United States v. E.T.H., JUV

Filing

OPINION FILED - THE COURT: Diana E. Murphy, Lavenski R. Smith and Duane Benton AUTHORING JUDGE:Lavenski R. Smith (PUBLISHED) [4438653] [15-1672]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1672
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
E.T.H., JUV
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of South Dakota - Pierre
____________
Submitted: November 19, 2015
Filed: August 18, 2016
____________
Before MURPHY,1 SMITH, and BENTON, Circuit Judges.
____________
SMITH, Circuit Judge.
E.T.H., who was originally adjudicated a juvenile delinquent for assaulting a
federal officer, appeals from the district court's imposition of a combination of
1

The case was submitted for oral argument to Judges Smith, Bye, and Benton
on November 19, 2015. Following Judge Bye's retirement, Chief Judge Riley
designated Judge Murphy to sit in place of Judge Bye. See 8th Cir. R. 47E.

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official detention and juvenile delinquent supervision ("supervision") following
revocation of E.T.H.'s prior supervision term. E.T.H. argues that the total combined
term of detention and supervision exceeds the maximum possible term under the
Federal Juvenile Delinquency Act (FJDA), 18 U.S.C. § 5031 et seq. We reverse and
remand with instructions to enter a sentence not to exceed the statutory maximum set
forth infra.
I. Background
In 2013, E.T.H. was adjudicated a juvenile delinquent for assaulting a federal
officer, in violation of 18 U.S.C. § 111. On September 17, 2013, the district court
sentenced then-16-year-old E.T.H. to probation until his 19th birthday: November 21,
2015. The day after his initial sentencing, E.T.H. was placed at McCrossan Boys
Ranch in Sioux Falls, South Dakota, but McCrossan Boys Ranch terminated E.T.H.'s
participation in its program on May 15, 2014, due to his poor attitude and behavior.
He was then transferred to the Juvenile Services Center in Rapid City, South Dakota,
where he spent the next two months before returning to his father's residence in Eagle
Butte, South Dakota, on July 7, 2014.
Three days later, on July 10, 2014, E.T.H. was arrested for simple assault,
resisting arrest, disorderly conduct, and public nuisance. On July 11, 2014, E.T.H.'s
probation officer petitioned to revoke E.T.H.'s probation. On September 23, 2014, the
district court sentenced E.T.H. to detention until his 18th birthday, followed by two
years of supervision. As a result of this sentence, E.T.H. served 4 months and 11 days
in detention. His supervision term was scheduled to expire on November 21, 2016.
On E.T.H.'s 18th birthday, he commenced supervision at Glory House in Sioux
Falls, South Dakota. On December 12, 2014, E.T.H. produced a urine sample that
tested positive for dextromethorphan. On December 19, 2014, the district court held
a status hearing on E.T.H. and then returned him to Glory House.

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On January 19, 2015, another of E.T.H.'s urine samples tested positive for
synthetic cannabinoids. Later that day, E.T.H. removed his electronic ankle monitor,
left Glory House without permission, and failed to return. The police located E.T.H.
two days later, finding him highly intoxicated at the scene of a car accident. On
January 21, 2015, E.T.H.'s probation officer petitioned to revoke E.T.H.'s supervision,
alleging that E.T.H. violated the conditions of his supervision by (1) possessing and
using a controlled substance, and (2) failing to reside and participate in the residential
re-entry center. E.T.H. was arrested on January 26, 2015, and he remained in custody
for the pendency of the revocation proceeding.
On February 5, 2015, E.T.H. admitted to the second allegation in the petition.
Before the disposition hearing, the probation office prepared a supplemental
predisposition investigation report (PIR). Paragraph 14 of the supplemental PIR
provided that "[h]ad [E.T.H.] been convicted as an adult, the maximum of the
guideline range he could have been sentenced to was 18 months . . . . On a prior
revocation, [E.T.H.] served 4 months and 11 days; therefore, the maximum term of
official detention is 13 months and 19 days." The government moved for an upward
departure and objected to this portion of the PIR at the disposition hearing. The
government argued that Eighth Circuit precedent permits a district court to "upwardly
depart, following revocation of juvenile probation, based on the juveniles' continued
unlawful behavior while on supervision." (Citing United States v. K.R.A., 337 F.3d
970 (8th Cir. 2003); United States v. A.J., 190 F.3d 873 (8th Cir. 1999).) At the
disposition hearing, the government maintained that while "a statutory cap" existed,
there was "no guideline cap." According to the government, the Guidelines range that
E.T.H. would have been subject to had he been convicted as an adult was not a "cap,"
meaning that the district court could upwardly depart just as it may do so for an adult.
The district court responded by observing that the FJDA "is largely
incomprehensible" and "needs to be rewritten" and that the rules concerning juvenile
delinquent dispositions are "a bit on the mushy side." The court commented that it is
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vested with "a great deal of discretion" in juvenile cases and that "the best interests
of the juvenile is a factor for the Court to consider" in determining the appropriate
disposition. The court found the government's argument "an interesting point" but
declined "to test the outer limits of its authority to sentence this juvenile to prison."
The court characterized the question presented as "academic" and refused "to wade
in and attempt to . . . resolve that issue."
Thereafter, the court heard argument from the parties on what the proper
disposition should be and also engaged in a lengthy discussion with E.T.H. The court
gave a thorough recitation of E.T.H.'s history and the case history before announcing
its disposition. The court placed E.T.H. in the Reintegrating Youthful Offenders
program in Galen, Montana, a place where E.T.H.'s "addiction issues might be
addressed and where he can do more for himself than just sitting in a prison setting."
"[M]indful of all of the factors in a juvenile delinquent case," the court imposed a
disposition of "time served, plus whatever time it takes for placement at the
Reintegrating Youthful Offenders program in Galen, Montana, followed by juvenile
delinquent supervision for a term of two years on the same terms and conditions,
adding the term about the [Reintegrating Youthful Offenders] placement and
residential reentry center placement." The court acknowledged that the disposition
was "a little bit on the indefinite side because . . . it could take as long as 30 days
for . . . him to be actually placed" in the program. As a result, the court "ha[d] to
fashion the sentence as time served, plus whatever time it takes for the U.S. Marshal
to transport him to Galen, Montana, when they are ready for him there."
E.T.H.'s counsel objected to the disposition, arguing that "the maximum
amount that he can be subject to custody and . . . further supervision is . . . 13 months
and 19 days, without a finding by the Court of a different number." The court replied
that it was "mak[ing] a finding that this juvenile's rehabilitation needs are so vast that
additional supervision of two years beyond the point where we are today is required."
The court entered a judgment ordering that E.T.H. "be detained for a total term of:
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Time served plus any additional time, up to 30 days, that it takes to make
arrangements for him to be placed at Reintegrating Youthful Offender's Program in
Galen, MT and for the U.S. Marshal to transport him there." The judgment also
provided that upon E.T.H.'s release from official detention, he "shall be on juvenile
delinquent supervision for a term of: 2 years." This supervision term is the subject of
the present appeal.
II. Discussion
On appeal, E.T.H. argues that the total term of detention and supervision that
the district court imposed exceeded the maximum possible penalty permitted under
18 U.S.C. § 5037. According to E.T.H., the maximum combined term of official
detention and supervision that the district court could impose is 18 months—the top
of the advisory Guidelines range applicable to a similarly situated adult
defendant—minus the 4 months and 11 days that E.T.H. previously served on official
detention.
"We have jurisdiction to review a sentence pronounced under the FJDA to
determine whether it was 'imposed in violation of law' or is 'plainly unreasonable.'"
United States v. M.R.M., 513 F.3d 866, 868 (8th Cir. 2008) (quoting 18 U.S.C.
§ 3742(a)(1), (4); K.R.A., 337 F.3d at 978). We have recognized that a "district court
enjoys 'broad discretion' when sentencing juvenile offenders under the
FJDA—indeed, broader discretion than when sentencing an adult." Id. (citation
omitted). But we review de novo "the district court's interpretation of the relevant
statutes." K.R.A., 337 F.3d at 974 (citation omitted).
The focus of our review is 18 U.S.C. § 5037(d), which governs juvenile
dispositions. Subsection (d)(2) sets out the maximum term of supervision that a
district court may order as part of its original disposition of a juvenile delinquent. It
provides:

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(2) The term of juvenile delinquent supervision that may be ordered for
a juvenile found to be a juvenile delinquent may not extend—
(A) in the case of a juvenile who is less than 18 years old,
a term that extends beyond the date when the juvenile
becomes 21 years old; or
(B) in the case of a juvenile who is between 18 and 21
years old, a term that extends beyond the maximum term of
official detention set forth in section 5037(c)(2) (A) and
(B), less the term of official detention ordered.
(Emphases added.) In turn, § 5037(c)(2) provides that a juvenile delinquent's officialdetention term
may not extend—
***
(2) in the case of a juvenile who is between eighteen and
twenty-one years old—
(A) who if convicted as an adult would be
convicted of a Class A, B, or C felony,
beyond the lesser of—
(i) five years; or
(ii) the maximum of the
guideline range, pursuant to
section 994 of title 28,
applicable to an otherwise
s imilarly s itu ated ad u lt
defendant unless the court finds
an aggravating factor to warrant
an upward departure from the
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otherwise applicable guideline
range; or
(B) in any other case beyond the lesser of—
(i) three years;
(ii) the maximum of the
guideline range, pursuant to
section 994 of title 28,
applicable to an otherwise
similarly situated adult
defendant unless the court finds
an aggravating factor to
warrant an upward departure
from the otherwise applicable
guideline range; or
(iii) the maximum term of
imprisonment that would be
authorized if the juvenile had
been tried and convicted as an
adult.
(Emphases added.)
In contrast to § 5037(d)(2), subsections (d)(5) and (6) concern the dispositions
available to a district court following revocation of a juvenile delinquent's
supervision. These subsections provide that a district court may revoke a juvenile's
supervision and order a term of official detention, which may be followed by another
term of supervision. 18 U.S.C. § 5037(d)(5)–(6); see also Joe Gergits, Looking at the
Law, Fed. Probation, December 2005, at 35, 38–39 ("New subsection 5037(d)(6)
permits the court to order a term of juvenile delinquent supervision to follow a term

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of detention that was imposed as a result of a violation of supervision."). Subsections
(d)(5) and (6) of 18 U.S.C. 5037 provide as follows:
(5) If the juvenile violates a condition of juvenile delinquent supervision
at any time prior to the expiration or termination of the term of
supervision, the court may, after a dispositional hearing and after
considering any pertinent policy statements promulgated by the
Sentencing Commission pursuant to section 994 of title 18, revoke the
term of supervision and order a term of official detention. The term of
official detention which is authorized upon revocation of juvenile
delinquent supervision shall not exceed the term authorized in section
5037(c)(2)(A) and (B), less any term of official detention previously
ordered. The application of sections 5037(c)(2)(A) and (B) shall be
determined based upon the age of the juvenile at the time of the
disposition of the revocation proceeding. If a juvenile is over the age of
21 years old at the time of the revocation proceeding, the mandatory
revocation provisions of section 3565(b) are applicable. A disposition
of a juvenile who is over the age of 21 years old shall be in accordance
with the provisions of section 5037(c)(2), except that in the case of a
juvenile who if convicted as an adult would be convicted of a Class A,
B, or C felony, no term of official detention may continue beyond the
juvenile's 26th birthday, and in any other case, no term of official
detention may continue beyond the juvenile's 24th birthday.
(6) When a term of juvenile delinquent supervision is revoked and the
juvenile is committed to official detention, the court may include a
requirement that the juvenile be placed on a term of juvenile delinquent
supervision. Any term of juvenile delinquent supervision ordered
following revocation for a juvenile who is over the age of 21 years old
at the time of the revocation proceeding shall be in accordance with the
provisions of section 5037(d)(1), except that in the case of a juvenile
who if convicted as an adult would be convicted of a Class A, B, or C
felony, no term of juvenile delinquent supervision may continue beyond
the juvenile's 26th birthday, and in any other case, no term of juvenile
delinquent supervision may continue beyond the juvenile's 24th
birthday.
(Emphases added.) (Footnote omitted.)
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"To avoid an inordinate term of juvenile supervision and detention, any
combination of supervision and detention, including sanctions following revocation,
may not extend beyond the periods available in § 5037." Gergits, supra, at 39. Here,
both parties agree that § 5037(d)(6) permits a district court to impose an additional
term of supervision following revocation. They also agree that the subsection
"explicitly sets out the maximum period of supervision for a juvenile who is over 21
years old at the time of the revocation proceeding."2 The source of contention
between the parties is what the maximum term of additional supervision is for
someone who, like E.T.H., is under age 21 at the time of revocation. E.T.H. argues
that § 5037(d)(6) "is silent on the maximum period of supervision for a juvenile who
is under 21 years old" at the time of revocation. He contends that because of this
silence, a court must look to other subsections in § 5037—specifically,
§ 5037(d)(2)—to determine the maximum possible term of supervision. He argues
that looking to § 5037(d)(2) is consistent with the way that § 5037(d)(5)—the section
authorizing detention following revocation of supervision—explicitly incorporates
§ 5037(c)(2)—the section authorizing detention after an original adjudication—to
establish the maximum possible term of detention following revocation.
Section 5037(d)(2)(B) provides that the maximum supervision period that a
district court may order for a juvenile delinquent is "in the case of a juvenile who is
between 18 and 21 years old, . . . the maximum term of official detention set forth in
section 5037(c)(2) (A) and (B), less the term of official detention ordered." (Emphasis
added.) According to E.T.H., § 5037(d)(2)(B) directs that for a juvenile like E.T.H.
who is between the ages of 18 and 21 years old, the maximum total period of
detention and supervision that the district court may impose upon revocation of a
previously imposed term of supervision is one of three options, pursuant to

2

E.T.H. makes this statement in his opening brief, and the government's brief
characterizes E.T.H.'s statement as a concession.
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§ 5037(c)(2)(B). Those options are (i) three years; (ii) the top of the Guidelines range
that would have applied to a similarly situated adult defendant unless the court finds
an aggravating factor to warrant an upward departure; or (iii) the maximum term of
imprisonment that would be authorized if the juvenile had been tried and convicted
as an adult, whichever is least, less any period of official detention previously
ordered. Applying this formula, E.T.H. asserts that the top of the Guidelines range
that would have applied to a similarly situated adult defendant is 18 months, and the
maximum penalty for an adult convicted of assault on a federal officer is eight years;
therefore, the lowest of these terms (3 years, 18 months, or 8 years) is 18 months.
Taking into account the 4 months and 11 days of official detention previously
ordered, E.T.H. concludes that the maximum period of detention and supervision
permitted under § 5037(d)(6) via § 5037(d)(2) and § 5037(c)(2)(B) is 13 months and
19 days.
By contrast, the government contends that § 5037(d)(6) alone governs
supervision upon revocation, noting that the subsection "does not mention or cross
reference § 5037(d)(2)." The government argues that we should "presume that
Congress acted intentionally by not including the same maximum boundaries on a
revocation supervision term in § 5037(d)(6) as it included in § 5037(d)(2)."
According to the government, "[o]ne reasonable reading of the subsection . . . is that
§ 5037(d)(6) does, in fact, specify a maximum supervision term for someone revoked
before age 21" by "mandat[ing] that 'in any other case,' the additional supervision
term may not stretch past a juvenile's 24th birthday."
We are now tasked with determining the maximum term of supervision upon
revocation for a person under age 21 in the face of an indisputably ambiguous statute.
A statute is ambiguous if it is "'capable of being understood in two or more possible
senses or ways.'"See Chickasaw Nation v. United States, 534 U.S. 84, 90 (2001)
(quoting Webster's Ninth New Collegiate Dictionary 77 (1985)). At oral argument,
the government characterized the statute as falling within the category of "admittedly
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ambiguous statutes" that a court must construe sensibly. It also admitted that § 5037
is "[n]ot a very artfully drafted statute." Likewise, the district court characterized the
statute as "largely incomprehensible" and "a bit on the mushy side" that "needs to be
rewritten."
When a statute is ambiguous, a court "seek[s] guidance in the statutory
structure, relevant legislative history, congressional purposes expressed [in the statute
at issue], and general principles [of law relevant to the statute at issue]." Fla. Power
& Light Co. v. Lorion, 470 U.S. 729, 737 (1985). Our review of the structure and
purpose of § 5037 leads us to conclude that we must look to subsection (d)(2) to
determine the length of "juvenile delinquent supervision" that a court may order
under subsection (d)(6). First, as E.T.H. points out, Congress addressed individuals
over 21 years of age only in § 5037(d)(5) and (6)—revocation of probation and
supervision—because "juveniles over 21 can only come before the court on
revocation of probation or supervision. Individuals over 21 cannot receive initial
sentences of probation, official detention, or juvenile delinquent supervision because
the Juvenile Delinquency Act does not cover individuals charged after the age of
21."3 This explains why Congress had to set the maximum supervision term out in
subsections (d)(5) and (6) for individuals over 21—because they are not discussed
(and could not have been included) in any of the other subsections. By contrast, the
omission of juveniles between 18 and 21 years old from subsection (d)(6)'s discussion
of "juvenile delinquent supervision" is understandable, given that subsection (d)(2)
sets the maximum length for any term of "juvenile delinquent supervision" for that
age group.

3

The FJDA defines "juvenile" as "a person who has not attained his eighteenth
birthday, or for the purpose of proceedings and disposition under this chapter for an
alleged act of juvenile delinquency, a person who has not attained his twenty-first
birthday." 18 U.S.C. § 5031.
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Second, a possibility exists that failure to recognize a maximum penalty for
juveniles between 18 and 21 years old could lead to absurd results. "A statute
can . . . be considered ambiguous when a particular interpretation from the face of a
statute could lead to an anomalous, unusual or absurd result." Breedlove v.
Earthgrains Baking Cos., 140 F.3d 797, 800 (8th Cir. 1998); see also Ashley, Drew
& N. Ry. v. United Transp. Union, 625 F.2d 1357, 1365 (8th Cir. 1980) ("[I]t is
impermissible to follow a literal reading that engenders absurd consequences where
there is an alternative interpretation that reasonably effects the statute's purpose."
(citation omitted)); Friedman v. United States, 374 F.2d 363, 367 (8th Cir. 1967) ("A
literal interpretation of a statute will not be resorted to when it brings about absurd
consequences or produces results not intended by Congress." (citation omitted)). As
explained supra, the goal of § 5037(d)(6) is "[t]o avoid an inordinate term of juvenile
supervision and detention." Gergits, supra, at 39 (emphasis added). As E.T.H.
demonstrates, not setting a maximum penalty for juveniles under age 21 would mean
that
a person who was 20 years and 364 days old on the day of the
revocation hearing would be subject to an unlimited term of supervision
while a person who was two days older (i.e., 21 years and 1 day), could
only be placed on supervision until his 24th or 26th birthday, depending
on the underlying offense.
Third, the government's argument that subsection (d)(6) specifies the maximum
term of post-revocation supervision for a juvenile under 21 years old as his 24th
birthday is not consistent with the canons of statutory construction. Under the last
antecedent rule, "[r]eferential and qualifying words and phrases, where no contrary
intention appears, refer solely to the last antecedent." 2A Norman J. Singer &
Shambie Singer, Sutherland Statutes and Statutory Construction § 47:33 (7th ed.
2007) (footnote omitted). "The last antecedent is the last word, phrase, or clause that
can be made an antecedent without impairing the meaning of the sentence." Id.
(quotation and footnote omitted). As a result, "a proviso usually applies to the
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provision or clause immediately preceding it." Id. (footnote omitted). "While [the last
antecedent rule] is not an absolute and can assuredly be overcome by other indicia of
meaning . . . construing a statute in accord with the rule is quite sensible as a matter
of grammar." Barnhart v. Thomas, 540 U.S. 20, 26 (2003) (quotation and citation
omitted).
Here, § 5037(d)(6) provides that
[a]ny term of juvenile delinquent supervision ordered following
revocation for a juvenile who is over the age of 21 years old at the time
of the revocation proceeding shall be in accordance with the provisions
of section 5037(d)(1),[4] except that in the case of a juvenile who if
convicted as an adult would be convicted of a Class A, B, or C felony,
no term of juvenile delinquent supervision may continue beyond the
juvenile's 26th birthday, and in any other case, no term of juvenile
delinquent supervision may continue beyond the juvenile's 24th
birthday.
(Emphasis added.) Applying the last antecedent rule, the "except" clause of
§ 5037(d)(6) does hang on the sentence that begins "[a]ny term of juvenile delinquent
supervision ordered following revocation for a juvenile who is over the age of 21
years old at the time of the revocation proceeding." In other words, "juvenile who is
over the age of 21 years old at the time of the revocation proceeding" is the subject
of the sentence, and "except in any other cases" modifies that antecedent clause. As
a result, the subsection's statement that "no term of juvenile delinquent supervision
may continue beyond the juvenile's 24th birthday" refers to juveniles over 21 years
old at the time of revocation.

4

Subsection (d)(1) is no aid in determining Congress's statutory intent in
subsection (d)(6). It merely provides that "[t]he court, in ordering a term of official
detention, may include the requirement that the juvenile be placed on a term of
juvenile delinquent supervision after official detention." 18 U.S.C. § 5037(d)(1).
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Having determined that we must look to subsection (d)(2) to determine the
length of a "juvenile delinquent supervision" term that a court may order under
subsection (d)(6), we must now consider whether for the purposes of subsection
(d)(2), the court must use the juvenile's age at the date of the revocation hearing in
ordering supervision under subsection (d)(6), or instead his age at the date of the
initial disposition hearing. We conclude that a court must use the juvenile's age at the
date of the revocation hearing. First, both subparts of subsection (d)(2) refer to the
age of the juvenile using the present tense: "a juvenile who is less than 18 years old"
or "a juvenile who is between 18 and 21 years old." 18 U.S.C. § 5037(d)(2)(A)–(B)
(emphases added). Congress's use of the present tense suggests that a court must
apply the juvenile's age at the time of the hearing at which the court refers to
subsection (d)(2). See United States v. Wilson, 503 U.S. 329, 333 (1992)
("Congress'[s] use of a verb tense is significant in construing statutes." (citations
omitted)).
Second, using the juvenile's age at the time of the initial disposition hearing
would create an inconsistency. The court would first ask whether the juvenile "is over
[21] at the time of the revocation proceeding" under subsection (d)(6) and answer
using the juvenile's present age. If the juvenile is under 21, the court would then ask
whether the he "is less than 18" or "is between 18 and 21" under subsection (d)(2) and
would answer based on whether he was under 18 at the time of the initial disposition.
No command or other textual indication in § 5037(d) counsels that the court make
such an awkward switch.
For the aforementioned reasons, we hold that the maximum term of supervision
that a court may impose under § 5037(d)(6) is determined by the requirements in
§ 5037(d)(2), using the juvenile's age at the time of the revocation hearing. As a
result, the maximum total period of detention and supervision that may be imposed
upon revocation of a previously imposed term of supervision for a juvenile who is
under age 21 at the time of revocation is (i) 3 years, (ii) the top of the Guidelines
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range that would have applied to a similarly situated adult defendant unless the court
finds an aggravating factor to warrant an upward departure, or (iii) the maximum
term of imprisonment that would be authorized if the juvenile had been tried and
convicted as an adult, whichever is least, see 18 U.S.C. § 5037(c)(2)(B), "less the
term of official detention ordered." Id. § 5037(d)(2)(B).
Applying this formula to the present case, E.T.H. is correct that 18 months—
the top of the Guidelines range that would have applied to a similarly situated adult
and the lowest term under § 5037(c)(2)(B)—is the starting point from which the court
must calculate the maximum total period of detention and supervision that it could
impose upon E.T.H. However, E.T.H. is incorrect that the court must subtract from
this number the 4 months and 11 days of official detention previously ordered. Under
§ 5037(d)(2), the maximum supervision term is reduced by "the term of official
detention ordered." That phrase refers to "the term . . . ordered" at the instant hearing,
not to a term of detention previously ordered. This is in contrast to the reduction in
the maximum term of detention under § 5037(d)(5), which is the maximum from
§ 5037(c)(2) "less any term of official detention previously ordered."
Here, the district court ordered up to 1 month of detention, and, according to
the government, E.T.H. served 28 days. See Gov't Br. 6 n.3. The maximum
supervision term under § 5037(d)(6) and (d)(2)(B) is calculated by subtracting the
term of detention ordered, 1 month, from the 18-month maximum detention from
§ 5037(c)(2), yielding a maximum of 17 months.
The government argues that even if we adopt E.T.H.'s construction of
§ 5037(d)(6), any error on the part of the district court is harmless. It points to
E.T.H.'s concession that "had the district court found 'an aggravating factor to warrant
an upward departure,' there would be no basis for appeal here." The government
argues that any error is harmless because the district court made a finding, in response
to defense counsel's objection to the disposition, that E.T.H.'s "rehabilitation needs
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are so vast that additional supervision of two years beyond the point where we are
today is required." The government contends that any remand would "require the
district court to engage in a rote recitation of sentencing factors, guidelines
considerations, then state that there are aggravating factors warranting an upward
departure."
Our holding specifies that the top of the Guidelines range that would have
applied to a similarly situated adult defendant is the maximum total period of
detention and supervision that may be imposed upon revocation of a previously
imposed term of supervision for a juvenile who is under age 21 at the time of
revocation unless the court finds an aggravating factor to warrant an upward
departure. At oral argument, the court inquired whether it was "undisputed that the
district court did not grant [the government's] motion for upward departure," and the
government responded, "That's right. Well, didn't grant our motion for an upward
departure for a lengthy detention sentence . . . ." Although the government would
have us construe the district court's response to defense counsel's objection as the
equivalent of an upward departure, we decline to do so. The record shows that the
district court denied the government's motion for an upward departure and never
again revisited the subject.
III. Conclusion
Accordingly, we reverse the judgment of the district court and remand with
instructions to enter a sentence not to exceed the statutory maximum set forth supra.
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Appellate Case: 15-1672

Page: 16

Date Filed: 08/18/2016 Entry ID: 4438653