Monday, August 16, 2021

  

Sixty-five-year sentence for a juvenile convicted under RICO predicated on murder upheld/ Upon resentencing, the “sentence-package doctrine” must be clearly raised or risk being waived 

 

United States v. Corey Grant, ___F.3d___, No. 16-3820 (8/16/2021)

 

 

In the wake of last term’s Supreme Court holding that neither Miller v. Alabama, 567 U.S. 460 (2102) nor Montgomery v. Louisiana, 577 U.S. 190 (2016) requires a court sentencing a juvenile to a sentence of less than life without parole to consider a  particular set of factors regarding the juvenile, the Third Circuit held,  “The Miller  bar on mandatory LWOP sentencing regimes is a prophylactic that entitles a juvenile homicide offender to a certain sentencing process, but not a particular sentencing outcome—a result that follows from the Supreme Court’s decision in Jones v. Mississippi, 593 U.S. --, 141 S. Ct. 1307 (2021).”

 

Mr. Jones joined a drug gang at the age of thirteen and soon became one of its enforcers. He was arrested twice when he was fifteen and released about a year later. Not long after that, he participated in shootings of two men who worked sold drugs in Mr. Jones’ gang’s territory. One of them died. Mr. Jones was soon indicted for racketeering and drug violations. He was found guilty, the predicate for one of the RICO convictions being the murder. (He was acquitted of another RICO predicate murder, and the jury hung on a third.)  The sentencing guidelines, which in 1992 were mandatory, required he receive a life sentence. He also received concurrent and consecutive sentences on other counts. 

 

Mr. Jones was allowed to file a second §2241 petition following Miller, which invalidated mandatory life sentences for juveniles. When finally resentenced, the District Court found “that Grant’s upbringing, debilitating characteristics of youth, and the post-conviction record showed that he was “not that rarest [] exception referenced in Miller, where the lifetime without parole is appropriate.”  It imposed concurrent sixty-year sentences on all charges but for his 18 U.S.C. §924(c) conviction, for which he received a consecutive five years. (The district court inadvertently increased a forty-year concurrent sentence to sixty years.) With good time, Mr. Jones is eligible for release when he reaches 72 in 2045. 

 

He appealed. Mr. Jones did not allege that his sentence was disproportionate or unreasonable under the 8th Amendment, and the Government conceded that the sentence could be de facto life without parole. The Government also did not say that Mr. Jones deserved a life sentence. 

 

The Court concluded that neither Miller nor Montgomery (which made Miller retroactive to cases pending on direct or collateral review) granted any right to juvenile offenders other than the guarantee that no conviction would automatically lead to a sentence of life without parole. Especially following Jones, which rejected an argument that any particular set of factors listed in Miller had to be applied before sentencing a juvenile whose range of sentences potentially included life without parole, the en banc panel found that the “[Supreme] Court has guaranteed to juvenile homicide offenders only a sentencing procedure in which the sentencer must weigh youth as a mitigating factor.” As the district court considered Mr. Grant’s youth at the time of his offense, the sixty-year sentence was not improper.

 

The Court also rejected Mr. Grant’s contention that according to the “sentencing-package doctrine,” he was entitled to resentencing on the concurrent forty-year sentences imposed with the life sentence. The Court found he had waived the issue by not clearly raising it before the District Court. 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 over-all plan.” Mr. Grant conceded he did not clearly raised the issue below. Plain-error did not apply, as the drug sentences were not affected by Miller. (The Court did vacate the District Court’s erroneous increase of the forty-year sentence to sixty years and remanded with instructions to correct the error.) 

 

Not satisfied with affirming the District Court, Judge Hardiman, joined by Judges Jordan, Bibas, and Porter, wrote to complain about what they saw the displacement of traditional 8th Amendment jurisprudence by the yardstick of “evolving standards of decency.” He wrote, “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 case law—and why it leaves courts without adequate guidance.” His explanation followed. 

 

Judge Greenaway, joined by Judges Restrepo and Krause, joined only the judgment of the Court. He wrote briefly to state his belief that Jones did not affect what he believed was a requirement that courts sentencing juveniles consider whether they would or should be released in time to have a meaningful life. He also thought that the sentencing-package issue had been adequately preserved and should always apply to vacated sentences, which had occurred in non-precedential decisions.

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