On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 01-cr-00136) District Judge: Hon. Donald E. Ziegler
Before: Sloviter, Nygaard and
ALARCON,*fn1 Circuit Judges
The opinion of the court was delivered by: Sloviter, Circuit Judge
In this appeal by Lester Jones challenging the enhancement of his sentence pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), we consider a question of first impression for this court — whether a prior non-jury juvenile adjudication can count as a prior conviction for purposes of the exception to Apprendi v. New Jersey, 530 U.S. 466 (2000).
Jones was indicted in the Western District of Pennsylvania with one count of being a previous felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and (e). Initially, he pleaded not guilty but thereafter changed his plea to guilty. During the change of plea hearing, the Government summarized its evidence against Jones. Three witnesses claimed that on April 10, 2000, Jones went to an apartment in Pittsburgh, Pennsylvania where he displayed two guns, one of which he discharged twice. Thereafter, Jones threatened the occupants and fled the apartment with $10,000 in cash and some clothing. When the police caught Jones, they recovered the stolen clothing, $10,000 in cash, and two guns, a Taurus and a Smith & Wesson. Experts matched two casings and a bullet found in the apartment to the Taurus gun.*fn2
A defendant convicted of being a felon in possession of a firearm is subject to a sentence of a maximum of 10 years imprisonment under 18 U.S.C. § 924(a)(2). However, the ACCA mandates a minimum sentence of 15 years imprisonment for anyone convicted of being a felon in possession in violation of 18 U.S.C. § 922(g)(1) who is found to have three previous convictions for a violent felony or serious drug offense. 18 U.S.C. § 924(e). The District Court noted that Jones had two adult state felony drug convictions and one prior juvenile adjudication for a violent crime, thereby constituting the necessary three prior convictions for application of the ACCA. Thereafter, the District Court ordered Jones to pay a special assessment in the sum of $100 and sentenced him to a 15 year term of imprisonment followed by a 4 year term of supervised release. This appeal followed.
Before us, Jones argues that the ACCA cannot apply to him. He does not dispute that his adult drug convictions qualify as prior convictions for purposes of the ACCA. Instead, Jones raises both statutory and constitutional challenges to the use of his prior juvenile adjudication for enhancement purposes. First, Jones argues that his juvenile adjudication does not constitute a "violent felony" under the ACCA when applying the "categorical approach" as enunciated in our recent decision in United States v. Richardson, 313 F.3d 121 (3d Cir. 2002). Next, Jones contends that because he was not afforded the right to a jury trial during his juvenile adjudication, that adjudication cannot qualify for the so-called "prior conviction exception" articulated by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000). Although neither the Supreme Court nor this court has addressed this issue, two other courts of appeals have rendered differing opinions on this precise question, thereby creating a circuit split. Finally, Jones alleges that his prior juvenile adjudication cannot be used for enhancement purposes because the certified records from his juvenile adjudication do not demonstrate that he was afforded the right to counsel or waived such right.
Jones asks us to vacate his sentence and remand for resentencing with instructions that he be sentenced without the application of the ACCA.
A. Jurisdiction and Standard of Review
We have jurisdiction to hear this appeal pursuant to 18 U.S.C. §§ 1291 and 3742(a). This appeal presents purely legal questions, over which we exercise plenary review. See United States v. Preston, 910 F.2d 81, 84 (3d Cir. 1990).
B. Jones' Statutory Claim
We first consider Jones' allegation that the statutory elements underlying his prior juvenile adjudication do not constitute a "violent felony" under the ACCA because we need not address his constitutional claims if we are persuaded by this statutory claim. In relevant part, the ACCA reads:
(1) In the case of a person who violates section 922(g) of this title and has three previous convictions... for a violent felony or a serious drug offense, or both... such person shall be fined not more than ...