Opposition Brief — Jane Doe, Female Juvenile, Petitioner v. United States
Supreme Court briefAug 24, 2023
Ask Donna
What actually matters in this document.
Text
No. 22-7753
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
JANE DOE, FEMALE JUVENILE, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
NICOLE M. ARGENTIERI
Acting Assistant Attorney General
JOHN-ALEX ROMANO
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTIONS PRESENTED
1.
Whether the court of appeals correctly determined that
petitioner’s Eighth Amendment challenge to the sentence that she
might receive in adult proceedings if she were convicted of firstdegree murder, in violation of 18 U.S.C. 1111, is not ripe.
2.
Whether the court of appeals correctly determined that
the district court applied the correct legal standard for whether
a juvenile defendant’s transfer to adult proceedings is warranted
under 18 U.S.C. 5032.
3.
Whether the court of appeals correctly determined that
the district court did not abuse its discretion in determining
that the factors set forth in Section 5032 weighed in favor of
petitioner’s transfer to adult proceedings.
(I)
ADDITIONAL RELATED PROCEEDINGS
United States District Court (E.D. Okla.):
United States v. Sealed, No. 21-cr-131 (2022)
United States Court of Appeals (10th Cir.):
United States v. Doe, No. 23-9900 (Jan. 20, 2023)
United States v. Sealed, No. 22-7019 (Jan. 20, 2023)
(II)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 22-7753
JANE DOE, FEMALE JUVENILE, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-16) is
reported at 58 F.4th 1148.
The order of the district court (Supp.
Pet. App., Attachment 4) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on January
20, 2023.
A petition for rehearing was denied on February 17,
2023 (Supp. Pet. App., Attachment 3).
The petition for a writ of
certiorari was filed on May 17, 2023.
The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
2
STATEMENT
Following proceedings in the United States District Court for
the
Eastern
District
of
Oklahoma
under
the
Federal
Juvenile
Delinquency Act (FJDA), 18 U.S.C. 5031 et seq., the district court
ordered
petitioner’s
transfer
to
adult
criminal
proceedings,
pursuant to two charges of first-degree murder in Indian country,
in violation of 18 U.S.C. 1111(a), 1151, 1153, and 2.
Pet. App.
5-6; see C.A. ROA 9-10.
The court of appeals affirmed.
Pet. App.
Petitioner is a member of the Choctaw Nation.
Pet. App.
1-16.
1.
5-6.
murder
When she was 17-and-a-half years old, she orchestrated the
of
her
two
Reservation.
Ibid.
boyfriend
she
that
parents,
After
was
who
lived
falsely
pregnant
and
on
the
telling
Choctaw
her
“lamenting
Nation
15-year-old
her
parents’
opposition to their relationship,” petitioner “asked her boyfriend
and another friend to kill her mother and father.”
Id. at 5.
“While [petitioner] hid in the bathroom of her parents’ home, the
two boys snuck into the home,” “beat and stabbed [petitioner’s]
mother multiple times,” and “buried the body in a crude grave.”
Ibid.
When petitioner’s father later showed up at the home, “the
boys clubbed him and set him on fire,” and he “died of blunt force
trauma and smoke and soot inhalation.”
Ibid.
accomplices “fled but were soon apprehended.”
Petitioner and her
Ibid.
3
In 2021, the government filed a juvenile information against
petitioner, together with a certification under the FJDA to proceed
in federal court.
U.S.C. 5032.
See Pet. App. 5-6; C.A. R.O.A. 9-10, 17-18; 18
The information alleged that petitioner had killed
her mother and father and that petitioner’s conduct, had she been
an adult at the time, would have qualified as first-degree murder
in Indian Country, in violation of 18 U.S.C. 1111(a), 1151, 1153,
and 2.
See Pet. App. 5-6; C.A. ROA 9-10.
Section 1111 defines
murder as “the unlawful killing of a human being with malice
aforethought.”
18 U.S.C. 1111(a).
It provides that certain types
of murder -- including “murder perpetrated by
* * *
willful,
deliberate, malicious, and premeditated killing” -- qualify as
first-degree
murder,
ibid.,
punishable
“by
imprisonment for life,” 18 U.S.C. 1111(b).
death
or
by
“Any other murder”
qualifies as second-degree murder, 18 U.S.C. 1111(a), punishable
by imprisonment “for any term of years or for life,” 18 U.S.C.
1111(b).
2.
The government filed a motion to transfer petitioner to
adult proceedings pursuant to 18 U.S.C. 5032.
See Pet. App. 6;
C.A. R.O.A. 21-23. Section 5032 provides that juveniles who commit
certain types of offenses, including a “crime of violence,”
be prosecuted as an adult in the “interest of justice.”
5032.
It
further
provides
that
in
determining
may
18 U.S.C.
whether
the
“interest of justice” supports a transfer to adult proceedings, a
4
court “shall” consider the following factors:
“age and social background,”
(2)
(1) the juvenile’s
“the nature of the alleged
offense,” (3) “the extent and nature of the juvenile’s prior
delinquency record,”
(4) “the juvenile’s
present
intellectual
development and psychological maturity,” (5) “the nature of past
treatment efforts and the juvenile’s response to such efforts,”
and (6)
“the availability of programs
juvenile’s behavioral problems.”
designed to treat the
Ibid.
After an evidentiary hearing, a magistrate judge recommended
that the case be transferred to adult court.
Supp. Pet. App., Attachment 5.
See Pet. App. 6;
The district court adopted the
magistrate judge’s recommendation and granted the government’s
transfer motion.
See Pet. App. 6; Supp. Pet. App., Attachment 4.
After considering each of the factors set forth in Section 5032,
the court determined that petitioner’s “risk to society outweighed
the potential benefits of a juvenile adjudication.”
Pet. App. 9.
The court “acknowledged that the penalties for first-degree murder
are unconstitutional when applied to a juvenile.”
Id. at 6.
But
the court explained that a constitutional challenge to that scheme
was not yet ripe because “the Eighth Amendment’s proscription
against cruel and unusual punishment is only applicable following
a determination of guilt after a trial or plea.”
(citation omitted).
Id. at 6-7
The court “noted that it would revisit the
issue should [petitioner] be convicted.”
Id. at 7.
5
3.
Petitioner filed an interlocutory appeal challenging the
district court’s transfer order.
appeals affirmed.
a.
Pet. App. 6.
The court of
Id. at 1-16.
The court of appeals rejected petitioner’s contention
that “her case cannot be transferred from juvenile to adult court
because the punishments for first-degree murder under 18 U.S.C.
§ 1111 violate the Eighth Amendment when applied to a juvenile.”
Pet. App. 6.
Citing this Court’s decisions in Roper v. Simmons,
543 U.S. 551 (2005), and Miller v. Alabama, 567 U.S. 460 (2012),
the court of appeals recognized that the punishments of “death”
and “life imprisonment without parole” are “unconstitutional when
applied to juveniles.”
Pet. App. 6.
But the court agreed with
the district court that petitioner’s Eighth Amendment challenge
was “unripe” because “future contingencies can play out without
the need to impose an unconstitutional sentence.”
Id. at 7.
The
court of appeals noted that petitioner “could be acquitted, be
convicted of second-degree murder, plea[d] to a lesser-included
offense, or even be convicted for first-degree murder but receive
a lower sentence.”
Ibid.
And the court emphasized that while
petitioner’s Eighth Amendment challenge was “not ripe” at this
juncture, she could raise the challenge again “at a future point
in the proceedings.”
Id. at 8.
The court of appeals also rejected petitioner’s argument that
“the district court applied an incorrect legal standard in granting
6
the government’s motion to transfer.”
Pet. App. 6.
The court of
appeals explained that the district court had “relied on 18 U.S.C.
§ 5032 and Tenth Circuit cases” in articulating the “test for
transfer.”
Id. at 9.
And the court of appeals understood the
district court’s citation of the Sixth Circuit’s decision in United
States v. One Juvenile Male, 40 F.3d 841 (1994), as “consistent
with” the correct standard, and not indicative of any failure to
apply the correct legal standard.
Pet. App. 9; see id. at 15 n.2.
The court of appeals therefore determined that “[t]he district
court correctly framed the legal test for transferring a juvenile
to adult court.”
Id. at 9.
Finally,
court
the
of
appeals
rejected
petitioner’s
contention that “the district court abused its discretion when
applying the six transfer factors.”
Pet. App. 6.
The court of
appeals explained that “[t]o constitute an abuse of discretion,
the district court must have failed to find facts or the factual
findings must be clearly erroneous.”
Id. at 10.
But the court of
appeals found “neither error” to be “present in this case.” Ibid.;
see id. at 9-10, 15 n.3.
The court accordingly determined that
“given [petitioner’s] age -- nearly 18 years old -- at the time of
the alleged offense, the heinousness of the crime, the callousness
of her participation, and her leadership role,” “the district court
did not abuse its discretion in granting the government’s motion
to transfer.”
Id. at 10.
7
b.
Judge Briscoe concurred in part and dissented in part.
Pet. App. 10-15.
She agreed that an Eighth Amendment claim was
unripe and that “the district court properly identified and at
least
minimally
Section 5032.
discussed
Id. at 10.
the
statutory
factors
outlined
in”
But she expressed the view that “the
district court abused its discretion in granting the government’s
motion
to
transfer”
by
“adopt[ing]
clearly
erroneous
factual
findings,” by “adopt[ing] a legally incorrect interpretation” of
the fifth factor set forth in Section 5032, and by “fail[ing] to
offer” an adequate “explanation” of the court’s reasoning.
Ibid.
Judge Briscoe would have vacated and remanded “to afford the
district court an opportunity to more carefully address the § 5032
factors.”
4.
Id. at 15; see id. at 10.
After petitioner was transferred to adult proceedings,
a federal grand jury in the Eastern District of Oklahoma indicted
petitioner on one count of conspiring to commit murder in Indian
country, in violation of 18 U.S.C. 1111(a), 1117, 1151, and 1153;
two counts of first-degree murder in Indian country, in violation
of
18
U.S.C.
1111(a),
1151,
1153,
and
2;
and
one
count
of
carjacking resulting in death, in violation of 18 U.S.C. 2119(3)
and 2.
23-cr-59 D. Ct. Doc. 2, at 1-5 (Apr. 13, 2023).
pleaded guilty solely to the conspiracy count.
Doc. 28, at 1 (July 26, 2023).
Petitioner
23-cr-59 D. Ct.
In light of petitioner’s guilty
plea, the district court vacated the scheduled trial date.
23-
8
cr-59 Docket Entry No. 30 (July 26, 2023).
A sentencing hearing
has not yet been scheduled.
ARGUMENT
Petitioner challenges (Pet. 14-17) her transfer to adult
proceedings on the theory that the punishments for first-degree
murder would violate the Eighth Amendment as applied to her.
interlocutory
posture
of
this
case,
however,
renders
The
further
review of petitioner’s Eighth Amendment challenge unwarranted at
this time. In any event, the court of appeals correctly determined
that petitioner’s challenge is unripe, and its decision does not
conflict with any decision of this Court or another court of
appeals.
This Court has previously denied review of a similar
claim, see J. B. R. v. United States, 139 S. Ct. 1258 (2019) (No.
18-192), and it should follow the same course here.
Petitioner
also contends (Pet. 17-26) that, in her particular case, the
district court applied an incorrect legal standard and abused its
discretion in ordering petitioner’s transfer to adult proceedings.
But the court of appeals correctly rejected those contentions, and
they likewise do not warrant this Court’s review.
The petition
for a writ of certiorari should therefore be denied.
1.
Petitioner’s Eighth Amendment challenge (Pet. 14-17) to
her transfer to adult proceedings does not warrant this Court’s
review.
9
a.
As
a
threshold
matter,
this
Court’s
review
of
petitioner’s Eighth Amendment challenge is unwarranted at this
time
because
Petitioner’s
this
case
constitutional
is
in
an
challenge
interlocutory
posture.
is
on
predicated
the
sentence that she could receive if convicted of first-degree murder
in violation of 18 U.S.C. 1111.
“death
penalty”
and
“a
See Pet. i (arguing that the
mandatory
life
sentence”
unconstitutional as applied to juvenile offenders).
are
But as both
the court of appeals and the district court emphasized, petitioner
can challenge the constitutionality of any sentence “at a future
point in the proceedings.” Pet. App. 8; see id. at 7 (“The district
court noted that it would revisit the issue should [petitioner] be
convicted.”).
The
interlocutory
posture
of
this
case
alone
“furnishe[s] sufficient ground for the denial” of the petition
under the circumstances.
Hamilton-Brown Shoe Co. v. Wolf Bros. &
Co., 240 U.S. 251, 258 (1916); see Brotherhood of Locomotive
Firemen & Enginemen v. Bangor & Aroostook R.R., 389 U.S. 327, 328
(1967) (per curiam); Thompson v. Henderson, 143 S. Ct. 2412, 2412
(2023)
(statement
of
Alito,
J.,
respecting
the
denial
of
certiorari).
Indeed, denying review because of the interlocutory posture
of
the
case
is
particularly
appropriate
here,
in
light
of
petitioner’s recent guilty plea limited to one count of conspiring
to commit murder, in violation of 18 U.S.C. 1117.
See 23-cr-59
10
D. Ct. Doc. 28, at 1; p. 7, supra.
A conviction for that offense
does not expose a defendant to either of the punishments -- the
death penalty or a mandatory term of life imprisonment without
parole -- that would be unconstitutional if imposed on a juvenile.
See 18 U.S.C. 1117; Miller v. Alabama, 567 U.S. 460, 465 (2012);
Roper v. Simmons, 543 U.S. 551, 578 (2005).
Instead, a defendant
convicted of that offense faces a discretionary sentence of a “term
of years” or “life.”
18 U.S.C. 1117.
a
remaining
sentence
and
the
If petitioner receives such
counts
in
the
indictment
are
dismissed, petitioner’s Eighth Amendment concerns will have been
obviated.
b.
In any event, for related reasons, the court of appeals
correctly determined that petitioner’s Eighth Amendment challenge
is not ripe.
Pet. App. 6-8.
“A claim is not ripe for adjudication
if it rests upon contingent future events that may never occur as
anticipated, or indeed may not occur at all.”
Texas v. United
States, 523 U.S. 296, 300 (1998) (citation and internal quotation
marks omitted).
Here, petitioner’s Eighth Amendment claim (Pet.
i) rests on the possibility that she could receive the death
penalty or a mandatory life-without-parole sentence if she were
convicted of first-degree murder under Section 1111.
As
the
court
of
appeals
correctly
recognized,
however,
“future contingencies can play out without the need to impose”
either of those sentences.
Pet. App. 7.
Indeed, as noted,
11
petitioner recently pleaded guilty to conspiring to commit murder
in violation of Section 1117, an offense that is not punishable by
death or a mandatory life-without-parole sentence.
supra.
See p. 10,
That development bears out the court’s observation that
addressing
petitioner’s
Eighth
juncture would be “premature.”
c.
Amendment
challenge
at
this
Pet. App. 8 (citation omitted).
Contrary to petitioner’s contention (Pet. 15-17), the
court of appeals’ decision on ripeness does not conflict with the
Fourth Circuit’s decision in United States v. Under Seal, 819 F.3d
715 (2016).
The juvenile defendant in that case was charged with
murder
aid
in
of
racketeering,
in
violation
1959(a)(1). Under Seal, 819 F.3d at 717.
of
18
U.S.C.
The Fourth Circuit noted
that the offense was punishable by “death or life imprisonment,”
18 U.S.C. 1959(a)(1), neither of which could be imposed consistent
with the Eighth Amendment.
See Under Seal, 819 F.3d at 720.
And
the court declined to import the statute’s lesser penalties for
kidnapping offenses, explaining that “combin[ing] the penalty
provisions for two distinct criminal acts” -- murder and kidnapping
-- would “go[] beyond the permissible boundaries of severance and
tread[] into the legislative role.”
Id. at 723-724.
The Fourth Circuit therefore upheld the district court’s
denial
of
the
government’s
motion
defendant to adult proceedings.
to
transfer
the
juvenile
Under Seal, 819 F.3d at 728.
The
Fourth Circuit emphasized, however, that its decision would have
12
been different if “an acceptable punishment that Congress had
specifically
authorized”
“remained intact.”
for
murder
Id. at 724.
in
aid
of
racketeering
In that circumstance, the court
reasoned, “excising the unconstitutional
* * *
penalty provision
and enforcing the remainder would have been an appropriate judicial
action.”
Ibid.
The decision below in this case does not conflict with Under
Seal, which arose in a different posture and concerned a different
statute.
In Under Seal, the district court denied transfer on
constitutional grounds, and the government took an interlocutory
appeal.
819 F.3d at 719.
No “future contingencies” (Pet. App. 7)
could have prevented the constitutional issue from ever ripening
for decision, because the constitutional issue had already been
dispositive of the denial of transfer. Presumably for that reason,
the defendant in Under Seal did not dispute that the controversy
was ripe, and the Fourth Circuit did not address ripeness.
Here,
in contrast, the district court granted transfer and expressly
reserved petitioner’s Eighth Amendment challenge for later review,
if necessary.
Id. at 6-7.
This case thus reached the court of
appeals in a different posture, presenting an issue of ripeness
that did not exist in Under Seal.
Section 1111 is also materially different from the murderin-aid-of-racketeering statute that the Fourth Circuit addressed
in
Under
Seal.
As
the
Fourth
Circuit
acknowledged
there,
13
transferring a juvenile to adult proceedings for trial under a
statute that provides both constitutional and unconstitutional
punishments
for
the
same
constitutional concern.
underlying
offense
presents
Under Seal, 819 F.3d at 724.
no
Here,
Section 1111 provides punishments for second-degree murder that
are undisputedly constitutional as applied to petitioner.
U.S.C.
1111(b)
(providing
that
second-degree
murder
See 18
shall
be
punishable by a discretionary sentence of a “term of years” or
“life”).
The
fact
that
those
punishments
relate
to
second-degree
murder is irrelevant, because a conviction under Section 1111 for
first-degree murder necessarily includes all the elements of the
lesser-included offense of second-degree murder.
Accordingly,
unconstitutional applications of Section 1111’s punishments for
first-degree murder can be “excis[ed]” while leaving the statute’s
punishments for second-degree murder “intact,” without engaging in
the sort of “impermissible judicial rewriting” that concerned the
Fourth Circuit in Under Seal.
819 F.3d at 724; see United States
v. Bonilla-Romero, 984 F.3d 414, 418-419 (5th Cir. 2020) (finding
it
“appropriate
to
sever”
Section
1111’s
unconstitutional
applications so as to allow a juvenile offender convicted of firstdegree murder to be sentenced to a discretionary sentence of a
“term of years” or “life”) (citation omitted), cert. denied, 142
S. Ct. 482 (2021).
Under Seal therefore provides no sound basis
14
for concluding
that the Fourth Circuit would have reached a
different outcome in this case.
2.
Petitioner’s contention (Pet. 23-26) that the district
court applied an incorrect legal standard in ordering transfer
lacks merit and does not warrant this Court’s review.
a.
As the court of appeals observed, the “test for transfer”
is set forth in 18 U.S.C. 5032. Pet. App. 9. Section 5032 requires
a court to “assess[] whether a transfer would be in the interest
of
justice,”
and
it
identifies
six
factors
considered” in making that assessment.
that
“shall
18 U.S.C. 5032.
be
The
district court in this case “relied on 18 U.S.C. § 5032” and
“considered each factor, ultimately concluding [petitioner’s] risk
to
society
outweighed
adjudication.”
2-9.
the
potential
benefits
of
a
juvenile
Pet. App. 9; see Supp. Pet. App., Attachment 4, at
Thus, as the court of appeals found, “[t]he district court
correctly framed the legal test for transferring a juvenile to
adult court.”
Contrary
Pet. App. 9.
to
petitioner’s
contention
(Pet.
23-24),
the
district court’s quotation of a sentence from United States v. One
Juvenile Male, 40 F.3d 841 (6th Cir. 1994) -- which stated that “a
motion to transfer is properly granted where a court determines
that the risk of harm to society posed by affording the defendant
more
lenient
treatment
within
the
juvenile
justice
system
outweighs the defendant’s chance for rehabilitation,” id. at 844
15
-- does not suggest that the district court applied an incorrect
legal standard.
As the court of appeals explained, the quoted
sentence simply describes an “example” of when “courts considering
the six-factor test” may find transfer appropriate.
Pet. App. 9.
The court of appeals accordingly found “no basis to believe the
district court” -- which addressed and weighed the statutory
factors -- “was not applying applicable law.”
b.
Id. at 15 n.2.
Petitioner asserts (Pet. 24) that the decision below
conflicts with a district court’s articulation of the applicable
legal standard in United States v. E. K., 471 F. Supp. 924 (D. Or.
1979).
But a district-court decision cannot establish a circuit
conflict that warrants this Court’s review.
Sup. Ct. R. 10(a);
cf. Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (“A decision
of a federal district court judge is not binding precedent in
either a different judicial district, the same judicial district,
or even upon the same judge in a different case.”) (citation
omitted).
In any event, the language from E. K. on which petitioner
relies (Pet. 24) merely reflects one judge’s method of balancing
the Section 5032 factors, see 471 F. Supp. at 932, not a specific
prescription
for
how
every
judge
must
exercise
his
or
her
discretion in every case. Indeed, another decision that petitioner
cites (Pet. 24) specifically cautions that the language should not
be read as embracing a rigid rule that attaches near-dispositive
16
weight to particular considerations.
See United States v. Doe,
871 F.2d 1248, 1253 (5th Cir. 1989) (rejecting the implication
that “E.K. endorses rehabilitation at almost any cost”).
3.
Finally, petitioner’s factbound contention (Pet. 17-23)
that the district court abused its discretion in its consideration
of the Section 5032 factors in her case likewise lacks merit and
does not warrant this Court’s review.
a.
The court of appeals correctly determined that “the
district court did not abuse its discretion in granting the
government’s motion to transfer.”
Pet. App. 10.
As the court of
appeals recognized, the district court’s factual findings were not
“clearly erroneous,” and the district court permissibly “weigh[ed]
the six factors for juvenile transfer” in “light of the overarching
transfer standard:
‘in the interest of justice.’”
Ibid. (quoting
18 U.S.C. 5032).
Petitioner contends that the magistrate judge clearly erred
in
finding
that
petitioner’s
“relationship
appeared to be relatively routine since 2016.”
omitted).
with
her
parents
Pet. 22 (citation
But petitioner takes that statement out of context; the
magistrate judge did not mean “routine” in the sense of “normal
compared to other parent-child relationships,” and she did not
rely on such a rationale in evaluating that factor.
reviewing
the
magistrate
judge’s
report,
the
Moreover, in
district
court
“acknowledged” the “dysfunction” in petitioner’s “family life” and
17
“correctly considered [her] social background alongside age” in
assessing the first Section 5032 factor.
Supp. Pet. App., Attachment 4, at 4.
Pet. App. 16 n.4; see
Accordingly, the court of
appeals correctly found no clear error in “the [district] court’s
analysis” of that factor.
Pet. App. 16 n.4.
Petitioner also contends that the magistrate judge erred in
declining to consider petitioner’s “ability to benefit from future
treatment” as part of assessing the fifth Section 5032 factor.
Pet. 21 (citation omitted).
But in reviewing the magistrate
judge’s report, “[t]he district court considered future treatment
in its determination of factor five, as [petitioner] requested,”
and found that the factor still “weighed in favor of transfer.”
Pet. App. 9; see Supp. Pet. App., Attachment 4, at 7.
Petitioner
further contends (Pet. 21) that the court erred in relying on
petitioner’s role in the murders as evidence that past treatment
efforts had been unsuccessful.
But in fact, “the district court
did not hold [petitioner’s] crime against her while assessing her
response to past treatment or amenability to future treatment.”
Pet. App. 15 n.3; see Supp. Pet. App., Attachment 4, at 7.
With respect to the sixth Section 5032 factor, petitioner
asserts (Pet. 22) that the magistrate judge did not mention “parts
of the testimony of the government’s witness regarding treatment
available in juvenile facilities” and “adult prisons.”
But the
magistrate judge stated that she “consider[ed]” the “entirety of
18
the record” in making her recommendation.
Pet. App. 10 (citation
omitted); see Supp. Pet. App., Attachment 5, at 37.
Nothing
required the magistrate judge or the district court to explicitly
address every piece of testimony in their written opinions.
Pet. App. 8, 10.
See
The court of appeals therefore correctly found
no abuse of discretion in the district court’s evaluation of the
sixth Section 5032 factor.
Id. at 9; see Supp. Pet. App.,
Attachment 4, at 7.
b.
Contrary to petitioner’s contention (Pet. 22-23), the
decision below does not conflict with United States v. Juvenile
Male, 492 F.3d 1046 (9th Cir. 2007) (per curiam).
In Juvenile
Male, the Ninth Circuit vacated an order transferring a juvenile
defendant to adult proceedings because it determined that the
district court in that particular case had “made findings that
were clearly erroneous.”
Id. at 1049.
The findings that the Ninth
Circuit deemed clearly erroneous, however, were specific to the
facts of that case.
See, e.g., ibid. (“[T]he district court’s
determination that the defendant experienced ‘no domestic violence
. . .
while living with his grandparents’ is contrary to the
evidence of record.”).
Petitioner’s reliance on Juvenile Male is thus misplaced.
The challenges to the district court’s transfer determinations
both there and here were inherently factbound.
issues do not warrant this Court’s review.
And such factbound
See Sup. Ct. R. 10.
19
c.
In any event, this case would be a poor vehicle for this
Court’s review because the court of appeals found harmless the
errors that petitioner purported to identify in the district
court’s analysis of the Section 5032 factors.
For example, the
court of appeals found “harmless” “[a]ny error” attributable to
“the magistrate judge’s finding that [petitioner’s] family life
was ‘routine.’”
appeals
found
placement
in
Pet. App. 16 n.4.
that
a
“[e]ven
juvenile
if
In addition, the court of
factors
facility,
five
these
and
six
favored
factors
are
not
so
persuasive as to make the district court’s contrary determination,
in aggregate, an abuse of discretion.”
Id. at 9-10.
Accordingly,
this Court’s review of the purported errors that petitioner has
identified would not be “outcome-determinative.”
Id. at 9.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
NICOLE M. ARGENTIERI
Acting Assistant Attorney General
JOHN-ALEX ROMANO
Attorney
AUGUST 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.