for a similarly convicted adult. Because § 7B1.4 is an advisory policy
statement and not a binding Guideline, the district court's sentence is not an "upward
departure," in the Guidelines sense of that term. See United States v. Shaw, 180
F.3d 920, 922 (8th Cir. 1999). And K.R.A.'s sentence was not an upward departure

                                          9
from the Guidelines range for a similarly situated adult because, as shown below, the
correct range for a similarly situated adult is 30-37 months rather than 15-21 months.

       With respect to the merits of whether or not the 37-month sentence was the
correct upper limit of detention applicable to K.R.A., we do need to determine
whether or not a similarly situated adult defendant could have received a 37-month
sentence under the Guidelines for the same conduct that K.R.A. engaged in prior to
the revocation proceeding which resulted in her detention sentence. In doing so, we
believe a correct analogy is to a similarly situated adult defendant who is facing a
sentencing judge for the imposition of an initial sentence having committed, as
violations of pretrial or presentencing release conditions, the same violations that
K.R.A. committed of her conditions of juvenile probation.

       K.R.A. violated the conditions of her probation by consuming alcohol, fleeing
from police, stealing a police car, driving with a revoked driver's license, escaping
from custody, and absconding from a community treatment facility. A similarly
situated adult would have started out at the same place K.R.A. did when her original
presentence investigation report was done in 1998, i.e., at an offense level of 17.
However, the hypothetical similarly situated adult defendant who had committed
violations of pretrial or presentencing release conditions identical to those K.R.A.
committed of her probation conditions, would not have received a 3-level reduction
for acceptance of responsibility (as K.R.A. initially did to end up at Level 14) and
also would have received a 2-level upward adjustment for obstruction of justice,
resulting in an offense level of 19 and a Guidelines sentencing range of 30-37
months. See, e.g., United States v. Young, 315 F.3d 911, 913 (8th Cir.) (absconding
while on pretrial release justifies denial of reduction and imposition of enhancement),
cert. denied, 123 S. Ct. 2108 (2003); United States v. Martinez, 234 F.3d 1047, 1047-
48 (8th Cir. 2000) (absconding from halfway house and using drugs and alcohol
while on pretrial release justifies denial of reduction and imposition of enhancement);
United States v. Shinder, 8 F.3d 633, 635 (8th Cir. 1993) (absconding while on

                                          10
presentencing release justifies denial of reduction and imposition of enhancement).
Because K.R.A.'s detention sentence of 37 months does not exceed the sentence a
similarly situated adult defendant could have received pursuant to the Sentencing
Guidelines without a departure, there is no violation of § 5037's upper limit on
juvenile sentences with respect to her. Accordingly, we need not delve into the
district court's departure-based analysis and reasoning because any error was
harmless. Consequently, we also conclude that K.R.A.'s 22nd birthday is the correct
upper limit of her detention period pursuant to § 5037(c) and the Supreme Court's
decision in R.L.C.

       "Where, as here, there are no applicable sentencing guidelines, we will not
overturn a sentence unless it is 'contrary to law' or it is 'plainly unreasonable.'"
Tschebaum, 306 F.3d at 544, quoting 18 U.S.C. § 3742(a)(1), (a)(4). The district
court carefully took into its consideration the fact that if she had been originally
sentenced in 1998 as an adult, her Guideline range would have been 15 to 21 months.
The court also recognized that had she been sentenced as an adult, her original
sentence to probation would have been a downward departure under the Guidelines
since probation is not authorized for a Level 14, Category I adult offender. The
district court reviewed her entire history while on probation, including those admitted
violations on the record, and concluded that detention until K.R.A.'s 22nd birthday
was the appropriate judicial and societal response to her original offense and her later
incorrigible behavior.

       Our close review reveals that the district court committed no reversible error
of law, and, given K.R.A.'s history of serious probation violations, her demonstrated
inability to be a law abiding citizen and to obey the court's rules, and the applicable
factors enumerated in 18 U.S.C. § 3553(a) to be considered in imposing a probation
revocation sentence, we see no plain unreasonableness in the district court's
judgment, and there certainly was no abuse of its broad discretion in its determination
to order K.R.A. detained until her 22nd birthday.

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                         III. CONCLUSION

Accordingly, we affirm the judgment of the district court.

A true copy.

      Attest:

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




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