United States of America v.  James Anthony Mason

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4549 
JAMES ANTHONY MASON,
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-00-9)
Argued: September 28, 2001
Decided: March 27, 2002
Before MICHAEL and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by published opinion. Judge Michael wrote
the opinion, in which Judge Motz and Senior Judge Hamilton joined.
COUNSEL
ARGUED: Brian Joseph Kornbrath, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Miller Allison
Bushong, III, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee. ON BRIEF: Mary Lou Newberger, Acting Fed-
eral Public Defender, Charleston, West Virginia, for Appellant.
Rebecca A. Betts, United States Attorney, Charleston, West Virginia,
for Appellee.

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OPINION
MICHAEL, Circuit Judge:
James Anthony Mason appeals the district court’s sentencing deter-
mination that he is a career offender under U.S. Sentencing Guide-
lines Manual § 4B1.1 (1998). Mason argues that he is not a career
offender because his 1981 state conviction for unarmed robbery
(committed when he was sixteen) should not have been counted.
Mason’s robbery conviction can be used to sentence him as a career
offender under § 4B1.1 only if the offense would be counted in the
computation of criminal history points under Guidelines
§ 4A1.2(d)(1). Section 4A1.2, application note 7, requires an adult
sentence before the conviction can be counted. Because Mason
received a juvenile sentence for his 1981 robbery conviction, that
conviction cannot serve to make him a career offender. We therefore
vacate his sentence and remand for resentencing.
I.
In April 2000 Mason pled guilty to distributing cocaine base in vio-
lation of 21 U.S.C. § 841(a)(1). In the presentence report the proba-
tion officer assigned Mason a total offense level of 29. In addition,
the probation officer concluded that Mason was a career offender,
which automatically placed him in criminal history category VI.
Mason objected to this conclusion, arguing that one of the convictions
used to classify him as a career offender should not have been
counted. According to Mason, that conviction, one for an unarmed
robbery committed when he was sixteen, does not qualify under
Guidelines § 4B1.1 because he was not convicted and sentenced as an
adult. The district court overruled Mason’s objection and adopted the
probation officer’s recommendation. As a result, Mason’s total
offense level of 29 and his criminal history category of VI yielded an
imprisonment range of 151 to 188 months. On July 17, 2000, the dis-
trict court sentenced Mason to 151 months in prison and three years
of supervised release.
A defendant is a career offender under Guidelines § 4B1.1 if (1) he
was at least eighteen when he committed the instant offense of con-
viction, (2) the instant offense of conviction is a felony that is either
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a crime of violence or a controlled substance offense, and (3) he has
at least two prior felony convictions of either a crime of violence or
a controlled substance offense. U.S.S.G. § 4B1.1 (1998). Mason con-
ceded at sentencing that he met conditions (1) and (2). He also con-
ceded that he had one prior felony conviction that qualified as a
predicate offense under condition (3). This was a 1990 federal convic-
tion for a controlled substance offense that Mason committed when
he was twenty-six. Mason argued, however, that a 1980 unarmed rob-
bery, committed when he was a juvenile, did not result in an adult
conviction and sentence and should not have been counted as a predi-
cate offense.
The history of Mason’s conviction and sentence for the unarmed
robbery is as follows. On July 4, 1980, when he was sixteen, Mason
was taken into custody in connection with a robbery in Kanawha
County, West Virginia. The county prosecutor petitioned the circuit
court (the state trial court) to transfer Mason’s case from the court’s
juvenile jurisdiction to its adult (criminal) jurisdiction. The petition
for transfer was granted, and a grand jury then indicted Mason on two
counts of robbery and one count of malicious wounding. On July 24,
1981, Mason pled guilty to one count of unarmed robbery, a felony,
in exchange for the dismissal of the other two counts. In its order
adjudging Mason guilty of unarmed robbery, the court indicated that
Mason understood that he could be sentenced to the West Virginia
Penitentiary for an indeterminate term of five to eighteen years.
Mason was not sentenced to the penitentiary, however. Instead, on
August 7, 1981, the circuit court sentenced Mason as a juvenile
offender under West Virginia Code § 49-5-13(e), which permitted
such treatment even though Mason had been convicted under the
court’s adult jurisdiction. Specifically, Mason was sentenced to the
custody of the Commissioner of Corrections until his twentieth birth-
day. Mason was confined to the Industrial Home for Boys until he
turned eighteen on March 4, 1982, at which time his sentence was
suspended and he was placed on three years probation. Mason got
into trouble before his probation expired. On April 6, 1984, Mason
was found to have violated the conditions of his probation by break-
ing into an automobile and committing larceny and by possessing
marijuana. His probation was revoked, and he was sent to the peniten-
tiary for an indeterminate term of five to eighteen years. He was
paroled in 1987 and discharged from parole in 1988.
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At Mason’s sentencing on the current offense the central issue was
whether his 1981 conviction and sentence was an adult disposition
that qualified as a predicate conviction for career offender status. The
district court concluded that Mason "was prosecuted as an adult, a
fact [that was] not altered" by the juvenile sentence imposed under
West Virginia Code § 49-5-12(e). Thus, according to the district
court, Mason had a second adult conviction under Guidelines § 4B1.2
that qualified as a predicate offense for career offender status. Mason
appeals this legal determination, which we review de novo. See
United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). We
apply the November 1, 1998, Guidelines, which were in effect in July
2000 when Mason was sentenced on his current offense. See U.S.S.G.
§ 1B1.11(a) (1998).
II.
Mason argues that the district court erred in using his 1981 convic-
tion for a robbery offense, committed when he was sixteen, to classify
him as a career offender. Specifically, Mason argues that Guidelines
§ 4B1.2, covering career offenders, directs the sentencing court to
refer to § 4A1.2 to determine whether an offense can be counted. See
U.S.S.G. § 4B1.2, cmt. n.3 (1998). Mason further argues that under
§ 4A1.2(d)(1) and its commentary his 1981 conviction should be
counted only if he received both an adult conviction and an adult sen-
tence. Finally, Mason contends that because he was sentenced as a
juvenile for the robbery conviction, that conviction should not have
been counted. We agree with Mason and hold that he should not have
been classified as a career offender.
The career offender classification requires, among other conditions,
that the defendant have at least two prior felony convictions of either
a crime of violence or a controlled substance offense. U.S.S.G.
§ 4B1.1 (1998). A "‘[p]rior felony conviction’ means a prior adult
federal or state conviction . . . ." U.S.S.G. § 4B1.2, cmt. n.1 (1998)
(emphasis added). Therefore, a juvenile conviction cannot be counted
in determining whether a defendant is a career offender. In addition,
not all adult convictions for violent crimes or drug offenses count
towards career offender status. Before an adult conviction is counted,
the Guidelines for computing criminal history must be consulted:
"The provisions of § 4A1.2 (Definitions and Instructions for Comput-
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ing Criminal History) are applicable to the counting of convictions
under § 4B1.1." U.S.S.G. § 4B1.2, cmt. n.3 (1998). Our court has
been very clear about the role of § 4A1.2 in determining career
offender status under § 4B1.1: "Whether a prior conviction must be
counted under § 4B1.1 is determined by reference to § 4A1.2." United
States v. Bacon, 94 F.3d 158, 161 (4th Cir. 1996).
Section 4A1.2(d) deals with whether "Offenses Committed Prior to
Age Eighteen" are to be included in the criminal history calculation:
(1) If the defendant was convicted as an adult and received
a sentence of imprisonment exceeding one year and
one month, add 3 points under § 4A1.1(a) for each
such sentence.
(2) In any other case,
(A) add 2 points under § 4A1.1(b) for each adult
or juvenile sentence to confinement of at
least sixty days if the defendant was released
from such confinement within five years of
his commencement of the instant offense;
(B) add 1 point under § 4A1.1(c) for each adult
or juvenile sentence imposed within five
years of the defendant’s commencement of
the instant offense not covered in (A).
The commentary to § 4A1.2 gives further instructions on how to
count offenses committed prior to age eighteen:
Attempting to count every juvenile adjudication would have
the potential for creating large disparities due to the differ-
ential availability of records. Therefore, for offenses com-
mitted prior to age eighteen, only those that resulted in
adult sentences of imprisonment exceeding one year and one
month, or resulted in imposition of an adult or juvenile sen-
tence or release from confinement on that sentence within
five years of the defendant’s commencement of the instant
offense are counted.
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U.S.S.G. § 4A1.2, cmt. n.7 (1998) (emphasis added).
Mason was sixteen when he committed the robbery leading to the
1981 conviction that he claims the district court erroneously counted.
When Mason commenced the offense in this case in 1999, more than
five years had passed since his sentence and release from confinement
under his 1981 conviction. For that reason, the 1981 conviction can-
not be counted under § 4A1.2(d)(2). Therefore, if Mason’s 1981 con-
viction is to be counted, it must qualify under § 4A1.2(d)(1). The
guideline itself, § 4A1.2(d)(1), requires an adult conviction and "a
sentence of imprisonment exceeding one year and one month." The
related commentary explains that "only those [offenses] that resulted
in adult sentences . . . are counted." U.S.S.G. § 4A1.2, cmt. n.7 (1998)
(emphasis added). If the commentary is followed, Mason’s 1981 rob-
bery conviction counts only if he was both convicted and sentenced
as an adult. The government completely ignores the commentary and
argues that a conviction for an offense committed prior to age eigh-
teen counts "for career offender purposes if [it is] classified as an
adult conviction." Br. of United States at 6.
The Guidelines commentary cannot be swept aside so easily. The
Sentencing Commission offers commentary, such as the application
note at issue here, to interpret or explain the Guidelines. See U.S.S.G.
§ 1B1.7 (1998). This interpretive role is "within the Commission’s
particular area of concern and expertise," and it is a role that assigns
the Commission the "first responsibility" to speak. Stinson v. United
States, 508 U.S. 36, 45 (1993). The Commission’s interpretive com-
mentary is "akin to an agency’s interpretation of its own legislative
rules," id., and the Commission’s interpretation is therefore entitled
to substantial deference, see Thomas Jefferson University v. Shalala,
512 U.S. 504, 512 (1994). As a result, Guidelines commentary that
"interprets or explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a plainly
erroneous reading of, that guideline." Stinson, 508 U.S. at 38.
The question here is whether the commentary, § 4A1.2, cmt. n.7,
is inconsistent with Guidelines § 4A1.2(d). Specifically, did the Com-
mission create an inconsistency when it explained in the commentary
that "sentence of imprisonment" in § 4A1.2(d)(1) means an "adult
sentence[ ] of imprisonment"? After examining the different terms
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used in § 4A1.2(d), we conclude that the commentary is not inconsis-
tent with the guideline. Rather, the commentary explains or clarifies
what is implicit in the guideline.
Under § 4A1.2(d)(1) a conviction is counted if "the defendant was
convicted as an adult and received a sentence of imprisonment
exceeding one year and one month." (Emphasis added.) In contrast,
under § 4A1.2(d)(2)(A) an adjudication is counted if it carried an
"adult or juvenile sentence to confinement of at least sixty days and
"the defendant was released from such confinement within five years
. . . of the instant offense." (Emphasis added.) Thus, the Commission
used the word "imprisonment" in subsection (1) of § 4A1.2(d), which
applies only to adult convictions, but used the word "confinement" in
subsection (2) of § 4A1.2(d) to cover both juvenile and adult disposi-
tions. This accords with common usage: the word "imprisonment" is
not customarily used in referring to a juvenile disposition; rather,
milder words such as "confinement" or "detention" are typically used
to describe a custodial disposition in a juvenile case. See United
States v. Davis, 929 F.2d 930, 933 (3d Cir. 1991); United States v.
Johnson, 28 F.3d 151, 155-56 (D.C. Cir. 1994). The words "imprison-
ment" and "confinement" thus have different connotations. The Com-
mission’s explanation in the commentary that "sentence of
imprisonment" in Guidelines § 4A1.2(d)(1) means "adult sentence[ ]
of imprisonment" simply clarifies that when the Commission used the
words "imprisonment" and "confinement" in the guideline, it intended
for each word to carry a different connotation. Because the commen-
tary, § 4A1.2, cmt. n.7, explains the guideline and is not inconsistent,
it is binding.1 This means that if Mason’s 1981 conviction is to be
1Our holding that the commentary is binding is in line with our court’s
recognition that the Commission is entitled to substantial deference in
interpreting its Guidelines. The case of United States v. Souther, 221
F.3d 626 (4th Cir. 2000), is a good example. The question in Souther was
whether commentary that elaborated on a robbery guideline was incon-
sistent with the guideline. Guidelines § 2B3.1(b)(2)(E) provides that the
offense level for robbery should be increased by three points "if a dan-
gerous weapon was brandished, displayed, or possessed." Even though
the guideline itself only refers to a dangerous weapon, the commentary
provides a broader interpretation: "When an object that appeared to be
a dangerous weapon was brandished, displayed, or possessed, [the court
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counted for career offender purposes, he must have received an adult
conviction and an adult sentence of imprisonment exceeding one year
and one month.
We turn, then, to the question of whether Mason was both con-
victed and sentenced as an adult in 1981 for his robbery offense. To
determine whether a defendant was convicted as an adult, the Guide-
lines direct us to the laws of the state or jurisdiction where the defen-
dant was convicted: "A conviction for an offense committed prior to
age eighteen is an adult conviction if it is classified as an adult con-
viction under the laws of the jurisdiction in which the defendant was
convicted." U.S.S.G. § 4B1.2, cmt. n.1 (1998). It follows that the laws
of the jurisdiction of conviction will also determine whether a defen-
dant received an adult sentence for an offense committed prior to age
eighteen. In Mason’s case, we look to West Virginia law to find out
whether he was convicted and sentenced as an adult.
Mason argues that he did not receive an adult conviction in 1981
for two reasons. First, he says that although he was prosecuted for a
time under the state circuit court’s adult jurisdiction, he "nevertheless
remain[ed] a juvenile or child for purposes of" many provisions of the
Child Welfare Chapter (Chapter 49) of the West Virginia Code. W.
Va. Code § 49-1-2. Second, Mason points out that he was transferred
back to the circuit court’s juvenile jurisdiction for sentencing. This
means, Mason argues, that the circuit court concluded that his transfer
to adult jurisdiction was inappropriate and therefore his conviction
should be deemed a juvenile adjudication. The district court, of
course, concluded that Mason was prosecuted as an adult and
received an adult conviction. At least two arguments support the dis-
trict court’s position. First, Mason was under the state court’s adult
jurisdiction when he was indicted and convicted. Second, the order
should] treat the object as a dangerous weapon for purposes of subsec-
tion (b)(2)(E)." U.S.S.G. § 2B3.1, cmt. n.2 (1998) (emphasis added). We
held that the commentary was consistent with the guideline, noting that
it was proper for the Commission to use commentary to place an object
that appears to be a dangerous weapon on the same footing as a danger-
ous weapon. Souther, 221 F.3d at 630-31. Souther supports the approach
we have taken today in upholding the commentary.
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adjudicating Mason’s guilt has the look of an adult conviction order.
The order found that Mason, based on his plea, was guilty of unarmed
robbery, a felony. The order also stated that Mason could be sen-
tenced to the state penitentiary for an indefinite term of five to eigh-
teen years. (Mason could not have been confined in the penitentiary
until he reached the age of eighteen, however. See W. Va. Code § 49-
5-16(b).) For purposes of this case, we will assume without deciding
that Mason received an adult conviction. That gets us to the much
easier question of whether Mason was sentenced as an adult.
A juvenile convicted under adult jurisdiction in West Virginia is
not automatically sentenced as an adult. Instead, as the Supreme
Court of Appeals of West Virginia has recognized, the West Virginia
Code gives a circuit court three options for sentencing such a juve-
nile:
First, under West Virginia Code § 49-5-13(e) . . . where
a juvenile is transferred and convicted under adult jurisdic-
tion the court may, "in lieu of sentencing such person as an
adult," make its disposition under the section 49-5-13 provi-
sions for treatment of juveniles adjudged delinquent. . . .
Second, a sentencing court may initially proceed under the
Youthful Male Offender Act, suspending the imposition of
an adult sentence and committing the individual to the cus-
tody of Commissioner of Corrections for placement in a
rehabilitation center for youthful offenders.
Third, . . . the court may simply sentence the juvenile as
an adult.
State v. Highland, 327 S.E.2d 703, 706 (W. Va. 1985) (citations omit-
ted). West Virginia Code § 49-5-13(e), which authorizes the first
option, provides that "if a juvenile charged with delinquency . . . is
transferred to adult jurisdiction and there tried and convicted, the
court may make its disposition in accordance with this section [West
Virginia Code § 49-5-13, relating to the disposition of juvenile delin-
quents] in lieu of sentencing such a person as an adult." This Code
section "explicitly recognizes a circuit court’s continuing ability to
return a child to its juvenile jurisdiction — and provides that the cir-
cuit court, after the adjudicatory process of the court’s adult jurisdic-
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tion is completed, may determine that a juvenile should be returned
to the juvenile jurisdiction of the court." State v. Robert K. McL., 496
S.E.2d 887, 892-93 (W. Va. 1997). In short, under West Virginia
Code § 49-5-13 a juvenile convicted in adult court may, in the court’s
discretion, be sentenced as a juvenile.
We begin our inquiry into the nature of Mason’s 1981 sentence by
noting that the district court recognized that "the state court in its dis-
cretion imposed a juvenile sentence." The district court was correct
in that conclusion because the state circuit court’s disposition (or sen-
tencing) order was made under its juvenile jurisdiction. The order said
specifically that the "disposition [was] made pursuant to W. Va. Code
[§] 49-5-13(e)," the section that allows a juvenile convicted in adult
court to be sentenced as a juvenile. Juvenile jurisdiction continues
only until the juvenile reaches the age of twenty-one, see W. Va.
Code § 49-5-2(f), and the disposition order committed Mason to the
custody of the Commissioner of Corrections until he reached the age
of twenty. The order consistently referred to Mason as a "child," stat-
ing, for example, that "the superintendent of the institution to which
the child is assigned . . . is hereby directed to receive him into his cus-
tody [and] to hold and care for and train and educate him as pre-
scribed by law." (Emphasis added.) Finally, the order provided that
Mason would be evaluated at the West Virginia Industrial School for
Boys, a juvenile institution, before he was assigned to a facility.
Mason was ultimately assigned to the Industrial School for Boys.
From all of this, we also conclude that Mason was sentenced as a
juvenile in 1981.2
The district court erroneously concluded that Mason’s 1981 rob-
bery conviction counted as a predicate offense for career offender sta-
tus under § 4B1.1 because it was an adult conviction. Mason’s
juvenile sentence was irrelevant, according to the district court. As
2The government does not contend that the circuit court’s April 1984
order revoking Mason’s probation led to an adult sentence that counts in
the career offender calculation. The Assistant United States Attorney
conceded this point at the sentencing hearing in this case, saying that a
"probation violation after the fact while he’s an adult is not a triggering
conviction . . . . I don’t think it would relate back, at least I haven’t found
anything that would suggest that."
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our court has made clear, however, whether a prior conviction can be
counted as a predicate offense under § 4B1.1 must be determined by
referring to § 4A1.2. For Mason’s 1981 conviction to be counted
under § 4A1.2(d)(1), an adult sentence was required, according to
§ 4A1.2, application note 7. Because Mason was sentenced as a juve-
nile on his 1981 conviction, that conviction cannot serve as a predi-
cate felony under § 4B1.1. Because the 1981 conviction cannot be
counted, Mason has only one predicate felony and therefore does not
qualify for career offender status.3
We vacate Mason’s sentence and remand for resentencing consis-
tent with this opinion.
VACATED AND REMANDED
3We recognize that a few courts would not agree with us. In United
States v. Carrillo, 991 F.2d 590, 593 (9th Cir. 1993), for example, the
Ninth Circuit held that an adult sentence is any sentence imposed after
an adult conviction. This interpretation of the Guidelines ignores the
commentary, U.S.S.G. § 4A1.2, cmt. n.7 (1998), which recognizes that
when a defendant commits an offense before he turns eighteen, he may
be convicted as an adult but sentenced as a juvenile. When this happens,
the conviction cannot subsequently be counted under § 4A1.2(d)(1) for
career offender purposes. Carrillo also says that if the commentary
(application note 7) is read to require an adult sentence, the commentary
is inconsistent with Guidelines § 4A1.2(d)(1). As we have already said,
the Commission was within the bounds of the consistency requirement
when it offered commentary to explain that a "sentence of imprisonment"
in § 4A1.2(d)(1) means an "adult sentence[ ] of imprisonment."
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