885 F2d 875 United States v. Flores

885 F.2d 875

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
Arnulfo FLORES, Defendant-Appellant.

No. 88-3281.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 7, 1989.
Decided Sept. 12, 1989.


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Arnulfo Flores pled guilty to one count of a four-count indictment and was sentenced to a mandatory five-year term of imprisonment. Flores brought this 28 U.S.C. Sec. 2255 action claiming that the district court improperly exercised jurisdiction over him because he was a minor at the time he committed the offense to which he pled guilty. The district court held an evidentiary hearing on the question of whether Flores was a minor at the time he committed the offense. The court held that Flores had the burden of establishing that he was a minor and found that he failed to carry his burden. Flores appeals and contends that reversal is required because the district court improperly allocated the burden of proof. While we agree with the district court's allocation of the burden of proof, we affirm on the ground that Flores does not present a proper jurisdictional attack on his plea of guilty.


Flores was arrested on December 16, 1987. During a post-arrest interview, Flores told DEA Agent James Baker that his birthday was October 20, 1965. Flores stated that he was born in Guadalajara, Mexico, and gave the agent his social security number. His social security number was determined to have been issued in his name and the social security records indicated that Flores' date of birth was October 20, 1965. Flores was booked and during booking gave his date of birth as October 20, 1965. Flores was indicted on January 14, 1988. On March 2, 1988 Flores pled guilty to one count of distributing more than 500 grams of cocaine in violation of 21 U.S.C. Sec. 841. During his plea hearing, the district court asked Flores' age and Flores responded under oath that he was 21 years old.1 The court accepted the plea and imposed a mandatory five-year prison sentence.


Jurisdictional challenges concern "the very power of the State to bring the defendant into court to answer the charge brought against him." Blackledge v. Perry, 417 U.S. 21, 30 (1974). Defects in prosecuting juveniles as adults do not rise to the level of implicating jurisdictional concerns in the Blackledge sense. See Rodriguez v. Ricketts, 798 F.2d 1250, 1252 (9th Cir.1986), cert. denied, 479 U.S. 1057 (1987). In this case, the United States was not denied the power to charge Flores as an adult. 18 U.S.C. Sec. 5032. Assuming, arguendo, that Flores was born in 1971, we see no relevant distinction in this case where Flores' own sworn statements denied him the procedural protections to which he would have been entitled under the Juvenile Delinquency Act. Those protections are procedural, not jurisdictional. Id.; Rodriguez, 798 F.2d at 1252. Flores' plea of guilty waived his protections under the Act. Id. Because Flores does not raise a jurisdictional defect, he is restricted to challenging "whether the underlying plea was both counseled and voluntary." United States v. Broce, 109 S.Ct. 757, 762 (1989).2 He has not challenged the voluntariness of his plea.


For the foregoing reasons, we affirm the denial of relief.




The Honorable Ruggero J. Aldisert, United States Circuit Judge for the Third Circuit, sitting by designation

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


We realize that the evidence introduced at the evidentiary hearing casts doubt on whether this was Flores' true age. However, that evidence does not control our denial of relief on other grounds


Because we find that Flores does not present a proper jurisdictional challenge, we need not decide whether Broce otherwise forecloses his challenge