Submitted June 14, 2013.[*]
Resubmitted Aug. 8, 2013.
Chad A. Bowers, Las Vegas, NV, for Defendant-Appellant.
Daniel G. Bogden, United States Attorney, Robert L. Ellman, Appellate Chief, Adam M. Flake, Assistant United States
Attorney, District of Nevada, Las Vegas, NV, for Plaintiff-Appellee.
Appeal from the United States District Court for the District of Nevada, Lloyd D. George, Senior District Judge, Presiding. D.C. No. 2:11-cr-00357-LDG-PAL-1.
Before: MARY M. SCHROEDER, KENNETH F. RIPPLE,[**] and CONSUELO M. CALLAHAN, Circuit Judges.
SCHROEDER, Circuit Judge:
DeMario Edwards appeals his 46-month sentence following a guilty plea for possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). The principal issue on appeal is the constitutionality of a provision of the federal Sentencing Guidelines that assigns criminal history points for crimes that were committed when the defendant was a juvenile. U.S. Sentencing Guidelines (" U.S.S.G." ) § 4A1.2(d)(2)(A). Edwards contends that considering such crimes in sentencing adults is contrary to the Supreme Court's Eighth Amendment cases limiting the degree of criminal punishment of juveniles. See Miller v. Alabama,
__ U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012); Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010); Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Joining the unanimously held view of our sister circuits, we conclude that the Eighth Amendment permits courts to use prior juvenile convictions to increase the sentence of an adult convicted of a crime.
Edwards further challenges the district court's finding that his prior conviction for attempted burglary under Nevada law was a " crime of violence" under the modified categorical approach, thereby increasing the base offense level for purposes of the Sentencing Guidelines. The district court looked beyond the elements of the Nevada burglary statute to the charging document and guilty plea to hold that Edwards's conduct, in attempting to burglarize an occupied apartment, created a risk of physical injury and was therefore a crime of violence. While this appeal was pending, however, the Supreme Court limited application of the modified categorical approach and held that courts may not use judicially noticeable documents to identify facts underlying a prior conviction. See Descamps v. United States,
__ U.S. __, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). The government concedes that the application of the modified categorical approach in this case would be contrary to Descamps, and it has never contended that a Nevada burglary conviction is a categorical crime of violence. We must therefore vacate and remand for resentencing without the " crime of violence" enhancement.
In his short life, Edwards, who is now 23 years old, has accumulated a long and serious criminal history. He was twice convicted as a juvenile, at ages 14 and 16, of felony robbery with a deadly weapon. At age 17, he was convicted as a juvenile for felony possession of marijuana with the intent to sell.
Edwards has continued his criminal activity into adulthood. At age 19, he was charged with attempted burglary under Nevada law. In the charging document, the ...