Case Information
*2 Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and EZRA, [**] District Judge.
Johnny Orsinger asks this Court to vacate his life sentences for four murders and to remand for re-sentencing. The facts of this case are known to the parties, and we do not repeat them here. We have jurisdiction pursuant to 28 U.S.C. § 1291.
I
Orsinger argues that the district court erred at his re-sentencing by failing
properly to consider his claim that he was not permanently incorrigible and hence
ineligible for a life sentence under
Montgomery v. Louisiana
,
Orsinger also takes issue with the district court’s focus on the heinous nature
of his crimes. It is true that the heinousness was a key part of the court’s analysis,
but allows—and in fact expects—a sentencing court to consider the nature
of the offense as part of its analysis.
II
Orsinger also argues that his sentence violates the Eighth Amendment
because he is, in fact, not one of the incorrigible juvenile offenders for whom a life
sentence is permissible. He specifically points to evidence of rehabilitation that he
believes establishes he is not incorrigible. The district court did consider the
evidence that Orsinger had improved himself while imprisoned, but it did not find
that sufficient to outweigh the countervailing evidence that Orsinger was one of the
uncommon juvenile offenders for whom a life sentence was warranted. Orsinger is
correct that he put forth evidence of rehabilitation, but we are persuaded that there
are, at the very least, “two permissible views of the evidence” as to his
*4
incorrigibility, so “the factfinder’s choice between them cannot be clearly
erroneous.”
Anderson v. City of Bessemer City
,
AFFIRMED.
Notes
[**] The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation.
[1] Orsinger also argues preemptively that his appeal waiver does not preclude his challenge to his sentence, but because the government agrees with him, we do not consider the issue.