Appeals from the United States District Court for the Western District of Washington. D.C. No. CR-89-00194-TSZ. D.C. No. CR-89-00194-1-TSZ. Thomas S. Zilly, District Judge, Presiding.
Before: Eugene A. Wright, Cynthia Holcomb Hall, and Charles Wiggins, Circuit Judges. Opinion by Judge Hall; Concurrence by Judge Wiggins.
We face a question of first impression under the Juvenile Delinquency Act (the "Juvenile Act"), 18 U.S.C. §§ 5031-5042. We must decide whether an adjudicated juvenile delinquent may be sentenced to a term of supervised release. We conclude that he may not.
Appellant John Doe*fn1 is a member of the Sauk-Suiattle tribe. Early in the summer of 1989, he killed a woman on the Sauk-Suiattle reservation in western Washington. He was 17 years old at the time of the killing.
The government sought to try Appellant as an adult. The district court, however, denied the government's motion to transfer the case to adult court. See 18 U.S.C. § 5032. The district court held a stipulated facts trial, at the Conclusion of which it found Appellant guilty of the delinquent act of second degree murder. The district court sentenced Appellant to five years of official detention, the maximum sentence authorized by statute. See 18 U.S.C. § 5037(c)(2)(a). It also gave him a five-year term of supervised release.
At the sentencing hearing, Appellant's attorney argued that the Juvenile Act did not authorize supervised release and that Appellant's sentence was illegal insofar as it imposed a term of supervised release. The district court rejected the attack. It reminded Appellant, however, that he had a right to appeal his sentence to this Court. Appellant did not appeal. Nor did he file a 28 U.S.C. § 2255 petition to correct his sentence.
Instead, Appellant spent without complaint the entire term of his official detention, minus time for good behavior, at a juvenile facility in North Dakota. He was released from detention on October 27, 1993 at the age of 21 and immediately began serving his term of supervised release. Within a few weeks, however, he violated the terms of his release by using alcohol, failing to report to his probation officer, and failing to notify his probation officer of a change in address. Appellant was arrested and jailed in an adult facility. At a subsequent hearing, Appellant admitted the violations but again challenged the legality of his sentence to supervised release. The district court rejected Appellant's challenge and issued an order modifying the terms of his release. The modification required that Appellant reside for eight months in a community correction center. Appellant timely appealed, arguing that the district court had no authority to modify the terms of his supervised release because the sentence itself was illegal.
While this appeal was pending, Appellant began his eight-month community treatment stay. Within a few weeks, he again violated the terms of his release, this time by using alcohol and leaving his treatment facility without permission. He was arrested on May 14, 1994. Once again he appeared before the district court and attacked the legality of his sentence, and once again the district court rebuffed the challenge. This time, the district court revoked Appellant's supervised release and sentenced him to a four-year term of incarceration in an adult facility. The district court, over objection, filed its judgment and commitment under Appellant's real name. Appellant timely appealed. We ordered the case consolidated with his earlier appeal.
The district court had jurisdiction under the Juvenile Act and pursuant to 18 U.S.C. § 1153. We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291.
We must first decide whether Appellant has waived his right to attack his sentence to supervised release. The problem is that he did not appeal at the time of sentencing. Instead, he waited until his supervised release was revoked before bringing the legality of his sentence up on appeal. The question is whether he ought to be able to proceed. The parties did not address the waiver question in their briefs. We raise it sua sponte.
Waiver does not divest the Court of jurisdiction it otherwise enjoys. See Oklahoma City v. Tuttle, 471 U.S. 808, 815-16, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985); United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991) (noting circumstances in which we will review claims otherwise waived for failure to raise them in district court). Waiver is a creature of judicial ...