United States of America v.  T.m.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 04-4564 
T.M.,
Defendant-Appellee. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CR-04-73)
Argued: February 4, 2005
Decided: June 27, 2005
Before WIDENER and SHEDD, Circuit Judges, and
James C. CACHERIS, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.
Reversed and remanded by published opinion. Judge Shedd wrote the
majority opinion, in which Judge Cacheris concurred. Judge Widener
wrote a dissenting opinion.
COUNSEL
ARGUED: Steven Ian Loew, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellant. Jane Moran, Williamson, West Virginia, for
Appellee. ON BRIEF: Kasey Warner, United States Attorney,
Charleston, West Virginia, for Appellant.

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OPINION
SHEDD, Circuit Judge:
T.M., when he was just two months shy of his eighteenth birthday,
allegedly conspired with four adults in robbing and shooting a pizza
deliveryman in Charleston, West Virginia. The United States (the
"government") prosecuted the four adults in federal court. Although
the state prosecutor initially filed a juvenile proceeding against T.M.
in state court, that court eventually dismissed that action. Just two
days before that action was dismissed, the government initiated this
juvenile proceeding by filing a criminal information against T.M. in
federal court. The district court dismissed the information for lack of
jurisdiction, concluding that the government had failed to comply
with the certification requirements of 18 U.S.C. § 5032. United States
v. A.M., 339 F. Supp. 2d 749, 760 (S.D. W. Va. 2004).1 The govern-
ment now appeals, and we reverse and remand for further proceedings
consistent with this opinion.
I.
The government alleges in the information that T.M. conspired
with four adults to rob a pizza deliveryman at gunpoint. One of the
adults telephoned the restaurant and asked that a pizza be delivered
to a community center in Charleston, West Virginia. When the pizza
deliveryman arrived, one of the conspirators walked up to the vehicle
and took the pizza. Another conspirator approached the vehicle and
struck the deliveryman in the mouth with the butt of a firearm and
demanded that he turn over all his money. After the deliveryman
handed over his money, one of the conspirators shot him in the back.
The bullet pierced the deliveryman’s spleen and liver and lodged in
his stomach. T.M. was near the vehicle and was carrying a firearm
when the deliveryman was robbed and shot.
1The district court caption identifies the defendant as "A.M." In its
order, the district court correctly noted that the defendant’s initials are
"T.M." Id. at 751 n.1.
2 UNITED STATES v. T.M.

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II.
Jurisdiction over juvenile proceedings in federal court is governed
by 18 U.S.C. § 5032, which is part of the Juvenile Justice and Delin-
quency Prevention Act. A juvenile alleged to have committed a crime
may not be proceeded against in federal court unless the government
"certifies to the appropriate district court . . . that (1) the juvenile
court or other appropriate court of a State does not have jurisdiction
or refuses to assume jurisdiction over said juvenile with respect to
such alleged act of juvenile delinquency . . . or (3) the offense charged
is a crime of violence that is a felony . . . and that there is a substantial
Federal interest in the case or the offense to warrant the exercise of
Federal jurisdiction." 18 U.S.C. § 5032. Proper certification under
§ 5032 by the government is necessary to create subject matter juris-
diction over a juvenile proceeding. United States v. White, 139 F.3d
998, 999-1000 (4th Cir. 1998).
III.
The government prosecuted the four adult coconspirators in federal
court for their roles in the robbery and shooting of the pizza delivery-
man. All four were charged with violating the Hobbs Act, 18 U.S.C.
§ 1951, by interfering with interstate commerce by robbery. Two of
the coconspirators were also charged with violating 18 U.S.C.
§ 924(c) by using and carrying a firearm during and in relation to the
robbery. All four coconspirators pled guilty and were sentenced to
significant terms of imprisonment.
T.M. was arrested on state charges and taken into custody on Janu-
ary 20, 2004, the day after the robbery and shooting of the pizza
deliveryman. The state prosecutor filed a juvenile petition against
T.M., alleging that he participated in the robbery and shooting. T.M.
pled not guilty and was detained at a state juvenile detention center
pending his trial scheduled for April 20, 2004.
On April 16, four days before the scheduled trial, the state prosecu-
tor informed the government that he intended to move the state court
to dismiss the juvenile proceeding against T.M. On April 19, one day
before the scheduled state court trial, the government filed an infor-
mation in the district court, alleging that T.M. violated the Hobbs Act
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and used and carried a firearm during the robbery and shooting of the
pizza deliveryman. In a separate filing, the government certified, as
required by 18 U.S.C. § 5032, that the district court could properly
exercise jurisdiction over T.M.’s case on two grounds: (1) the state
"refuses to assume jurisdiction" over T.M.; and (2) the alleged
offenses are crimes of violence in which there exists a substantial fed-
eral interest. Two days later, on April 21, the state court dismissed the
juvenile proceeding against T.M. based on the state prosecutor’s rep-
resentation that juvenile jurisdiction over T.M. had ended. T.M. was
then transferred to federal custody. On May 4, the government
amended its information, alleging the same substantive crimes but
specifically citing for the first time § 5032, the statute creating juris-
diction over juvenile proceedings in federal courts.
T.M. moved to dismiss the information against him for lack of sub-
ject matter jurisdiction. The district court granted the motion to dis-
miss, concluding that neither of the bases offered by the government
in its § 5032 certification was sufficient to confer jurisdiction over
T.M.’s juvenile proceeding. First, the court held that the state court
had not "refused to assume jurisdiction over T.M. The state court not
only assumed jurisdiction over T.M., it exercised that jurisdiction in
every way but a trial on the merits." A.M., 339 F. Supp. 2d at 755.
Second, the district court concluded that jurisdiction was not war-
ranted because T.M.’s alleged offenses did not give rise to a substan-
tial federal interest. Id. at 759. The government now appeals the
dismissal of the criminal information against T.M.
IV.
A.
Although nine circuits have held that the government’s § 5032 cer-
tifications are either not subject to judicial review or at most subject
to very narrow review for compliance with § 5032, see United States
v. F.S.J., 265 F.3d 764, 768 (9th Cir. 2001) (deciding that the Ninth
Circuit was joining eight other circuits in holding that § 5032 certifi-
cations by the government are subject to, at most, limited judicial
review),2 the Fourth Circuit is the only circuit that requires a more
2See United States v. Doe, 226 F.3d 672 (6th Cir. 2000); United States
v. Smith, 178 F.3d 22 (1st Cir. 1999); United States v. Jarrett, 133 F.3d
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searching review of the government’s assertions in its § 5032 certifi-
cations, see United States v. Juvenile Male # 1, 86 F.3d 1314, 1321
(4th Cir. 1996). But see id. at 1324 (Wilkinson, J., concurring in
result) (contending that government’s certification that there is a sub-
stantial federal interest in case or offense should not be subject to
judicial review). Thus, before assuming jurisdiction over a juvenile
proceeding, a court in this circuit must first satisfy itself that its juris-
diction has been properly invoked by "reviewing the stated reasons
underlying the government’s decision to proceed in federal court." Id.
at 1321.
The government certified that federal jurisdiction over T.M. was
proper for the following two reasons: (1) the state court "refuses to
assume jurisdiction" over T.M., and (2) both robbery affecting inter-
state commerce and using and carrying a firearm during and in rela-
tion to a crime of violence are crimes of violence in which there exists
a substantial federal interest warranting the exercise of federal juris-
diction. Under § 5032, the district court should have assumed jurisdic-
tion over T.M.’s juvenile proceeding if either of the two bases
asserted by the government was valid.
B.
We first review whether the government’s first stated basis for
jurisdiction — that the state court refuses to assume jurisdiction over
T.M. — warrants the exercise of federal jurisdiction. We conclude
that it does.
Section 5032(1) provides that the district court may proceed in a
case alleging crimes against a juvenile if "the juvenile court or other
appropriate court of a State does not have jurisdiction or refuses to
assume jurisdiction over said juvenile with respect to such alleged act
of juvenile delinquency." Section 5032 "embodie[s] a clear preference
519 (7th Cir. 1998); United States v. Juvenile Male, J.A.J., 134 F.3d 905
(8th Cir. 1998); In re: SEALED CASE, 131 F.3d 208 (D.C. Cir. 1997);
United States v. Juvenile No. 1, 118 F.3d 298 (5th Cir. 1997);
IMPOUNDED (Juvenile R.G.), 117 F.3d 730 (3d Cir. 1997); United
States v. I.D.P., 102 F.3d 507 (11th Cir. 1996).
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for having juvenile criminal matters handled in the state courts. . . .
[S]ubsection (1) provide[s] for federal jurisdiction if the state was
unable or unwilling" to provide a forum for the juvenile proceeding.
Juvenile Male # 1, 86 F.3d at 1320 (emphasis added).
We addressed a similar scenario in United States v. Hill, 538 F.2d
1072 (4th Cir. 1976). In that case, we determined that jurisdiction was
proper because the state court refused to assume jurisdiction over the
juvenile’s case. We relied on a letter from a state court judge indicat-
ing that the state prosecutor did not intend to file a state case against
the juvenile and, therefore, his court would not take any action in
regard to the juvenile. Id. at 1076.
In this case, we rely on the state court’s dismissal of the juvenile
proceeding against T.M. to conclude that the appropriate state court
"refuses to assume jurisdiction" over T.M.3 It is immaterial under
§ 5032(1) that the state court in this case initially assumed jurisdiction
over T.M.’s case but later refused to retain jurisdiction over the case.
What matters under § 5032(1) in this case is that the appropriate state
court was no longer willing to assert jurisdiction over T.M. when the
district court considered T.M.’s challenge to the government’s § 5032
certification.4 Because the government properly certified that the state
3T.M. complains that the government’s representation on April 19,
2004 — that the state "refuses to assume jurisdiction" over T.M. — was
not technically correct when made because the state court did not dismiss
the juvenile proceeding against T.M. until April 21, two days later. We
find this timing problem immaterial. When the government made its cer-
tification on April 19, it did so based on the state prosecutor’s assurance
that his office intended to move the state court to dismiss the proceeding
against T.M. It was important for the government to take some official
action against T.M. before the state court dismissed the case to ensure
that T.M. was not released from state custody once the state court pro-
ceeding was dismissed. Moreover, any technical error that might have
existed in the original certification was later corrected when the govern-
ment amended the information — soon after the state court proceeding
was dismissed — to assert that § 5032 then provided the proper jurisdic-
tional basis for its federal prosecution.
4T.M. argues that principles of abstention and deference to the state in
juvenile matters suggest that federal jurisdiction is not warranted in this
case. We find this argument meritless under the particular facts and cir-
cumstances of this case. Because the state court dismissed its proceeding
against T.M., there was no state proceeding that the district court could
have deferred to or abstained from interfering with.
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court was no longer asserting jurisdiction over T.M.’s juvenile pro-
ceeding, the district court erred in refusing to assume jurisdiction over
the government’s case against T.M.
C.
Next we review the sufficiency of the government’s second stated
basis of jurisdiction — that at least one of the offenses alleged against
T.M. is a crime of violence in which there is a substantial federal
interest. We conclude that T.M.’s alleged offense of carrying and
using a firearm during and in relation to a robbery — a violation of
18 U.S.C. § 924(c) — warrants the exercise of federal jurisdiction.
Section 5032(3) provides that federal jurisdiction in a case involv-
ing a juvenile is proper if the government certifies that "the offense
charged is a crime of violence that is a felony . . . and that there is
a substantial Federal interest in the case or the offense to warrant the
exercise of Federal jurisdiction." In general terms, the issue becomes
whether "the crime [is] of a sufficiently serious type that federal
resources should be called upon, without regard to the State’s willing-
ness or ability to handle the matter." Juvenile Male # 1, 86 F.3d at
1320. Whether a "substantial Federal interest" exists is similar to the
"sort of discretionary decision more commonly thought of as the type
of prosecutorial decisions that are immune from judicial review," so
we give the government’s decision in that regard more deference. Id.
at 1319.
The government’s § 5032(3) certification must state that (1) the
offense is a crime of violence that is a felony; and (2) there exists a
substantial federal interest in the case or offense to warrant the exer-
cise of federal jurisdiction. T.M. does not contest the first requirement
— that a violation of § 924(c) is a crime of violence that is a felony.
As for the second requirement, T.M. primarily argues that the offense
of carrying and using a firearm during and in relation to a crime of
violence is traditionally within the police powers of the state, so there
must not be a substantial federal interest in the offense. We find this
argument unpersuasive.
We have not devised a definitive test in this circuit to determine
whether a substantial federal interest exists in a particular offense.
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Our prior cases, however, have placed importance on the severity of
the penalty prescribed for the offense and the sense of urgency by
Congress in deciding to federalize the crime. United States v. NJB,
104 F.3d 630, 635 (4th Cir. 1997); Juvenile Male # 1, 86 F.3d at 1321
(concluding that the harshness of the penalties and the sense of
urgency are "strong indicators of more than a run of the mill federal
interest" in the carjacking statute). Section 924(c) meets both of these
criteria.
First, the prescribed penalties for carrying and using a firearm dur-
ing and in relation to a crime of violence are extremely severe
because they involve lengthy and mandatory terms of imprisonment.
For the first § 924(c) conviction, the defendant must be sentenced to
a term of imprisonment of not less than five years regardless of crimi-
nal history or most other mitigating circumstances.5 18 U.S.C.
§ 924(c)(1)(A)(i). For any subsequent § 924(c) convictions, the defen-
dant must be sentenced to a term of not less than twenty-five years
for each conviction. Id. § 924(c)(1)(C)(i). Moreover, each § 924(c)
sentence must run consecutively to, not concurrently with, any other
sentences. Id. § 924(c)(1)(D)(ii); Robinson, 2005 WL 879213, at *11
(requiring imposition of a mandatory minimum sentence of 182 years
relating to juvenile defendant’s § 924(c) convictions).
Second, the legislative history of § 924(c) demonstrates a keen and
continuing attentiveness by Congress to combating the serious
national problem caused by the use of firearms in furtherance of
crimes of violence. When it originally enacted § 924(c) in 1968, Con-
gress considered crime to be "essentially a local problem that must be
dealt with by State and local governments if it is to be controlled
effectively." Omnibus Crime Control and Safe Streets Act of 1968,
Pub. L. No. 90-351, 82 Stat. 197. In its original version, § 924(c) pro-
vided only for the seizure of any firearm used in the commission of
a crime. It made no provision for terms of incarceration. Id. at 233.
Just three years later, Congress amended § 924(c) to create nonman-
datory sentences of not less than one year for a first conviction and
5The district court may impose a sentence of less than five years only
if the government first files a motion for downward departure based on
the defendant’s substantial assistance. United States v. Robinson, 2005
WL 879213, at *11 (4th Cir. Apr. 18, 2005).
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not less than two years for subsequent convictions. Pub. L. No. 91-
644, 84 Stat. 1880. In 1984, Congress significantly strengthened
§ 924(c) by requiring mandatory minimum consecutive sentences of
at least five years for the first conviction and at least ten years for a
second or subsequent conviction. Pub. L. No. 98-473, 98 Stat. 1837.
The Senate Report describes § 924(c) violations as "serious and dan-
gerous federal offenses." S. Rep. No. 98-225, at 20 (1984), reprinted
in 1984 U.S.C.C.A.N. 3182, 3203 (emphasis added). The report con-
cludes that § 924(c) "should be completely revised to ensure that all
persons who commit federal crimes of violence . . . receive a manda-
tory sentence, without the possibility of the sentence being made to
run concurrently with that for the underlying offense or for any other
crime." Id. at 313, 1984 U.S.C.C.A.N. at 3491. Not content with these
rigorous provisions, Congress again amended § 924(c) in 1998 to
"throttle [the] criminal use of guns" by increasing the minimum sen-
tence for second or subsequent convictions to at least twenty-five
years for each conviction. Pub. L. No. 105-386, 112 Stat. 3469. This
legislative history demonstrates the sense of urgency and importance
that Congress has placed on attempting to deter the criminal use of
firearms on the federal level. Accordingly, we conclude that there
exists a substantial federal interest in § 924(c) prosecutions.
V.
For the foregoing reasons, we hold that the government’s § 5032
certification was proper and sufficient to confer jurisdiction over
T.M.’s juvenile proceeding. Therefore, we reverse the judgment of
the district court and remand for further proceedings consistent with
this opinion.
REVERSED AND REMANDED
WIDENER, Circuit Judge, dissenting:
I respectfully dissent from the majority’s conclusion that a substan-
tial federal interest is shown in T.M.’s alleged offenses of conspiring
to obstruct commerce in violation of 18 U.S.C. § 1951 and in carrying
a hand gun in the robbery which so affected commerce in violation
of 18 U.S.C. § 924(c)(1)(A), both crimes in violation of 18 U.S.C.
§ 5032.
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I.
One of the means of obtaining federal jurisdiction over a juvenile
in a criminal proceeding occurs when the Attorney General of the
United States certifies that "the offense charged is a crime of violence
that is a felony . . . and that there is a substantial Federal interest in
the case or the offense to warrant the exercise of Federal jurisdiction."
18 U.S.C. § 5032 (emphasis added).
The "substantial Federal interest" provision is a separate require-
ment that must be met after it has been determined that the crime is
violent and felonious. This condition thus restricts the application of
federal jurisdiction to those violent felonies committed by juveniles
that also evidence some sort of federal interest justifying the federal
government’s involvement in the matter. See U.S. v. White, 139 F.3d
998, 1000 (4th Cir. 1998) (citing S. Rep. No. 98-225, at 389 (1984),
reprinted in 1984 U.S.C.C.A.N. 3182, 3529 (1984)); U.S. v. Juvenile
Male #1, 86 F.3d 1314, 1319 (4th Cir. 1996) ("the ‘substantial inter-
est’ and other prongs of the certification statute act as limits on the
federal courts’ jurisdiction to act in this sphere."). The fact that the
crime is a violent felony alone does not mean that the offense also
gives rise to a "substantial Federal interest." See United States v. Male
Juvenile, 844 F.Supp. 280, 283-84 (E.D.Va. 1994) (concluding that
the "substantial Federal interest" requirement was intended to limit
federal jurisdiction over juveniles to something less than all violent
federal crimes).
The majority, however, by its holding that robbing a pizza delivery
man is a crime that gives rise to a "substantial Federal interest," opens
the door for a decision that all federal crimes of violence amount to
a such an interest. While robbing a pizza delivery man at gunpoint is
certainly a violent crime, neither this offense nor the case as a whole
presents the scenario that the drafters of this statute envisioned as car-
rying a "substantial Federal interest." According to the legislative his-
tory, the determination of whether a scenario presents a "substantial
Federal interest" is to "be based on a finding that the nature of the
offense or the circumstances of the case give rise to special Federal
concerns." See S. Rep. No. 98-225, at 389 (1984), reprinted in 1984
U.S.C.C.A.N. 3182, 3529 (1984). By requiring "special Federal con-
cerns" the legislative history plainly means that the case or offense
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should manifest concerns that are particular to the federal govern-
ment, rather than merely State concerns.
In general terms, the two concerns presented in this case are com-
bating violent crimes and juvenile delinquency. While they are both
serious, in my opinion, neither of these concerns are "special Federal
concerns" that justify removing jurisdiction from the state court. The
majority does not state exactly the federal interest or concern pre-
sented in this case, rather the argument that it does make in favor of
this case satisfying the "substantial Federal interest" is aimed at the
violent nature of the crime and the punishment available under 18
U.S.C. § 924. But, as discussed above, a crime of violence is not ade-
quate on its own to show the special federal concern. If it were, the
"substantial Federal interest" clause in 18 U.S.C. § 5032 would be
without meaning. This leaves juvenile delinquency as the other con-
cern presented. Juvenile delinquency, however, is not a special federal
concern, but instead a matter traditionally dealt with by state courts.
See S. Rep. No. 98-225, at 386 (1984), reprinted in 1984
U.S.C.C.A.N. 3182, 3526 (1984) (stating the premise that "juvenile
delinquency matters should generally be handled by the States").
Consequently, of the two concerns presented in the offense at issue
and the case as a whole, neither of them show a federal concern that
justifies federal juvenile jurisdiction.
Moreover, the legislative history gives examples of cases that give
rise to special federal concerns, including "an assault on, or assassina-
tion of, a Federal official, an aircraft hijacking, a kidnaping where
State boundaries are crossed, a major espionage or sabotage offense,
participation in large-scale drug trafficking, or significant and willful
destruction of property belonging to the United States." S. Rep. No.
98-225, at 389 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3529
(1984). The offense at issue here, four adults and one juvenile robbing
one local pizza delivery man, has no reasonable similarity to the
large-scale, far-reaching criminal schemes envisioned as examples of
offenses or cases showing "special federal concerns." Because neither
this case nor the offense "give rise to special Federal concerns," a
"substantial Federal interest" is also absent.
II.
The government describes the required substantial federal interest
in this case in its principal brief, p.8, as:
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Defendant was seventeen years and ten months old when he
and four adults robbed a restaurant delivery person, beat him
and shot him. The four adults in the violent crime were all
charged federally, and the defendant should be charged with
them. Moreover, there is unquestionably a substantial fed-
eral interest in combating gun violence.
And, in the governments reply brief, p.4-5, the substantial federal
interest in this case is described:
Defendant possessed a hand gun when he participated in the
robbery. Pursuant to 18 U.S.C. § 922(x)(2)(A), it is a crime
for a juvenile to possess a hand gun. Therefore, the United
States could prosecute for possessing the hand gun . . . . Fur-
thermore, the four adults involved in the violent crime were
all charged federally. There is a substantial federal interest
in combating gun violence, and the United States’ certifica-
tion under this justification was proper.
These descriptions of the substantial federal interest are a far cry
from the requirements of § 5032 as exemplified in the legislative his-
tory as assault on or assassination of a federal official, aircraft hijack-
ing, kidnapping when State borders are crossed, major espionage or
sabotage, large-scale drug trafficking, and significant and wilful
destruction of United States property.
In summary, a crime of violence alone was not intended to and
should not be enough to satisfy the "substantial Federal interest"
requirement of 18 U.S.C. § 5032. Our holding that a juvenile’s rob-
bery of a local pizza delivery man at gunpoint is sufficient to show
a "substantial Federal interest" will likely permit any federal felony
committed by a juvenile with attendant violence to be tried under fed-
eral jurisdiction, and may well permit the same for any felony with
attendant violence committed by a juvenile.
I would affirm.
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