United States v. Branden Pete

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-10370
Plaintiff-Appellee,
D.C. No.
v. 3:03-cr-00355-SMM-4

BRANDEN PETE,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding

Argued and Submitted
September 18, 2015—San Francisco, California

Filed April 11, 2016

Before: William A. Fletcher, Marsha S. Berzon,
and Carlos T. Bea, Circuit Judges.

Opinion by Judge Berzon
2 UNITED STATES V. PETE

SUMMARY*

Criminal Law

The panel vacated a sentence, which the district court
imposed on resentencing in light of Miller v. Alabama,
132 S. Ct. 2455 (2012), and remanded for appointment of a
neuropsychological expert and for resentencing after
considering any expert evidence offered.

The defendant was 16 years old when, in 2002, he
committed a crime that resulted in a mandatory life sentence
without the possibility of parole. Following Miller, which
held unconstitutional for juvenile offenders mandatory terms
of life imprisonment without the possibility of parole, the
district court resentenced the defendant to 708 months.

The panel held that the district court abused its discretion
in denying the indigent-defendant’s motion for appointment
of a neuropsychological expert under 18 U.S.C. § 3006A(e)
to help develop mitigating evidence at resentencing, where
(1) a reasonable attorney would have considered an up-to-
date neuropsychological evaluation necessary had the
defendant been a nonindigent defendant; and (2) the
defendant was prejudiced because a current evaluation could
have provided mitigating evidence in support of a lesser
sentence.

The panel rejected the defendant’s contention that in light
of 28 U.S.C. § 994(b)(1), which delegates authority to the

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. PETE 3

Sentencing Commission to develop sentencing “ranges,” the
Commission lacked authority to enact base offense level 43,
which provides no sentencing “range.” The panel explained
that at least where, as in 18 U.S.C. § 1111, a single sentence
is compelled by statute, a sentencing “range” is properly
limited to that sentence. The panel concluded that the district
court did not commit prejudicial error when it considered the
presentence report’s calculation of criminal history points
attributable to the defendant’s juvenile offenses.

COUNSEL

Atmore L. Baggot (argued), Apache Junction, Arizona, for
Defendant-Appellant.

John S. Leonardo, United States Attorney, District of
Arizona; Krissa M. Lanham, Deputy Appellate Chief; Joan G.
Ruffennach, Assistant United States Attorney (argued),
Phoenix-Arizona, for Plaintiff-Appellee.

OPINION

BERZON, Circuit Judge:

Branden Pete was 16 years old when he committed a
crime that resulted in a mandatory sentence of life without the
possibility of parole. Later, Miller v. Alabama, 132 S. Ct.
2455 (2012), held unconstitutional for juvenile offenders
mandatory terms of life imprisonment without the possibility
of parole. On resentencing, the district court refused to
appoint a neuropsychological expert pursuant to 18 U.S.C.
§ 3006A(e) to help Pete develop mitigating evidence.
4 UNITED STATES V. PETE

Our principal question on appeal is whether the district
court abused its discretion in declining to appoint such an
expert to aid the defense. We conclude that it did, and so
remand for appointment of an expert, and for resentencing
after considering any expert evidence offered. We also
consider, and reject, Pete’s other challenges to his
resentencing.

I.

A. The Crime

In May 2002, Pete, a Navajo youth who lived on an
Arizona reservation, was riding in a car with three men,
Hoskie James, Harris James (Hoskie’s son1), and Irvin Cepi.
At the time, Pete was 16 years old, Hoskie was 41, Harris was
20, and Cepi was 23. Hoskie drove the car. Pete and Harris
had been drinking for some time before meeting up with Cepi
and Hoskie, and the four riders continued to drink while
driving.

Hoskie pulled over to pick up a hitchhiker, Charlotte
Brown. After a period of driving, Hoskie stopped the car in
a wooded area and everyone got out. One member of the
group suggested that they rape Brown. They then took turns
holding her down and raping her.

After the rapes, everyone got back in the car. The victim
sat between Pete and Cepi in the back seat, naked, while
Hoskie drove away. Although the exact events and
chronology are unclear, it appears that either Brown

1
Because Harris and Hoskie James share a surname, we refer to them
by their first names.
 UNITED STATES V. PETE 5

threatened to call the police, or the group became concerned
that she would. As a result, some member of the
group—probably Cepi—suggested killing her.

Hoskie stopped the car once again, and the victim was
either ordered or dragged out of the car. She was then
physically forced or ordered to the ground. Pete and Harris
held Brown down while Cepi, who had retrieved a large rock,
threw it onto her head. Brown’s face was bleeding, but she
continued to breathe, making “stuffy nose” sounds. Pete then
threw another rock at Brown’s head or face, apparently
killing her. Pete asked Harris to “throw [a rock] on her,” but
Harris said no.

Pete and Cepi then dragged Brown’s body into a ditch and
covered it with rocks. The perpetrators returned to the car
and drove home. Later, to conceal the crime, Harris and Pete
set fire to Brown’s clothes and shoes and to their own
clothing as well.

B. Pre-Trial Events

After Brown’s remains were discovered, Pete was
arrested. He was held in Navajo tribal custody until a
juvenile information was filed in the U.S. District Court for
the District of Arizona. United States v. Brandon P.,
387 F.3d 969, 971 (9th Cir. 2004).2 The United States
petitioned to try Pete as an adult, invoking the transfer

2
Although the record indicates that Pete spells his first name “Branden,”
his name was spelled “Brandon” in the case name of earlier iterations of
this case.
6 UNITED STATES V. PETE

provisions of 18 U.S.C. § 5032.3 Id. In preparation for the
transfer proceedings, the court granted Pete’s request under
section 3006A(e) for a forensic psychiatric evaluation.

The forensic evaluator, Dr. Herschel D. Rosenzweig,
interviewed Pete for three hours in May 2003 and reviewed
a number of case-related materials. Dr. Rosenzweig
described Pete as “cordial, polite and cooperative throughout
the interview,” and as “wholly responsive to all inquiries to
the best of his ability.” Pete had “fair vocabulary and [a]
relatively poor fund of general information.” Pete’s “first
language is Navajo” and he “had a long history of learning
difficulties, [attending] special education programs while in
school.” Pete dropped out of school at the age of 13, in
seventh grade, when his “level of learning in school was two
to three years delayed.”

Pete’s “mother and father were severe alcoholics and
drank most of the time.” At the age of 14, Pete began to
drink alcohol more regularly than he had before (he didn’t
remember when he first used alcohol) and began using
marijuana; at 15, he started using cocaine. Pete believed he
was “quite dependent and addicted to alcohol, and []

3
Section 5032 provides, in relevant part:

A juvenile alleged to have committed an act of juvenile
delinquency . . . shall not be proceeded against in any
court of the United States unless the Attorney General,
after investigation, certifies to the appropriate district
court of the United States that . . . the offense charged
is a crime of violence that is a felony . . . , and that
there is a substantial Federal interest in the case or the
offense to warrant the exercise of Federal jurisdiction.
 UNITED STATES V. PETE 7

acknowledged that [he] ha[d] a serious problem with this
substance.”

After dropping out of school, Pete lived with various
family members. He worked odd jobs, mostly to earn money
to buy alcohol and marijuana. Pete described getting into
trouble when he used alcohol, but said he didn’t drink while
living with his older brother in New Mexico. While living
with that brother, Pete studied for his GED and intended to
complete the exam, but his mother urged him to come live
with her, back in Arizona, and he did. Pete’s father, who
physically abused both Pete and Pete’s mother, died shortly
before Pete committed the crimes underlying this appeal.

Pete, Dr. Rosenzweig concluded, was a substance abuser
who “had virtually no support or help from his family while
attending school,” and who, “with the exception of one older
brother . . . , d[id] not identify any positive role models within
his family system.” He “appear[ed] to be a youngster who
c[ould] be readily intimidated, and influenced by others such
that he has little resilience against participating in drug and
alcohol abuse when in the company of those who are so
inclined.” “[B]ut when provided with [positive role] models,
he appears to be capable of responding in a very appropriate
manner.” The doctor noted that Pete was a model prisoner in
his ten months at the juvenile facility. According to staff, he
had been “an extremely cooperative inmate, had no incidents
or inappropriate behavior,” and was “polite and cooperative,”
“essentially . . . a model inmate,” attaining the top of five
privilege levels in his time there.

Dr. Rosenzweig opined, ultimately, that Pete was “a very
salvageable young man, and with adequate structure and
support, appropriate treatment resources and abstinence from
8 UNITED STATES V. PETE

substance abuse, he ha[d] the potential of becoming a
responsible and productive citizen.”

The district court considered Dr. Rosenzweig’s evaluation
but rejected the doctor’s ultimate conclusions, on the ground
that the doctor’s opinion was influenced by Pete’s
inconsistent recitation of the crime and events leading to it.
The court then granted the United States’ motion to transfer
the case to try Pete as an adult. Brandon P., 387 F.3d at 971.
We affirmed the transfer. Id. at 978.

C. Convictions and Initial Sentencing

Pete’s trial began in October 2005. Harris pled guilty and
testified at Pete’s trial.4 United States v. Pete, 277 F. App’x
730, 733 (9th Cir. 2008). The jury convicted Pete on counts
of second-degree and felony murder, as well as conspiracy to
murder. The judge sentenced him to concurrent mandatory
terms of life imprisonment without the possibility of parole,
pursuant to 18 U.S.C. § 1111.5

We affirmed the convictions and sentence on all grounds.
See Pete, 277 F. App’x 730; United States v. Pete, 525 F.3d
844 (9th Cir. 2008).

4
Cepi was convicted by a jury and sentenced to life imprisonment
without the possibility of parole. See 18 U.S.C. § 1111.
5
In relevant part, section 1111 provides: “Whoever is guilty of murder
in the first degree shall be punished by death or by imprisonment for life
. . . .” 18 U.S.C. § 1111(b). Pete’s felony murder convictions were treated
as first-degree murder. See id. § 1111(a).
 UNITED STATES V. PETE 9

D. Requests for Resentencing and for an Expert

In 2013, after the Supreme Court decided Miller, Pete
moved for resentencing. The district court granted the
motion, noting that Miller requires the court to give a juvenile
offender “an opportunity to present mitigating evidence to
support a sentence less than life without parole,” and ordering
that Pete be resentenced on an open record.6

Before the resentencing, Pete filed an ex parte motion for
expert services pursuant to section 3006A(e),7 requesting that
Marc Walter, Ph.D., be paid to assist him. Pete explained that
Dr. Walter’s help was “necessary to pursue information that
might mitigate or lessen the sentence imposed on
resentencing.” Noting the passage of more than a decade
since preparation of the original PSR and Dr. Rosenzweig’s
forensic evaluation, Pete explained:

Dr. Walter would conduct a comprehensive
neuropsychological evaluation which would

6
The United States agreed before the district court that Miller applies
retroactively and does not contest its retroactivity on appeal. After this
case was argued, the U.S. Supreme Court agreed that the Miller rule is
retroactive. See Montgomery v. Louisiana, 136 S. Ct. 718 (2016).
7
Section 3006(A)(e)(1) provides:

Upon request. –Counsel for a person who is financially
unable to obtain investigative, expert, or other services
necessary for adequate representation may request them
in an ex parte application. Upon finding, after
appropriate inquiry in an ex parte proceeding, that the
services are necessary and that the person is financially
unable to obtain them, the court . . . shall authorize
counsel to obtain the services.
10 UNITED STATES V. PETE

let us know [Pete’s] ‘mental age’, whether he
has any cognitive dysfunction which could
make him more suggestible or impair his
judgment, and whether he has any particular
mental disorders which could have played into
his behavior.

Further, Dr. Walter “could offer insights into the impact
incarceration has had on Mr. Pete, who has been in
segregation much of his confinement.”

The court denied Pete’s motion. It held that although Pete
is financially qualified for an expert, he had not shown Dr.
Walter’s services were “necessary” within the meaning of
section 3006A. The court noted that “[t]he purpose of th[e]
re-sentencing is to allow defendant Pete to present mitigating
evidence in support of a sentence of less than life without
parole, in accordance with Miller . . . .” Pete’s “2003
psychiatric evaluation . . . includes such evidence,” said the
court, and although Pete “implie[d] that the passage of time
may impact that evidence, . . . it is difficult to conceive how
. . . . For example, the passage of time would not change his
‘family and home environment’ nor the ‘circumstances of the
underlying homicide offense.’” “Not only that,” explained
the court, “but the 2003 evaluation encompasses the matters
which the neuropsychologist intends to evaluate, rendering a
second evaluation duplicative.” Lastly, “any ‘insights into
the impact incarceration has had’ on [Pete] is not the type of
mitigating evidence which Miller contemplates.”

E. The Pre-Sentence Report (“PSR”)

In preparation for resentencing, the U.S. Probation Office
calculated the offense level for Pete’s crimes as 43.
 UNITED STATES V. PETE 11

Originally, the PSR recommended that three of Pete’s
juvenile offenses be assigned two criminal history points
each. The PSR also discussed Pete’s prison record, which
included:

January 25, 2008, possessing intoxicants;
January 29, 2008, possessing a dangerous
weapon; March 13, 2008, fighting with
another person; May 30, 2008, destroying
property over $100; October 24, 2008,
refusing to take alcohol test and being in an
unauthorized area; March 15, 2009, assault
without serious injury, wherein the defendant
struck with his shoulder a staff member while
in restraints; December 8, 2011, possession of
a dangerous weapon; April 17, 2012,
interfering with security devices, wherein the
defendant burned a hole in the exterior
window of his cell; April 22, 2012, setting a
fire on the SHU range; June 27, 2012,
refusing work/program assignment, wherein
the defendant refused to accept a cellmate
because he was not willing to accept “just any
cellie;” October 31, 2013, destroy property
$100 or less.

The PSR concluded that the Guidelines range for Pete’s
crimes was life, and that, pursuant to section 1111, he was
subject to two life sentences for the felony murder
convictions. The probation officer recommended a life
sentence because of “the seriousness of the offense and [to]
protect the public from further crimes.”
12 UNITED STATES V. PETE

Pete objected to the six criminal history points attributed
to three of his juvenile offenses in the PSR. The calculation
was incorrect, he contended, because he never served a
sentence for those offenses. The probation officer adjusted
the calculation to give the offenses one point rather than two,
but noted that this did not affect the Guidelines’
recommendation of a life sentence.

Pete also challenged the PSR’s characterization of his
prison record, pointing out that (1) he had explained the
circumstances surrounding each infraction; (2) ten “minor
incidents in more than seven years is not unusual for an
inmate confined prior to age 18, and [is] also not unusual for
an inmate who has been transferred between nine different
institutions”; and (3) “because these incidents came in spurts
over a relatively short period of time, external stressors most
likely prompted” them.

F. Resentencing Proceeding

At resentencing, the court first reviewed the PSR with the
parties, asking whether the proper calculation of criminal
history points for Pete’s juvenile offenses had been resolved.
Pete’s attorney confirmed, and the United States agreed, that
the issue had been resolved.

Pete’s counsel, Daniel Drake, then argued. Drake
reported that he had met with Pete several times in
preparation for resentencing and was struck by his client’s
inquisitiveness. Pete was “quite unlike” his teenage self,
Drake maintained. Pete and Drake had discussed “a number
of things, interesting things that, again, belie what [Pete] was
like when he was 16.” Drake listed Pete’s recent reading
materials, “including Friedrich Nietzche’s[] Beyond Good
 UNITED STATES V. PETE 13

and Evil[,] . . . Victor Frankl’s[] Man’s Search For Meaning,
. . . [and] The Alchemist.” According to Drake, “[t]hese
things intrigue [Pete]. I can’t imagine they would have
caught his attention at the age of 16.” Referring to the
comments of a woman with whom Pete had corresponded
over the years, Drake summarized, “Mr. Pete is a different
person than he was when he committed this offense or when
he was sentenced the first time.”

Drake then discussed the crime, noting that the jury chose
not to convict Pete of first-degree murder. He emphasized
that Cepi, not Pete, instigated the crime; that Pete was the
youngest participant; and that the car’s occupants were
drinking heavily. Further, the 2003 evaluation revealed that
Pete’s cognitive processes as a juvenile mirrored those that
concerned the justices and underlay the decisions in Miller
and Roper v. Simmons, 543 U.S. 551 (2005).8

Drake then reviewed the 18 U.S.C. § 3553 sentencing
factors, explaining, among other things, that, were a life
sentence reimposed, Pete would not be allocated the limited
rehabilitative services available in prison; that a life sentence
was not necessary to protect the public, “given Mr. Pete’s
growth and maturation”; and that deterrence would not be
served by a life sentence because of the nature and extent of
crime on the Navajo reservation.

Next, Drake explained that Pete had been in segregation
for much of his dozen years in prison and had been
transferred many times. His status as a sex offender made
him subject to mistreatment by other prisoners. The isolation,

8
Roper held unconstitutional capital punishment imposed on individuals
who were under 18 at the time of their crimes.
14 UNITED STATES V. PETE

frequent transfer, and mistreatment were relevant to Pete’s
sentence, according to Drake, in two ways. First, they
indicated that Pete would be affected in an excessively
negative way by spending a lifetime in prison, nearly always
in isolation. Second, Pete’s sex offender status explained at
least three of his assaultive infractions. Because of his status,
other inmates “jumped him,” and he had to fight back in self-
defense. Also, he had been placed in a cell with another
inmate with whom he felt unsafe.

Pete then personally addressed the court. He thanked the
court for the opportunity to speak; described prison as a
“rough journey” that had taken a mental and emotional toll on
him; and explained that because he had spent 80% of his time
in solitary confinement, he had done a lot of thinking, with
the result that he felt he had “to better [him]self with
knowledge, wisdom, understanding, and to . . . have goals
. . . .” When the court asked about Pete’s work toward his
GED, Pete noted that he had studied and taken pretests, but
that his solitary confinement prevented him from progressing
further.

“[T]he majority of the reason” that he was in solitary
confinement, Pete explained, was fear for his life. Being in
the “general population . . . , as with my charges, you know,
it’s political,” and the “majority of penitentiary is run by
gangs.” But he maintained that he had changed quite a bit.
He now had “morals, principles, and a code [he goes] by in
[his] daily routine, and [he does] his best each and every day
to meet those goals.” Pete emphasized that he had “changed
a lot,” “matured” and “grown a lot,” that he didn’t “have the
same mindframe as [he] had as an adolescent, as a youth, at
the age of 16,” and that he now had goals and wanted to do
something positive with his life. Although he wished his
 UNITED STATES V. PETE 15

crimes “didn’t happen,” he couldn’t change the fact that they
had.

The prosecutor then spoke. Addressing Pete’s
representation that he had changed, the prosecutor challenged
that portrayal: “The defendant says that he has changed, that
he has matured. His disciplinary record from the bureau of
prisons is at odds with that.” The prosecutor noted that Pete
was at first housed in the general population but then had to
be placed in segregated housing, “because he gets in trouble.”
Further, Pete had not made much progress toward his GED,
having participated in fifteen or twenty classes, and then
withdrawing in late 2013, which, the prosecutor suggested,
meant Pete was not following through on his asserted goals.

The cruel nature of the crime, the prosecutor continued,
justified any deviation between Pete’s sentence and those
imposed on other juveniles. As an example, the prosecutor
referred to Pete’s behavior, throwing the rock that probably
killed Brown, while Harris refused to participate in stoning
Brown. Pete’s participation was not due to juvenile
impulsivity or poor judgment, discussed in Miller, the
prosecutor maintained. Overall, said the prosecutor: “I think
that that singular act of depravity is just evil. It is not
explained by the fact that you were neglected or you drink.”

The district court then imposed the sentence. The court
reasoned that Pete’s prison infractions indicated he had not
matured. Next, the court discussed the crime, noting that Pete
“was an active knowing and willing participant,” that Pete
had had time to consider whether he wanted to participate,
but that he chose to “deliver[] the fatal blow” and dispose of
Brown’s body and clothing, and that the crime was “one of
the most cruel, deliberate, heinous acts I have seen in over 40
16 UNITED STATES V. PETE

years.” The court also emphasized that Pete had
“demonstrated his violence and his antisocial nature while in
jail . . . .” Disagreeing with Dr. Rosenzweig’s ultimate
prediction about Pete, “particularly when he said . . . he
thought there was some opportunities for the defendant to
correct himself,” the court announced that any sentence less
than life would mean that, “upon release . . . , [Pete] still
poses a danger, and although they seem to suggest that after
the age of 35 people start to diminish their propensity for
criminal activity, I am not so sure it is accurate in this case.”
Although it acknowledged Pete’s drinking and family life, the
court opined that, “instead of trying to be better than the
circumstances of his parents, [Pete] gave into it, and most of
the time he spent as a youth was out of school, drinking,
doing drugs, and getting into trouble, and there’s no
indication that that would go unabated.”

To calculate the exact sentence, the court reasoned that
Pete’s life expectancy was 75 years. It then subtracted Pete’s
age and the amount of time he had already served to come to
a sentence of 708 months—59 years—as the total appropriate
sentence, elaborating:

That means that you have the opportunity to
get out of jail, Mr. Pete, when you are 75
years old and live the balance of whatever life
you have left back on the reservation.

By that time, the families will be gone. You
will certainly be beyond the age of probably
violent behavior. I doubt that even with that
given amount of time you’ll be able to do
anything productive, but at least it gives you
 UNITED STATES V. PETE 17

a chance to pass on from this life into the next
outside of the confines of the prison yard.

The court thereupon imposed a 708-month sentence.

II.

On appeal, Pete first challenges the district court’s denial
of his motion for an expert under section 3006A(e). “A
district court’s denial of a request for public funds to hire an
expert is reviewed for abuse of discretion.” United States v.
Rodriguez-Lara, 421 F.3d 932, 939 (9th Cir. 2005), overruled
on other grounds by United States v. Hernandez-Estrada,
749 F.3d 1154, 1164 (9th Cir. 2014).

“The purpose of the Criminal Justice Act [is] to put
indigent defendants as nearly as possible in the same position
as nonindigent defendants . . . .” United States v. Sanders,
459 F.2d 1001, 1002 (9th Cir. 1972). For that reason, under
section 3006A(e), “a district judge shall authorize the
provision of expert services to a defendant financially unable
to obtain them9 where such services are necessary for
adequate representation.” Rodriguez-Lara, 421 F.3d at 939.
A district court thus abuses its discretion in denying an expert
“where (1) reasonably competent counsel would have
required the assistance of the requested expert for a paying
client, and (2) the defendant was prejudiced by the lack of
expert assistance.” Id. at 940 (citation omitted).

Here, both those conditions were satisfied.

9
The parties do not dispute that Pete is financially qualified for an
expert.
18 UNITED STATES V. PETE

A. Necessity

Critical to the question before us is the well-established
principle that “a court’s duty is always to sentence the
defendant as he stands before the court on the day of
sentencing.” United States v. Quintieri, 306 F.3d 1217, 1230
(2d Cir. 2002) (citation omitted). Further, where, as here, a
court is resentencing on an open record, the court is “free to
consider any matters relevant to sentencing, even those that
may not have been raised at the first sentencing hearing, as if
it were sentencing de novo.” United States v. Matthews,
278 F.3d 880, 885–86 (9th Cir. 2002) (en banc); see also
Pepper v. United States, 562 U.S. 476, 490 (2011) (“[A]
district court may consider evidence of a defendant’s
rehabilitation since his prior sentencing.”). Applying those
precepts, we have rejected the contention that at resentencing
a district court should not consider intervening events, see
United States v. Jones, 114 F.3d 896, 897–98 (9th Cir. 1997),
and have held that a district court should have explained why
a PSR was not updated for resentencing, as the earlier PSR
did not account for five years during which time the
defendant was imprisoned, see United States v. Turner,
905 F.2d 300 (9th Cir. 1990).

More specifically on point here is United States v.
Hernandez, in which the Second Circuit ruled that a district
court should have considered changes in the defendant over
the course of the 15 years since the original sentence,
including how the defendant’s aging affected the likelihood
of his recidivism; his rehabilitation in the interim; and
intervening changes in sentencing law. See 604 F.3d 48,
53–55 (2d Cir. 2010). We agree with Hernandez that at a
resentencing, a district court should consider how the passage
of time, including the defendant’s maturation and personal
 UNITED STATES V. PETE 19

development in the interim, affect such sentencing factors as
likelihood of rehabilitation and recidivism.

In rejecting the motion to appoint an expert, the district
court expressed views inconsistent with that principle. In
particular, the district court noted that Pete’s upbringing and
the circumstances of the crime have not changed, and
maintained that because a psychiatric evaluation had been
done in 2003, a second evaluation would be “duplicative.”
“[I]t is difficult to conceive how,” the district court stated,
“the passage of time may impact [the psychiatric] evidence”
presented during the pretrial proceedings nearly ten years
before. Further, the district court held that the impact of
incarceration on Pete “is not the type of mitigating evidence
which Miller contemplates.” We disagree with the district
court as to all three aspects of its reasoning.

First, an evaluation for resentencing would not duplicate
the 2003 evaluation. The 2003 evaluation did address Pete’s
family and home environment and the circumstances of the
offense, including the extent of his participation and what
familial and peer pressures may have played a role. Those
section 3553 factors have not changed since Pete committed
the offense. But his chronological age has changed. Contrary
to the district court’s assertion that “it is difficult to conceive
how” the passage of time mattered with regard to Pete’s
family background and the nature of the crime, the passage of
time could affect the degree to which Pete was negatively
affected by his difficult upbringing, as well as what lessons
he had learned, if any, by reflecting on the crime. Indeed,
“Miller requires a sentencer to consider a juvenile offender’s
youth and attendant characteristics before determining that
life without parole is a proportionate sentence.” Montgomery,
136 S. Ct. at 734. Moreover, if contemporary factors relating
20 UNITED STATES V. PETE

to psychological maturation and personal evolution were
developed, the passage of time could affect the weight given
to Pete’s family background and the circumstances of the
crime in the overall mix of mitigating circumstances.

Second, an individual’s psychological makeup could
certainly change significantly over a ten-year period, both
cognitively and emotionally. Two psychological evaluations
ten years apart are simply not “duplicative.” Cf. Griffin v.
Johnson, 350 F.3d 956, 965 (9th Cir. 2003) (finding a current
psychological evaluation “minimally probative” of a
defendant’s mental capacity to commit murder eight years
earlier); Eley v. Bagley, 604 F.3d 958, 967 (6th Cir. 2010)
(concluding that psychiatric evaluations performed nearly ten
years after a crime had “virtually no probative value” in
assessing the defendant’s mental state at the time of the
crime).

The district court’s determination to the contrary was
seemingly premised on an erroneously narrow temporal
focus—that is, on the assumption that only Pete’s mental
status at the time of the crime and during the 2003 transfer
evaluation is relevant. As we have discussed, however, the
resentencing should have taken into account—and, indeed, to
some degree did take into account—an assessment of the
relevant factors, including the prospects for rehabilitation, as
of the time of the resentencing.

Moreover, the likelihood of psychological change
over time is very much heightened when, as here, the
defendant was a juvenile both at the time of the crime and at
the earlier psychological evaluation. As Miller observed,
“developments in psychology and brain science continue to
show fundamental differences between juvenile and adult
 UNITED STATES V. PETE 21

minds—for example, in parts of the brain involved in
behavior control.” 132 S. Ct. at 2464 (citation omitted). The
Court in Miller also emphasized the specific characteristics of
juvenile brain development and resulting mental states that
often cause juveniles’ impulsivity, recklessness, and
vulnerability to outside pressures. See id. at 2464–65. As a
result of these characteristics, juveniles have less control over
their actions, and, critically, greater capacity to change over
time so as not to repeat similar behavior, as compared to
adults. Id. Youth’s “signature qualities are all transient,”
concluded Miller. Id. at 2467 (citation omitted).

Miller also stressed that certain policy rationales
underlying hefty punishments—culpability, incapacitation,
and rehabilitation—differ as applied to juveniles. Id. at
2464–65. “Miller, then, did more than require a sentencer to
consider a juvenile offender’s youth before imposing life
without parole; it established that the penological
justifications for life without parole collapse in light of ‘the
distinctive attributes of youth.’” Montgomery, 136 S. Ct. at
734 (quoting Miller, 132 S. Ct. at 2465).

To account for the transience of youthful characteristics
and the differing policy considerations applicable to minors,
Miller mandated that a juvenile offender be “provide[d] some
meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” Id. at 2469
(citation omitted). Accordingly, although Miller does “not
foreclose a sentencer’s ability to [impose life imprisonment]
in homicide cases,” the case does “require [the sentencer] to
take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a
lifetime in prison.” Id.
22 UNITED STATES V. PETE

When the district court ruled that no expert testimony was
“necessary,” it ignored Miller’s reasoning and directives. At
the time of resentencing, Pete’s neuropsychological condition
had not been evaluated in more than a decade. An updated
evaluation could have revealed whether Pete was the same
person psychologically and behaviorally as he was when he
was 16. Rather than being “duplicative,” as the district court
believed, a new evaluation could have shown whether the
youthful characteristics that contributed to Pete’s crime had
dissipated with time, or whether, instead, Pete is the “rare
juvenile offender whose crime reflects irreparable
corruption.” Id. at 2469 (citation omitted); see also
Montgomery, 136 S. Ct. at 733. Similarly, without current
information relating to the policy rationales applicable
specifically to juvenile offenders, Pete was hamstrung in
arguing for a more lenient sentence.

More specifically, the significant mitigating evidence
available to Pete at resentencing, other than his own
testimony and that of his lawyer (neither of which the district
court credited), would have been information about his
current mental state—in particular, whether and to what
extent he had changed since committing the offenses as a
juvenile. This information was directly related to Pete’s
prospects for rehabilitation, including whether he continued
to be a danger to the community, and therefore whether the
sentence imposed was “sufficient, but not greater than
necessary, to comply with the purposes” of sentencing.
18 U.S.C. § 3553(a); see id. (a)(2)(C), (D). Such information
is pertinent to determining whether, as Miller indicates is
often the case, Pete’s psychological makeup and prospects for
behavior control had improved as he matured, with the
consequence that his prospects for rehabilitation and the need
for incapacitation had changed.
 UNITED STATES V. PETE 23

The third reason the district court gave for rejecting the
request for funds to conduct a current psychological
evaluation—that the impact of incarceration “is not the type
of mitigating evidence [] Miller contemplates”—fares no
better. As it turned out, the United States, and the district
court, emphasized information about Pete’s incarceration at
the resentencing hearing, relying on the PSR to conclude that
Pete’s prison record indicated he had not appreciably changed
or matured in the twelve years since he committed the
offense. Yet, the district court precluded Pete from
developing key rebuttal evidence—namely, current evidence
as to his mental state. The refusal to authorize expert services
thus assured a lopsided presentation of evidence, favoring the
United States.

In particular, the court’s refusal to approve a new
psychological appraisal denied Pete the opportunity to
respond effectively to the PSR’s discussion of his prison
record or to provide corroborating evidence that could
substantiate his explanations for his prison infractions. Pete’s
explanation for his prison record was that his status as a sex
offender caused him to be mistreated by other inmates, and
therefore resulted in him being placed, indefinitely, in
segregated housing. An expert’s testimony could have
bolstered Pete’s arguments that the infractions, which tended
to come in spurts over relatively short periods of time,
reflected external stressors (such as mistreatment by other
inmates), not some inherent and intractable defect in Pete’s
mature personality. See Miller, 132 S. Ct. at 2464 (citing
“studies showing that only a relatively small proportion of
adolescents who engage in illegal activity develop entrenched
patterns of problem behavior” (citation and internal
alterations omitted)); Montgomery, 136 S. Ct. at 733, 734.
Similarly, the expert could have opined as to the excessively
24 UNITED STATES V. PETE

negative psychological impact that could result from placing
Pete in segregated housing for many more years, were his
sentence to remain lengthy. In all these respects, an expert
could have provided substantive evidence to support the
argument that Pete’s prison record did not suggest he lacked
the capacity for rehabilitation before the age of 75.

To be sure, Pete could have done a better job in his
motion for an expert of explaining the ways in which the
expert would aid his defense. But Pete did identify the issues
he hoped the neuropsychologist would address—mitigating
evidence in the form of an analysis of Pete’s development and
maturity since the offenses, as well as the impact
incarceration had had on him.

In sum, the critical question under Miller was Pete’s
capacity to change after he committed the crimes at the age
of 16. As to that consideration, whether Pete has changed in
some fundamental way since that time, and in what respects,
is surely key evidence. Under these circumstances, a
reasonably competent attorney would have found the services
of the requested expert necessary to provide adequate
representation at Pete’s resentencing. See 18 U.S.C.
§ 3006A(e)(1). By precluding Pete from developing this
potential mitigating evidence, the district court abused its
discretion.

B. Prejudice

We next consider whether Pete has shown by clear and
convincing evidence that the refusal to appoint an expert
prejudiced him. See Rodriguez-Lara, 421 F.3d at 946.
 UNITED STATES V. PETE 25

“[T]he function of the prejudice inquiry is to prevent
appellate courts from second-guessing district judges in cases
in which the requested services could not have mattered to the
outcome.” Id. at 947. But the inquiry is not meant “to force
the defendant to prove that the requested expenditure would
necessarily have produced a different result.” Id. The
prejudice question is, instead, whether the defendant
“requested expert services in furtherance of a claim that
would, if meritorious, change the outcome of the case.” Id.
(emphasis added). In other words, to show prejudice, the
defendant requesting services is not required to proffer what
evidence the expert will develop—or in this case, the actual
results of the expert’s examination. To so require would be
to create a Catch-22, whereby a defendant who cannot afford
to pay an expert could obtain an expert’s services only by
providing precisely the expert evidence he has no funds to
pay for. Accordingly, the defendant need only identify the
way in which an expert could develop evidence in support of
a claim that would, if proven, materially benefit the defense.
Id. at 946–47.

For example, United States v. Hartfield, 513 F.2d 254
(9th Cir. 1975), ruled that the defendant was prejudiced by
lack of access to an expert whom the defendant requested to
examine the defendant’s mental status, hoping that the
examination would bear fruit as a defense to the crimes
charged. Hartfield did not first have to demonstrate what the
expert would have concluded. See id. at 258; United States
v. Bass, 477 F.2d 723 (9th Cir. 1973).

Here, the district court’s denial of the neuropsychological
expert prevented Pete from developing and presenting
potentially useful mitigating evidence in line with Miller.
The expert could have updated the court as to Pete’s mental
26 UNITED STATES V. PETE

status, and, depending on his findings, backed up Pete’s and
his counsel’s assertions that Pete (1) had changed positively
during his time in prison; (2) was susceptible to
rehabilitation; and (3) either no longer presented a danger to
the community or likely would not be a danger at some time
before he was 75. The expert could also have placed Pete’s
prison record in context, explaining the impact on Pete of
segregated housing and harassment by other prisoners.
Particularly because the district court was skeptical, at best,
of Pete’s and his counsel’s representations as to these issues,
Dr. Walter’s evaluation was likely the only Miller-related
evidence that could possibly convince the district court that
Pete deserved leniency. Because Pete “requested expert
services in furtherance of a claim that would, if meritorious,
change the outcome of the case,” Rodriguez-Lara, 421 F.3d
at 947, he was prejudiced by not having access to the expert
he requested.

In summary, a reasonable attorney would have considered
an up-to-date neuropsychological evaluation necessary had
Pete been a nonindigent defendant. And because a current
evaluation could have provided mitigating evidence in
support of a lesser sentence, Pete was sufficiently prejudiced
by the failure to appoint a psychological expert before
resentencing. We therefore vacate Pete’s sentence and
remand for resentencing.

III.

Pete next challenges the U.S. Sentencing Commission’s
authority to enact base offense level 43, which provides no
sentencing “range.” While 28 U.S.C. § 994(b)(1) delegates
authority to the Commission to develop sentencing “ranges,”
it also requires the Commission to develop Guidelines
 UNITED STATES V. PETE 27

consistent with “all pertinent provisions of title 18, United
States Code.” (Emphasis added). Level 43 corresponds to
the mandatory minimum sentence of life codified in section
1111, a provision in title 18 with which the Guidelines must
be consistent. See also U.S.S.G. § 2A1.1 & cmt. n.1
(providing that the base offense level for murder offenses is
43, consistent with and incorporating section 1111). At least
where a single sentence is compelled by statute, a sentencing
“range” is properly limited to that sentence. We therefore do
not decide whether a “range” is more than one suggested
sentence where no particular sentence is mandated by statute.

Pete has not shown the district court erred by calculating
the Guidelines’ recommended base offense level as 43.10
Notably, after conducting that calculation, the district court
did not sentence Pete to the Guidelines life sentence, but
instead to 708 months.

IV.

Pete also has not demonstrated that the district court
committed prejudicial error when it considered the PSR’s
calculation of criminal history points attributed to his juvenile
offenses. Even assuming that Pete’s objection to the district
court’s calculation of his criminal history category based on
his juvenile offenses was forfeited, as opposed to waived, see
United States v. Alferahin, 433 F.3d 1148, 1154 n.2 (9th Cir.
2006), and assuming the district court committed plain error
by attributing criminal history points to three of his juvenile
offenses (but not to others that resulted in the same juvenile
“sentence”), id. at 1154; see also Fed. R. Crim. P. 52(b), Pete

10
Pete does not argue that Miller compelled the Commission to revise
base offense level 43 as it pertains to minors.
28 UNITED STATES V. PETE

has not shown prejudice as a result of the error, see Alferahin,
433 F.3d at 1157–58.

The Guidelines recommend life imprisonment for all
criminal history categories at base offense level 43. So, even
if the district court erroneously calculated the criminal history
category, the Guidelines would recommend the same
sentence for him. And, because the PSR identified many
juvenile offenses for which Pete was not given criminal
history points, it is unlikely that eliminating three points for
three juvenile offenses would have materially changed the
court’s overall view of Pete’s criminal history, considered
apart from the offense level calculation. It is that overall
perception, rather than the number of criminal history points,
that mattered here, where the criminal history points did not
affect the base offense level calculation and the court
imposed a non-Guidelines sentence.

V.

While Pete’s latter two challenges fail, we conclude that
he was entitled to the assistance of an expert for resentencing.
For that reason, we vacate the 708-month sentence and
remand, instructing the district court to grant Pete’s motion
for expert services, and to resentence Pete after having done
so.

SENTENCE VACATED AND REMANDED FOR
RESENTENCING.