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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.