United States v. Jackson
Opinion
OPINION
Appellant Denise Olivia Jackson appeals her sentence for a violation of 18 U.S.C. § 1001. She claims that the District Court erroneously calculated her criminal history category under the U.S. Sentencing Guidelines (“U.S.S.G.”). It did not. Accordingly, we will affirm.
Appellant pled guilty to making a false statement to an agency or department of the United States in violation of 18 U.S.C. § 1001. In the presentence investigation report, appellant was assigned a total offense level of ten and a criminal history category of III based on four criminal history points. The resulting guideline range was ten to sixteen months. Appellant objected to three of the four criminal history points: one each for convictions for failure to pay a local tax, for scattering rubbish, and for violation of Pennsylvania’s compulsory school attendance law. At the sentencing hearing, the District Court removed the point assigned for the scattering rubbish offense, lowering appellant’s criminal history category to II and guideline range to eight to fourteen months. The District Court granted the government’s oral motion for a downward departure based on substantial assistance and sentenced appellant to six months in prison followed by one year of supervised release.
Appellant filed a timely notice of appeal. 1 In her brief to this Court, she *122 renewed her objections to the assignment of criminal history points for her convictions under Pennsylvania’s compulsory school attendance law and for failure to pay a local tax. We need only address the former.
Section 4Al.l(c) of the guidelines authorized the District Court to add one additional point, up to a maximum of four points, for each of appellant’s prior convictions. Section 4A1.2(e)(l), however, provides in pertinent part that
Sentences for misdemeanor and petty offenses are counted, except as follows:
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(2) Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are never counted:
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Juvenile status offenses and truancy
Appellant argues that her conviction under Pennsylvania’s compulsory school attendance law is a crime that “involved truancy” and was “based on elementally similar conduct” as a juvenile status offense. In support of that argument, she cites our decision in United States v. Elmore, 108 F.3d 23 (3d Cir.1997), where we observed:
The apparent concern of Guidelines section 4A1.2(c)(l) in excluding from consideration “offenses similar to” the enumerated offenses “by whatever name they are known” is that an offense ... should not be considered merely because that offense is denominated differently under state law. Accordingly, we follow the approach of the Court of Appeals for the First Circuit in [United States v. Unger, 915 F.2d 759, 763 & n. 5 (1st Cir.1990)], and focus only upon the elements of the offenses as statutorily defined.
Id. at 27 (citations and footnote omitted). The First Circuit in Unger
rejected] outright the idea that state law determines whether an offense runs afoul of section 4A1.2(c)(2), and thus declined appellant’s invitation to plumb the nuances of Rhode Island’s statutory scheme.... The classification of an offense as within or without the ambit of section 4A1.2(c) as a whole, or either of its subsections, is a question of federal law, not state law, notwithstanding that the predicate offense and punishment are defined by state law____ We believe that, to ascertain the scope of section 4A1.2(c)(2), we should look to the substance of the underlying state offense in order to determine whether it falls within the proscription. In this case, the conduct underlying defendant’s three juvenile adjudications consisted of (1) breaking and entering with intent to commit larceny, (2) receiving stolen goods, and (3) assault and battery. Under no stretch of the imagination can these malefactions be considered “status offenses” like, say, hitchhiking, truancy, loitering, or vagrancy.
Unger, 915 F.2d at 762-63 (citations and footnotes omitted).
Here, the “substance of the underlying state offense” was appellant’s failure to take reasonable steps to ensure her child’s attendance at school. 2 This is not a juve *123 nile status offense, nor is it truancy, for purposes of the federal sentencing scheme. Although “ ‘[jjuvenile status offense’ is not defined in the sentencing guidelines,” United States v. Webb, 218 F.3d 877, 880 (8th Cir.2000), there is no dispute that appellant committed the crime as an adult, and she concedes that, “[a]s noted by the sentencing court, the exception has been construed to require, inter alia, that the crime was committed when the defendant was a juvenile.” (Appellant’s Br. at 15) (citing United States v. Correa, 114 F.3d 314, 318 (1st Cir.1997).) 3
Likewise, truancy is defined as a particular type of juvenile status offense. See Black’s Law Dictionary 1508 (6th ed.1990) (defining “truancy” as the “[wjilful and unjustified failure to attend school by one who is required to attend. It is a punishable offense within the juvenile system in some states and, in others, it is the basis of a petition for a child in need of services”). Appellant was not the one required to attend school. Her offense was based on a failure to take measures to ensure her child’s attendance. That offense arose out of her status as an adult responsible for a child, and was not “similar” to a juvenile status offense or truancy in any meaningful way. The District Court’s assignment of a criminal history point for this conduct was, therefore, not in error.
We need not address appellant’s arguments regarding her local tax offense. Even if that conviction were removed from the calculus, her criminal history category and guideline range would be unaffected. See U.S.S.G. ch. 5, pt. A (sentencing table).
Accordingly, we will affirm.
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169 F. App'x 120 (United States v. Jackson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.