United States v. Under Seal, 819 F.3d 715

Background

Juvenile (a few months short of 18) alleged to have participated in a gang-related murder; Government filed a delinquency information and moved to transfer him for adult prosecution under 18 U.S.C. § 1959(a)(1) (murder in aid of racketeering).
Section 1959(a)(1) authorizes only two penalties for murder in aid of racketeering: death or life imprisonment (plus a fine); life is the mandatory minimum.
Supreme Court precedents have made both penalties unconstitutional for juveniles: Roper (death prohibited for <18) and Miller/Montgomery (mandatory life without parole unconstitutional as applied to most juvenile murderers; Miller requires individualized consideration).
District court found the § 5032 transfer factors favored transfer but denied the Government’s motion because the only statutory punishments for the charged offense are unconstitutional for juveniles and the court believed it lacked authority to impose a different, lesser term.
Government appealed, urging courts may sever unconstitutional penalty language and apply the kidnapping-in-aid-of-racketeering penalty (a term of years up to discretionary life) to juvenile murder defendants; Fourth Circuit affirmed the denial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a juvenile may be transferred for prosecution under §1959(a)(1) when the statute’s only authorized penalties (death or mandatory life) are unconstitutional as applied to juveniles	Gov: Court may sever or excise unconstitutional penalty text and apply the statute’s alternative penalty structure (e.g., kidnapping provision) so juvenile can be sentenced to a term of years or discretionary life	Def: Transfer unconstitutional because no permissible penalty remains in §1959(a)(1) as applied to juveniles; due process and notice concerns bar judicial rewriting	Held: Transfer denied; court may not rewrite statute by grafting another offense’s penalty; excision would leave no operative penalty for murder as to juveniles, so prosecution cannot proceed under §1959(a)(1)
Whether severance can be used to substitute one offense’s penalty for another within the same subsection	Gov: Severance doctrine allows excising unconstitutional language and preserving the rest consistent with congressional intent	Def: Substituting kidnapping penalty for murder exceeds severance and improperly legislates from the bench	Held: Severance does not permit swapping distinct offenses’ penalties; that is a legislative function
Whether judicially creating a new penalty would violate notice/due process or constitute prohibited retroactive expansion	Gov: Juveniles had notice of life as the authorized maximum; Miller requires individualized sentencing but not nullification of prosecution	Def: No fair notice that a different penalty (term of years) would apply; judicial creation raises due process concerns	Held: Creating an alternative penalty would deny fair warning and violate due process; courts cannot infer such a penalty absent congressional action
Whether precedents resentencing juveniles post-Miller support prosecuting juveniles under §1959(a)(1) for crimes committed after Miller	Gov: District and appellate resentencings show courts can impose terms of years post-Miller	Def: Those cases involved convictions or prosecutions that predated Miller and thus present different remedial issues	Held: Those cases are distinguishable; they do not authorize initiating post-Miller prosecutions where the statute’s only penalties are unconstitutional for juveniles

Key Cases Cited

Roper v. Simmons, 543 U.S. 551 (holds death penalty unconstitutional for offenders under 18)
Miller v. Alabama, 567 U.S. 460 (prohibits mandatory life without parole for juvenile murderers; requires individualized sentencing)
Montgomery v. Louisiana, 577 U.S. 190 (clarifies Miller’s retroactivity and substantive/procedural components)
United States v. Evans, 333 U.S. 483 (statute unenforceable where no applicable penalty remains)
Ayotte v. Planned Parenthood, 546 U.S. 320 (severability limits; courts must avoid rewriting statutes)
Apprendi v. New Jersey, 530 U.S. 466 (linkage of crime and punishment; sentencing limits tied to statute)
United States v. Booker, 543 U.S. 220 (severability principles and limits on remedial surgery to statutes)