Unpublished Disposition, 869 F.2d 1499 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 869 F.2d 1499 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.JUVENILE MALE, Defendant-Appellant.

No. 88-3108.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 7, 1989.Decided Feb. 28, 1989.

Before HUG, WILLIAM A. NORRIS and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM* 

Kirk H. appeals the sentence he received after pleading guilty to a violation of 18 U.S.C. § 1361 (1982), damage in excess of $100 to government property. Since Kirk H. was seventeen years old at the time of the violation, the U.S. Attorney proceeded against him under the Juvenile Delinquency Act ("JDA"), 18 U.S.C. §§ 5031-42 (1982 & Supp. IV 1986). Because the district court had jurisdiction under the JDA and properly sentenced Kirk H., we affirm.

Kirk H. alleges that section 5032 of the JDA requires the district court to obtain a juvenile's record before initiating proceedings against him. Because the district court did not receive his juvenile record until shortly before sentencing, Kirk H. claims that the court lacked jurisdiction over his case. We review this question of federal statutory interpretation de novo. United States v. Wilson, 720 F.2d 608, 609 n. 2 (9th Cir. 1983), cert. denied, 465 U.S. 1034 (1984).

Contrary to Kirk H.'s contention, our circuit has held that the JDA's requirements are not jurisdictional. In United States v. Araiza-Valdez, 713 F.2d 430 (9th Cir. 1980), we held that the JDA constitutes a purely procedural mechanism for the adjudication of cases against juveniles accused of violating federal criminal laws. " ' [T]he Act does not create a substantive offense with its own jurisdictional basis, but rather establishes a procedural mechanism for the treatment of juveniles who are already subject to federal jurisdiction because of the commission of acts cognizable under other federal criminal statutes.' " Id. at 432 (quoting United States v. Allen, 574 F.2d 435, 437 (8th Cir. 1978)). Kirk H.'s violation of 18 U.S.C. § 1361, the vandalism provision, afforded the district court jurisdiction over his case. Section 5032, and the JDA as a whole, merely instructed the district judge on how to proceed in this case once this part of the federal code established jurisdiction.

Since section 5032 is not jurisdictional, Kirk H. cannot now raise an appeal based on its terms. He did not object to the absence of the juvenile record when he was before the district judge and consequently did not preserve the issue for appeal. See Church of the New Testament v. United States, 783 F.2d 771, 774 (9th Cir. 1986); cf. United States v. Gonzalez-Cervantes, 668 F.2d 1073, 1077-78 (9th Cir. 1981) (holding that section 5032's certification requirement, which states that a juvenile "shall not be proceeded against in any court of the United States" unless the Attorney General has filed the requisite certification, is nonjurisdictional and that the failure to object to a certification problem before the trial court waived a claim of error.)

Kirk H. next contends that the Sentencing Reform Act of 1984 ("SRA"), Pub. L. 98-473, Sec. 212, 98 Stat.1987, applies to his case. Specifically, he claims that the district judge violated the Act's provisions by failing to sentence him under the Sentencing Guidelines and by failing to give a statement of reasons for the sentence as required by 18 U.S.C. § 3553(c) (Supp. II 1984). We review this question of federal statutory construction de novo. Wilson, 720 F.2d at 609 n. 2.

It is highly doubtful that the SRA has any application to juvenile prosecutions. If so, it is tangential at best. However, we need not consider these matters in this case because the offense here was committed prior to the effective date of the Act and could not be affected in any way by the SRA.

Although Kirk H. contends, in essence, that the SRA applies to all defendants not sentenced as of the Act's date of effectiveness, Congress and the courts have stated that the Act applies only to offenses committed on or after the effective date. Enacted in 1984, the SRA did not become effective until November 1, 1987. Sentencing Reform Act of 1984 at Section 235(a) (1) and Sentencing Reform Amendments Act of 1985, Pub. L. No. 99-217, 99 Stat. 1728. On December 7, 1987, Congress amended the Act to state expressly that the Act applies only to defendants who committed an offense on or after November 1, 1987. Sentencing Act of 1987, Pub. L. No. 100-182, Sec. 2(a), 101 Stat. 1266. The Seventh Circuit, in considering the SRA's legislative history, concluded that the December amendment simply clarified what Congress had intended all along but had not clearly expressed in the 1984 Act: "Congress' clear intent was that the SRA would not apply to sentencing for offenses committed prior to its November 1, 1987 effective date. The Senate report on Sec. 235(a) (1), the provision establishing the effective dates of the SRA, states: 'The title will apply to any offense or other event occurring on or after the effective date.... As to an offense committed prior to the effective date, the preexisting laws will apply as to all substantive matters including the imposable sentence.' " United States v. Stewart, 865 F.2d 115, ---- (7th Cir. 1988) (1988 WL 142385 at 3-4) (quoting S.Rep. No. 98-225, 98th Cong., 2nd Sess. 189). Reading the December amendment in conjunction with the SRA's legislative history, the Seventh Circuit has held that the Act does not apply to defendants who committed offenses before November 1, 1987. Our circuit has reached the same conclusion. See United States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1988) (holding, without discussion, that the Act applies only to offenses committed after November 1, 1987). None of the SRA's provisions, consequently, applies to Kirk H.

This conclusion resolves two of Kirk H.'s issues on appeal. First, because he is not entitled to sentencing under or with reference to the Guidelines, the district judge did not err by imposing a pre-SRA punishment. Second, since section 3553(c) does not apply, the district judge was not required to state on the record the reasons for his sentencing decision.

Kirk H. alleges that the district court violated Fed. R. Crim. P. Rule 32(c) (3) (D) by failing to make a finding in response to his claim that a presentence report falsely labeled him the group's ringleader during the vandalism episode. This claim is meritless. Rule 32(c) (3) (D) allows the defendant to challenge information only in his own presentence report. See United States v. Rachels, 820 F.2d 325, 327 (9th Cir. 1987). The ringleader allegation appears not in Kirk H.'s report, but in the reports for the other juveniles. Rule 32, consequently, does not apply.

In addition to the Rule 32 issue, Kirk H. appears to assert a general due process claim that the district judge relied on false information, in the form of the ringleader charge, when sentencing him. This claim also fails. A defendant who challenges information used in sentencing must show that the information is (1) false or unreliable and (2) demonstrably the basis of the sentence. United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986). Kirk H. has not met either burden. His task is particularly difficult in light of the fact that the government expressly denied the ringleader charge before the district judge.

Finally, Kirk H. raises a variety of other issues involving the length of his sentence, its relation to the sentences received by his cohorts, and the constitutionality of the JDA. We find no merit in any of these contentions.

The sentence is AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3