UNITED STATES OF AMERICA v. COREY GRANT, Appellant
No. 16-3820
United States Court of Appeals for the Third Circuit
August 16, 2021
Argued October 26, 2017 (Merits Panel); Argued February 20, 2019 (En Banc)
2021 Decisions 662
Before: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., KRAUSE, RESTREPO, BIBAS, and PORTER, Circuit Judges
On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2:90-cr-00328-009). District Judge: The Honorable Jose L. Linares. PRECEDENTIAL.
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 16-3820
UNITED STATES OF AMERICA v. COREY GRANT, Appellant
On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2:90-cr-00328-009) District Judge: The Honorable Jose L. Linares
Argued October 26, 2017 (Merits Panel) Argued February 20, 2019 (En Banc)
Before: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., KRAUSE, RESTREPO, BIBAS, and PORTER, Circuit Judges
(Filed August 16, 2021)
Avram D. Frey
GIBBONS PC
One Gateway Center
Newark, NJ 07102
Counsel for Appellant Corey Grant
Marsha L. Levick [ARGUED]
JUVENILE LAW CENTER OF PHILADELPHIA
1800 John F. Kennedy Boulevard, Suite 1900B
Philadelphia, PA 19103
Counsel for Amicus Appellant Juvenile Law Center
Jon M. Greenbaum
LAWYERS COMMITTEE FOR CIVIL RIGHTS UNDER LAW
1500 K Street, N.W., Suite 900
Washington, D.C. 20005
Counsel for Amicus Appellant Lawyers Committee for Civil Rights Under Law
Elana Bildner
AMERICAN CIVIL LIBERTIES UNION
765 Asylum Avenue, 1st Floor
Hartford, CT 06105
Counsel for Amicus Appellant Juvenile Sentencing Project
Jennifer Merrigan
PHILLIPS BLACK
1901 South 9th Street, Suite 510
Philadelphia, PA 19148
Counsel for Amicus Appellants Alison Flaum, Shobha L. Mahadev, and Jenny Carroll
Mark E. Coyne
OFFICE OF THE UNITED STATES ATTORNEY
970 Broad Street, Room 700
Newark, NJ 07102
Counsel for Appellee United States of America
OPINION OF THE COURT
SMITH, Chief Judge, with whom CHAGARES, JORDAN, HARDIMAN, KRAUSE, BIBAS, and PORTER, Circuit Judges, join. McKEE and AMBRO, Circuit Judges, join except with respect to Section III.B. GREENAWAY, JR., Circuit Judge, joins except with respect to Section III.A.
A federal court jury convicted Corey Grant in 1992 of homicide and other crimes that he had committed while he was a juvenile. The presiding judge sentenced Grant to life imprisonment under the then-mandatory U.S. Sentencing Guidelines. Parole is unavailable to those convicted of federal crimes,1 so the sentence effectively condemned Grant to die in prison—with proof of circumstances warranting compassionate release his only hope.
At resentencing, the District Judge noted Grant‘s minority at the time of his crimes and recognized that youth can impair judgment and thereby mitigate culpability. The Judge stated that a life sentence for Grant would be too harsh, given his juvenile offender status and individual circumstances, and instead sentenced Grant to a term of 60 years on his homicide-related convictions. Factoring in an undisturbed five-year consecutive sentence, Grant‘s total sentence was effectively reduced to 65 years.
Grant now argues that his 65-year sentence violates Miller because it incarcerates him to his life expectancy, thereby amounting to a de facto LWOP sentence. Grant contends that Miller forbids such a sentence for a juvenile homicide offender unless he or she is incorrigible, which Grant is not. But Miller only entitled Grant to a sentencing hearing at which the District Court had discretion to impose a sentence less than LWOP in view of Grant‘s youth at the time of his
In the alternative, Grant maintains that we should remand for yet another sentencing proceeding because vacatur of his LWOP sentence under Miller invalidated his lesser-included concurrent sentence on drug-trafficking counts. But Grant did not preserve this argument, and the District Court‘s failure to extend our sentencing-package doctrine beyond vacated convictions to vacated sentences was not plain error.
I. BACKGROUND
In March 1987, law enforcement officials in Elizabeth, New Jersey learned of gang activities emanating from a group known as the E-Port Posse. Led by an individual named Bilal Pretlow, the Posse operated a narcotics network that regularly bought multi-kilogram quantities of cocaine in New York City, cut and packaged the cocaine in stash houses, and sold it on the streets of Elizabeth. The Posse‘s members carried firearms, regularly assaulting and murdering to carry out its objectives.
Recruited by Pretlow, Grant joined the Posse in 1986 when he was 13 years old and went on to serve as one of its lead enforcers. At 15, Grant was twice apprehended by law enforcement in drug raids. As a juvenile, he also committed other offenses. After being detained on drug charges, he was released in April 1989 on 18 months’ probation.
In 1991, at the age of 17, Grant was indicted for conspiracy under the
Given Grant‘s homicide conviction, the Probation Office calculated his sentence under the then-mandatory U.S. Sentencing Guidelines as life imprisonment. At Grant‘s original sentencing, the District Court denied Grant‘s downward-departure motion and imposed the mandatory life sentence on the RICO and racketeering convictions (Counts I and II), a 40-year concurrent term of imprisonment on each of the drug-trafficking counts (Counts IV–VI), and a mandatory consecutive five-year sentence on the gun-possession conviction (Count XI). We affirmed Grant‘s convictions and sentence on direct appeal. United States v. Grant, 6 F.3d 780 (3d Cir. 1993) (unpublished table decision).
Twelve years later, Grant petitioned for a writ of habeas corpus under
In light of Miller, Grant sought and received leave from this Court to file a second
At resentencing, the District Court announced that it would limit the scope of its review to Grant‘s RICO conspiracy and racketeering convictions—the counts underlying his mandatory life sentence. Under the now-advisory Guidelines, Grant‘s recommended sentence on Counts I and II remained life imprisonment. But the District Court determined that Grant‘s upbringing, debilitating characteristics of youth, and post-conviction record showed that he was “not that rarest [] exception referenced in Miller, where the lifetime without
Grant appealed his new 65-year sentence, arguing that it amounts to de facto LWOP imposed in violation of Miller. A panel of this Court agreed, holding that a term-of-years sentence that incarcerates a non-incorrigible juvenile homicide offender until the national age of retirement is a de facto LWOP sentence that presumptively violates Miller. United States v. Grant, 887 F.3d 131, 143–53 (3d Cir. 2018). The panel thus vacated Grant‘s sentence and remanded the case to the District Court for resentencing on his RICO conspiracy and racketeering counts as well as for correction of the mistakenly increased Count IV sentence. Id. at 155.
We decided to hear the case en banc and therefore vacated the panel decision. United States v. Grant, 905 F.3d 285 (mem.) (3d Cir. 2018). We will now affirm Grant‘s sentence on all counts in the judgment of conviction except for Count IV, which we will vacate with instructions that, upon remand, the District Court reinstate the original 40-year concurrent sentence.
The District Court had jurisdiction under
For standard-of-review purposes, we construe Grant‘s challenge to his 65-year sentence as a substantive Eighth Amendment appeal entitled to plenary review. See United States v. Miknevich, 638 F.3d 178, 185 (3d Cir. 2011).
As we explain below, Grant did not preserve his alternative argument that the sentencing-packаge doctrine required a resentencing on all counts of conviction. So we review that aspect of Grant‘s appeal under a plain-error standard. See, e.g., United States v. Price, 458 F.3d 202, 206 (3d Cir. 2006) (“We apply plain error review when an issue was not brought to the attention of the district court.“).
III. DISCUSSION
A. Grant‘s Miller Challenge to His Sentence Fails.
Concessions by both sides cabin our review. For his part, Grant does not challenge the Eighth Amendment reasonableness or proportionality of his 65-year sentence. And the Government, in turn, concedes that a term-of-years sentence may be so long that it amounts—in our parole-shorn federal justice system—to de facto LWOP. Nor does the Government challenge the District Court‘s finding that Grant was not, at the time of his resentencing, so intractably corrupt as to warrant a determinate life sentence.
1. Miller banned mandatory LWOP sentencing schemes for juveniles.
Our natural starting point is how the Miller Court framed its decision. The Court stated its holding narrowly: “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment‘s prohibition on ‘cruel and unusual punishments.‘” 567 U.S. at 465; see also id. at 474 (“But the mandatory penalty schemes at issue here prevent the sentencer from taking acсount of these central considerations [regarding an offender‘s youth]. . . . And Graham [v. Florida, 560 U.S. 48 (2010)] makes plain these mandatory schemes’ defects . . . .“). “[S]ufficient to decide the[] case[],” the Court wrote, was its “holding” that such mandatory LWOP sentencing “scheme[s] pose[] too great a risk of disproportionate punishment” because they “mak[e] youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence.” Id. at 479. “[C]hildren are different,” id. at 480, so sentencing “schemes” that preclude consideration of that fact by mandating LWOP for juveniles don‘t pass Eighth Amendment muster. Id. at 489.
Miller took pains to preserve LWOP for certain juvenile homicide offenders. Such a sentence may be appropriate, for example, in the “uncommon” case when crime and criminal
In short, the Court in Miller held that penal regimes under which a juvenile homicide offender must be sentenced to LWOP violate the Eighth Amendment because they foreclose consideration of the offender‘s youth at the time of the offense.
Miller‘s context discourages any attempt to extend its holding to discretionary sentences. Indeed, seven years earlier, the Roper Court—after holding that the Eighth Amendment barred execution of persons who were under 18 at the time of their capital crimes—affirmed a discretionary sentence of LWOP for a juvenile homicide offender. See 543 U.S. at 560, 578–79; see also id. at 572 (stating that LWOP sentences could deter juveniles to same extent as now-outlawed death sentences). Along with Graham, which categorically prohibited LWOP for juvenile non-homicide offenders, Roper formed the
2. Montgomery did not and could not expand Miller‘s guarantee.
But what of Montgomery? There, the Court made Miller retroactive to cases on collateral review. 577 U.S. at 206, 212. Possibly to help cast Miller as creating a new substantive right retroactive for habeas petitioners, see, e.g., Schriro v. Summerlin, 542 U.S. 348, 351–54 (2004), the Montgomery Court at times described Miller as sweeping broadly. For example, the Court wrote that ”Miller did bar lifе without parole . . . for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” 577 U.S. at 209; see also id. at 208 (“[Miller] rendered life without parole an unconstitutional penalty for ‘a class of defendants because of their status‘—that is, juvenile offenders whose crimes
So the question we must resolve is whether Montgomery expanded Miller‘s prohibition to LWOP that a sentencer elects to impose after considering a juvenile homicide offender‘s youth in mitigation. The answer is simply “No.”
For starters, expanding Miller to discretionary sentences would not have benefitted Montgomery himself. Like Miller and Jackson, Montgomery was serving a mandatory LWOP sentence. Montgomery, 577 U.S. at 194, 196. The Supreme Court cannot render advisory opinions. See, e.g., Clinton v. Jones, 520 U.S. 681, 700 & n.33 (1997); San Pablo, 149 U.S. at 314. And the words of its decisions “are to be read in the light of the facts of the case under discussion.” Armour & Co. v. Wantock, 323 U.S. 126, 132–33 (1944). Before the Court in Montgomery was Miller‘s retroactivity, and nothing more: The question presented was “whether Miller adopts a new substan-
Moreover, as a retroactivity case decided on collateral review from a final state conviction, Montgomery would not have created new rights for those sentenced discretionarily. The Supreme Court does not “ordinarily make retroactivity judgments at the time a new right is recognized.” Dodd v. United States, 545 U.S. 353, 364 (2005) (Stevens, J., dissenting) (citing Ring v. Arizona, 536 U.S. 584 (2002) (applying Apprendi v. New Jersey, 530 U.S. 466 (2000), to determinations of death-penalty eligibility); Schriro, supra (concluding that Ring was not retroactive)); accord, e.g., Edwards v. Vannoy, 593 U.S. --, 141 S. Ct. 1547, 1551–52 (2021) (deciding that jury unanimity criminal procedure rule newly announced in Ramos v. Louisiana, 590 U.S. --, 140 S. Ct. 1390 (2020), did not apply retroactively on collateral review). Instead, the Court addresses rights and retroactivity in separate cases, per Teague, see 489 U.S. at 306–10, “to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered.” Sawyer v. Smith, 497 U.S. 227, 234 (1990). The Montgomery Court even framed the “effect” of its decision in terms of whether States would be “require[d] . . . to relitigate sentences . . . in every case where a juvenile offender
3. Jones confirms that Miller requires only discretionary sentencing, not particular findings or outcomes.
To be sure, the District Court found at Grant‘s resentencing that he did not deserve LWOP. But that finding cannot breathe life into Grant‘s appeal. In Jones v. Mississippi, the Supreme Court concluded that the juvenile homicide offender‘s LWOP sentence was constitutional because “the sentence was not mandatory and the trial judge had discretion to impose a lesser punishment in light of Jones‘s youth.” 141 S. Ct. at 1322. In “a case involving an individual who was under 18 when he or she committed a homicide, a State‘s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient” under Miller and Montgomery. Id. at 1313 (emphasis added). Unlike “sanity or a lack of intellectual disability,” id. at 1315, “incorrigibility is not an eligibility criterion.” Id. (likening youth to mitigating circumstance in capital case). And Miller did not “impose a categorical bar against life without parole for murderers under 18.” Id. at 1316 (citing Miller, 567 U.S. at 483). Instead, Miller cited Roper and Graham for the proposition that “[y]outh matters in sentencing,” which requires “that a sentencer [] have discretion to consider youth before imposing a life-without-parole sentence.” Id.
The Jones Court, consistent with our narrow reading, confirmed that ”Montgomery did not . . . add to Miller‘s requirements.” Id. at 1316–17 (“the Court granted certiorari [in Montgomery] not to consider whether the rule announced
All of which is to say that the Court has guaranteed to juvenile homicide offenders only a sentencing procedure in which the sentencer must weigh youth as a mitigating factor. The Court has not guaranteed particular outcomes for either corrigible or incorrigible juvenile homicide offenders. If a sentencer imposes de jure or de facto LWOP after finding—gratuitously—that a defendant is corrigible, the vehicle for challenging the sentence is an as-applied Eighth Amendment claim based on disproportionality of the punishment to the crime and criminal. Cf. Jones, 141 S. Ct. at 1322 (“[T]his case does not properly present—and thus we do not consider—any as-applied Eighth Amendment claim of disproportionality . . . .“). Grant pursues no such challenge here. That a sentence both procedurally and substantively reasonable may yet motivate an appeal goes to show the unfortunate extent to which the Supreme Court‘s Eighth Amendment jurisprudence has abjured constitutional interpretation in favor of challenges based on Court-created prophylactic rules. See, e.g., John F. Stinneford, The Illusory Eighth Amendment, 63 AM. U. L. REV.
Affirming what was implicit in Miller and Montgomery, the Jones Court held that the Eighth Amendment does not categorically prohibit sentencing any juvenile homicide offender to LWOP, so long as the sentencer has considered the offender‘s youth in mitigation. And “a discretionary sentencing procedure suffices to ensure individualized consideration of a defendant‘s youth.” Jones, 141 S. Ct. at 1321. Such individualized consideration is all that Miller requires.
4. Grant received the required Miller procedure.
Even if, as Grant argues, his 65-year sentence amounts to de facto LWOP, there is no Miller problem here. When a sentencer has discretion to impose a sentence of less than LWOP on a juvenile homicide offender, and exercises that discretion by considering the offender‘s youth, “we should not now add still more procedural requirements.” Id. Grant, in fact, received the constitutionally required procedure, and that is clear from the transcript of his resentencing hearing.
The District Court imposed sentence after considering Grant‘s youth at the time of the offense as well as its attendant characteristics. For example, the district judge “look[ed] at the circumstances of this case in the light of what the defendant was at the time of the commission of his offense, and by that I mean he was a minor.” A150. Continuing, the District Court recalled that “[h]e was a juvenile, 16 years old. He was a teenager.” Id. “When one looks at his upbringing, the debilitating characteristics of youth, inherent in being a young person and
Even so, Grant contends that the District Court improperly strayed from the “so-called Miller factors” by failing to articulate Grant‘s “[c]hronological age and its hallmark features,” his “family and home environment,” “the circumstances of the homicide offense,” the possibility “that he might have been charged and convicted of a lesser offense if not for incompetencies assоciated with youth,” and “the possibility of rehabilitation.” Appellant‘s Br. 31–47 (quoting 567 U.S. at 477–78). But the Miller Court‘s recitation of these considerations occurred in its discussion of why mandatory LWOP sentencing “misses too much.” 567 U.S. at 477. It was not a rigid procedural script for discretionary state regimes, let alone for federal sentences imposed—as Grant‘s was—after consideration of the
Just as Miller does not require an incorrigibility finding but preserves “States’ sovereign administration of their criminal justice systems,” Montgomery, 577 U.S. at 211 (citing Ford
Because the District Court imposed Grant‘s sentence after considering his youth at the time of the offense and related factors in mitigation, no Miller violation occurred. The District Court did not need to make any specific findings or incant any particular words en route to imposing that sentence. That it made a gratuitous corrigibility finding does not invalidate Grant‘s sentence—even if, as he claims, it amounts to de facto LWOP. Incorrigibility is not a sentence eligibility criterion. Jones, 141 S. Ct. at 1315. We will affirm Grant‘s 60-year sentence on Counts I and II.
The District Court limited Grant‘s resentencing to Counts I and II: the RICO counts involving the homicide for which Grant was mandatorily sentenced to life imprisonment. Grant contends that he was entitled to a plenary sentencing on all his counts of conviction. He urges us to extend our Court‘s sentencing-package doctrine and vacate his 40-year concurrent sentences for the drug convictions.
The sentencing-package doctrine recognizes “a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan.” United States v. Davis, 112 F.3d 118, 122 (3d Cir. 1997) (quotation omitted). Thus, “[w]hen a conviction on one or more of the component counts is vacated, common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture upon remand.” Id. (emphasis added) (quotation omitted). The district judge‘s goal in revisiting the overall sentencing plan after vacatur of a conviction is “to ensure that the punishment still fits both crime and criminal.” Id. (quotation omitted).
Although Miller required vacatur of Grant‘s mandatory LWOP sentence imposed on Counts I and II, his convictions on those counts were not vacated. Still, Grant contends that he was entitled to a fresh sentencing on his drug-trafficking counts because the 40-year concurrent sentences originally imposed for those convictions were merely symbolic given his then-mandatory life sentence. To be sure, some statements in
Grant concedes that his counsel did not explicitly raise a sentencing-package argument at resentencing. That forfeiture would normally limit us to reviewing for plain error. See, e.g., Price, 458 F.3d at 206. But Grant seeks de novo review because his counsel repeatedly argued to the District Court that he should be resentenced on all his counts of conviction.
Before the District Court, the closest defense counsel came to raising Grant‘s sentencing-package argument was asking for a full resentencing because Grant‘s sentences across the multiple counts were “all part and parcel of one sentencе [of life without parole].” Appellant‘s Reply Br. 22 (quoting A40). But rather than cite any sentencing-package case law, defense counsel invoked “the spirit of Miller” in arguing for this full and fresh resentencing, A43, and claimed that letting the 40-year drug-trafficking sentence stand “is not really consistent with what Miller is talking about.” A85. Small wonder, then, that the District Court understood counsel to be arguing that “the sentence as a whole was offensive to the Miller concept.” A44.
Articulated as a Miller adjunct, defense counsel‘s argument for a full resentencing did not suffice to put the District Court or the Government on notice that what Grant really sought was an extension of our Court‘s sentencing-package
Left with plain-error review, Grant cannot prevail. Recall: The sentencing-package doctrine provides a basis for a de novо resentencing when “a conviction on one or more of the component counts is vacated.” Davis, 112 F.3d at 122 (emphasis added) (quotation omitted); see also Dean v. United States, 137 S. Ct. 1170, 1176 (2017) (explaining that sentencing-package cases “typically involve . . . a successful attack by a defendant on some but not all of the counts of conviction” (emphasis added) (quoting Greenlaw v. United States, 554 U.S. 237, 253 (2008))). The doctrine has been applied in our precedential opinions only to vacated convictions—not
What matters for Miller purposes is whether the sentencer considered a juvenile homicide offender‘s youth and attendant characteristics before sentencing him or her to LWOP. The District Court did so at resentencing, repeatedly stressing Grant‘s status as a juvenile offender, his young age when he first became involved with the E-Port Posse, and his limited decision-making abilities as a minor. Regardless of whether it yields an aggregate sentence of de facto LWOP, we will affirm Grant‘s 60-year sentence on Counts I and II because he received all that he was entitled to under Miller. We will vacate and remand for the sole purpose of allowing the District Court to correct its erroneous increase of Grant‘s concurrent sentence on Count IV from 40 to 60 years. Finally, whatever the merits of extending our sentencing-package doctrine beyond vacated convictions to vacated sentences, Grant‘s counsel forfeited that argument before the District Court—and it was not plain error to limit Grant‘s Miller resentencing to his homicide-related counts.
I agree with the majority and join its opinion in full. I write separately to expand on the Court‘s astute observation that “the Supreme Court‘s Eighth Amendment jurisprudence has abjured constitutional interpretation in favor of challenges based on Court-created prophylactic rules.”1
In Miller v. Alabama, the Supreme Court held unconstitutional mandatory life sentences without the possibility of parole for juvenile offenders.2 In doing so, the Court applied “the evolving standards of decency.”3 That approach displaces the text of the Eighth Amendment in favor of a nebulous test. And it requires courts to divine the prevailing moral sentiment at the time of sentencing, which has led to the different approaches to the Eighth Amendment issue in this case. I hope to explain how that confusion made its way into our caselaw—and why it leaves courts without adequate guidance. The majority opinion is based on a careful—and in my view accurate—recapitulation of Supreme Court precedent. But Judge Greenaway‘s concurrence has a point: the “meaningful opportunity for release” principle finds support in the caselaw and could fit naturally within the Supreme Court‘s “evolving standards of decency” test. But that test has two serious problems: its provenance is illegitimate, and its
I
A
The “evolving standards of decency” first appeared in Trop v. Dulles,4 a 1958 decision offering an especially weak justification for the Court to abandon the Eighth Amendment‘s text. A careful examination of Trop shows that “the evolving standards of decency” test is “bad wine of recent vintage.”5
In 1944, American Private Albert Trop escaped from the stockade while deployed abroad, but the United States Army quickly captured him.6 A court martial convicted Trop of desertion, dishonorably discharged him, and sentenced him to three years’ hard labor and salary forfeiture. Eight years later, Trop was denied a United States passport because, by statute, desertion forfeited his citizenship.7
Trop sued, and the district court entered judgment against him.8 The Second Circuit, with Judge Learned Hand writing, affirmed the district court. Chief Judge Clark dissented, contending that Trop‘s Eighth Amendment right to
Chief Judge Clark‘s dissent was just two paragraphs. In lieu of judicial reasoning, he “merely incorporate[d] by reference” a law review comment because he “doubt[ed] if [he] c[ould] add to the persuasive arguments there made.”12 The comment argued that expatriation constituted cruel and unusual punishment, and Chief Judge Clark apparently found the argument so persuasive that a mere citation sufficed to justify his dissent.13
Trop appealed. In a 4-1-4 decision, the Supreme Court reversed the Second Circuit.14 Writing for a plurality, Chief Justice Earl Warren began by referencing a companion case,
The “evolving standards of decency” became the law of the land against substantial odds. The phrase went unmentioned in the Supreme Court for ten years after Trop,
B
Nearly two decades after its introduction in Trop, thе phrase was mentioned for the first time in a non-capital case, Estelle v. Gamble.22 There, Gamble claimed the prison failed to provide him adequate medical care in violation of the Eighth Amendment.23 The district court dismissed the case for failure to state a claim, but the Fifth Circuit reversed.24 The Supreme Court reversed the Fifth Circuit and ruled against Gamble on the facts as pleaded.25 Yet Justice Thurgood Marshall, writing for the Court, discussed the evolving constitutional law in this area and wrote: “we have held repugnant to the Eighth Amendment punishments which are incompatible with ‘the
While Justice Marshall accurately quoted Trop, it was not, as he suggested, the Court‘s holding. Recall that Chief Justice Warren stated that the Eighth Amendment must “draw its meaning” from the evolving standards of decency—he did not establish a new, “evolving” constitutional test.27 So the Court in Estelle v. Gamble made an unwarranted promotion from Trop‘s dicta to a constitutional test.
The test lay dormant for years, until it reappeared as a standard bearer for the view that the Constitution‘s meaning changes over time. That process began during the 1980s. The test was first mentioned in several dissents in death penalty cases before it appeared in a 1987 majority opinion written by Justice Powell.28 Two years later, Justice O‘Connor‘s majority opinion in Penry v. Lynaugh used the standard again, but there the Court held that executing a man with mental disabilities did not violate the Eighth Amendment.29 Penry was overruled in 2002 in Atkins v. Virginia, which held there was a national consensus against executing the mentally disabled.30 Writing
In 2005, the Court decided Roper v. Simmons, where a 5-4 decision effectively overruled a 1989 decision (Stanford v. Kentucky), which had rejected the proposition that the Constitution bars capital punishment for juvenile offenders.32 In Roper, 17-year-old Christopher Simmons said he and his co-conspirators could “get away with” murder because they were minors.33 The Supreme Court, Justice Kennedy writing, reasoned that Thompson v. Oklahoma‘s logic, proscribing the death penalty for those younger than 16, applied with equal force to those under 18.34 Justice Kennedy also noted that the United States was the only country that permitted juvenile executions.35 Justice Stevens (joined by Justice Ginsburg) concurred, venturing that our Constitution changes sometimes.36
Justice O‘Connor dissented. As did Justice Scalia, who was joined by Chief Justice Rehnquist and Justice Thomas.
C
With this evolving understanding in mind, the Court applied the test in earnest. In 2008, in a 5-4 decision, the Court decided Kennedy v. Louisiana, which held unconstitutional a Louisiana statute that provided for the death penalty for a defendant who rapes a child when the crime neither resulted in, nor was intended to result in death.39 Writing for the Court, Justice Kennedy started with the proportionality principle mentioned by the Court in its 1910 decision in Weems.40 He then cited Trop for the proposition that the Eighth Amendment draws meaning from the evolving standards of decency and
In 2010, the Court held unconstitutional a life-without-parole sentence for a man who committed armed burglary five weeks before his eighteenth birthday.42 Justice Kennedy began his legal analysis by quoting Trop‘s evolving standards of decency.43
In 2012, the Court issued yet another 5-4 opinion, this time with Justice Kagan writing. In Miller v. Alabama, the Court held that mandatory life sentences without the possibility of parole violated the Eighth Amendment rights of two 14-year-old offenders whom the states had tried as adults and convicted of murder.44 Justice Kagan began her legal analysis by quoting Trop, and she reiterated the primacy of the evolving standards of decency that mark the progress of a maturing society.45 She reasoned that the case implicated two strands of
And in 2014, the Court issued another 5-4 Eighth Amendment decision in Hall v. Florida.49 In his opinion for the Court, Justice Kennedy again began by referencing the evolving standards of decency.50 The opinion focused on IQ-score social science. Among other considerations, it emphasized that experts recognize the test‘s imprecision. Noting that intellectual disability is a condition, not a number, Justice Kennedy wrote that “[a] State that ignores the inherent imprecision of these tests risks executing a person who suffers from intellectual disability.”51
Such is the history of the evolving standards of decency test. It is marked by an illegitimate pedigree and the
II
The cases just discussed produced vigorous dissents. And those dissents highlight why the caselaw provides insufficient guidance.
For example, consider the dissents in Miller. Chief Justice Roberts noted that although the case presented “grave and challenging questions of morality and social policy,” the majority did not characterize life without the possibility of parole for juveniles as “unusual.”53 He then observed that some 2,500 prisoners were serving life without parole for murders committed before age 18.54 Noting that it was not unusual for murderers to receive that sentence,55 the Chief Justice wrote: “[D]ecency is not the same as leniency. A decent society protects the innocent from violence.”56 And “[t]o say that a sentence may be considered unusual because so many legislatures approve it stands precedent on its head.”57 He criticized the majority for invalidating laws of dozens of state legislatures and Congress.58 Finally, he argued that Roper and
In a separate dissent joined by Justice Scalia, Justice Thomas wrote that neither line of precedent that the majority relied on adhered to the original understanding of the Cruel and Unusual Punishments Clause.63 Based on that understanding, the Clause does not have a proportionality principle.64 Justice Thomas concluded by explaining the Court was trying to shift from “‘merely’ divining the societal consensus of today to shaping the societal consensus of tomorrow.”65
Justice Alito also dissented, joined by Justice Scalia. He quoted Trop‘s evolving language and argued that it was
Justice Alito also dissented in Hall, mentioning the evolving standards language. In his view: “[W]hen the Court referred to the evolving standards of a maturing ‘society,’ the Court meant the standards of American society as a whole. Now, however, the Court strikes down a state law based on the evolving standards of professional societies.”69 He also noted “the Court has long held that laws enacted by state legislatures provide the clearest and most reliable objective evidence of contemporary values.”70 Justice Alito criticized the Court for tying its decision to the opinions of “a small professional elite.”71 And “because the views of professional associations
In sum, these dissents highlight that the Court has strayed far from the text and original meaning of the Eighth Amendment. And they also show that the Court has applied the evolving standards of decency inconsistently.73
* * *
The story of the evolving standards of decency test—from its questionable creation in Trop v. Dulles, through a decade of dormancy, its recurrence in death penalty cases, and its recent transformation into the law of the land—has created more problems than it has solved. Its inscrutable stаndards require judges to eschew the law as written in favor of moral sentiment. The only constant is that more and more laws adopted by the People‘s representatives have been nullified. And the People have no practical way to reverse this contrived ratchet.
This Court, relying on a careful review of the Supreme Court‘s Eighth Amendment precedents, reaches the right conclusion for the right reason. But if the Supreme Court continues to apply “the evolving standards of decency” test, I wonder what will be the next stop on this runaway train of
When the Supreme Court teaches, we are bound to listen. When the Court speaks a phrase, a sentence, or a 100-page opinion, we as lower courts must heed.
I disagree with the Majority‘s position that Jones v. Mississippi, 141 S. Ct. 1307 (2021) controls this case. Instead, I believe it is controlled by the Supreme Court‘s binding case law concerning corrigible youth. The Supreme Court‘s determination in Miller v. Alabama that the
I.
In my view, Jones does not impact the ultimate resolution of the case before us. Under Jones, a sentencing court need not make a finding of permanent incorrigibility before sentencing a juvenile homicide offender to lifе without parole. Jones, 141 S. Ct. at 1321. Jones provides that such a sentence complies with the
The question before us is not whether a finding of permanent incorrigibility is necessary pursuant to Miller. That question became moot when the District Court made its on-the-record finding that Corey Grant is capable of reform. See App. at 151 (“Mr. Grant is not that rarest of exception[s] referenced in Miller, where the lifetime without parole is appropriate.“). Instead, the question before us—which Jones does not resolve—is whether a defendant already found to be corrigible may benefit from Miller‘s holding that non-incorrigible juvenile homicide offenders are entitled to a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Miller, 567 U.S. at 479 (quoting Graham, 560 U.S. at 75).1
Jones does not eviscerate Miller. See Jones, 141 S. Ct. at 1321 (Jones “does not overrule Miller or Montgomery“); see
Indeed, Jones enlivens both Miller and Montgomery by creating a framework of analysis for the key questions in this area, which are: (1) whether youth is to be considered as a mitigating factor, and (2) whether life without parole (“LWOP“) can be mandatory. As stated above, Jones determines the question of whether a juvenile homicide offender is entitled to a hearing to determine permanent incorrigibility. But it does not resolve the question of what happens when an affirmative finding of corrigibility has been made. And in Jones, the Supreme Court specifically contemplated that there may be state regimes in which the sentencer must make a finding as to the defendant‘s corrigibility. See Jones, 141 S. Ct. at 1323 (“States may require sentencers to make extra factual findings before
My colleagues in the majority note that the Miller Court “used the phrase ‘meaningful opportunity to obtain release’ only once—in a quoting parenthetical following a ‘cf.’ or ‘compare’ citation to Graham.” Majority Op. at 12. “[M]eaningful opportunity to obtain release” has been a consistent theme in three Supreme Court cases: Graham, 560 U.S. at 82 (“A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.“), Miller, 567 U.S. at 479 (state must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation“) (quoting Graham, 560 U.S. at 75), and Montgomery, 577 U.S. at 212 (“The opportunity for release will be afforded to those who demonstrate the truth of Miller‘s central intuition—that children who commit even heinous crimes are capable of change.“). Jones‘s predecessors instruct us what the Constitution requires when a corrigibility finding has been made.
Graham teaches that a sentence that does not meet penological objectives is “by its nature disproportionate to the offense” and therefore constitutionally infirm, and that juvenile LWOP is only penologically justified for the incorrigible. 560 U.S. at 71, 72–73. Graham formed the “foundation stone” of Miller‘s analysis, Miller, 567 U.S. at 470 n.4, and subsequent
held that Miller announced a substantive rule of constitutional law because “juvenile offenders whose crimes reflect the transient immaturity of youth” constitute a class of defendants upon whom LWOP cannot be imposed. Id. at 208. Thus, Miller instructs that such a defendant should have a meaningful opportunity to obtain release.
II.3
However one reads Jones, neither it nor today‘s Majority changes what the meaningful opportunity standard requires. To determine what constitutes a meaningful opportunity to obtain release, we look to the Supreme Court‘s original diagnosis of the constitutional infirmity that plagues juvenile LWOP. See Casey v. Planned Parenthood of Se. Pa., 14 F.3d 848, 857 (3d Cir. 1994) (“We must look to the language of the Supreme Court‘s opinion to see what it
[A] categorical rule [barring LWOP] gives all juvenile nonhomicide offenders a chance to demonstrate maturity and reform. The juvenile should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential . . . . Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.
Graham, 560 U.S. at 79; see also id. at 69-70 (“[LWOP] deprives the convict of . . . hope of restoration“); id. at 73 (“A life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity.“).
The contours of the meaningful opportunity to obtain release requirement are also informed by the Court‘s concern that “defendants serving life without parole sentences are often denied access to vocational training and other rehabilitative services that are available to other inmates.” Id. at 74; see also id. at 79 (“[I]t is the policy in some prisons to withhold counseling, education, and rehabilitation programs for those who are ineligible for parole consideration.“).5 This view illustrates the Court‘s belief that—in order to afford “hope” and a chance for “fulfillment outside prison walls,”
The Supreme Court indicated in Graham, Miller, and Montgomery that a cоnstitutionally sufficient release mechanism must: (1) enable the decision-maker to consider the offender‘s “maturity and rehabilitation,” Graham, 560 U.S. at 75, (2) limit the decision-maker‘s discretion to deny relief, id. at 77, and (3) create a “realistic” chance of obtaining release, id. at 82.
As for the first requirement, the Supreme Court has explained that in providing juvenile non-homicide offenders
Second, when Graham, Miller, and Montgomery apply, a release mechanism cannot accomplish those cases’ purposes if it authorizes the denial of relief “for any reason whatsoever.” Virginia v. LeBlanc, 137 S. Ct. 1726, 1730 (2017) (Ginsburg, J., concurring in the judgment).7
Third, a release mechanism must provide juvenile offenders who fall within Graham, Miller, and Montgomery‘s purview with a “realistic” rather than a “remote” opportunity of obtaining release. Graham, 560 U.S. at 82. Though the Supreme Court has never outlined a test for distinguishing a
III.
Here, the District Court found Grant to be corrigible. In my view, for those juvenile homicide offenders who fall within this parameter,8 the sentencing court must consider whether there is a meaningful opportunity to obtain release. If a corrigibility finding is made, any sentence imposed must contemplate a meaningful opportunity to obtain release. Our colleagues’ decision forgoes the teaching of Graham, Miller, and Montgomery. It essentially abdicates their duty to consider whether, after a corrigibility finding has been made, a juvenile homicide offender has a meaningful opportunity for release.
In this case, evidence presented at Grant‘s resentencing hearing shows that he has a meaningful opportunity to obtain release from prison. That is all the Constitution requires.
I thus concur in the judgment as to Section III.A of the majority opinion and in toto as to Section III.B.
RESTREPO, Circuit Judge, joins except with respect to Part I.
I.
I join in the unanimous judgment of the Court with respect to the
Instead, I write separately primarily to express my disagreement with Section III.B of the majority opinion, which disposes of Grant‘s sentencing package doctrine argument on plain error review. Because preservation could hardly be clearer here, I would have reached and considered the substantial arguments that the majority avoids.
The sentencing package doctrine makes formal a “common sense” proposition: When one or more interdependent counts of a multicount conviction are vacated, the judge should take a fresh look at what remains at resentencing. United States v. Davis, 112 F.3d 118, 122 (3d Cir. 1997) (quoting United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir. 1989)); see also United States v. Ciavarella, 716 F.3d 705, 734 (3d Cir. 2013) (“District courts should resentence de novo when an interdependent count of an aggregate sentence is vacated.“). This logic applies both when a conviction is vacated on appeal and when a conviction is vacated by a district court on collateral review. See United States v. Miller, 594 F.3d 172, 180 (3d Cir. 2010); Davis, 112 F.3d at 122. The question Grant places before us is a straightforward clarification: Does this doctrine apply to vacated sentences as well as vacated convictions?
1. Grant Sufficiently Preserved his Sentencing Package Doctrine Argument.
Grant concеdes that his counsel did not explicitly raise in so many words the sentencing package doctrine argument before the District Court. Appellant‘s Reply Br. at 22. The majority seizes on this concession to conclude that the
At resentencing Grant‘s attorney told the District Court that Grant‘s multiple sentences were “all part and parcel of one sentence,” explaining that he did not “think anybody looked upon this as somehow a breakdown of you got 40 on this, you got 40 on that and five on that. This was a life sentence.” App. at 40. He repeated that same comment three more times shortly afterward. Id. at 42–44. And he later made the more specific argument that “it should be clear that really it is a whole new sentencing. Everything was part and parcel of imposing a sentence that the Court thought was the correct sentence.” Id. at 85. While Grant‘s counsel did not use the term “sentencing packaging doctrine,” there is no question that he alerted the Court to its substance: when part of the whole falls away, reassess and resentenсe what is left. And there is no question the Court understood that argument as being presented, recognizing “[a]n argument has been made here that this is an entirely new sentence.” Id. at 151. Thus it “should look at this as one cohesive sentence of life and treat it that way in determining what is an appropriate total sentence.” Id. at 42. This is enough to preserve the point, and we should have
2. The Sentencing Package Doctrine Should Apply to Vacated Sentences.
We have not yet addressed the application of the sentencing package doctrine to vacated sentences in a precedential opinion.1 In his concurring and dissenting opinion to the initial panel decision in this case, Judge Cowen considered this question in depth and concluded that the sentencing packaging doctrine should apply to vacated sentences. United States v. Grant, 887 F.3d 131, 155–160 (3d
The strongest argument is the simplest one: I cannot think of any convincing reason to distinguish between vacated convictions and vacated sentences in this context. The sentencing package doctrine reflects that “when a defendant is found guilty on a multicount indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan.” Davis, 112 F.3d at 122 (citation omitted). Therefore, when multiple sentences are interdependent (one ties in with the others) and one piece of the sentencing plan is disturbed, “common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan . . . in order to ensure that the punishment still fits both crime and criminal.” Id. The Reader‘s Digest version: A district court‘s sentence on count B may be set with an eye toward the sentence set on count A, with an overall goal of achieving some aggregate result. Thus, if the conviction for count A is vacated, the remaining sentence for count B may not be what the court would have wanted if only count B was in dispute. To this end, it makes little difference whether the conviction for count A is vacated or only its sentence. Either way, the assumption on which the court relied to craft its sentence on count B no longer holds.
This concern is particularly pronounced when one of the counts carries a life sentence without the possibility of parole.
This conclusion is not revolutionary. In fact, we have already affirmed de novo resentencing when only a sentence was vacated. See, e.g., United States v. Guevremont, 829 F.2d 423, 428 (3d Cir. 1987). While the majority notes that this case
3. The Sentencing Package Doctrine Entitles Grant to a De Novo Resentencing, But It Is Unclear Whether He Was Provided That Opportunity.
Grant‘s case demonstrates the need for the sentencing package doctrine to apply to vacated sentences. As illustrated in the below table, the record shows interdependence among different parts of Grant‘s overall sentence, both in the initial 1992 sentence by Judge Ackerman and the 2016 resentencing by Judge Linares.
Table Comparing Grant‘s Sentence in 1992 with his Revised Sentence in 2016
| Count(s) | Imprisonment | Supervised Release | ||
|---|---|---|---|---|
| 1992 | 2016 | 1992 | 2016 | |
| I and II RICO (including murder and attempted murder predicates) | Life | 60 years | 5 years on all counts to run concurrently | 5 years, concurrent with other counts |
| IV Conspiracy to possess with intent to distribute cocaine | 40 years, concurrent with life sentence | Life | ||
| V and VI Possession with intent to distribute cocaine | 40 years, concurrent with 60-year sentence | |||
| XI Gun possession | 5 years, consecutive to other counts | 5 years, consecutive to other counts | 5 years, concurrent with other counts | |
Shaded cells indicate a change in Grant‘s sentence between the 1992 and 2016 sentencings.
Nearly three decades ago, Judge Ackerman sentenced Grant to life imprisonment for the racketeering counts under the then-mandatory Sentencing Guidelines. With that life sentence in place, it is quite plausible that Judge Ackerman viewed his sentence on the drug counts as simply symbolic. In particular, he preceded his sentence by stating that there was a “plague in this land . . . in the form of drugs.” App. 450. And he went further, emphasizing that he had a “responsibility . . . to send a message to those who violate the laws of this land in such a violent and extensive manner, involving the pollution of our community, the destruction of our children, and, in this case, the murder of an individual.” App. 451. In addition to a
Decades later, after the Supreme Court prohibited life-without-parole sentences for non-incorrigible juveniles, Grant became eligible to have his life sentence adjusted. For all the reasons stated above, he deserved to have a fresh sentencing. But it is unclear whether he was provided that opportunity. The Government argues that Judge Linares actually provided Grant a full resentencing, pointing out that Judge Linares modified a component of the sentence on the drug counts—increasing the term of supervised release for Counts IV–VI from five years to life.2 Gov‘t‘s Second Supp. Br. 1–2.
At the same time, however, the language that Judge Linares used during the resentencing suggested that he was not really considering anew the appropriate sentence on Counts IV–VI and XI, but rather deferring to Judge Ackerman‘s choices (at least with respect to the terms of imprisonment).3
* * * * *
Everyone agrees that Grant‘s crimes are gravely serious, and I do not suggest that a lower sentence is necessarily warranted. But, at a minimum, the sentencing package doctrine should apply here, Grant properly invoked it, and he is entitled to a full resentencing. Because the record is unclear whether he actually received the full resentencing opportunity he is due, I would have remanded more broadly to the District Court either to (1) engage in a truly de novo resentencing, or (2) explain why its sentence was in fact the product of de novo consideration. See Bear Cloud, 334 P.3d at 143 n.11 (concluding that a trial court‘s “cursory consideration” of other counts in the sentencing package in its resentencing was insufficient). For these reasons, I dissent from Section III.B of the majority‘s opinion.
Notes
- “[C]hronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences.” Id. at 477.
- “[T]he family and home environment that surrounds [the juvenile offender]—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional.” Id.
- “[T]he circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him.” Id.
- “[T]hat he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers
or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys.” Id. at 477–78. - “[T]he possibility of rehabilitation . . . .” Id. at 478.