UNITED STATES COURT OF APPEALS
FOR THE FIFTEENTH CIRCUIT
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.
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.
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, http://www.appleseeds.net/tx/TX_Appleseed_Juvenile_Report_102400.pdf. 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.
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.
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 2005
UNITED STATES OF AMERICA, )
JOSEF C. KASZA, )
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.