                              FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 14 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.   17-10257

                Plaintiff-Appellee,
                                                D.C. No.
 v.                                             4:12-cr-01126-CJK-JR-1

JUVENILE MALE,
                                                OPINION
                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                       Argued and Submitted July 10, 2018
                           San Francisco, California

Before: Susan P. Graber and Richard C. Tallman, Circuit Judges, and Ivan L.R.
Lemelle,* Senior District Judge.

            Opinion by Judge Ivan L.R. Lemelle, Senior District Judge

LEMELLE, Senior District Judge:

      Juvenile Defendant-Appellant D.A.T. appeals the district court’s imposition

of a 34-month term of official detention following revocation of Appellant’s

juvenile delinquent supervision. Appellant argues that his term of official


      *
             The Honorable Ivan L.R. Lemelle, Senior United States District Judge
for the Eastern District of Louisiana, sitting by designation.

                                         1
detention exceeded the statutory maximum established in 18 U.S.C. § 5037(d)(5).

Because we agree, we vacate the sentence and remand with instructions that the

district court order Appellant’s immediate release.

        FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      In August 2009, when Appellant was 15 years old, he and two other

individuals killed R.O. on the Tohono O’odham Nation. Appellant was arrested by

tribal authorities and remained in tribal custody until he was transferred to federal

custody in June 2012, shortly after the government charged Appellant with first

degree murder in a one count information. In January 2013, Appellant reached a

plea agreement with the government and pled guilty to second-degree murder, as

charged in an amended information. The statutory maximum sentence was five

years of official detention. See 18 U.S.C. § 5037(c)(2)(A). On April 2, 2013, the

district court sentenced Appellant to 28 months of official detention, followed by

juvenile delinquent supervision until Appellant’s 21st birthday.

      Appellant was released from detention on June 25, 2014, at the age of 20.

But in November 2014, a warrant was issued for Appellant’s arrest because he

violated the conditions of his juvenile delinquent supervision. As part of a

Juvenile Revocation Disposition Agreement with the government, Appellant

admitted to two violations of his juvenile delinquent supervision conditions—

commission of various crimes and use of controlled substances. In October 2015,



                                          2
the district court revoked Appellant’s juvenile delinquent supervision and

sentenced him to nine months of official detention for each violation, to be served

consecutively, followed by 42 months of juvenile delinquent supervision.

      Appellant was released from detention on July 29, 2016, at the age of 22. In

September 2016, a second warrant was issued for Appellant’s arrest, again because

Appellant violated the conditions of his juvenile delinquent supervision. In April

2017, Appellant admitted to two violations (failure to notify probation of contact

with law enforcement and consumption of alcoholic beverages) without a plea

agreement. In May 2017, the district court revoked Appellant’s juvenile

delinquent supervision and sentenced him to 34 months of official detention for

each violation, to be served concurrently, with no term of juvenile delinquent

supervision to follow. Appellant did not object at the hearing, but timely appealed

his sentence.

                JURISDICTION AND STANDARD OF REVIEW

      The district court had jurisdiction over Appellant’s revocation proceeding

pursuant to 18 U.S.C. §§ 3231 and 5031-5037. We have appellate jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.




                                         3
      The parties disagree about whether we should review de novo or for plain

error. Regardless of which standard applies, the sentence imposed exceeded the

maximum permitted by law.1

                                   DISCUSSION

      This appeal presents a question of statutory interpretation. The Federal

Juvenile Delinquency Act (FJDA) governs the adjudication of juvenile

delinquency in federal courts. See 18 U.S.C. §§ 5031-5042. When a district court

finds a juvenile to be a juvenile delinquent, the FJDA empowers the district court

to impose a term of official detention, followed by a term of juvenile delinquent

supervision. See id. § 5037(a), (c), (d). The FJDA also empowers the district court

to revoke juvenile delinquent supervision if a juvenile violates a condition of

supervision, and to impose a new term of official detention. See id. § 5037(d)(5).

In this appeal, the parties dispute the maximum term of official detention that can

be imposed upon revocation of juvenile delinquent supervision when the juvenile




1
  See United States v. Goodbear, 676 F.3d 904, 912 (9th Cir. 2012) (holding that it
is plain error to impose a “sentence [that] exceeds the statutory maximum”);
United States v. Juvenile Male, 470 F.3d 939, 940-41 (9th Cir. 2006) (reversing
juvenile’s sentence under plain error review because district court used incorrect
statute to sentence juvenile, even though there was no controlling Ninth Circuit
precedent on the issue); United States v. Echavarria-Escobar, 270 F.3d 1265,
1267-68 (9th Cir. 2001) (applying de novo review to “a district court’s
construction and interpretation of the Sentencing Guidelines,” even though no
objection was raised in district court (internal quotation marks omitted)).

                                          4
is more than 21 years old at the time of the revocation proceeding. To resolve this

dispute, we must examine § 5037(d)(5) of the FJDA.

      Section 5037(d)(5) states:

            If the juvenile violates a condition of juvenile delinquent
         supervision at any time prior to the expiration or termination of
         the term of supervision, the court may, after a dispositional
         hearing and after considering any pertinent policy statements
         promulgated by the Sentencing Commission pursuant to section
         994 of title 18, revoke the term of supervision and order a term
         of official detention. The term of official detention which is
         authorized upon revocation of juvenile delinquent supervision
         shall not exceed the term authorized in section 5037(c)(2)(A) and
         (B), less any term of official detention previously ordered. The
         application of sections 5037(c)(2)(A) and (B) shall be
         determined based upon the age of the juvenile at the time of the
         disposition of the revocation proceeding. If a juvenile is over the
         age of 21 years old at the time of the revocation proceeding, the
         mandatory revocation provisions of section 3565(b) are
         applicable. A disposition of a juvenile who is over the age of 21
         years old shall be in accordance with the provisions of section
         5037(c)(2), except that in the case of a juvenile who if convicted
         as an adult would be convicted of a Class A, B, or C felony, no
         term of official detention may continue beyond the juvenile’s
         26th birthday, and in any other case, no term of official detention
         may continue beyond the juvenile’s 24th birthday.

Section 5037(d)(5) references § 5037(c)(2), which provides the maximum term of

official detention that may be imposed when “a juvenile [is] found to be a juvenile




                                         5
delinquent.” Id. § 5037(c). As relevant here, § 5037(c)(2) initially authorized a

five-year term of official detention for Appellant.2

      Section 5037(d)(5) is not a model of clarity with respect to calculating the

maximum term of official detention that can be imposed when supervision is

revoked. Relying on the unqualified wording of § 5037(d)(5)’s second sentence,

Appellant argues that the duration of previously ordered terms of official detention

is always subtracted from the maximum term prescribed by § 5037(c)(2). The

government argues that § 5037(d)(5) contains two independent methods for

calculating the maximum term of official detention following revocation. Pointing

to the last two sentences of the section, the government maintains that juveniles

older than 21 do not receive credit for previously ordered terms of official

detention. Both interpretations are plausible.3 Therefore, § 5037(d)(5) is

ambiguous. See United States v. Miranda-Lopez, 532 F.3d 1034, 1038 (9th Cir.

2008) (providing definition).


2
  Appellant’s offense would have been a Class A felony if he had been charged as
an adult, and the sentencing guidelines range for a similarly situated adult
exceeded five years. See 18 U.S.C. § 5037(c)(2).
3
  The United States Probation office relied on each interpretation at various times
during Appellant’s case. Also, the magistrate judge who conducted the admit/deny
hearing and the district judge who conducted the revocation proceeding described
the maximum term of official detention differently. Whereas the magistrate judge
stated that the maximum term of official detention would be reduced by previously
ordered terms of official detention, the district judge explained that the maximum
term of official detention could extend to Appellant’s 26th birthday, without any
mention of subtracting previously ordered detention.

                                          6
      “If [a] statute’s terms are ambiguous, we may use canons of construction,

legislative history, and the statute’s overall purpose to illuminate Congress’s

intent.” Jonah R. v. Carmona, 446 F.3d 1000, 1005 (9th Cir. 2006). We conclude

that Appellant’s construction of § 5037(d)(5) best reflects the structure of the

statute and congressional intent, while remaining faithful to the purpose of the

FJDA.

                               I. Text and Structure

      The structure of § 5037(d)(5) suggests that all juveniles receive credit for

previously ordered terms of official detention when supervision is revoked.

Section 5037(d)(5) is a single paragraph with no subparts or other internal

divisions. The paragraph begins with the unqualified statement that a district court

“may . . . revoke [a juvenile’s] term of supervision and order a term of official

detention” when a “juvenile violates a condition of . . . supervision.” 18 U.S.C.

§ 5037(d)(5). The next sentence states, again without qualification, that the term

of official detention imposed “shall not exceed the term authorized in section

5037(c)(2)(A) and (B), less any term of official detention previously ordered.” Id.

      But, by its own terms, § 5037(c)(2) applies only “in the case of a juvenile

who is between eighteen and twenty-one years old.” And the third sentence of

§ 5037(d)(5) states that the district court must use “the age of the juvenile at the

time of the disposition of the revocation proceeding” when applying § 5037(c)(2).



                                           7
Therefore, § 5037(c)(2) and the first two sentences of § 5037(d)(5) leave a crucial

question unanswered: how does a district court revoke supervision when a juvenile

is more than 21 years old at the time of the revocation proceeding? The last two

sentences of § 5037(d)(5) answer that question. Per the penultimate sentence,

revocation of supervision is mandatory when juveniles older than 21 commit

certain serious violations. Id. (referring to 18 U.S.C. § 3565(b)). The last sentence

instructs the district court to use § 5037(c)(2) to calculate the maximum term of

official detention after revocation, even when a juvenile is older than 21 at the

revocation proceeding. Id.

      As previously discussed, the parties dispute the significance of the last

sentence of § 5037(d)(5). Whereas Appellant argues that the last sentence

supplements, but does not displace, the section’s first three sentences, the

government argues that the last sentence creates an independent method of

calculating the maximum term of official detention for juveniles who are over the

age of 21 at their revocation proceedings. The government’s argument primarily

relies on the definition of the term “juvenile.” The government points to the

definitional section of the FJDA, which states that, “for the purpose of proceedings

and disposition under th[e] [FJDA] for an alleged act of juvenile delinquency,” “a

‘juvenile’ . . . is a person who has not attained his twenty-first birthday.” Id.

§ 5031. Based on this definition, the government argues that Appellant was not a



                                           8
“juvenile” at the time of the revocation proceeding and was, therefore, not entitled

credit for previously ordered terms of official detention.

      But the government’s attempt to separate § 5037(d)(5) into its constituent

parts runs counter to the natural reading of the statute. Section 5037 repeatedly

uses the phrase, “a juvenile who is over the age of 21 years old.” Id. § 5037(b),

(d)(5), (d)(6). This phrase suggests that, at least for purposes of § 5037, a

defendant can be a “juvenile” and over the age of 21 at the same time. See Util.

Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2441 (2014) (“[A] statutory term—

even one defined in the statute—may take on distinct characters from association

with distinct statutory objects calling for different implementation strategies.”

(internal quotation marks omitted)); cf. United States v. Olsen, 856 F.3d 1216,

1223 (9th Cir. 2017) (presumption that statutory definition controls use of term

“may yield to context” “[i]f interpreting a term consistently with its statutory

definition would, for instance, lead to ‘obvious incongruities’ or would ‘destroy

one of the major congressional purposes’” of the statute (alteration omitted))

(quoting Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201 (1949)).

      Considering Appellant a juvenile for purposes of § 5037 is also consistent

with our analysis in United States v. LKAV, 712 F.3d 436, 444 (9th Cir. 2013),

where we concluded that juveniles over the age of 21 remain “subject to” the

FJDA as long as the district court had jurisdiction when the information was filed.



                                          9
      Moreover, the government’s proposed construction fails to account for the

fact that only the first sentence of § 5037(d)(5) authorizes revocation of

supervision and imposition of official detention. If, as the government suggests,

the first sentence of § 5037(d)(5) applies only to juveniles who are under the age of

21 at their revocation proceedings, then there would be no statutory authorization

to revoke Appellant’s supervision. That is certainly not the government’s position,

and the resulting inability to revoke Appellant’s supervision would be an “obvious

incongruit[y]” that “destroy[s] one of the major congressional purposes” of the

2002 amendments to the FJDA. See Lawson, 336 U.S. at 201; see also H.R. Rep.

No. 107-685, at 218 (2002) (Conf. Rep.) (explaining that the FJDA was amended

to “provide[] authority to sanction a violation of probation when a person

adjudicated a juvenile delinquent is over 21 at the time of the violation”). The

government offers no persuasive rationale for considering appellant a “juvenile”

for purposes of the first sentence of § 5037(d)(5), but not the second.

      Appellant’s proposed construction is more faithful to the text and structure

of § 5037(d)(5) because it explains that the last two sentences of the section

supplement the general framework established by the first three sentences of the

section. The general framework is that: (1) supervision can be revoked for

violating conditions of supervision, and official detention can be imposed upon

revocation; (2) the maximum term of official detention is provided by



                                         10
§ 5037(c)(2), subject to reduction for previously ordered terms of official

detention; and (3) application of § 5037(c)(2) depends on the juvenile’s age at the

time of the revocation proceeding. The modifications that apply when a juvenile is

older than 21 at the revocation proceeding are: (1) certain serious violations of

supervision conditions trigger mandatory revocation; and (2) the maximum term of

official detention is provided by § 5037(c)(2), subject to certain age limits.

      But simply reading § 5037(d)(5) as a whole, instead of as two independent

pieces, does not fully resolve the parties’ dispute. The question remains whether

the last sentence of § 5037(d)(5) alters the operation of the section’s second

sentence by implicitly eliminating credit for previously ordered terms of official

detention when a juvenile is older than 21 at the revocation proceeding. The last

clause of § 5037(d)(5) reads:

      except that in the case of a juvenile who if convicted as an adult
      would be convicted of a Class A, B, or C felony, no term of official
      detention may continue beyond the juvenile’s 26th birthday, and in
      any other case, no term of official detention may continue beyond the
      juvenile’s 24th birthday.

This clause appears two other times in § 5037.

      In § 5037(b), which governs the revocation of probation, and in

§ 5037(d)(6), which governs the imposition of juvenile delinquent supervision after

revocation of a previous term of supervision, the clause serves to limit the district

court’s authority to detain or supervise a juvenile. See id. § 5037(b), (d)(6).



                                          11
Moreover, in neither instance does the clause create an independent sentencing

framework for juveniles over the age of 21. For example, consider a juvenile who

was sentenced to three years of probation for a Class A felony at the age of 20. See

18 U.S.C. § 5037(b)(2)(A). If that juvenile’s probation is later revoked,

§ 5037(c)(2) allows a period of official detention of five years. See id. § 5037(b).

But if the revocation proceeding occurs after the juvenile’s 21st birthday, the last

clause of § 5037(b) limits the term of official detention to end on the juvenile’s

26th birthday. The result would be less than five years of official detention.

Because the clause limits a juvenile’s exposure to detention when used in other

parts of § 5037, it should similarly limit a juvenile’s exposure to official detention

upon revocation of supervision. See United States v. Maciel-Alcala, 612 F.3d

1092, 1098-99 (9th Cir. 2010) (“We interpret identical phrases used in the same

statute to bear the same meaning,” especially when the phrases are in “close

proximity.”).

      Understanding the clause to limit a district court’s authority to detain a

juvenile is also consistent with the implicit age limits on detention that exist

throughout § 5037. Section 5037 consistently rejects control over juveniles after

their 24th or 26th birthday, depending on the severity of the underlying conviction.

See 18 U.S.C. § 5037(b), (c)(2), (d)(2)(B), (d)(6). For example, when a juvenile

who committed a class A felony is initially sentenced, he can neither be detained



                                          12
nor supervised after his 26th birthday because the maximum sentence of five years

will start no later than his 21st birthday. See id. § 5037(c)(2)(A), (d)(2)(B). In

fact, under no circumstances does § 5037 allow detention or supervision of a

juvenile past his 24th or 26th birthday. See id. § 5037(b)-(d). Accordingly, it is

not remarkable that § 5037(d)(5) contains a similar limiting provision to ensure

that juveniles are not indefinitely detained or supervised under the FJDA.

                                II. Legislative History

      The authority to order juvenile delinquent supervision, as well as the power

to impose a term of official detention upon revocation of that supervision, was

added to the FJDA in 2002. See Juvenile Justice and Delinquency Prevention Act

of 2002, Pub. L. No. 107-273, § 12301, 116 Stat. 1869, 1896-99. The legislative

history offers little insight into the specific question presented in this appeal:

whether juveniles over the age of 21 receive credit for previous terms of official

detention when their supervision is revoked. Admittedly, the legislative history

suggests that Congress was concerned about the level of violent juvenile crime

when it enacted § 5037(d)(5). See H.R. Rep. No. 107-685, at 113-14 (2002) (Conf.

Rep.). This concern could support the government’s construction of § 5037(d)(5),

because the government’s construction allows for the imposition of longer terms of

official detention for older juveniles. But the conference report only briefly

acknowledges § 5037(d)(5), stating that it “(1) provides authority to impose a term



                                           13
of juvenile delinquency supervision to follow a term of official detention, [and] (2)

provides authority to sanction a violation of probation when a person adjudicated a

juvenile delinquent is over 21 at the time of the violation.” Id. at 218. Neither

provision of authority noted in the conference report suggests a strong intent in

favor of the government’s construction.

      The interpretation of an analogous statute that was in effect when

§ 5037(d)(5) was enacted may shed more light on Congress’s intent. See Jonah R.,

446 F.3d at 1007 (“It is a rudimentary principle of construction that statutes

dealing with similar subjects should be interpreted harmoniously.” (internal

quotation marks and alterations omitted)). In the adult criminal justice system, the

closest analog to a term of juvenile delinquent supervision is a term of supervised

release. Compare 18 U.S.C. § 3583(a) with 18 U.S.C. § 5037(d)(1). When juvenile

delinquent supervision was introduced in 2002, “the circuit courts were in

agreement that, when calculating the maximum term of imprisonment to impose

upon revocation of a[n] [adult] defendant’s supervised release, the district court

was required to subtract the aggregate of length of any and all terms of revocation

imprisonment from the statutory maximum.” United States v. Knight, 580 F.3d

933, 937 (9th Cir. 2009).

      The text of § 5037(d)(5) appears more generous than the consensus

described in Knight because § 5037(d)(5) reduces the potential term of official



                                          14
detention upon revocation by “any term of official detention previously ordered,”

not just those ordered during previous revocation proceedings. See 18 U.S.C.

§ 5037(d)(5) (emphasis added). But the government’s proposed construction would

mean that juveniles older than 21 at their revocation proceedings would get no

credit at all, neither for official detention ordered during the initial disposition

hearing, nor for official detention ordered at previous revocations.

      “[I]t [is] highly unlikely that Congress meant to treat juveniles more harshly

than adult offenders” when it enacted § 5037(d)(5). See Jonah R., 446 F.3d at

1010. Congress later amended § 3583 so that adult offenders no longer receive

credit for imprisonment related to a prior revocation. See Knight, 580 F.3d at 937-

38 (citing Prosecutorial Remedies and Other Tools to End the Exploitation of

Children Today Act of 2003, Pub. L. No. 108-21, § 101, 117 Stat. 650, 651). But

Congress made no such change to § 5037(d)(5). See 18 U.S.C. § 5037(d)(5).

                               III. Motivating Policies

      Finally, the FJDA’s purpose cautions against adopting the government’s

construction. “The FJDA creates a separate system of criminal justice for juveniles

to shield them from the ordinary criminal justice system and to provide them with

protective treatment not available to adults accused of the same crimes.” Jonah R.,

446 F.3d at 1010 (internal quotation marks and alterations omitted). “The primary

goal of the FJDA is rehabilitative, not punitive; we have thus declared that a least



                                           15
restrictive standard for confinement is implicit in the structure and purposes of the

FJDA sentencing provisions.” Id. (internal quotation marks omitted). “In keeping

with its rehabilitative goals, the FJDA disfavors institutionalization and in

particular the warehousing of young people away from their communities.” United

States v. Juvenile, 347 F.3d 778, 785 (9th Cir. 2003). Whereas the government’s

construction would expose juveniles to longer terms of detention, Appellant’s

construction would help prevent excessive detention of juveniles, furthering the

FJDA’s purpose.

      Also weighing in favor of Appellant’s construction is the risk that the

government’s construction would create constitutional concerns. The

government’s construction could subject similarly situated juveniles to different

maximum terms of official detention based on how promptly each juvenile’s

revocation proceeding is held. Because the maximum term of official detention is

driven by a juvenile’s age at the time of his revocation proceeding, a juvenile who

violates a condition of supervision before he turns 21 would have a different

maximum sentence depending on whether his revocation proceeding occurred

before or after his 21st birthday. Disparate treatment of similarly situated

defendants triggers equal protection concerns when there is no rational basis for

the distinction. See Jonah R., 446 F.3d at 1008; see also cf. United States v. Stokes,




                                          16
292 F.3d 964, 968-69 (9th Cir. 2002). “We must interpret statutes to avoid such

constitutional difficulties whenever possible.” Jonah R., 446 F.3d at 1008.

      The FJDA does provide for different maximum terms of detention

depending on whether a juvenile was originally sentenced before or after his 18th

birthday. See United States v. Leon H., 365 F.3d 750, 753-54 (9th Cir. 2004). But

differentiating between juveniles based on when they were originally sentenced is

consistent with the language and structure of the FJDA. See id. at 752–53. It also

“makes sense from a policy perspective,” because it avoids a “nonsensical”

juvenile sentencing scheme “in which the potential penalty that can be applied

decreases as the defendant ages.” Id. at 753. Here, however, there is no apparent

rational basis for granting credit for previous terms of official detention to

juveniles who have revocation hearings before their 21st birthdays, but refusing

credit to juveniles whose revocation hearings happen after they turn 21. In this

context, the period of possible detention is already limited by the juvenile’s age

because § 5037(d)(5) prohibits extending detention beyond a juvenile’s 24th or

26th birthday. Therefore, our holding in Leon H. does not assuage our concerns

about the constitutional implications of the government’s construction of

§ 5037(d)(5).




                                          17
                                  CONCLUSION

      The text and structure of § 5037(d)(5), its legislative history, and the FJDA’s

motivating purpose support Appellant’s construction of § 5037(d)(5). Because

Appellant was entitled to credit for “any term of official detention previously

ordered,” the maximum term of official detention that could have been imposed

upon revocation of his juvenile delinquent supervision was 14 months.4 See 18

U.S.C. § 5037(d)(5). Appellant was sentenced to 34 months of official detention.

Therefore, Appellant’s sentence exceeded the maximum permitted by law. At the

end of May 2018, Appellant had been detained for 14 months for the instant

supervision violations. We therefore vacate Appellant’s sentence and remand with

instructions that the district court order Appellant’s immediate release. We also

order that the mandate issue immediately upon filing of this disposition. See Fed.

R. App. P. 41.

      VACATED and REMANDED. The mandate shall issue immediately

upon filing of this decision. The district court shall order Appellant’s

immediate release.




4
 The maximum statutory term of official detention is 60 months. See 18 U.S.C.
§ 5037(c)(2). At the time of his second revocation hearing, Appellant had been
previously ordered to serve 46 months of official detention (28 months at the
original dispositional hearing and 18 months at the first revocation hearing). 60
months less 46 months is 14 months.

                                         18
