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Date: 08-24-2021
Case Style:
United States of America v. COREY GRANT
Case Number: 16-3820
Judge: 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.
Court: UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Plaintiff's Attorney: Bruce P. Keller
Mark E. Coyne
OFFICE OF THE UNITED STATES ATTORNEY
Defendant's Attorney:
Description:
Philadelphia, PA - Criminal defense lawyer represented defendant with a conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO) charge.
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.
2 We will vacate and remand Grant’s sentence only on one
drug-trafficking count so that the District Court may correct a
mistaken enhancement of his concurrent sentence on that
count.
6
Sixteen-year-old Grant was involved in the Posse’s
violent crimes, notably, its murders and attempted murders in
the summer of 1989. In August, while delivering drugs, Grant
encountered a group of rival drug dealers. Among them was a
former Posse member, Dion Lee, suspected of selling drugs on
his own. Grant warned him at gunpoint not to operate in
Pretlow’s territory unless he was working for Pretlow. When
Lee refused, Grant struck him in the head with a gun while
another member of the Posse assaulted him. Although Lee
retreated, Grant and an associate shot at him. Lee survived,
though a bullet pierced one of his pantlegs. Later that month,
Grant encountered Lee’s brother Mario—another independent
drug dealer whom the Posse had warned not to operate in its
territory. Grant tried to force Mario into a building, but Mario
broke free and attempted to flee. Grant then ordered a Posse
member to shoot the retreating Mario. Grant’s associate fired
two shots, one of which struck Mario in the neck and killed
him.
In 1991, at the age of 17, Grant was indicted for conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO), in violation of 18 U.S.C. §1962(d) (Count
I); racketeering, in violation of 18 U.S.C. §1962(c), including
the murder of Mario Lee and two others as well as the
attempted murder of Dion Lee and another person, as defined
in N.J. Stat. Ann. §2C:11-3 (Count II); conspiracy to possess
with intent to distribute cocaine, in violation of 21 U.S.C. §846
(Count IV); possession with intent to distribute cocaine, in
violation of 21 U.S.C. §§841(a)(1) and (b)(1)(B) (Counts V
and VI); and two counts of possession of a weapon in relation
to a crime of violence or drug trafficking, in violation of 18
U.S.C. §924(c) (Counts X and XI).
7
In February 1992, Grant proceeded to trial as an adult
under 18 U.S.C. §5032. The jury found him guilty of the RICO
conspiracy, racketeering, and drug counts as well as one of the
gun possession counts.3
As predicates for the RICO convictions, the jury found that Grant murdered Mario Lee and
attempted to murder Dion Lee. The jury acquitted Grant of one
of the charged RICO-predicate murders but could not reach a
verdict on whether Grant committed the other murder or the
other attempted murder.
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 downwarddeparture 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 drugtrafficking 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 28 U.S.C. §2241. The District Court dismissed
the petition for lack of jurisdiction, and we affirmed. Grant v.
Williamson, 198 F. App’x 263 (3d Cir. 2006) (per curiam).
Grant then filed a §2255 motion, which was denied as
untimely. See Grant v. United States, No. 2:06-cv-5952, slip
op. at 4–7 (D.N.J. Feb. 8, 2008).
3 The other gun-possession charge was dismissed as against
Grant before the return of a verdict.
8
Then, in 2012, the Supreme Court decided Miller v.
Alabama, which held that the Cruel and Unusual Punishments
Clause of the Eighth Amendment prohibits mandatory lifewithout-parole sentences for juvenile homicide offenders. 567
U.S. at 479, 489. Under Miller, someone under the age of 18
who commits a homicide may be sentenced to life without
parole, but only if the sentence is not mandatory and the sentencer has discretion to impose a lesser punishment after considering the offender’s youth and related characteristics in mitigation.
In light of Miller, Grant sought and received leave from
this Court to file a second §2255 motion. In re Pendleton, 732
F.3d 280, 281–82 (3d Cir. 2013) (per curiam). He argued that
his mandatory sentence of life imprisonment was imposed
without consideration of mitigating circumstances related to
his age at the time of his crimes. The District Court agreed and
ordered that Grant be resentenced. Grant v. United States, No.
2:12-cv-6844, slip. op. at 10–12 (D.N.J. Nov. 12, 2014). In
2016, the Supreme Court confirmed that Miller applies on collateral review to juvenile homicide offenders serving final sentences. Montgomery, 577 U.S. at 206, 212.
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
9
parole is appropriate.” A150–51.4
So the District Court
imposed a sentence of 60 years’ imprisonment on Counts I and
II, effectively reducing his life sentence to a total term of 65
years after factoring in his undisturbed five-year consecutive
sentence on his firearms-possession conviction. (The District
Court also, apparently inadvertently, increased Grant’s concurrent sentence on one of his drug-trafficking convictions, Count
IV, from 40 to 60 years.) Assuming he accumulates good-time
credits, see 18 U.S.C. §3624(b)(1), Grant will be released at
age 72, which he contends is his life expectancy.
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.
4 Citations preceded by “A” refer to Appellant Corey Grant’s
Appendix submitted on appeal.
10
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 18 U.S.C.
§3231, and we have jurisdiction under 28 U.S.C. §1291 and 18
U.S.C. §3742(a).
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-package 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.
11
Hence the narrow question before us: Does Grant’s
lengthy sentence for a homicide that he committed as a juvenile
violate Miller? We conclude that it does not, even if it amounts
to de facto LWOP. 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).
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
account 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
12
reflect “irreparable corruption.” Id. at 479–80 (citing Roper v.
Simmons, 543 U.S. 551, 573 (2005); Graham, 560 U.S. at 68).
Indeed, the Court recognized that “about 15% of all juvenile
life-without-parole sentences” then being served were nonmandatory sentences imposed at the discretion of a judge or
jury. Miller, 567 U.S. at 484 n.10. Though it gestured once to
Graham’s holding that “incorrigibility is inconsistent with
youth,” id. at 472–73 (quoting Graham, 560 U.S. at 72–73),
the Miller Court did not otherwise discuss incorrigibility. And
it used the phrase “meaningful opportunity to obtain release”
only once—in a quoting parenthetical following a “cf.” or
“compare” citation to Graham, id. at 479 (quoting Graham,
560 U.S. at 75)—after unequivocally stating: “We therefore
hold that the Eighth Amendment forbids a sentencing scheme
that mandates life in prison without possibility of parole for
juvenile offenders.” Id. (citing Graham, 560 U.S. at 75).
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
13
foundation of the Miller Court’s analysis. See, e.g., Miller, 567
U.S. at 471–72. But unlike those cases, the Court in Miller
“d[id] not categorically bar a penalty for a class of offenders or
type of crime.” Id. at 483. Instead, Miller “mandate[d] only
that a sentencer follow a certain process—considering an
offender’s youth and attendant characteristics—before imposing a particular penalty.” Id. (emphasis added). Consider also
that Miller and the petitioner in his companion case, Jackson,
both were serving mandatory life sentences. See id. at 466,
469. Whatever conclusions one might, in a vacuum, draw from
some of Miller’s language, deciding the proper contours of discretionary LWOP sentences would not have benefited either
Miller or Jackson. See, e.g., Cal. v. San Pablo & T. R. Co., 149
U.S. 308, 314 (1893) (“[T]he [Supreme] [C]ourt is not empowered to . . . declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing
in issue in the case before it.”). We thus appropriately construe
Miller’s holding and regard any of its statements that might
read on discretionary sentences as no more than dicta.
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 life 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
14
reflect the transient immaturity of youth.” (quoting Penry v.
Lynaugh, 492 U.S. 302, 330 (1989)). Three dissenting justices
believed that these characterizations of Miller did not reflect its
holding. See, e.g., Montgomery, 577 U.S. at 224–25 (Scalia,
J., dissenting) (“[T]he majority is not applying Miller, but
rewriting it.”). And, in fact, the Montgomery majority prefaced
its more expansive accounts of Miller with language emphasizing that Miller’s holding was limited to “mandatory lifewithout-parole sentences.” See, e.g., id. at 206 (“Miller’s prohibition on mandatory life without parole for juvenile offenders”), 208 (“the Court’s holding in Miller that mandatory lifewithout-parole sentences for children pose too great a risk of
disproportionate punishment” (cleaned up)). All the same, the
Montgomery Court never referred to the “meaningful opportunity to obtain release” that Graham required states to afford
juvenile non-homicide offenders.
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-
15
tive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison.” Montgomery,
577 U.S. at 197 (quoting certiorari petition). And before
deciding whether to establish a new Miller-derived rule, the
Montgomery Court presumably “ask[ed] whether such a rule
would be applied retroactively to the case at issue.” Teague v.
Lane, 489 U.S. 288, 300–01 (1989) (plurality opinion) (emphasis added). Because Montgomery was subject to a mandatory
LWOP sentence, proscriptions on discretionary LWOP sentencing regimes would not have applied retroactively to him.
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
16
received mandatory life without parole.” 577 U.S. at 212.
Because “Miller announced a substantive rule of constitutional
law,” id., and Montgomery applied it retroactively, any language in Montgomery pertaining to discretionary LWOP sentencing regimes is not binding.
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
17
in Miller should be expanded, but rather simply to decide
whether Miller[]” applies to cases on collateral review). Both
cases rested on the “key assumption” that “discretionary sentencing allows the sentencer to consider the defendant’s youth,
and thereby helps ensure that life-without-parole sentences are
imposed only in cases where that sentence is appropriate in
light of the defendant’s age.” Id. at 1318 (emphasis added).
The Court’s precedents only “require a discretionary sentencing procedure,” which itself “has indeed helped make lifewithout-parole sentences for offenders under 18 relatively
rare.” Id. at 1322 (emphasis added) (cleaned up); see also
Miller, 567 U.S. at 483 (mandating “only that a sentencer follow a certain process”).
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.
18
437, 440 (2013) (lamenting Supreme Court’s choice, seemingly motivated by error-cost minimization, to use “implementation rules as a substitute for constitutional interpretation” of
Eighth Amendment issues).
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
19
the limited decision-making abilities of a minor, it is clear to
this Court that . . . Mr. Grant is not that rarest [] exception referenced in Miller, where the lifetime without parole is appropriate.” A150–51. Further accounting for “the nature . . . of
the defendant,” the District Court “look[ed] specifically at the
age that [Grant] had at the beginning of his involvement with
this gang” and “at the fact that because of his youth, he did
have some limitation in decision-making.” A154. Only after
giving such regard to Grant’s youth at the time of his homicide
offense did the judge sentence him to 65 years’—rather than
de jure life—imprisonment.
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 associated 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 §3553(a) factors. Compare, e.g., id. at 478–79 (discussing what facts Jackson’s sentencer “should look at” and
what Miller’s “sentencer needed to examine” before imposing
LWOP).
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
20
v. Wainwright, 477 U.S. 399, 416–17 (1986)), it mandates only
“that a judge or jury . . . have the opportunity to consider mitigating circumstances before imposing” LWOP. Miller, 567
U.S. at 489; accord Jones, 141 S. Ct. at 1321 (“[A]n on-therecord sentencing explanation with an implicit finding of permanent incorrigibility is not dictated by any historical or contemporary sentencing practice . . . .”). This obligation jibes
with the general latitude afforded sentencing courts. They
need not explain their decisions in endless detail. It suffices
that a district judge first calculate the Guidelines range and then
state reasons, “even if brief,” for imposing the sentence. Rita
v. United States, 551 U.S. 338, 356–58 (2007) (instructing that
sentencing judge need only “set forth enough to satisfy the
appellate court that he has considered the parties’ arguments
and has a reasoned basis for exercising his own legal decisionmaking authority”); see also Jones, 141 S. Ct. at 1321
(“Even when state law requires a sentencer to supply reasons,
many States do not impose a formulaic checklist of topics or a
magic-words requirement with respect to particular mitigating
circumstances.”).
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.
21
B. Grant Did Not Preserve His Sentencing-Package
Argument, and Limiting His Resentencing to Counts
I and II Was Not Plain Error.
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 thenmandatory life sentence. To be sure, some statements in
22
Grant’s 1992 sentencing transcript could be read to suggest
that, in fact, the district judge sought “to send a message” by
imposing long concurrent sentences for the drug-related
offenses. A451. The problem lies not in the factual support
for Grant’s position but in defense counsel’s failure to preserve
this argument and, in turn, the lack of precedent applying the
sentencing-package doctrine when only a sentence is vacated.
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 sentence [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
23
doctrine to vacated sentences. Such a change in our sentencing
paradigm would entail nothing unique to juvenile offenders; it
would seemingly obtain when any multi-conviction defendant’s life or lengthy term-of-years sentence is vacated while
lesser sentences remain intact. To preserve an argument for
appeal, a party “must have raised the same argument in the
District Court—merely raising an issue that encompasses the
appellate argument is not enough.” United States v. Joseph,
730 F.3d 336, 337 (3d Cir. 2013); see also Doe v. Mercy Cath.
Med. Ctr., 850 F.3d 545, 558 (3d Cir. 2017) (“Theories not
raised squarely [before the District Court] cannot be surfaced
for the first time on appeal.”). With only the semantic similarity between “package” and “part and parcel,” defense counsel’s
advocacy was, at best, a “vague allusion” to the key sentencing-package issue that does “not suffice to preserve it for
appeal.” United States v. Dupree, 617 F.3d 724, 728 (3d Cir.
2010) (quoting In re Ins. Brokerage Antitrust Litig., 579 F.3d
241, 262 (3d Cir. 2009)).
Left with plain-error review, Grant cannot prevail.
Recall: The sentencing-package doctrine provides a basis for a
de novo 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
24
vacated sentences.
5
But Grant’s convictions have never been
disturbed. While one of our sister circuits has applied the
judge-made doctrine to a vacated sentence, see United States
v. Catrell, 774 F.3d 666, 670 (10th Cir. 2014), our precedent
does not extend that far. And the District Court’s failure to
broaden the doctrine was not a “clearly erroneous application
of statutory law.” United States v. Cole, 567 F.3d 110, 117 (3d
Cir. 2009) (quotation omitted). So any error in limiting Grant’s
resentencing to Counts I and II was not plain because it was
not “clear under current law.” United States v. Olano, 507 U.S.
725, 734 (1993).
6
5
In two non-precedential opinions, we have applied the sentencing-package doctrine to vacated sentences. See United
States v. Fumo, 513 F. App’x 215 (3d Cir. 2013); United States
v. Brown, 385 F. App’x 147 (3d Cir. 2010). Given those decisions’ lack of precedential status, we cannot rely on them. See
Internal Operating Procedures of the United States Court of
Appeals for the Third Circuit, 5.7 (January 2017) (“The court
by tradition does not cite to its not precedential opinions as
authority.”). And we did not adopt the sentencing-package
doctrine until 1997, see Davis, 112 F.3d at 122, ten years after
issuing the precedential opinion that Grant cites for the notion
that the doctrine applies when a sentence alone is vacated,
United States v. Guevremont, 829 F.2d 423 (3d Cir. 1987).
6 We exempt from this holding the District Court’s imposition
of a 60-year concurrent sentence for Grant’s conviction on
Count IV. The Court decided to limit resentencing to Counts I
and II but then increased Grant’s Count IV sentence from 40
to 60 years. We will vacate this portion of the District Court’s
judgment and remand with instructions for the Court to correct
its inadvertent sentencing error.
Outcome: 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.
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