Burglary Conviction at Age 17 Qualified as Career Offender Predicate

US v. Collins, No. 06-6191, 4/11/08 - The third time was something of a charm for the defendant in a drug conspiracy case. He was originally convicted of all nine counts following a jury trial. He was seventeen when he committed a second-degree burglary, which was treated at sentencing as a crime of violence, which made him a career offender, which got him a sentence of 360 months. His conviction was affirmed but his sentence was vacated because the government had not established that the burglary conviction was in fact a crime of violence. On remand, the defendant stipulated that he had signed an affidavit that stated that the conviction involved a dwelling, so he got the same career offender sentence of 360 months. He did not appeal that, but instead filed a pro se 2255 motion, which was granted on the basis that he received ineffective assistance because his lawyer did not take an appeal from the second sentence. At the third sentencing hearing, the defendant claimed that the burglary conviction didn't count because he was only seventeen when it happened, which meant that it was not an adult felony conviction. However, USSG Sec. 4B1.2, cmt. n. 1 includes in the definition of "adult felony conviction" an "offense classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted." The defendant's counsel admitted that he had been certified as an adult, which made him a career offender. Nevertheless, taking the defendant's age into account, the district court imposed a sentence of 300 months. The 10th affirmed it, rejecting the defendant's sixth amendment challenges to how the drug quantity was calculated and also rejecting another career offender challenge, based on his age at the time he committed the burglary. His counsel's admission doomed that argument. The defendant tried to get around that by claiming that his lawyer was ineffective in failing to investigate whether he had been certified as an adult and that in fact he had not been. Both sides apparently relied on a document that had not been presented to the district court or included in the record on appeal, but was rather attached to their briefs, to support their respective position on the certification question. The 10th dismissed the ineffective assistance claim because the record was not sufficiently developed on that issue and could therefore not be resolved on appeal.