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Zendeh Del & Associates, PLLC


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Prior juvenile adjudication for sexual assault did not qualify as prior conviction under §4B1.5(a)

​United States v. Nielsen 2012 WL 3983770 (9th Cir. 2012)

Prior juvenile adjudication for sexual assault did not qualify as prior conviction under §4B1.5(a)

In December 2010, the defendant began communicating with A.J., a 12-year-old girl, on an adults-only sex chat line. The two exchanged phone numbers and engaged in phone sex and “sexting.” The defendant told A.J. that he could provide her with drugs and invited her to visit him in Montana. A.J. purchased a Greyhound bus ticket and traveled to visit the defendant, but prior to leaving, she informed the defendant of her age. When she arrived in Montana, she and the defendant met and over the next four days they engaged in sex numerous times. After four days, A.J.’s parents tracked her to the defendant’s apartment and retrieved her. The defendant, a registered sex offender, pled guilty to coercion and enticement of a minor. The district court applied the “repeat and dangerous sex offender” enhancement, pursuant to §4B1.5(a), based on its conclusion that the defendant’s juvenile adjudication for sexual assault qualified as a prior “sex offense conviction.” This resulted in a sentencing range of 235 to 293 months, but the district court departed upward and imposed a sentence of 480 months. On appeal, the defendant argued that the §4B1.5(a) enhancement should not have been applied because his juvenile adjudication for sexual assault did not count as a “conviction” within the meaning of the guidelines. Noting that the issue was one of first impression, the Ninth Circuit explained that the enhancement applied “if a defendant committed the instant offense of conviction subsequent to sustaining at least one sex offense conviction.” Further, the application notes to §4B1.5(a) define “sex offense conviction” as “any offense described in 18 U.S.C. §2426(b)(1)(A) or (B), if the offense was perpetrated against a minor. . . .” The government argued that the inclusion of the phrase “any offense” in the definition demonstrated the Sentencing Commission’s intent to count “any” prior sexual offense against a minor as a conviction, including juvenile adjudications. The appeals court disagreed: “A plain reading of the note indicates, however, that it is meant to address which substantive offenses count as a ‘sex offense,’ rather than define what constitutes a conviction.” The court noted that when “the Guidelines apply to juvenile adjudications, they say so expressly. Thus, §4A1.2(d) specifically addresses ‘juvenile sentences,’ and the application notes to §4A1.2 describe in detail how juvenile adjudications are to be treated with regard to the term prior sentence. In contrast, §4B1.5(a) and its application notes include no reference to juvenile adjudications at all.” Further, while certain juvenile adjudications count as “prior sentences” or offenses, the word “conviction” is used only to refer to adult convictions. “This is consistent with our general understanding that juvenile adjudications do not result in convictions.” “We therefore hold that the district court erred in applying §4B1.5(a), because [the defendant’s] juvenile adjudication does not constitute a sex offense conviction.”
Posted Sun, November 04, 2012 - 12:56:48