United States v. Tracy L. Kirby, 893 F.2d 867 (6th Cir. 1990). · Go Syfert
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United States v. Tracy L. Kirby, 893 F.2d 867 (6th Cir. 1990). Cases Citing This Book View Copy Cite
33 citation events (15 in the last 25 years) across 8 distinct courts.
Strongest positive: Darron Howard v. United States (ca6, 2012-06-20)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 19 distinct citers.
cited Cited as authority (rule) Darron Howard v. United States
6th Cir. · 2012 · confidence medium
United States v. Hanley, 906 F.2d 1116, 1120 (6th Cir.) (citing United States v. Kirby, 893 F.2d 867, 868 (6th Cir.1990)), cert. denied, 498 U.S. 945 , 111 S.Ct. 357 , 112 L.Ed.2d 321 (1990).
discussed Cited as authority (rule) United States v. Thompson
6th Cir. · 2009 · confidence medium
Therefore, “because the juvenile adjudication was properly counted under section 4Al.l(b), the two-point enhancement was proper under section 4Al.l(e), since that section is keyed to a sentence counted under section 4Al.l(b).” Kirby, 893 F.2d at 868 (1990).
discussed Cited as authority (rule) United States v. Marcellus Thompson
6th Cir. · 2009 · confidence medium
Therefore, “because the juvenile adjudication was properly counted under section 4A1.1(b), the two-point enhancement was proper under section 4A1.1(e), since that section is keyed to a sentence counted under section 4A1.1(b).” Kirby, 893 F.2d at 868 (1990).
cited Cited as authority (rule) United States v. Hall
6th Cir. · 2008 · confidence medium
But Hall’s argument — as he himself concedes — is foreclosed by a steady stream of our caselaw that began with the per curiam opinion in United States v. Kirby, 893 F.2d 867, 868 (6th Cir.1990).
cited Cited as authority (rule) United States v. Robertson
6th Cir. · 2002 · confidence medium
United States v. Kirby, 893 F.2d 867, 868 (6th Cir.1990).
discussed Cited as authority (rule) United States v. Ronald Harris
6th Cir. · 2001 · confidence medium
For example, relying upon state law to define terms in the guidelines constitutes a “clear misapplication of the law,” Jones, 107 F.3d at 1163 (citing Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 119 , 103 S.Ct. 986 , 74 L.Ed.2d 845 (1983); United States v. Kirby, 893 F.2d 867, 868 (6th Cir.1990)), and contravenes “one of the very purposes of the sentencing guidelines — uniformity.” Id.
discussed Cited as authority (rule) United States v. Bernard C. Birch, Jr., AKA Chubby
10th Cir. · 1994 · confidence medium
United States v. Fuentes, 991 F.2d 700, 702 (11th Cir.1993); United States v. Kirby, 893 F.2d 867, 868 (6th Cir.1990); United States v. Hanley, 906 F.2d 1116 (6th Cir.), cert. denied, 498 U.S. 945 , 111 S.Ct. 357 , 112 L.Ed.2d 321 (1990).
discussed Cited as authority (rule) United States v. Edward D. Pointer and Deonco A. Howard
7th Cir. · 1994 · confidence medium
United States v. Fuentes, 991 F.2d 700 (11th Cir.1993) (two points added for indeterminate juvenile commitment to Florida's Department of Health and Rehabilitative Services); United States v. Adams, 988 F.2d 493 (4th Cir.1993) (sentence to West Virginia's youthful offender facility, arguably for the purpose of treatment and training, assessed two points); United States v. Miller, 987 F.2d 1462, 1466 (10th Cir.1993) (two points applied for sentence to youth camp for possession of cocaine); United States v. Kirby, 893 F.2d 867, 868 (6th Cir.1990) (commitment to the custody of the Kentucky Cabine…
discussed Cited as authority (rule) United States v. Eric Chanel
11th Cir. · 1993 · confidence medium
See United States v. Fuentes, 991 F.2d 700, 702 (11th Cir.1993) (juvenile commitment during which defendant served more than sixty days involuntary confinement counted toward criminal history score); United States v. Davis, 929 F.2d 930, 932-33 (3rd Cir.1991) (stating that § 4A1.2(d)(2) applies to both juvenile adjudications and some adult convictions); United States v. Unger, 915 F.2d 759, 764 (1st Cir.1990) (noting that defendant did not contend that juvenile conviction was improperly counted under § 4A1.2(d)(2)(A), and stating that such an argument would be “specious on its face”), ce…
cited Cited as authority (rule) United States v. Kevin Jordan
6th Cir. · 1991 · confidence medium
United States v. Hanley, 906 F.2d 1116, 1119-20 (6th Cir.), cert. denied, 111 S.Ct. 357 (1990); United States v. Kirby, 893 F.2d 867, 868 (6th Cir.1990) (per curiam).
discussed Cited as authority (rule) United States v. Nelson
D. Kan. · 1990 · confidence medium
See United States v. Bucaro, 898 F.2d 368, 373 (3d Cir.1990) (rejecting due process and ex post facto challenges to use of defendant’s prior adjudications of juvenile delinquency under state law in determining criminal history score); United States v. Kirby, 893 F.2d 867, 868 (6th Cir.1990) (per curiam) (defendant’s prior juvenile convictions may be considered for sentencing purposes); United States v. Williams, 891 F.2d 212, 216 (9th Cir.1989) (use of juvenile conviction even though defendant had no right to jury does not violate due process).
cited Cited "see" United States v. Williams
6th Cir. · 1999 · signal: see · confidence high
See United States v. Kirby, 893 F.2d 867, 868 (6th Cir.1990) ("Federal law, not [Ohio] law, controls sentencing disposition in the event of convictions for federal offenses.").
cited Cited "see" United States v. Williams
6th Cir. · 1999 · signal: see · confidence high
See United States v. Kirby, 893 F.2d 867, 868 (6th Cir.1990) (“Federal law, not [Ohio] law, controls sentencing disposition in the event of convictions for federal offenses.”).
discussed Cited "see" United States v. Kathleen Kremser Jones (2×)
6th Cir. · 1997 · signal: see · confidence high
See United States v. Kirby, 893 F.2d 867, 868 (6th Cir.1990) ("Federal law, not Kentucky law, controls sentencing disposition in the event of convictions for federal offenses.") (citing Dickerson, 460 U.S. at 111-12 , 103 S.Ct. at 991-92 ; Flippins v. United States, 808 F.2d 16, 19 (6th Cir.1987)). 66 Additionally, the adoption of appellee's argument would contravene one of the very purposes of the sentencing guidelines--uniformity.
cited Cited "see" United States v. Eric N. Unger
1st Cir. · 1990 · signal: accord · confidence high
Accord United States v. Kirby, 893 F.2d 867, 868 (6th Cir.1990) (per curiam) (two-point enhancement for juvenile conviction properly awarded under § 4Al.l(e)).
discussed Cited "see, e.g." United States v. McKoy
3rd Cir. · 2006 · signal: see also · confidence medium
It held that “[r]egardless of how [the defendant’s] offenses of assault and manslaughter are categorized under Ohio law, they are considered sentences under federal law.” Id.; see also United States v. Kirby, 893 F.2d 867, 868 (6th Cir. 1990) (per curiam) (same).
discussed Cited "see, e.g." United States v. Ricardo McKoy
3rd Cir. · 2006 · signal: see also · confidence medium
It held that “[r]egardless of how [the defendant’s] offenses of assault and manslaughter are categorized under Ohio law, they are considered sentences under federal law.” Id.; see also United States v. Kirby, 893 F.2d 867, 868 (6th Cir.1990) (per curiam) (same).
discussed Cited "see, e.g." United States v. DiPina
1st Cir. · 2000 · signal: see also · confidence medium
See id.; see also United States v. Kirby, 893 F.2d 867, 868 (6th Cir. 1990) (fact that defendant had been adjudicated delinquent as a minor could be considered in determining his criminal history category under sentencing guidelines, even though adjudication of delinquency by a juvenile court could not be deemed a conviction under state law).
discussed Cited "see, e.g." United States v. Jess Dipina A/K/A Gustavo Gonsalez
1st Cir. · 2000 · signal: see also · confidence medium
See id.; see also United States v. Kirby, 893 F.2d 867, 868 (6th Cir.1990) (fact that defendant had been adjudicated delinquent as a minor could be considered in determining his criminal history category under sentencing guidelines, even though adjudication of delinquency by a juvenile court could not be deemed a conviction under state law).
UNITED STATES of America, Plaintiff-Appellee,
v.
Tracy L. KIRBY, Defendant-Appellant
88-5869.
Court of Appeals for the Sixth Circuit.
Jan 16, 1990.
893 F.2d 867
Joseph M. Whittle, U.S. Atty., Randy W. Ream, Asst. U.S. Atty., Terry Cushing (argued), David P. Grise, Asst. U.S. Atty., Louisville, Ky., for plaintiff-appellee., Thomas F. Chimera (argued), Bowling Green, Ky., for defendant-appellant.
Norris, Per Curiam, Ryan, Turner.
Cited by 22 opinions  |  Published
[*868] PER CURIAM.

The question raised by this appeal is whether the fact that defendant had been adjudicated delinquent as a minor under Kentucky law and committed to a state agency charged with the custody of delinquent juveniles could be considered in determining his criminal history category under the federal sentencing guidelines.

Defendant entered a plea of guilty to a charge of breaking into a post office, brought under 18 U.S.C. § 2115. The sentencing judge was advised that defendant, when seventeen years of age, had been adjudicated delinquent by a Kentucky juvenile court on the basis of conduct that would constitute burglary, theft, and other related crimes, and was committed to the custody of the Kentucky Cabinet for Human Resources until he attained the age of eighteen, a period of nearly seven months.

In addressing defendant’s criminal history under the sentencing guidelines, the court added two points for a “prior sentence of imprisonment” of at least sixty days, as directed by section 4Al.l(b), and another two points under section 4Al.l(e), since the federal offense was committed less than two years after defendant’s release from imprisonment on the sentence counted under section 4Al.l(b). Citing guideline section 4A1.2(a)(1), which defines a “prior sentence” in the context of an “adjudication of guilt,” and section 4A1.-2(b)(1), which defines “sentence of imprisonment” as involving “incarceration,” defendant complains that, since under Kentucky law an adjudication of delinquency by a juvenile court cannot be deemed a conviction, his juvenile record cannot be recognized to enchance his sentence under the guidelines.

Federal law, not Kentucky law, controls sentencing disposition in the event of convictions for federal offenses. See Dickerson v. New Banner Institute Inc., 460 U.S. 103, 111-12, 103 S.Ct. 986, 991-92, 74 L.Ed.2d 845 (1983); Flippins v. United States, 808 F.2d 16, 19 (6th Cir.1987). Guideline section 4A1.2(d)(2)(A), in providing instructions for computing criminal history as it relates to offenses committed prior to age eighteen, specifically directs the addition of two points “under § 4Al.l(b) for each adult or juvenile sentenced to confinement of at least sixty days.” Furthermore, because the juvenile adjudication was properly counted under section 4Al.l(b), the two-point enhancement was proper under section 4Al.l(e), since that section is keyed to a sentence counted under section 4Al.l(b).

Accordingly, we are unable to agree with defendant’s contention that adoption of guideline sections 4A1.2(a)(1) and (b)(1) precludes a sentencing court from considering a defendant’s prior juvenile adjudication, as was permitted prior to adoption of the guidelines. See United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972).

In all other respects, the order sentencing defendant is also affirmed.