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									                                         IN THE
                           FOR THE FIFTEENTH CIRCUIT
                                       No. 05-0523
                              UNITED STATES OF AMERICA,
                                     JOSEF C. KASZA,

                      Appeal from the United States District Court
                          for the Southern District of Arcadia
                  Case No. 05-0086-DC-01—Philip Carr, District Judge

               ARGUED OCTOBER 10, 2005—DECIDED NOVEMBER 30, 2005

       Before ETTINGER, ALAMEDA AND WU, Circuit Judges.
       ETTINGER, Circuit Judge:

       Josef C. Kasza, a previously deported alien convicted of illegally reentering the

United States in violation of 8 U.S.C. § 1326(a), appeals his conviction and sentencing.

He raises two issues.

       First, Kasza contends that the trial court erred when it held that he was not entitled

to the protection of the Fourth Amendment merely because he was an undocumented

alien. Kasza had argued that evidence used against him in the trial court was the result of

an unreasonable search and seizure and thus should be suppressed.

       Second, Kasza argues that, in sentencing him for his violation of § 1326(a), the

district court improperly enhanced his sentence on account of a previous juvenile
adjudication. Kasza contends that this use of his decades-old Texas manslaughter charge

to enhance his present sentence by 176 months (for a total of 200 months) violated the

Fifth and Sixth Amendments to the Constitution.

       For the reasons set forth below, we agree with Kasza on both points, and hereby

reverse the district court’s denial of Kasza’s Motion to Set Aside the Verdict and

Objection to the Government’s Notice of Sentencing Enhancement.

                                     I. BACKGROUND

       A. Facts

       The following facts are established by the proceedings in the trial court. Kasza

was born in 1954 in the city of Szeged in the Republic of Hungary, known at that time of

communist rule as the “People’s Republic of Hungary.” In 1956, Kasza’s family fled

Hungary, along with an estimated 190,000 other refugees, in the wake of the Hungarian

Revolution and subsequent invasion by Soviet troops. After a series of short stays in

various European countries, Kasza’s family made its way (by means that are not entirely

clear) to the United States in 1957 and settled in the city of Brownsville, Texas.

       There, Kasza’s father reunited with distant cousins and pursued his trade as a

locksmith. In 1958, Kasza’s parents applied for and received lawful permanent residency

status, an official designation now commonly associated with the “green card.” Kasza

attended elementary and high school in Brownsville, and, so far as the record reveals,

enjoyed a relatively uneventful childhood until a summer evening in 1969, when he was

15 years old. That evening Kasza became involved in an altercation in the parking lot

behind his high school, where a dance was taking place. Earlier, Kasza and a group of

friends – two male and two female – had gone out to hunt for squirrels. Later that

evening, outside the dance, they were confronted by four slightly older boys who were

driving around the school parking lot and drinking. Like Kasza and his friends, the older

boys had not attended the dance but were waiting outside the parking lot for the dance to


       When the older boys’ car came close to side-swiping him, Kasza loudly cursed

them. Although Kasza apologized for his remark, the older boys, all well-known school

athletes, chased him until they eventually cornered him near the intersection of two

fences in the school yard. Kasza yelled to his friends to go get help as the older boys

began throwing asphalt in his direction. While his friends ran toward the school

gymnasium in search of a teacher, Kasza removed his gun from his waistband and fired a

shot into the air. Apparently undeterred, the older boys advanced on him. As they reached

him, one grabbed for his gun and a struggle ensued. Shots rang out. Three of the older

boys fell seriously wounded; one later died.

       Although Kasza denied intentionally shooting anyone, he was charged in the

juvenile justice system with committing murder without malice. In November of 1969,

the Juvenile Court of Cameron County, Texas adjudicated Kasza a delinquent for his

involvement in the shooting.

       Kasza was sentenced to two and a half years of detention in a juvenile facility. In

order to avoid this incarceration, in March of 1970 he agreed to be deported by the

Immigration and Naturalization Service to Argentina, a country to which other members

of Kasza’s extended family had previously emigrated from Europe and that had agreed to

receive Kasza in lieu of his repatriation to his still-oppressed homeland.

       The record is somewhat sparse as to the details of Kasza’s life and whereabouts

over the next several decades. Apparently he completed his high school education while

living with his aunt and uncle in Buenos Aires, and then attended college and graduate

school at the University of Santiago in Chile. While it is clear that Kasza did not return to

the United States during this period, he did correspond regularly with his father and

mother back in Brownsville until their deaths in 1978 and 1982, respectively. He also saw

his parents on their biannual visits to Argentina. Moreover, Kasza remained close to his

brother and sister in the United States, who had since moved to El Paso. The three

communicated by mail and telephone, and vacationed together every few years in various

cities outside the United States. Kasza also remained close to one of his old high school

teachers from Brownsville, Dolores Leal. He exchanged letters with her and, as his own

interest in a teaching career developed, became “pen-pals” with some members of Ms.

Leal’s ninth grade classes between 1980 and 1986.

       Kasza became a university professor in Argentina, married and divorced, and

participated in a number of mostly left-wing political movements and organizations in

South America in the 1980s and 1990s. Apart from the ties noted above, however, there

is no record that Kasza had any further direct contact with the territorial United States

until June 21, 2004.

       On the evening of that day, officers of the El Paso Police Department arrested

Kasza after bursting into a motel room that Kasza had rented for the night. Apparently,

the police had followed Kasza since the previous day when, according to Border Patrol

agents, he had entered the United States near El Paso bearing identification papers that

later proved to be forged.

       The Border Patrol agents later testified that while they had seen no obvious reason

to detain or search Kasza at the border, one of them had a “bad feeling” about Kasza’s

demeanor. Based on Kasza’s representation that he was “headed toward El Paso,” the

Border Patrol agents advised the El Paso Police Department to watch for a blue Chevrolet

Celebrity bearing the license tag noted when Kasza crossed the border.

       Although the police officers who burst in on Kasza at the Grand View Motel

(about 15 miles from the spot where he had crossed the border) were only supposed to be

keeping him under surveillance, they later testified that a miscommunication from their

Department’s Intelligence Division had led them to believe that they in fact had a warrant

to enter Kasza’s motel room and seize him as a suspect in unspecified crimes.

       When confronted by the police, Kasza initially insisted that he was one “Jan

Horvath,” and that he was in the United States in order to visit his sister and brother in El

Paso. Upon a search of his jacket pockets, however, the police found a Buenos Aires

driver’s license and other papers correctly identifying him as Josef C. Kasza. Without

directly admitting his true identity, Kasza stopped calling himself “Horvath,” but

continued to insist that he was merely in the area to visit his siblings and their children,

his nieces and nephews.

       By this time, the police had phoned in Kasza’s name to their headquarters and

discovered that he was on a list of aliens who were not permitted in the United States. 1 At

that point, the officers conducted a search of Kasza’s room, over his objections, which

revealed more alarming materials: photographs and maps of various office buildings and

  The record does not make clear whether Kasza was on this list simply as a previously
convicted felon, or whether he had somehow in the intervening years already come to the
attention of U.S. authorities as a possible security risk.

public works in the El Paso area; architectural drawings of municipal and county office

buildings; and what the officers (and the Government) described as “radical literature:”

tracts, journals, books, and articles highly critical of U.S. society and foreign policy,

including those calling for “ceaseless struggle against oppressive United States interests

in the hemisphere,” as well as what the police described as “tools of covert operations”:

desert boots; binoculars; heavy-duty gloves; wire-cutters.

       Kasza continued to assert (as he has, indeed, throughout these proceedings) that

he was simply in the area for a long-overdue family visit; that the maps and photographs

appealed to his interest in local architecture and history; that the books and pamphlets

reflected his professional and intellectual study of political theory (the field in which he

taught); and that the gloves and boots and other implements were the normal

accoutrements of an outdoorsman planning some hiking in the desert.

       Armed with the information from Kasza’s identification documents, the

Government determined that there was a valid deportation order against Kasza and that

he had not requested permission from the U.S. Attorney General to apply for readmission

to the country.

       B. Proceedings below

       Following Kasza’s arrest in El Paso on the night of June 21, 2004, the

Government charged him with two crimes: (1) illegal reentry under 8 U.S.C. § 1326(a),

which makes it a crime for an alien who has been previously deported from the United

States to reenter without the consent of the U.S. Attorney General; and (2) conspiracy to

bomb places of public use or government facilities, in violation of 18 U.S.C.A. § 2332f.

        Before trial, Kasza filed a motion to suppress his identification documents and

any information contained in those documents, as well as all the other items contained in

his motel room, on the grounds that they were obtained as a result of an illegal search and

seizure in violation of the Fourth Amendment.

        In the suppression hearing, held on February 19, 2005, the Government conceded

that, if the Fourth Amendment covered Kasza, then the search of Kasza’s motel room

would have been unconstitutional, owing to the police officers’ lack of probable cause or

individualized suspicion. However, the Government argued, Kasza was an illegal alien

without significant connection to the United States, and thus was not entitled to any

protection under the Fourth Amendment.

        The district court agreed with the Government’s position, and on that basis denied

Kasza’s motion to suppress.

        After the district court denied Kasza’s pretrial suppression motion, but before

trial, the Government dropped the conspiracy charge under § 2332f without explanation

and proceeded to trial on the illegal reentry count only. 2

        Kasza’s counsel repeated his Fourth Amendment objection when the evidence

was offered at trial, and the district court again overruled that objection (as it did for the

final time in Kasza’s post-trial motion to set aside the verdict on this ground).

        Kasza was ultimately convicted of illegal reentry under 8 U.S.C. § 1326(a), which

carries a maximum sentence of two years. At sentencing, the Government for the first

time expressed its intent to enhance Kasza’s sentence under 8 U.S.C. § 1326(b)(2) by

  At oral argument on this appeal, the Government revealed that it plans to refile the
conspiracy charge against Kasza under § 2332f shortly. If so, it would seem likely that
the Fourth Amendment analysis herein would apply to any suppression motion raised in
that context as well.

tendering to the Court evidence of a prior juvenile adjudication. Section 1326(b)(2)

provides for a maximum sentence of up to 20 years if one who illegally reenters the

United States was originally deported subsequent to the commission of an aggravated


          Kasza timely objected to the notice of sentencing enhancement on the grounds

that the use of his juvenile adjudication to enhance his adult sentence violated the Due

Process Clause or, alternatively, that Apprendi v. New Jersey, 530 U.S. 466 (2000),

required the Government to have pleaded and proved his juvenile adjudication to the jury.

The district court overruled this objection and entered a sentence of 200 months,

including an enhancement of 176 months over the two years authorized by 8 U.S.C. §


          Kasza then filed a timely appeal from the judgment of the district court.

                                        II. DISCUSSION

A. The Fourth Amendment Issue

          This Court is called upon to determine whether the Fourth Amendment protects a

non-citizen, such as Kasza, who is illegally within the United States. We hold that it does.

          The text of the Fourth Amendment provides for a “right of the people” to be

secure from unreasonable searches and seizures. U.S. Const. amend. IV (emphasis

added). The question is whether illegally aliens fall within the ambit of “the people.” It is

well settled that non-U.S. citizens within the territorial United States—and even, in some

cases, illegal aliens—are not stripped of all entitlement to constitutional protection simply

by virtue of their non-citizen status. See, e.g., Plyler v. Doe, 457 U.S. 202, 211–12 (1982)

(holding the Equal Protection Clause applicable to illegal aliens); Mathews v. Diaz, 426

U.S. 67, 77–78 (1976) (applying the Fifth and Fourteenth Amendments); Kwong Hai

Chew v. Colding, 344 U.S. 590 (1953); Yick Wo v. Hopkins, 118 U.S. 356 (1886).

Whether the Fourth Amendment extends to illegal aliens is less clear. In INS v. Lopez-

Mendoza, 468 U.S. 1032 (1984), the Court held that illegal aliens had no right to the

protections of the exclusionary rule in civil deportation hearings, but in reaching this

conclusion the Court merely assumed, without deciding, that in criminal proceedings the

Fourth Amendment protected illegal aliens from illegal searches and seizures. Id. at 1050.

       The Government now argues, however, that the Supreme Court has in fact

resolved this issue, through its decision in United States v. Verdugo-Urquidez, 494 U.S.

259 (1990). In Verdugo-Urquidez, the Supreme Court held that the Fourth Amendment

did not apply to extraterritorial searches of the residence of alien defendants. See id. at

274–75. In what was termed the “opinion of the court,” the late Chief Justice William

Rehnquist suggested that the Fourth Amendment’s application might be limited to those

defendants who “are a part of [the] national community or who have otherwise developed

sufficient connection with this country to be considered part of [our] community.” Id. at


       We conclude that Chief Justice Rehnquist’s Verdugo-Urquidez opinion would

control this issue, and would deny Fourth Amendment protection to illegal aliens such as

Kasza, if that opinion had commanded a majority of the Court. The Chief Justice’s

“sufficient connection” test was not dicta, as some have argued; rather, it was the

analytical linchpin of that decision. Moreover, nothing in the decision implies that the

sufficient-connection test was limited by the case’s facts, which involved a search by

U.S. officials of an alien outside the territorial United States, rather than within our


       However, this Court does not read Verdugo-Urquidez as binding on this point,

because the Chief Justice’s opinion there, although styled the “Opinion of the Court,”

represented a mere plurality on this issue. While Justices White, O’Connor, Scalia, and

Kennedy joined Chief Justice Rehnquist, Justice Kennedy authored a separate

concurrence that disputed the analysis presented in the Opinion of the Court, particularly

with respect to whether the Fourth Amendment protects illegal aliens. 494 U.S. at 276

(Kennedy, J., dissenting). In fact, Justice Kennedy emphasized that he “[could] not place

any weight on the reference to ‘the people’ in the Fourth Amendment as a source of

restricting its protections.” Id. at 276 (Kennedy, J., dissenting).

       Therefore, the opinion of Chief Justice Rehnquist is more appropriately

considered a “plurality” opinion, and this Court is not bound to apply the sufficient-

connection test to restrict Fourth Amendment protections. See Lamont v. Woods, 948

F.2d 825, 835 n.7 (2d Cir. 1991) (noting that a “plurality of the Court” embraced the

definition of “the people”); United States v. Iribe, 806 F. Supp. 917, 919 (D. Colo. 1992)

(noting that language in Verdugo-Urquidez “suggesting that excludable aliens are not

‘people’ within the language of the Fourth Amendment . . . was not joined by the

majority of justices”). But see United States v. Lileikis, 899 F. Supp. 802, 806 (D. Mass.

1995) (stating that Ch. J. Rehnquist was “writing for the majority of the Court”).

       The Government argues in the alternative that, even if the majority opinion in

Verdugo was not binding on the Fourth Amendment issue, Chief Justice Rehnquist’s

suggestion of a “sufficient connection” test is supported by the text and history of the

Fourth Amendment and thus should be adopted by this Court. 3 First, the Government

contends that the Founders conceived of the entire Constitution as a “compact” or “social

contract” among the people of the United States. Second, the Government emphasizes

that the Supreme Court has interpreted the term “the people”—as used in other parts of

the Constitution—so that it’s synonymous with “citizens.” For this point to be significant,

one has to assume, as a rule of constitutional interpretation, that the connotation of a

word used in one part of the Constitution is consistent with the connotation of the same

word used in different constitutional context. See Akhil Reed Amar, The Second

Amendment: A Case Study in Constitutional Interpretation, 2001 Utah L. Rev. 889, 892–


       Nothing in the text or history of the Fourth Amendment convinces us that the

Framers intended to so limit its scope. The full text provides:

       The right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable searches and seizures, shall not be violated,
       and no Warrants shall issue, but upon probable cause, supported by Oath
       or affirmation, and particularly describing the place to be searched, and
       the persons or things to be seized.

U.S. Const. amend. IV (emphasis added).

       There is no evidence suggesting that the Framers intended, by the use of the term

“the people,” to deliberately limit the Fourth Amendment’s scope to some sub-class of

individuals. In fact, as Justice Brennan pointed out, an examination of the actual

  At least one district court has relied on this reasoning to adopt the sufficient-connection
test for purposes of examining the Fourth Amendment rights of an illegal alien within this
country. United States v. Esparza-Mendoza, 265 F. Supp. 2d 1254, 1260 (D. Utah 2003),
aff’d on other grounds, 386 F.3d 953 (10th Cir. 2004); see also United States v. Ullah,
No. 04-CR-30A(F), 2005 WL 629487, at *29 (W.D.N.Y. March 17, 2005). Other district
courts have been more hesitant; see, e.g., Martinez-Aguero v. Gonzalez, No. EP-03-CA-
411(KC), 2005 WL 388589, at *4 (W.D. Tex. Feb. 2, 2005).

historical record reveals that “[t]he [Fourth] Amendment was introduced on the floor of

Congress, considered by Committee, debated by the House of Representatives and the

Senate, and submitted to the 13 States for approval. Throughout that entire process, no

speaker or commentator, pro or con, referred to the term ‘the people’ as a limitation.”

Verdugo-Urquidez, 494 U.S. at 289 (Brennan, J., dissenting).

          Instead, it seems clear that “the people” represents a rhetorical counterpoint to

“the Government” (as implied by the Fourth Amendment), such that the rights of “the

people” are protected from unreasonable intrusion by “the Government.” See Verdugo-

Urquidez, 494 U.S. at 287 (Brennan, J., dissenting). Because non-citizen aliens who

illegally enter the United States are subject to potential (and frequent) searches and

seizures by our Government, we hold that such persons are protected under the Fourth


          Finally, we note that the Government’s intimation that post-9/11 security

concerns should influence our decision is unconvincing. Although the district court

warned, in ruling against Kasza, that “[t]o apply the exclusionary rule to an unreasonable

search of a suspected terrorist would be to handcuff our own troops in the War on

Terror,” the political passions of the moment do not give the judiciary license to dispense

with constitutional protections that would otherwise shield the helpless and dispossessed

from government excesses. The current state of politics can have no bearing on our

decision; it does not and cannot persuade us to deprive an entire class of persons of


          We therefore hold that the district court erred in finding that Kasza, merely

because of his status as an illegal alien, was unprotected by the Fourth Amendment. We

reverse the district court’s denial of Kasza’s motion to suppress and post-trial motion to

set aside the verdict, reverse the conviction, and remand for a new suppression hearing

consistent with this opinion. 4 If the district court finds, upon reconsideration, that Kasza’s

motion to suppress should again be denied, then it may reinstate his conviction. See

United States v. Ienco, 92 F.3d 564, 570 (7th Cir. 1996).

B. The Juvenile Adjudication as Sentencing Enhancement

       The question of whether – and in what manner – juvenile adjudications may be

used to enhance adult sentences presents another unresolved issue of law. Kasza makes

two distinct but closely related claims regarding his sentence enhancement.

       First, he argues that using juvenile adjudications to enhance adult criminal

sentences is an inherent violation of his Fifth Amendment Due Process rights, given the

differences in purpose between the states’ juvenile justice systems and the federal

criminal justice system. Second, Kasza claims that, even if his juvenile adjudication is a

permissible sentencing enhancement, the Sixth Amendment requires the Government to

have pleaded and proved his juvenile adjudication to the jury.

       We are not convinced by Kasza’s Due Process claim. Kasza points to several state

cases that have held under the Fifth and Fourteenth Amendments that juvenile

adjudications are inappropriate criminal sentencing enhancements because they are civil

in nature and do not afford a constitutional jury trial right. See, e.g., State v. Brown, 879

  It is arguable that, even if the Fourth Amendment applies to illegal aliens, Kasza
nonetheless should not enjoy the benefit of the exclusionary rule in this case because
evidence of identity, such as Kasza seeks to exclude here, is not ordinarily suppressible.
See, e.g., Lopez-Mendoza, 468 U.S. at 1039. As this argument was neither advanced by
the government below, nor considered by the trial court, it is not properly before us at this
time. However, the government may seek to raise this argument at the new suppression
hearing upon remand.

So. 2d 1276, 1289 (La. 2004), cert. denied, 125 S. Ct. 1310 (2005) (“It would be

incongruous and illogical to allow the non-criminal adjudication of a juvenile delinquent

to serve as . . . a predicate offense for the purpose of imposing [a] harsher mandatory

sentence.”); Pinkston v. State, 836 N.E.2d 453 (Ind. Ct. App. 2005). Even though Texas

law granted juveniles the right to a jury trial at the time of Kasza’s adjudication, see

Yzaguirre v. State, 427 S.W.2d 687, 689–90 (Tex. Civ. App. 1968), juvenile defendants

were often discouraged from exercising this right. 5 Further, like many other states prior

to 1970, Texas only required the state to prove its case against juvenile defendants by a

preponderance of the evidence rather than beyond a reasonable doubt. See, e.g., State v.

Santana, 444 S.W.2d 614 (Tex. 1969).

       At his sentencing hearing, Kasza advanced his argument about the

constitutionally suspect nature of his prior adjudication by introducing into evidence a

study tending to show the substandard quality of justice dispensed by the Texas juvenile

justice system. A few of the most notable facts from that study included:

    1. Trials are a rarity in most jurisdictions; the average reported plea rate across most
       of the counties visited is 95 percent.

    2. Appointed counsel often encourage guilty pleas regardless of the strength of the
       state’s evidence, suggesting that doing so will garner favor with the court and
       dispose the judge to “help” the offender.

    3. In a significant number of cases, appointed counsel strongly discourage juvenile
       defendants from exercising their jury trial rights because doing so would upset the
       judge and result in the attorney receiving fewer appointments.

  Kasza’s appointed counsel waived this right at his juvenile adjudication, but both parties
stipulated below that Kasza did not make a written, knowing, and intelligent waiver of his
right to a juvenile jury trial, as Texas law at the time required. Kasza was tired before a
juvenile court judge and adjudicated a delinquent without the benefit of a jury trial.

    4. Adjudicative hearings are usually informal; most jurisdictions rely on the report
       prepared by the probation officer or an informal conversation between the judge,
       the probation officer, the district attorney and the appointed attorney.

    5. Appointed attorneys rarely present evidence at the hearing. Cross-examination of
       the probation officer is uncommon and then only limited in scope. One attorney
       commented, “since the recommended disposition is probation, its usually not
       necessary to draw out the flaws of the probation officer or his report.”

    6. The average hearing takes under ten minutes.

    7. A common occurrence in counties observed is for an attorney to be handed a case
       file immediately after appointment. He reviews the file, spends five to ten minutes
       talking to the child, then steps up to plead his client guilty. After accepting the
       guilty plea, the judge hears the recommendation from probation or the prosecutor.
       In most instances, the defense attorney stands mute, except to say that he is in
       agreement with the recommendation. It is rare for the attorney to present any
       evidence on his client’s behalf. The entire hearing lasts five to ten minutes. 6

       While the Texas Appleseed study raises significant doubts as to the wisdom, from

a policy standpoint, of attributing criminal consequences (in the form of increased

sentences) to adjudications produced by the Texas juvenile justice system or those like it,

this Court is aware of no federal constitutional right requiring that juvenile adjudications

used to enhance adult sentences must be afforded the full panoply of constitutional

protections which attend adult criminal trials. See, e.g., McKeiver v. Pennsylvania, 403

U.S. 528, 545–49 (1971) (plurality opinion) (finding no constitutional right to jury trial in

state juvenile adjudication proceedings).

       To the contrary, federal law has long sanctioned this practice. For example, the

Sentencing Guidelines permit juryless juvenile adjudications to serve as sentence

enhancements under certain circumstances, notwithstanding the difference in purposes

  See generally Texas Appleseed, Selling Justice Short: Juvenile Indigent Defense in
Texas, At
trial both parties stipulated that the data contained in this study, though conducted much
later, accurately reflected the status of the Texas juvenile justice system at the time of
Kasza’s juvenile adjudication.

between state juvenile court systems and the federal penal system. See 18 U.S.C.S. Appx.

§ 4A1.2 (2003). Absent constitutional infirmity, this Court is bound to uphold the use of

juvenile adjudications to enhance adult sentences in the face of such unambiguous

congressional intent and long-standing judicial acquiescence.

       Kasza also argues that only juvenile adjudications entered within five years of the

instant offense may be included in a defendant’s criminal history score under the

Sentencing Guidelines. See id. § 4A1.2(d). However, the Supreme Court has since

rendered the Guidelines “effectively advisory,” see United States v. Booker, 125 S. Ct.

738, 756 (2005), undercutting Kasza’s reliance on section 4A1.2. Further, even before

Booker, district courts were permitted to utilize juvenile adjudications more than five

years removed from the adult offense giving rise to the sentence if such adjudications

showed a pattern of recidivism. See, e.g., United States v. Spears, 159 F.3d 1081, 1088

(7th Cir. 1998) (upholding an upward departure based on a juvenile adjudication more

than five years old). Regardless, we are not called upon to review the district court’s

application of the Guidelines in this case. 7

       While we therefore reject Kasza’s Fifth Amendment argument, we find his Sixth

Amendment theory to have greater weight. As Kasza’s Texas juvenile adjudication is

undeniably a “fact that increases the penalty for [his] crime beyond the prescribed

statutory maximum,” Apprendi requires that fact to be “submitted to a jury, and proved

beyond a reasonable doubt.” 530 U.S. at 490. The Government counters that Kasza’s

  Kasza’s sentence was enhanced pursuant to 8 U.S.C.§ 1326(b)(2), which authorizes a
sentence greater than 24 months only if the illegal reentrant was deported subsequent to
the commission of an aggravated felony, not under the Guidelines. Kasza stipulated at
trial that his adjudication under the Texas murder-without-malice statute fulfills the
statutory definition of an aggravated felony. See 8 U.S.C. § 1101(a)(43).

juvenile adjudication is a “prior conviction,” and thus exempt from Apprendi’s rule under

Almendarez-Torres v. United States, 523 U.S. 224, 243–44 (1998). In response, counsel

for Kasza has strenuously argued that Almendarez-Torres is no longer good law.

       Doubts regarding the continued viability of Almendarez-Torres are reflected in

Apprendi itself, decided only two years later. See Apprendi, 530 U.S. at 490 (“[I]t is

arguable that Almendarez-Torres was incorrectly decided . . . .”). Although the Supreme

Court has recognized the “prior-conviction” exception as recently as Booker, 125 S. Ct. at

756, it has been suggested that Almendarez-Torres would be overruled were the Court to

revisit it on the merits. See Shepard v. United States, 125 S. Ct. 1254, 1264 (2005)

(Thomas, J., concurring) (“[I]n an appropriate case, this Court should consider

Almendarez-Torres’ continuing viability. Innumerable criminal defendants have been

unconstitutionally sentenced under the flawed rule of Almendarez-Torres . . . .”).

       While many courts have recognized the tension between the rationales of

Almendarez-Torres and Apprendi, see, e.g., United States v. Gomez-Estrada, 273 F.3d

400 (1st Cir. 2001), the proper venue for the resolution of such conflict lies in the

Supreme Court. See id. at 401 (“[W]e deem ourselves bound to follow the holding in

Almendarez-Torres unless and until the Supreme Court abrogates that decision.”); United

States v. Coteat, 133 Fed. Appx. 177 (6th Cir. 2005) (“Regardless of Justice Thomas . . .

foreshadowing the demise of the Almendarez-Torres exception, for now Almendarez-

Torres remains the law.”). We too find it unnecessary to “count justices” or engage in

speculation about the Supreme Court’s intentions toward this much-beleaguered

precedent because we hold below that Kasza’s juvenile adjudication is not a “prior

conviction” under Almendarez-Torres.

       Kasza argues that, if Almendarez-Torres remains still good law, his juvenile

adjudication should nonetheless not have been used to enhance his sentence, without

being proved to a jury, because that adjudication was imposed without certain procedural

protections. 8 Kasza maintains that juvenile adjudications do not fall within Almendarez-

Torres’s narrow exception to Apprendi’s general rule because the lack of procedural

safeguards renders them unreliable as sentencing factors. To date, the Supreme Court has

not considered whether juvenile adjudications qualify for the “prior conviction”

exception of Almendarez-Torres.

       On this point Kasza encourages the Court to adopt the approach in United States

v. Tighe, 266 F.3d 1187, 1194 (9th Cir. 2001). In Tighe, the Ninth Circuit held that, in

order for a prior conviction to be exempt from Apprendi’s pleading requirement, it must

have resulted from a proceeding which provided the defendant with fair notice, proof

beyond a reasonable doubt, and the right to a jury, the so-called “triumvirate of

procedural protections.” Id. In Apprendi the Supreme Court had based its holding that

prior convictions are distinguishable from other sentencing factors on the assumption that

the triumvirate of procedural protections ensures those convictions’ reliability. Id. (citing

Apprendi, 530 U.S. at 496). Thus the Tighe court reasoned , adjudications resulting from

proceedings not endowed with all of these safeguards are inappropriate sentencing

factors and must be pleaded and proved to a jury. Id. at 1194.

  The Government’s argument that the holding of Almendarez-Torres forecloses this
argument (assuming it remains good law) misses the mark. The question is not whether
Almendarez-Torres holds that 8 U.S.C. § 1326(b)(2) is a sentencing factor, as it clearly
does, but instead whether juvenile adjudications obtained without the benefit of a jury
trial or proof beyond a reasonable doubt are sufficiently reliable to qualify for the prior
conviction exception in the post-Apprendi sentencing landscape.

       We find the reasoning of the Ninth Circuit in Tighe to be persuasive. The

triumvirate of procedural protections serves to ensure the reliability of prior convictions,

justifying their exemption from Apprendi’s rule. Prior convictions arising from

proceedings that did not afford the defendant all three of these vital safeguards are not

similarly reliable, thus undercutting the rationale of the exception.

       Turning to Kasza’ juvenile adjudication, it is clear that trial by jury in the juvenile

court’s adjudicative stage was not a constitutional requirement at the time of Kasza’s

juvenile adjudication. See generally McKeiver, 403 U.S. at 545–49. Further, under then-

existing Texas law, the prosecution was not required to prove its charge of delinquency

against Kasza beyond a reasonable doubt. Santana, 444 S.W.2d at 616. The lack of these

two procedural safeguards renders the reliability of Kasza’s juvenile adjudication suspect

and easily distinguishable from the prior convictions at issue in Almendarez-Torres and

Apprendi, each of which resulted from adult criminal proceedings endowed with all three


       As the Government notes, several other circuit courts have rejected Tighe’s

holding. See United States v. Burge, 407 F.3d 1183, 1191 (11th Cir.), cert. denied, 126 S.

Ct. 551 (2005); United States v. Smalley, 294 F.3d 1030 (8th Cir. 2002). Those cases

involve the use of juryless juvenile adjudications to enhance adult sentences, however;

none of them considers a juvenile adjudication obtained without a jury and by a lower

burden of proof. In fact, dicta in the Eighth Circuit’s Smalley decision actually supports

our conclusion in this case: “the [Apprendi] Court established what constitutes sufficient

procedural safeguards (a right to jury trial and proof beyond a reasonable doubt), and

what does not (judge-made findings under a lesser standard of proof) . . . .” Smalley,

294 F.3d at 1032 (emphasis added).

       This Court is convinced that its holding strikes the proper balance between the

Government’s interest in avoiding re-litigation of age-old juvenile adjudications 9 and the

defendant’s interest in the protection of his Sixth Amendment rights.

                                     III. CONCLUSION

       For the reasons set forth above, the judgment of the district court, as set forth in

its Memorandum Decision and Sentencing Order of August 20, 2005, is hereby

REVERSED; Kasza’s conviction and sentencing are vacated, and this matter is remanded

to the district court for proceedings consistent with this Opinion.


                                                      Clerk of the United States Court of
                                                       Appeals for the Fifteenth Circuit

 At least one district court has gone farther, holding that the actual events underlying that
prior conviction must be proved to a jury in order for that prior adjudication to be used to
enhance a later adult sentence. See United States v. Blanton, 367 F. Supp. 2d 1288, 1291–
92 (C.D. Cal. 2005). We need not reach that issue here.

                                        No. 05-1680

                                 IN THE
                          OCTOBER TERM 2005

         Petitioner,                )
             vs.                    )
      JOSEF C. KASZA,               )
         Respondent.                )

                         ORDER GRANTING CERTIORARI


    The Petition herein for the writ of certiorari to the United States Court of Appeals for
the Fifteenth Circuit is hereby GRANTED, limited to the following issues:

(1) Whether the Fourth Amendment’s protection from unreasonable searches and seizures
extends to non-citizens illegally within the United States.

(2) Whether prior juvenile adjudications may constitutionally be used as adult sentencing
enhancements; and, to the extent such adjudications are considered “prior convictions”
for purposes of Almendarez-Torres v. United States, 523 U.S. 224 (1998), whether that
decision should now be overruled.

       Chris Aguila
       Court Clerk


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