                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0104n.06

                                            No. 09-6012

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                      FILED
UNITED STATES OF AMERICA,                                 )                        Feb 11, 2011
                                                          )                  LEONARD GREEN, Clerk
          Plaintiff-Appellee,                             )
                                                          )
v.                                                        )   On Appeal from the United States
                                                          )   District Court for the Eastern
MARCUS D. JARNIGAN,                                       )   District of Tennessee
                                                          )
          Defendant-Appellant.                            )




Before:          BOGGS and COOK, Circuit Judges; and CARR, District Judge.*

                 BOGGS, Circuit Judge. Marcus Jarnigan pleaded guilty to being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g). The sentencing judge determined that

Jarnigan qualified as an armed career criminal under the Armed Career Criminal Act (“ACCA”) and,

on August 13, 2009, sentenced Jarnigan to 198 months in prison. We affirm that sentence.

                                                  I

          On January 15, 2008, Jarnigan was indicted for a violation of 18 U.S.C. § 922(g), being a

felon in possession of a firearm. The indictment alleged that, on December 31, 2007, Jarnigan

knowingly possessed a loaded 9-mm pistol and, at that time, had been previously convicted of a

felony. And because Jarnigan possessed ammunition for the pistol, he was also indicted for a second

violation of the same statute.

          *
          The Honorable James G. Carr, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 09-6012
United States v. Jarnigan

       After various pre-trial proceedings and the selection of a jury, Jarnigan pleaded guilty to both

counts on December 18, 2008. At the plea colloquy, Jarnigan stipulated to the government’s factual

summary of his crime, and the district court accepted Jarnigan’s plea.

       A probation officer prepared a Presentence Investigation Report (“PSR”). The officer

determined that Jarnigan had 11 criminal history points, which placed him in criminal history

category V. The officer grouped the two counts under § 922(g), thereby establishing a base offense

level of 20. However, the officer determined that Jarnigan qualified as an armed career criminal

under ACCA and, as a result, increased his offense level to 33. See USSG §4B1.4. Based on these

calculations, the Guidelines provided a recommended sentence of between 210 and 262 months in

prison. See id. at §5A.

       Jarnigan filed two objections to the PSR on August 6, 2009. First, Jarnigan argued that he

should not be considered an armed career criminal because two of the predicate convictions, for

dealing drugs in 1991, occurred when he was 17. And, in the alternative, because the two

convictions were both part of the same indictment, Jarnigan argued that they should count as only

one predicate offense, not two. Second, Jarnigan argued that he should have been given a two-level

downward adjustment for his acceptance of responsibility.

       At Jarnigan’s August 13, 2009, sentencing hearing, the district court ultimately decided to

grant Jarnigan a two-level downward adjustment for his acceptance of responsibility, but rejected

Jarnigan’s arguments regarding his status as an armed career criminal. The court held that Jarnigan’s

1991 drug convictions were “serious drug offenses” and were therefore properly counted for

purposes of the enhancement and, even if the convictions were juvenile adjudications, Sixth Circuit

                                                -2-
No. 09-6012
United States v. Jarnigan

precedent indicated that procedurally-sound juvenile adjudications can be used for ACCA

enhancements. See United States v. Crowell, 493 F.3d 744, 750 (6th Cir. 2007). The district court

further held that because Jarnigan’s two convictions arose out of conduct committed on separate

days, they were properly counted as separate convictions for ACCA purposes, and that this result

was also dictated by Sixth Circuit precedent. See United States v. McCauley, 548 F.3d 440, 448 (6th

Cir. 2008); United States v. Roach, 958 F.2d 679, at 683 (6th Cir. 1992).

       Accordingly, the district court concluded that Jarnigan’s adjusted offense level was 31, not

33, and the Guidelines range was therefore 168 to 210 months in prison. Because the convictions

carried a 180-month minimum sentence, the court determined that Jarnigan’s restricted Guidelines

range was 180 to 210 months. The court sentenced Jarnigan to a prison term of 198 months.

       Jarnigan filed this timely appeal, in which he claims that his sentence is both procedurally

and substantively unreasonable. This court has jurisdiction to review Jarnigan’s sentence under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                                 II

                                                 A

       Generally, this court reviews a district court’s sentence for an abuse of discretion. United

States v. Barahona-Montenegreo, 565 F.3d 980, 983 (6th Cir. 2009) (citing Gall v. United States,

552 U.S. 38, 49 (2007)). However, a district court’s legal conclusion that a defendant’s prior

convictions qualify as predicate convictions for purposes of ACCA is reviewed de novo. See United

States v. Hill, 440 F.3d 292, 295 (6th Cir. 2006).



                                                -3-
No. 09-6012
United States v. Jarnigan

        The goal of procedural review is to ensure that the sentencing judge “has considered the

parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.”

Rita v. United States, 551 U.S. 338, 356 (2007). Procedural review involves a three-factor analysis:

(1) whether the court properly calculated the Guidelines range; (2) whether the court considered the

§ 3553(a) factors and the parties’ arguments; and (3) whether the court adequately explained why

it imposed the chosen sentence. United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007).

        The only procedural arguments raised here relate to whether the district court properly

calculated the Guidelines range. Specifically, Jarnigan argues that the district court erroneously

considered his prior drug convictions to be predicate offenses for purposes of ACCA. Appellant’s

Br. at 6. ACCA provides that a defendant convicted of a violation of § 922(g) must receive a

mandatory minimum sentence of 15 years in prison if he has “three previous convictions . . . for a

violent felony or a serious drug offense, or both, committed on occasions different from one

another.” 18 U.S.C. § 924(e)(1). A “serious drug offense” is defined as “an offense under State law,

involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a

controlled substance . . . for which a maximum term of imprisonment of ten years or more is

prescribed by law.” Id. at § 924(e)(2)(A)(ii). The Sentencing Guidelines include enhancement

provisions that reflect ACCA. See USSG §4B1.4; id. at §4B1.4, comment. (n. 1) (“This guideline

applies in the case of a defendant subject to an enhanced sentence under 18 U.S.C. § 924(e).”).

        If a sentence passes procedural reasonableness review, this court next reviews the sentence

for substantive reasonableness. Barahona-Montenegro, 565 F.3d at 983. Substantive review

requires that the court “take into account the totality of the circumstances, including the extent of any

                                                  -4-
No. 09-6012
United States v. Jarnigan

variance from the Guidelines range.” Gall, 552 U.S. at 51. If the sentencing judge selected an

above-Guidelines sentence, the justification must be “sufficiently compelling to support the degree

of the variance.” Id. at 50. However, due deference must be given to the sentencing judge’s

decision, and the fact that this court “might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal.” Id. at 51.

                                                   B

        Jarnigan argues that, because his 1991 drug convictions occurred when he was a minor, they

can not be counted as ACCA predicate offenses. That Jarnigan was a minor at the time of the

offenses and convictions at issue is not in dispute. However, we hold that, because the age of the

offender has no impact on whether a serious drug crime counts as a predicate offense under ACCA,

Jarnigan’s minor convictions were properly counted as ACCA predicate offenses.

        To support his argument, Jarnigan relies only on USSG § 4A1.2(c)(2), which provides that

“[j]uvenile status offenses and truancy,” along with various other types of offenses, “are never

counted” when computing a defendant’s criminal history. By its own terms, the provision is not

relevant to the question of whether Jarnigan’s offenses are predicate offenses under ACCA. Jarnigan

was not convicted of a juvenile status offense or truancy, and whether an offense merits a criminal

history point under the Guidelines is a separate question from whether it is recognized under ACCA.

See United States v. Cole, 418 F.3d 592, 599 (6th Cir. 2005) (“[A] juvenile status offense is an

offense which is illegal only because of the offender’s age.”).

        Jarnigan was charged and convicted as an adult in Georgia Superior Court of a drug offense

punishable by more than ten years in prison, see GA . CODE ANN . § 16-13-30, and that ends the

                                                  -5-
No. 09-6012
United States v. Jarnigan

ACCA inquiry. United States v. Taylor, 301 F. App’x 508, 522 (6th Cir. 2008) (“Regardless of

whether defendant could have been prosecuted as a juvenile, he was . . . convicted and sentenced

as an adult for a crime . . . [that meets ACCA’s definition of ‘violent felony,’ and] this conviction

qualifies as a conviction for purposes of the ACCA enhancement.”) (citing United States v. Spears,

443 F.3d 1358, 1360-61 (11th Cir. 2006), United States v. Lender, 985 F.2d 151, 156 (4th Cir.

1993)). And in an analogous situation regarding the Guidelines’ career-offender provisions, this

court held that a prior conviction of an “adult” crime in “adult” court counts as a “prior adult”

conviction, notwithstanding the fact that the defendant was a minor at the time of the conviction.

United States v. Muhammad, 948 F.2d 1449, 1459 (6th Cir. 1991). In accordance with these

decisions, we hold that Jarnigan’s drug convictions constitute predicate offenses under ACCA even

though they occurred while he was still a minor.

       Jarnigan also argues that the two drug convictions were “simply two counts of the same

indictment” and therefore “arise from the same course of conduct and must be counted as one

conviction” for purposes of ACCA. Appellant’s Br. at 7. Jarnigan cites no authority for this

proposition, and we therefore consider the argument waived.1 United States v. Williams, 544 F.3d




       1
          The argument is also foreclosed by clear circuit precedent. United States v. Roach, 958 F.2d
679, 684 (6th Cir. 1992) (“Because appellant committed drug offenses on three different days . . .
, these offenses do not constitute a single criminal episode, and the district court properly enhanced
appellant’s sentence pursuant to [ACCA] . . . .”); United States v. Martin, 526 F.3d 926, 939 (6th
Cir. 2008) (“[P]rior crimes are predicate offenses under the ACCA if . . . it would have been possible
to cease the criminal conduct after the first offense without committing the second offense . . . . That
the offenses were ultimately charged in one indictment . . . is irrelevant.”).

                                                 -6-
No. 09-6012
United States v. Jarnigan

683, 690 (6th Cir. 2008) (holding that arguments are waived when an appellant “fail[s] to develop

or support his argument with any legal authority”).

       Finally, Jarnigan argues—again without citing any legal authority—that an offense level of

20 “is a more appropriate reflection of the underlying crime, while level 33 overstates the severity

of the crime for which he is charged.” This claim, too, is waived.2 Williams, 544 F.3d at 690.

                                                III

       For the foregoing reasons, we AFFIRM the sentence imposed by the district court.




       2
         Jarnigan’s aborted argument is also plainly insufficient to overcome the presumption of
reasonableness of his within-Guidelines sentence. United States v. Wilms, 495 F.3d 277, 280 (6th
Cir. 2007).


                                               -7-
