U.S. v. Peguero-Martinez

Full title: UNITED STATES OF AMERICA v. WILKIN PEGUERO-MARTINEZ

Court: United States District Court, D. Massachusetts

Date published: Nov 30, 2010

Case Number: 1: 10 CR 10132-001-PBS; USM Number: 92218-038 (D. Mass. Nov. 30, 2010)

Opinion

Case Number: 1: 10 CR 10132-001-PBS; USM Number: 92218-038.

November 30, 2010

Keith Halpern, Esq. Defendant's Attorney.

JUDGMENT IN A CRIMINAL CASE

PATTI SARIS, District Judge

THE DEFENDANT: 1 of an Indictment Title Section Nature of Offense Offense Ended Count

[] Additional documents attached See attached Memorandum and Order [] [] pleaded guilty to count(s) [] pleaded nolo contendere to count(s) ________________________________________________________________ which was accepted by the court. [] was found guilty on count(s) ________________________________________________________________ after a plea of not guilty. The defendant is adjudicated guilty of these offenses: Additional Counts — See continuation page [] 8 USC § 1336(a) (b) Illegal Reentry of Deported Alien 04/01/10 1 The defendant is sentenced as provided in pages 2 through 9 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984. [] The defendant has been found not guilty on count(s) _______________________________________________________ [] Count(s) ______________________________[] is [] are dismissed on the motion of the United States. It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances. 11/09/10 _________________________________________________ Date of Imposition of Judgment Patti B. Saris _________________________________________________ Signature of Judge The Honorable Patti B. Saris Judge, U.S. District Court _________________________________________________ Name and Title of Judge 11/30/2010 _________________________________________________ Date

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of: 20 month(s)

Defendant to receive credit for time spent in State custody and I.C.E. custody

[] The court makes the following recommendations to the Bureau of Prisons: [] The defendant is remanded to the custody of the United States Marshal. [] The defendant shall surrender to the United States Marshal for this district: [] at ___________________________ [] a.m. [] p.m. on _______________________. [] as notified by the United States Marshal. [] The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons: [] before 2 p.m. on ____________________________. [] as notified by the United States Marshal. [] as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on __________________________________________ to _________________________________________ a__________________________________________, with a certified copy of this judgment.

__________________________________________ UNITED STATES MARSHAL By ________________________________________ DEPUTY UNITED STATES MARSHAL

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of: 36 month(s)

Conditions: Upon deportation, defendant is not to return to the United States without prior permission of the US Attornev General. Defendant is to use real name.

The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons.

The defendant shall not commit another federal, state or local crime.

The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, not to exceed 104 tests per year, as directed by the probation officer.

[] The above drug testing condition is suspended, based on the court's determination that the defendant poses a low risk of future substance abuse. (Check, if applicable.) [] The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if applicable.) [] The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.) [] The defendant shall register with the state sex offender registration agency in the state where the defendant resides, works, or is a student, as directed by the probation officer. (Check, if applicable.) [] The defendant shall participate in an approved program for domestic violence. (Check, if applicable.) If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment.

The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION

1) the defendant shall not leave the judicial district without the permission of the court or probation officer; 2) the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month; 3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; 4) the defendant shall support his or her dependents and meet other family responsibilities; 5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons; 6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment; 7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician; 8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered; 9) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer; 10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer; 11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer; 12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; and 13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement.

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6. Assessment Fine Restitution TOTALS $ $100.00 $ $ Amended Judgment in a Criminal Case 18 U.S.C. § 3664 Name of Payee Total Loss^_ Restitution Ordered Priority or Percentage TOTALS $0.00 $0.00 18 U.S.C. § 3612 18 U.S.C. § 3612 [] The determination of restitution is deferred until _____. An (AO 245C) will be entered after such determination. [] The defendant must make restitution (including community restitution) to the following payees in the amount listed below. If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in the priority order or percentage payment column below. However, pursuant to (i), all nonfederal victims must be paid before the United States is paid. $ $ [] Restitution amount ordered pursuant to plea agreement $ _____________ [] The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the fifteenth day after the date of the judgment, pursuant to (f). All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to (g). [] The court determined that the defendant does not have the ability to pay interest and it is ordered that: [] the interest requirement is waived for the [] fine [] restitution. [] the interest requirement for the [] fine [] restitution is modified as follows:

SCHEDULE OF PAYMENTS

Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties are due as follows: A [] Lump sum payment of $ __________ due immediately, balance due [] not later than __________________, or [] in accordance [] C, [] D, [] E, or [] F below; or B [] Payment to begin immediately (may be combined with [] C, [] D, or [] F below); or C [] Payment in equal _________ (e.g., weekly, monthly, quarterly) installments of $ _________ over a period of _________ (e.g., months or years), to commence _________ (e.g., 30 or 60 days) after the date of this judgment; or D [] Payment in equal _________ (e.g., weekly, monthly, quarterly) installments of $ _________ over a period of _________ (e.g., months or years), to commence _________ (e.g., 30 or 60 days) after release from imprisonment to a term of supervision; or E [] Payment during the term of supervised release will commence within _________ (e.g., 30 or 60 days) after release from imprisonment. The court will set the payment plan based on an assessment of the defendant's ability to pay at that time; or F [X] Special instructions regarding the payment of criminal monetary penalties: The $100.00 Special Assessment is due immediately. Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons' Inmate Financial Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

[] Joint and Several Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several Amount, and corresponding payee, if appropriate. [] The defendant shall pay the cost of prosecution. [] The defendant shall pay the following court cost(s): [] The defendant shall forfeit the defendant's interest in the following property to the United States: Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs.

STATEMENT OF REASONS

I COURT FINDINGS ON PRESENTENCE INVESTIGATION REPORT The court adopts the presentence investigation report without change. The court adopts the presentence investigation report with the following changes. Chapter Two of the U.S.S.G. Manual Chapter Three of the U.S.S.G. Manual Chapter Four of the U.S.S.G. Manual Additional Comments or Findings The record establishes no need for a presentence investigation report pursuant to Fed.R.Crim.P. 32. II COURT FINDING ON MANDATORY MINIMUM SENTENCE 18 U.S.C. § 3553 18 U.S.C. § 3553 III COURT DETERMINATION OF ADVISORY GUIDELINE RANGE (BEFORE DEPARTURES): A [] B [] (Check all that apply and specify court determination, findings, or comments, referencing paragraph numbers in the presentence report, if applicable.) (Use Section VIII if necessary.) 1 [] determinations by court (including changes to base offense level, or specific offense characteristics): 2 [] determinations by court (including changes to victim-related adjustments, role in the offense, obstruction of justice, multiple counts, or acceptance of responsibility): 3 [] determinations by court (including changes to criminal history category or scores, career offender, or criminal livelihood determinations): 4 [] (including comments or factual findings concerning certain information in the presentence report that the Federal Bureau of Prisons may rely on when it makes inmate classification, designation, or programming decisions): C [] (Check all that apply.) A [] No count of conviction carries a mandatory minimum sentence. B [] Mandatory minimum sentence imposed. C [] One or more counts of conviction alleged in the indictment carry a mandatory minimum term of imprisonment, but the sentence imposed is below a mandatory minimum term because the court has determined that the mandatory minimum does not apply based on [] findings of fact in this case [] substantial assistance ((e)) [] the statutory safety valve ((f)) Total Offense Level: 6 Criminal History Category: 1 Imprisonment Range: 0 to 6 months Supervised Release Range: to 3 years Fine Range: $ 500 to $ 5.000 [] Fine waived or below the guideline range because of inability to pay.

STATEMENT OF REASONS

IV ADVISORY GUIDELINE SENTENCING DETERMINATION The sentence is within an advisory guideline range that is not greater than 24 months, and the court finds no reason to depart. The sentence is within an advisory guideline range that is greater than 24 months, and the specific sentence is imposed for these reasons. The court departs from the advisory guideline range for reasons authorized by the sentencing guidelines manual. The court imposed a sentence outside the advisory sentencing guideline system. V DEPARTURES AUTHORIZED BY THE ADVISORY SENTENCING GUIDELINES The sentence imposed departs Departure based on Plea Agreement 5K1.1 5K3.1 Motion Not Addressed in a Plea Agreement 5K1.1 5K3.1 Other Reason(s) for Departure 5K1.1 5K3.1 4A1.3 5K2.1 5K2.11 5H1.1 5K2.2 5K2.12 5H1.2 5K2.3 5K2.13 5H1.3 5K2.4 5K2.14 5H1.4 5K2.5 5K2.16 5H1.5 5K2.6 5K2.17 5H1.6 5K2.7 5K2.18 5H1.11 5K2.8 5K2.20 5K2.9 5K2.21 5K2.0 5K2.10 5K2.22 5K2.23 2B1.1 Explain the facts justifying the departure. (Check only one.) A [] B [] (Use Section VIII if necessary.) C [] (Also complete Section V.) D [] (Also complete Section VI.) (If applicable.) A (Check only one.): [] below the advisory guideline range [] above the advisory guideline range B (Check all that apply.): 1 (Check all that apply and check reason(s) below.): [] plea agreement based on the defendant's substantial assistance [] plea agreement based on Early Disposition or "Fast-track" Program [] binding plea agreement for departure accepted by the court [] plea agreement for departure, which the court finds to be reasonable [] plea agreement that states that the government will not oppose a defense departure motion. 2 (Check all that apply and check reason(s) below.): [] government motion based on the defendant's substantial assistance [] government motion based on Early Disposition or "Fast-track" program [] government motion for departure [] defense motion for departure to which the government did not object [] defense motion for departure to which the government objected 3 [] Other than a plea agreement or motion by the parties for departure (Check reason(s) below.): C (Check all that apply other than or .) [] Criminal History Inadequacy [] Death [] Lesser Harm [] Age [] Physical Injury [] Coercion and Duress [] Education and Vocational Skills [] Extreme Psychological Injury [] Diminished Capacity [] Mental and Emotional Condition [] Abduction or Unlawful Restraint [] Public Welfare [] Physical Condition [] Property Damage or Loss [] Voluntary Disclosure of Offense [] Employment Record [] Weapon or Dangerous Weapon [] High-Capacity, Semiautomatic Weapon [] Family Ties and Responsibilities [] Disruption of Government Function [] Violent Street Gang [] Military Record, Charitable Service, [] Extreme Conduct [] Aberrant Behavior Good Works [] Criminal Purpose [] Dismissed and Uncharged Conduct [] Aggravating or Mitigating Circumstances [] Victim's Conduct [] Age or Health of Sex Offenders [] Discharged Terms of Imprisonment [] Other guideline basis (e.g., commentary) D (Use Section VIII if necessary.)

STATEMENT OF REASONS

VI COURT DETERMINATION FOR SENTENCE OUTSIDE THE ADVISORY GUIDELINE SYSTEM The sentence imposed is Sentence imposed pursuant to Plea Agreement Motion Not Addressed in a Plea Agreement Other 18 U.S.C. § 3553 18 U.S.C. § 3553 18 U.S.C. § 3553 18 U.S.C. § 3553 18 U.S.C. § 3553 18 U.S.C. § 3553 18 U.S.C. § 3553 (Check all that apply.) A (Check only one.): [] below the advisory guideline range [] above the advisory guideline range B (Check all that apply.): 1 (Check all that apply and check reason(s) below.): [] binding plea agreement for a sentence outside the advisory guideline system accepted by the court [] plea agreement for a sentence outside the advisory guideline system, which the court finds to be reasonable [] plea agreement that states that the government will not oppose a defense motion to the court to sentence outside the advisory guideline system 2 (Check all that apply and check reason(s) below.): [] government motion for a sentence outside of the advisory guideline system [] defense motion for a sentence outside of the advisory guideline system to which the government did not object [] defense motion for a sentence outside of the advisory guideline system to which the government objected 3 [] Other than a plea agreement or motion by the parties for a sentence outside of the advisory guideline system (Check reason(s) below.): C Reason(s) for Sentence Outside the Advisory Guideline System (Check all that apply.) [] the nature and circumstances of the offense and the history and characteristics of the defendant pursuant to (a)(1) [] to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense ((a)(2)(A)) [] to afford adequate deterrence to criminal conduct ((aX2)(B)) [] to protect the public from further crimes of the defendant ((a)(2)(C)) [] to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner ((a)(2XD)) [] to avoid unwarranted sentencing disparities among defendants ((a)(6)) [] to provide restitution to any victims of the offense ((a)(7)) D Explain the facts justifying a sentence outside the advisory guideline system. (UseSection VIII if necessary.) See Attachment A.

STATEMENT OF REASONS

VII COURT DETERMINATIONS OF RESTITUTION 18 U.S.C. § 3663A 18 U.S.C. § 3663A 18 U.S.C. § 3663A 18 U.S.C. § 3663A 18 U.S.C. § 3663 18 U.S.C. § 3663 18 U.S.C. § 3553 VIII ADDITIONAL FACTS JUSTIFYING THE SENTENCE IN THIS CASE 000-00-0000 11/09/10 00/00/82 PATTI B. SARIS The Honorable Patti B. S aris Judge, U.S. District Court 11/30/2010 A [] Restitution Not Applicable. B Total Amount of Restitution: ___________________ C Restitution not ordered (Check only one.): 1 [] For offenses for which restitution is otherwise mandatory under , restitution is not ordered because the number of identifiable victims is so large as to make restitution impracticable under (c)(3)(A). 2 [] For offenses for which restitution is otherwise mandatory under , restitution is not ordered because determining complex issues of fact and relating them to the cause or amount of the victims' losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim would be outweighed by the burden on the sentencing process under (c)(3)(B). 3 [] For other offenses for which restitution is authorized under and/or required by the sentencing guidelines, restitution is not ordered because the complication and prolongation of the sentencing process resulting from the fashioning of a restitution order outweigh the need to provide restitution to any victims under (a)(1)(B)(ii). 4 [] Restitution is not ordered for other reasons. (Explain.) D [] Partial restitution is ordered for these reasons ((c)): (If applicable.) See Attachment A. Sections I, II, III, IV, and VII of the Statement of Reasons form must be completed in all felony cases. Defendant's Soc. Sec. No.: Date of Imposition of Judgment Defendant's Date of Birth: Defendant's Residence Address: Charlestown, MA 02129 Signature of Judge Defendant's Mailing Address: Plymouth County Correctional Facility Name and Title of Judge 26 Long Pond Road Date Signed Plymouth, MA 02360

MEMORANDUM AND ORDER INTRODUCTION

Defendant Wilkin Peguero-Martinez pled guilty to illegal reentry of a deported alien, 8 U.S.C. § 1326, and on November 9, 2010, the Court held a sentencing hearing. The United States Sentencing Guidelines, § 2L1.2(a), provide a base level of 8 for unlawful reentry, but the government argues that the defendant is subject to a 16-level enhancement under § 2L1.2(b)(1)(A)(ii) — (iii) due to a prior guilty plea in state juvenile court as a "youthful offender" for charges related to a violent armed assault on an acquaintance. The defendant argues that because he was sixteen at the time of the prior incident and indicted as a youthful offender under M.G.L. c. 119 § 58, the offense is not "classified as an adult conviction under the laws of" Massachusetts and, thus, is not a "conviction" under § 2L1.2(b)(1)(A)(ii)-(iii). See U.S.S.G. § 2L1.2, cmt. n. 1. The Court finds that the defendant's record as a youthful offender in Massachusetts does not subject him to a 16-level enhancement under the guidelines.

DISCUSSION

Section 2L1.2(b)(1)(A)(ii) of the Guidelines applies a 16-level enhancement to defendants re-entering the United States following deportation after

"a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense."

In 2003 the Sentencing Commission clarified this language with the promulgation of Application Note 1(A)(iv), which specifies that "Subsection (b)(1) does not apply to a conviction for an offense committed before the defendant was eighteen years of age unless such conviction is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted." U.S.S.G. § 2L1.2, cmt. n.l (emphasis added). This case presents a matter of first impression.¹ Upon careful consideration of the clear language of the Application Note and the scheme implemented by the Commonwealth's youthful offender act, the Court finds that the defendant's youthful offender adjudication does not fall within § 2L1.2(b)(1)(A)(ii)'s scope.

1 Both parties cite to the First Circuit's decision in United States v. Torres, 541 F.3d 48 (1st Cir. 2008), which held that the defendant's criminal convictions in New Jersey for offenses committed before he was eighteen could count toward a career offender enhancement under U.S.S.G. § 4B1.1. Id. at 51. This case is inapplicable here. The court did not determine whether New Jersey law "classified [the defendant's convictions] as adult conviction[s]" under the language in U.S.S.G. § 4B1.2 cmt. n. 1 that mirrors the Application Note at issue in this case. Rather, it relied on Application Note 7 to § 4A1.2 and Application Note 3 to § 4B1.2, which together specify that offenses committed before the age of eighteen count toward both the criminal-history score and the career offender enhancement if they "resulted in imposition of an adult or juvenile sentence or release from confinement on that sentence within five years of the defendant's commencement of the instant offense. . . ." Torres, 541 F.3d at 51-52 (quoting U.S.S.G. § 4A1.2 cmt. n. 7). This provision is not at issue in this case, which concerns a different section of the Sentencing Guidelines.

Massachusetts' youthful offender system was created by the 1996 amendments to M.G.L. c. 119, §§ 52- 63. See generally, Commonwealth v. Connor C., 432 Mass. 635, 738 N.E.2d 731, 735 (Mass. 2000); Commonwealth v. Clint C., 430 Mass. 219, 715 N.E.2d 1032, 1035 (Mass. 1999). Before passage of the amendments, Juvenile Court judges could transfer juvenile cases to adult court after, first, finding that there was probable cause to believe that the child had committed the offense or violation charged and, then, considering the juvenile's "dangerousness and amenability to rehabilitation." See Clint C., 715 N.E.2d at 1035 (citations and internal quotation marks omitted). The youthful offender act, St. 1996, c. 200(act), "drastically altered the procedure to be applied to such cases." Clint C., 715 N.E.2d at 1035. As opposed to allowing judges to transfer some serious cases to adult court, the act created a two-track system in juvenile court. Prosecutors can now proceed against juveniles either by complaint seeking an adjudication of juvenile delinquency or by indictment seeking an adjudication as a "youthful offender." Prosecutors may proceed against a child by indictment if he is between the ages of fourteen and seventeen and has committed an act that would be punishable by commitment to State prison if he were an adult and has already been committed to the Department of Youth Services, or has committed an offense "involv[ing] the infliction or threat of serious bodily harm" or various firearm offenses. See id. (citing M.G.L. c. 119 § 52). If the child is adjudicated a delinquent, the juvenile court may only sentence him to the care of the Department of Youth Services until he becomes an adult. If the child is adjudicated a "youthful offender," however, the court may sentence the defendant to:

"(a) a sentence provided by law [for an adult] or; (b) a combination sentence which shall be a commitment to the department of youth services until he reaches the age of twenty-one, and an adult sentence to a house of correction or to the state prison as is provided by law . . . or; (c) a commitment to the department of youth services until he reaches the age of twenty-one." M.G.L. c. 119, § 58; see also, Connor C., 738 N.E.2d at 733.

The act was intended to "reduce or eliminate certain protections previously available to all juvenile offenders in an effort to address growing concern about violent crimes committed by juveniles." Clint C., 715 N.E.2d at 1038. Nonetheless, it does not conceive of youthful offenders as adults and provides for their trials and sentencings in Juvenile Court. In contrast, the law explicitly excludes fourteen to sixteen year olds charged with murder from the Juvenile Court's jurisdiction. See M.G.L. c. 119 § 74. Moreover, as the Supreme Judicial Court has noted, the legislature has maintained a statutory divide between youthful offenders and adult criminal convicts:

"Even as to the category of children adjudicated `youthful offenders,' the statute does not label a `youthful offender' proceeding as `criminal.' The distinction our law recognizes between child and adult adjudication exists partly to avoid the infringement of a child's constitutional rights, and partly to avoid the attachment of criminal stigma to children who may be amenable to rehabilitation. The 1996 amendments did not alter that fundamental policy determination by the Legislature." Connor C., 738 N.E.2d at 735-36 (citations omitted).

The youthful offender system, thus, represents a chimerical hybrid of the juvenile and adult systems. The Legislature passed the youthful offender act to make it easier to impose serious sentences on juveniles, but the act does not classify youthful offenders as adults, and this is precisely what Application Note 1(A)(iv) requires.² The Application Note does not say that any conviction not classified as a juvenile conviction is considered a conviction under § 2L1.2(b)(1)(A)(ii). Rather, it requires that states affirmatively classify as an adult conviction any criminal disposition arising from an offense committed before the defendant was eighteen. It is not enough that the state has found a middle ground between the juvenile and adult criminal justice systems.

2 The government notes that Massachusetts courts have found youthful offender adjudications to be convictions for the purposes of certain sentencing enhancements under state law. see, e.g., Commonwealth v. Furr, 58 Mass. App. Ct. 155, 788 N.E.2d 592, 594 (Mass. App. Ct. 2003) (finding that a youthful offender adjudication constituted a predicate offense under the Commonwealth's Armed Career Criminal Act, M.G.L. c. 269 § 10G). This observation has no bearing on the instant case. Whereas the Application Note at issue here only specifically mentions "adult conviction[s]," the statutory language the court deemed dispositive in Furr defined "violent crime" — the category of crimes for which a conviction counts as a predicate offense — to include "any act of juvenile delinquency involving the use or possession of a deadly weapon that would be punishable by imprisonment for [a term exceeding one year] if committed by an adult." Furr, 788 N.E.2d at 594 (quoting M.G.L. c. 140 § 121) (internal quotation marks omitted). If anything, the fact that the court found that the defendant's youthful offender adjudication fell within the juvenile delinquency language of M.G.L. c. 140 § 121, reinforces that Massachusetts does not classify these adjudications as adult convictions. Furr, 788 N.E.2d at 594; see also, id. (describing a youthful offender adjudication as ""aggravated juvenile delinquency").

The Second Circuit has found that an adjudication as a youthful offender in New York is a conviction and, thus, a predicate offense under a number of provisions of the U.S. Sentencing Guidelines, including § 2L1.2(b)(1)(A)(ii) concerning sentencing for unlawful reentry. See United States v. Pereira, 465 F.3d 515 (2nd Cir. 2006) (unlawful reentry); see also, United States v. Jones, 415 F.3d 256 (2nd Cir. 2005) (sentencing under § 4B1.1 for career offenders); United States v. Cuello, 357 F.3d. 162 (2nd Cir. 2004) (sentencing under § 2K2.1 for "Unlawful Receipt, Possession, or Transportation of Firearms"). In each of these cases, the court held that it did not matter that New York formally labeled the convictions as "youthful offender adjudications." In order to determine whether the adjudications were "classified as . . . adult conviction[s]," district courts had to examine the "substance" of the "prior convictions and not merely how they are labeled by the state." Pereira, 465 F.3d at 521 (citing Jones, 415 F.3d at 263-64; Cuello, 357 F.3d at 168-69). In these cases, the fact that youthful offenders were tried and convicted in adult forums and committed to adult facilities strongly supported a finding that youthful offender adjudications in New York were, in substance, treated as adult convictions. See Cuello, 357 F.3d at 166.

Although a persuasive interpretation of New York law, these cases do not dictate that the Court consider this defendant's youthful offender adjudication in Massachusetts a conviction under § 2L1.2(b)(1)(A)(ii). The New York youthful offender law is different from the Massachusetts law in an important respect that bears on this question. In New York, a youthful offender is tried and convicted criminally, and it is only after the conviction that a judge re-classifies the defendant. See Cuello, 357 F.3d at 165 (citing state cases). This ex post labeling was one of the bases for the Second Circuit's decision in Cuello, which found it relevant that "a conviction under New York criminal law is a prerequisite for a youthful offender adjudication." Id. at 165 (emphasis added). Alternatively, Massachusetts has established an ex ante tracking system, under which defendants ultimately adjudicated youthful offenders are initially treated as juveniles and tried in juvenile court. There are other ways in which the New York system may be more friendly to youthful offenders and treat them differently from adults. For example, once the youthful offender adjudication is made, the criminal conviction is vacated, see N.Y. Crim. Proc. Law § 720.10 (McKinney 2006), and youthful offenders in New York cannot be sentenced to prison terms of longer than four years. See Cuello, 357 F.3d at 166. But on the critical questions of the forum in which the defendant is tried and the institutions to which the defendant is committed, the youthful offender law in New York mimics the adult judicial process.

Despite these considerations, it is not entirely clear that a youthful offender adjudication in New York should always count as a predicate conviction for the purposes of sentencing in the immigration context. In fact, the Board of Immigrations Appeals has held that a youthful offender adjudication in New York does not constitute a judgment of conviction for a crime within the meaning of section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A), when considering whether to deport immigrants for convictions replaced with youthful offender adjudications. See In re Devison-Charles, 22 I. N. Dec 1362, 1373 (BIA 2000). Among other considerations, the Board placed emphasis on the fact that New York State "specif[ies] that neither a youthful offender adjudication nor a determination of juvenile delinquency constitutes a conviction."Id. at 1367. This case considered a different federal statutory scheme and, of course, a different state's youthful offender system, but its holding illustrates the diverse glosses that can be placed on a defendant's adjudication as a youthful offender. This uncertainty, itself, counsels against application of the enhancement in this case. See Bifulco v. United States, 447 U.S. 381, 387 (1980) (The rule of lenity "applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose."); United States v. Luna-Diaz, 222 F.3d 1, 3 n. 2 (1st Cir. 2000) (applying the rule of lenity when interpreting the sentencing guidelines).

There are a number of different contexts in which federal courts must analyze the substance of a prior offense to determine whether it should count as a predicate conviction for the purposes of sentencing. See, e.g., United States v. Matthews, 498 F.3d 25, 32-33 (1st Cir. 2007) (discussing the determination of whether a juvenile adjudication may be used as a predicate conviction to support an Armed Career Criminal Act (ACCA) enhancement). In these cases, however, the guidelines do not directly incorporate a state's legal category into its own statutory regime; rather, they call for courts to make their own substantive determinations about the underlying offense. See id. at 33 (citing 18 U.S.C. § 924(e)(2), which allows acts of juvenile delinquency to be considered violent felonies if they "ha[ve] as an element the use, attempted use, or threatened use of physical force," 18 U.S.C. § 924(e)(2)(B)(I)). Here, the language of the Application Note does not invite such an analysis. It specifically refers to whether youthful adjudications are "classified as . . . adult conviction[s] under the laws of [the Commonwealth]." The question calls for a categorical and formalistic analysis of state law. In Massachusetts, although youthful offenders are not wholly classified as juvenile delinquents, they are clearly not wholly classified as adults either. The defendant's prior adjudication as a youthful offender does not trigger a 16-level increase.

The defendant is, thus, subject to a base offense level of 8, which is reduced to 6 after a two-level adjustment for acceptance of responsibility. Based upon a Total Offense Level of 6 and a Criminal History Category of I, the guideline imprisonment range is 0 to 6 months. Nonetheless, the Court uses its discretion to upwardly depart and vary from this range in recognition of the severity of the crime for which the defendant was originally deported, the criminal history inadequacy pursuant to U.S.S.G. § 4A1.3, and the importance of deterring future criminal conduct. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A), (a)(2)(B).

ORDER

The Court sentences the defendant to 20 months incarceration, together with the other conditions set forth in the judgment.