United States v. Francis Woodard

Court Case Details
Court Case Opinion

United States Court of Appeals

For the Eighth Circuit

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No. 11-2828

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United States of America

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Plaintiff - Appellee

v.

Francis Joseph Woodard

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Defendant - Appellant

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Appeal from United States District Court

for the Southern District of Iowa - Council Bluffs

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Submitted: January 13, 2012

Filed: September 13, 2012

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Before WOLLMAN, LOKEN, and MELLOY, Circuit Judges.

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WOLLMAN, Circuit Judge.

Francis Joseph Woodard pled guilty to possession of child pornography, in

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violation of 18 U.S.C. § 2252(a)(4)(B). The district court

sentenced Woodard to 168

months’ imprisonment. Woodard appeals his sentence, arguing that his prior juvenile

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The Honorable John A. Jarvey, United States District Judge for the Southern

District of Iowa.

adjudication for second-degree sexual abuse does not support an enhancement under

18 U.S.C. § 2252(b)(2) or the United States Sentencing Guidelines (Guidelines)

§ 2G2.2(b)(5) because a juvenile adjudication does not constitute a prior conviction

for those purposes. We affirm.

I.

Woodard’s presentence report (PSR) indicated that he had a prior juvenile

adjudication for sexual abuse of a minor. The statutory sentencing range for a

violation of 18 U.S.C. § 2252(a)(4)(B) is 0 to 10 years’ imprisonment. 18 U.S.C.

§ 2252(b)(2). That range increases to not less than 10 years nor more than 20 years

for a defendant who has a prior conviction involving sexual abuse. Id. Although

Woodard admitted that the facts outlined in the PSR were accurate, he objected to the

classification of the juvenile adjudication as a prior conviction and to the resulting

mandatory minimum and increased possible maximum sentence. Woodard also

objected to the PSR’s use of the juvenile adjudication as the basis for a five-level

sentencing enhancement under Guidelines § 2G2.2(b)(5).

Following a hearing, and relying on our decision in United States v. Smalley,

294 F.3d 1030 (8th Cir. 2002), the district court concluded that Woodard’s juvenile

adjudication could be considered a prior conviction under 18 U.S.C. § 2252(b). The

district court also determined that that adjudication could constitute the basis of a

pattern-of-conduct enhancement under Guidelines § 2G2.2(b)(5). Woodard’s appeal

challenges the application of the increased statutory minimum and Guidelines

enhancements. He also contends that the government failed to establish that his

adjudication as a juvenile sexual abuse offender was determined in a constitutional

manner.

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II.

A.

This appeal raises the issue whether a juvenile adjudication can be considered

a prior conviction under 18 U.S.C. § 2252(b). We addressed in Smalley whether a

juvenile adjudication can constitute a prior conviction under the Armed Career

Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e). We determined that the use of a

juvenile adjudication for a violent felony to enhance a sentence does not violate

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). We have also held that juvenile

adjudications for sexual misconduct can constitute prior convictions for sentencing

purposes in ACCA cases, see United States v. Nash, 627 F.3d 693, 696 (8th Cir. 2010)

(holding that a juvenile adjudication resulting in an adult sentence was a predicate

conviction under the ACCA), and that juvenile adjudications can constitute prior

convictions for sentencing purposes in drug offenses, United States v. Dieken, 432

F.3d 906, 908-09 n.2 (8th Cir. 2006).

Woodard first contends that Smalley is inapposite because it involved the

ACCA, a statute that characterizes juvenile adjudications as prior convictions. See 18

U.S.C. § 924(e)(2)(C). In contrast, 18 U.S.C. § 2252(b)(2) includes no similar

characterization, leading Woodard to argue that the absence of such a definition

reflects Congress’s intent that a juvenile adjudication not be considered as a prior

conviction in the context of violations of 18 U.S.C. § 2252(b)(2). “We review claims

of constitutional error and issues of statutory construction de novo.” United States v.

Smith, 656 F.3d 821, 826 (8th Cir. 2011) (quoting Royal v. Kautzky, 375 F.3d 720,

722 (8th Cir. 2004)).

After noting in Smalley that Congress characterized juvenile adjudications as

prior convictions in ACCA violation cases, 294 F.3d at 1031, we went on to conclude

that Congress’s characterization was not dispositive, however, because whether a

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juvenile adjudication may be characterized as a prior conviction for Apprendi

purposes is a constitutional question implicating a defendant’s due process rights. Id.

at 1031-32. Ultimately, we concluded that juvenile adjudications possess safeguards

sufficient to satisfy due process requirements. Id. at 1033. We determined that the

lack of a jury trial in juvenile adjudications does not offend due process “because we

think that the use of a jury in the juvenile context would ‘not strengthen greatly, if at

all, the fact-finding function’ and is not constitutionally required.” Id. (quoting

McKeiver v. Pennsylvania, 403 U.S. 528, 547 (1971) (plurality opinion)).

Although it is true that the statute at issue in Smalley is different from the

statute at issue here, we have applied Smalley’s holding in a drug offense case. See

Dieken, 432 F.3d at 908-09 n.2. Like the statute at issue here, the statutes

criminalizing drug offenses and establishing the penalties for violation thereof do not

characterize juvenile adjudications as prior convictions. Applying the same analysis

here, we hold that a juvenile adjudication may be considered a prior conviction under

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18 U.S.C. § 2252(b).

B.

Woodard next contends that the district court erroneously applied a five-level

enhancement pursuant to Guidelines § 2G2.2(b)(5) for Woodard’s having engaged in

a pattern of activity involving the sexual abuse or exploitation of a minor. Woodard

argues that his juvenile adjudication cannot form the basis for the enhancement. We

review the district court’s application of the Guidelines de novo and review its factual

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We note that our holding is consistent with the Eleventh Circuit’s unpublished

opinion in United States v. Loomis, 230 F. App’x 938, 939 (11th Cir. 2007) (per
curiam), in which the Eleventh Circuit found no plain error in the district’s
determination that the defendant’s youthful offender adjudication was a prior
conviction under 18 U.S.C. § 2252(b).

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findings for clear error. United States v. Birdine, 515 F.3d 842, 845 (8th Cir. 2008).

The phrase “pattern of activity involving the sexual abuse or exploitation of a

minor” means

any combination of two or more separate instances of the sexual abuse
or sexual exploitation of a minor by the defendant, whether or not the
abuse or exploitation (A) occurred during the course of the offense;
(B) involved the same minor; or (C) resulted in a conviction for such
conduct.

U.S. Sentencing Guidelines Manual § 2G2.2(b)(5) cmt. n.1. The PSR describes

Woodard’s sexual abuse of two minors, conduct that satisfies the “two or more

separate instances” requirement. The Guidelines allow for the enhancement “whether

or not the abuse or exploitation . . . resulted in a conviction for such conduct.” Id.

Thus, a juvenile adjudication may be considered for enhancement purposes under

§ 2G2.2(b)(5), regardless of whether the juvenile adjudication is considered a prior

conviction.

We join our sister circuits in concluding that § 2G2.2(b)(5) contains no

temporal limitation that would prevent Woodard’s sexual abuse that occurred 19 years

earlier from triggering the enhancement. See United States v. Bacon, 646 F.3d 218,

220-21 (5th Cir. 2011) (per curiam) (concluding that no temporal restriction exists in

applying § 2G2.2(b)(5) based on abuse that occurred 30 years earlier (citing United

States v. Turner, 626 F.3d 566, 572-73 (11th Cir. 2010) (enhancement applied based

on abuse that occurred 20 years earlier); United States v. Olfano, 503 F.3d 240, 243

(3d Cir. 2007) (enhancement applied based on abuse that occurred 16 and 13 years

earlier); United States v. Garner, 490 F.3d 739, 742-43 (9th Cir. 2007) (enhancement

applied based on abuse that occurred 35 years earlier); United States v. Gawthrop, 310

F.3d 405, 413-14 (6th Cir. 2002) (enhancement applied based on abuse that occurred

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11 years earlier); United States v. Woodward, 277 F.3d 87, 90-92 (1st Cir. 2002)

(enhancement applied based on abuse that occurred 22 and 27 years earlier); United

States v. Lovaas, 241 F.3d 900, 903-04 (7th Cir. 2001) (enhancement applied based

on abuse that occurred 26 years earlier))). The district court thus did not err in

applying the five-level enhancement to Woodard’s sentence.

C.

Finally, Woodard contends that, assuming a juvenile adjudication could be used

for sentencing enhancement purposes, it should not have been used in his case because

there is insufficient evidence that his juvenile adjudication was accompanied by

proper safeguards. Woodard’s counsel raised this issue at sentencing by stating:

Your Honor, I just want the record to be clear that even last night I went
through the documents that I’ve had on this case, and I am yet able [sic]
to find an actual adjudication from the Pottawattamie County Juvenile
Court or the Pottawattamie County District Court that reflects that a
judge had made an adjudication. There are documents that reflect courts
and a date for disposition and adjudication, but I’ve yet to find
documents that would reflect that there was actually an adjudication
entered on that date. I just wanted to put on the record that part of my
objection was the lack of evidence of showing representation of counsel
and showing the court filing in that regard.

Sentencing Tr. 3:17-4:3.

We conclude that sufficient evidence exists to support Woodard’s juvenile

adjudication. The PSR established that Woodard had sexually abused two minors.

PSR ¶ 12, 33, factual findings to which Woodard raised no objection. “If a defendant

objects only to the PSR’s recommendation, but not to the facts themselves, the court

may accept the facts as true and rely on the unobjected-to facts in determining whether

to impose an enhancement.” United States v. Douglas, 646 F.3d 1134, 1137 (8th Cir.

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2011) (citing United States v. Bledsoe, 445 F.3d 1069, 1073 (8th Cir. 2006)).

Woodard conceded the existence of the juvenile adjudication, arguing only that the

adjudication should not enhance his sentence. The district court thus did not err in

finding that Woodard had been adjudicated guilty of sexual abuse of a minor.

Woodard’s suggestion that his adjudication lacked proper safeguards constitutes

a collateral attack on his juvenile adjudication. Woodard fails to identify any

constitutional safeguards that he was deprived of at the time. In any event, denial of

the right to counsel “is the only ground upon which a prior conviction used to enhance

a federal sentence may be collaterally attacked.” United States v. Reyes-Solano, 543

F.3d 474, 478 (8th Cir. 2008) (citing Custis v. United States, 511 U.S. 485, 487

(1994)). Assuming that Woodard’s claim is that he did not have counsel when he was

adjudicated delinquent, his claim fails. It was Woodard’s burden to establish by a

preponderance of the evidence that his juvenile adjudication was constitutionally

invalid. Id. Iowa law affords a juvenile in a juvenile proceeding all the rights

guaranteed under the constitution, including the right to counsel. In re Johnson, 257

N.W.2d 47, 49-50 (Iowa 1977). Woodard does not allege that his juvenile proceeding

was actually uncounseled, and his allegation that it may have been uncounseled

because documentation is lacking is insufficient to satisfy his burden of proof.

III.

The judgment is affirmed.

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