Same Crime,Different Time: Why we Need an Amended Guideline for Repeat Offenders to Minors

Currently there is a circuit split between the Second and Ninth Circuits in determining whether or not to apply previous juvenile sex offenses to the sentencing of an adult sex offender. The Second Circuit feels it is within the trial court's discretion to apply an enhancement of the U.S. Sentencing Guidelines by applying either a juvenile adjudicated or unadjudicated sex offense to the sentencing of an adult offender. The Ninth Circuit sees that as improper and only adult sex offenses should be counted toward the sentencing of adult sex offenses. Due to the vague language of this enhancement, the determination of how to apply this is up to the court's discretion. This Note proposes that the U.S. Sentencing Commission amend section 4B1.5, and decide in favor of the Ninth Circuit due to the plain text reading of the statute, as well as the intent of the guideline itself alongside the “rule of lenity” as understood in the Ninth Circuit's reasoning of only applying adult offenses to the sentencing of that adult later on in life. The positive public policy of rehabilitation of juvenile offenders would be served greatly by this amendment to this guideline. By eliminating the possibility of having such an offense count against a juvenile in the future would allow and encourage those juveniles to take positive steps toward their future.