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)
Lawrence S. Lustberg [ARGUED]
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
2
Bruce P. Keller [ARGUED]
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 impris-
onment 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.
1
The Sentencing Reform Act of 1984, Pub. L. No. 98-473,
§218(a)(5), 98 Stat. 1987, 2027 (repealing 18 U.S.C. §§4201–
18), abolished parole for federal inmates.
3
In 2012, the Supreme Court of the United States decided
Miller v. Alabama, 567 U.S. 460, which held that the Eighth
Amendment permits a life-without-parole (“LWOP”) sentence
for a juvenile homicide offender only if the sentencer could
have imposed a lesser punishment based on the offender’s
youth at the time of the offense. Later, the Court made Miller
retroactive to cases on collateral review. Montgomery v.
Louisiana, 577 U.S. 190 (2016). Because Grant’s LWOP sen-
tence was imposed mandatorily, Miller entitled him to a new
sentencing.
At resentencing, the District Judge noted Grant’s minor-
ity 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 con-
tends that Miller forbids such a sentence for a juvenile homi-
cide 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
4
offenses. And that is what he received. So we will affirm
Grant’s 65-year sentence.2
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.
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.
5
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 con-
spiracy under the Racketeer Influenced and Corrupt Organiza-
tions 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).
6
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 convic-
tions, 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 origi-
nal 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 consecu-
tive 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.
7
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 life-
without-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 sen-
tencer has discretion to impose a lesser punishment after con-
sidering the offender’s youth and related characteristics in mit-
igation.
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 col-
lateral review to juvenile homicide offenders serving final sen-
tences. 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 man-
datory 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
8
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 concur-
rent 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 sen-
tence 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 sen-
tence 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 con-
current sentence.
4
Citations preceded by “A” refer to Appellant Corey Grant’s
Appendix submitted on appeal.
9
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 alter-
native 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 reason-
ableness 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.
10
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 sen-
tencing regimes is a prophylactic that entitles a juvenile homi-
cide offender to a certain sentencing process, but not a partic-
ular 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 Amend-
ment’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
11
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 non-
mandatory 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 fore-
close 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 sen-
tences). Along with Graham, which categorically prohibited
LWOP for juvenile non-homicide offenders, Roper formed the
12
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 impos-
ing 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 dis-
cretionary 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 empow-
ered to . . . declare, for the government of future cases, princi-
ples 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 sub-
stantive right retroactive for habeas petitioners, see, e.g.,
Schriro v. Summerlin, 542 U.S. 348, 351–54 (2004), the Mont-
gomery 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
13
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 empha-
sizing that Miller’s holding was limited to “mandatory life-
without-parole sentences.” See, e.g., id. at 206 (“Miller’s pro-
hibition on mandatory life without parole for juvenile offend-
ers”), 208 (“the Court’s holding in Miller that mandatory life-
without-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 oppor-
tunity to obtain release” that Graham required states to afford
juvenile non-homicide offenders.
So the question we must resolve is whether Montgom-
ery 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-
14
tive rule that applies retroactively on collateral review to peo-
ple 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) (empha-
sis added). Because Montgomery was subject to a mandatory
LWOP sentence, proscriptions on discretionary LWOP sen-
tencing 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., dissent-
ing) (citing Ring v. Arizona, 536 U.S. 584 (2002) (applying
Apprendi v. New Jersey, 530 U.S. 466 (2000), to determina-
tions 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) (decid-
ing 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 grad-
ual developments in the law over which reasonable jurists may
disagree are not later used to upset the finality of state convic-
tions 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
15
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 lan-
guage in Montgomery pertaining to discretionary LWOP sen-
tencing regimes is not binding.
3. Jones confirms that Miller requires only discre-
tionary 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 sen-
tence was constitutional because “the sentence was not manda-
tory and the trial judge had discretion to impose a lesser pun-
ishment 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 sys-
tem is both constitutionally necessary and constitutionally suf-
ficient” 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 with-
out 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
16
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 sen-
tencing 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 sentenc-
ing procedure,” which itself “has indeed helped make life-
without-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 fol-
low 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 sen-
tencer 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 disproportional-
ity . . . .”). 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.
17
437, 440 (2013) (lamenting Supreme Court’s choice, seem-
ingly motivated by error-cost minimization, to use “implemen-
tation 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 cat-
egorically prohibit sentencing any juvenile homicide offender
to LWOP, so long as the sentencer has considered the
offender’s youth in mitigation. And “a discretionary sentenc-
ing procedure suffices to ensure individualized consideration
of a defendant’s youth.” Jones, 141 S. Ct. at 1321. Such indi-
vidualized 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 sen-
tencer 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 teen-
ager.” Id. “When one looks at his upbringing, the debilitating
characteristics of youth, inherent in being a young person and
18
the limited decision-making abilities of a minor, it is clear to
this Court that . . . Mr. Grant is not that rarest [] exception ref-
erenced in Miller, where the lifetime without parole is appro-
priate.” 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 improp-
erly strayed from the “so-called Miller factors” by failing to
articulate Grant’s “[c]hronological age and its hallmark fea-
tures,” 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 considera-
tions occurred in its discussion of why mandatory LWOP sen-
tencing “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 considera-
tion of the §3553(a) factors. Compare, e.g., id. at 478–79 (dis-
cussing 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 crimi-
nal justice systems,” Montgomery, 577 U.S. at 211 (citing Ford
19
v. Wainwright, 477 U.S. 399, 416–17 (1986)), it mandates only
“that a judge or jury . . . have the opportunity to consider miti-
gating circumstances before imposing” LWOP. Miller, 567
U.S. at 489; accord Jones, 141 S. Ct. at 1321 (“[A]n on-the-
record sentencing explanation with an implicit finding of per-
manent incorrigibility is not dictated by any historical or con-
temporary 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 deci-
sionmaking 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 sen-
tence on Counts I and II.
20
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 over-
all 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 revis-
iting the overall sentencing plan after vacatur of a conviction
is “to ensure that the punishment still fits both crime and crim-
inal.” 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
21
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 forfei-
ture 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 ask-
ing 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 argu-
ment 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
22
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 defend-
ant’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 similar-
ity between “package” and “part and parcel,” defense counsel’s
advocacy was, at best, a “vague allusion” to the key sentenc-
ing-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 con-
viction” (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
23
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 sen-
tencing-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 deci-
sions’ 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.
24
IV. CONCLUSION
What matters for Miller purposes is whether the sen-
tencer 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.
25
HARDIMAN, Circuit Judge, concurring, with whom
JORDAN, BIBAS, and PORTER, Circuit Judges join:
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
1
Maj. Op. at 17.
2
567 U.S. 460, 489 (2012).
3
Id. at 469–70 (quoting Estelle v. Gamble, 429 U.S. 97, 102
(1976)).
1
application empowers judges to exercise unbounded
discretion.
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
4
See 356 U.S. 86 (1958) (plurality opinion).
5
Cf. TRW Inc. v. Andrews, 534 U.S. 19, 37 (2001) (Scalia, J.,
concurring in judgment).
6
Trop, 356 U.S. at 87.
7
Id. at 88.
8
Id.
2
be free from cruel and unusual punishment was violated.9 In
the majority opinion, Judge Hand explicitly refused to address
the Eighth Amendment argument for four reasons. It was not
pleaded in the complaint, argued on summary judgment, cited
by the district judge, or mentioned at argument before the
Second Circuit.10 According to Judge Hand, the closest Trop
came to arguing the point was a passing reference that
expatriation violates due process.11
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,
9
Trop v. Dulles, 239 F.2d 527 (2d Cir. 1956).
10
Id. at 529–30.
11
Id. at 530.
12
Id. (Clark, C.J., dissenting) (citing Comment, The
Expatriation Act of 1954, 64 YALE L.J. 1164, 1189–99
(1955)).
13
See id.; see also The Expatriation Act of 1954, supra note
12, at 1178–82.
14
Trop, 356 U.S. at 91.
3
Perez v. Brownell,15 and stated that the principles espoused
there essentially decided Trop.16 The Chief Justice explained
that the national government lacks the power to deprive
Americans of citizenship involuntarily, though citizens may
expatriate themselves voluntarily.17 After just three
paragraphs, Chief Justice Warren concluded: “On this ground
alone the judgment in this case should be reversed.”18 Though
that was enough to decide the case, he did not end his opinion
there. Instead, he turned to the unrelated Eighth Amendment
question. In doing so, Chief Justice Warren waxed historical:
“The Court recognized in [Weems v. United States, 217 U.S.
349 (1910)] that the words of the Amendment are not precise,
and that their scope is not static. The Amendment must draw
its meaning from the evolving standards of decency that mark
the progress of a maturing society.”19 With this dictum—
involving an issue the Second Circuit explicitly refused to
address and that was unnecessary to the decision in Trop—the
Supreme Court planted a seed that has sprouted into controlling
Eighth Amendment law some sixty years later and will
continue to vex the inferior federal courts in cases like Corey
Grant’s.
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,
15
356 U.S. 44 (1958).
16
Trop, 356 U.S. at 91–92.
17
Id. at 92–93.
18
Id. at 93.
19
Id. at 100–01 (emphasis added).
4
until it surfaced in a footnote in a death-penalty case.20 And it
was then quoted only in passing in seven death-penalty cases
in the 1970s.21
B
Nearly two decades after its introduction in Trop, the
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
20
Witherspoon v. Illinois, 391 U.S. 510, 519 n.15 (1968).
21
McGautha v. California, 402 U.S. 183, 202 (1971);
Furman v. Georgia, 408 U.S. 238, 242 (1972) (Douglas, J.,
concurring); McLamore v. South Carolina, 409 U.S. 934, 936
(1972) (Douglas, J., dissenting from denial of ceriorari);
Sellars v. Beto, 409 U.S. 968, 970–71 (1972) (Douglas, J.,
dissenting); Gregg v. Georgia, 428 U.S. 153, 173 (1976)
(plurality opinion); Woodson v. North Carolina, 428 U.S.
280, 301 (1976) (plurality opinion); Roberts v. Louisiana,
428 U.S. 325, 336 (1976) (plurality opinion).
22
429 U.S. 97, 102 (1976).
23
Id. at 101–02.
24
Gamble v. Estelle, 516 F.2d 937 (5th Cir. 1975).
25
Gamble, 429 U.S. at 107–08.
5
evolving standards of decency that mark the progress of a
maturing society.’”26 With that statement, the Court first
established the evolving standards of decency as a
constitutional test.
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
26
Id. at 102 (quoting Trop, 356 U.S. at 101).
27
Trop, 356 U.S. at 100–03.
28
McCleskey v. Kemp, 481 U.S. 279, 300 (1987).
29
Penry v. Lynaugh, 492 U.S. 302, 330–31, 340 (1989).
30
Atkins v. Virginia, 536 U.S. 304, 316–17 (2002).
6
for the Court in Atkins, Justice Stevens cited Trop and the
evolving standards of decency.31
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.
31
Id. at 311–12. In his Atkins dissent, Justice Scalia cited
Trop’s language not because he believed it was a proper
analytical tool, but to argue that even applying that standard,
there was no consensus against the practice because 18 states
(or 47% of the death penalty states) permitted the execution
of the mentally disabled. Id. at 341–43 (Scalia, J., dissenting).
32
543 U.S. 551 (2005).
33
Id. at 556.
34
Id. at 570–71.
35
Id. at 575.
36
Id. at 587 (Stevens, J., concurring).
7
Significant for our purposes, Justice O’Connor accepted the
premise that the Eighth Amendment is not static and must draw
its meaning from the evolving standards of decency.37 Justice
Scalia rejected that premise. Instead, he cited Federalist 78 and
wrote: “What a mockery today’s opinion makes of Hamilton’s
expectation, announcing the Court’s conclusion that the
meaning of our Constitution has changed over the past 15
years—not, mind you, that this Court’s decision 15 years ago
was wrong, but that the Constitution has changed.”38
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
37
See id. at 594, 604 (O’Connor, J., dissenting). In Roper,
Justice O’Connor also criticized the Missouri Supreme
Court’s failure to follow Stanford, which she called clear
error. Id. at 593–94. She also noted that since Stanford, six
states had executed people under 18. Id. at 595. And there
was no genuine national consensus on this matter as there
were over 70 juveniles on death row in 12 states. Id. at 596.
38
Id. at 608 (Scalia, J., dissenting).
39
554 U.S. 407 (2008).
40
Id. at 419.
8
noted that social standards embody variable moral
judgments.41
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
41
Id.
42
Graham v. Florida, 560 U.S. 48 (2010).
43
Id. at 58.
44
Miller v. Alabama, 567 U.S. 460, 465–66, 468 (2012). In
Miller, one murder involved the shooting of a video store
proprietor during a robbery in which defendant Jackson was a
co-conspirator. Id. at 465–66. The second murder was
particularly heinous, with Miller beating a man with a
baseball bat while proclaiming: “I am God, I’ve come to take
your life.” Id. at 468. Miller and his co-conspirators returned
to burn down the victim’s trailer. Id.
45
Id. at 469.
9
precedent about “proportionate punishment.”46 The confluence
of those two lines suggested that mandatory life without the
possibility of parole for juveniles violated the Eighth
Amendment.47 But she concluded, as the majority opinion
rightly notes in the case before us, that the Court’s decision
mandated only a certain process (i.e., consider the offender’s
youth) before imposing a particular penalty.48
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
46
Id. at 470.
47
Id.
48
Id. at 483.
49
572 U.S. 701 (2014).
50
Id. at 708; see also id. at 708–09 (discussing policy
rationales).
51
Id. at 723.
10
substitution of judicial preferences about penological policy
for the will of the People.52
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
52
E.g., Graham, 560 U.S. at 67.
53
Miller, 567 U.S. at 493 (Roberts, C.J., dissenting).
54
Id. at 493–94.
55
Id. at 494.
56
Id. at 495.
57
Id. at 497.
58
Id. at 498.
11
Graham did not compel the Court’s decision.59 Graham said
that “there is a line between homicide and other serious violent
offenses.”60 And Roper said the death penalty for juveniles was
unnecessary precisely because life without parole is
available.61 He concluded with a warning: “This process has no
discernible end point.”62
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
59
Id. at 499.
60
Id. (internal quotation marks and citation omitted).
61
Id. at 500.
62
Id. at 501.
63
Id. at 502 (Thomas, J., dissenting).
64
Id. at 503–04. As Justice Thomas recognized in dissent, id.
at 507, the Court had declined extending the individualized
sentencing rule beyond the death penalty context some twenty
years prior: “There can be no serious contention . . . that a
sentence which is not otherwise cruel and unusual becomes so
simply because it is ‘mandatory,’” Harmelin v. Michigan,
501 U.S. 957, 995 (1991).
65
Miller, 567 U.S. at 509.
12
problematic from the start.66 Justice Alito asked: “Is it true that
our society is inexorably evolving in the direction of greater
and greater decency? Who says so . . . ?”67 He concluded by
stating the Court’s “Eighth Amendment cases are no longer
tied to any objective indicia of society’s standards.”68
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
66
Id. at 510 (Alito, J., dissenting).
67
Id.
68
Id. at 514.
69
Hall, 572 U.S at 725 (Alito, J., dissenting) (emphasis
omitted).
70
Id. at 726 (cleaned up). Justice Alito found no consensus
among states about how to define “intellectually disabled.”
Id. at 726–27. And he claimed the Court should not count
states that have abolished the death penalty because, “[t]he
fact that a State has abolished the death penalty says nothing
about how that State would resolve the evidentiary problem
of identifying defendants who are intellectually disabled.” Id.
at 729–30.
71
Id. at 731.
13
often change, tying Eighth Amendment law to these views will
lead to instability and continue to fuel protracted litigation.”72
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 standards
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
72
Id. at 731–32 (footnote omitted).
73
See, e.g., John F. Stinneford, Evolving Away from Evolving
Standards of Decency, 23 FED. SENT’G REP. 87, 88–89 (2010)
(delineating the current test’s erosion); id. at 89–90 (applying
the original meaning to come to consistent results with a
stable test).
14
elastic constitutionalism? As Chief Justice Roberts cautioned
nine years ago: there is “no discernable end point.”74
74
Miller, 567 U.S. at 501 (Roberts, C.J., dissenting).
15
GREENAWAY, JR., Circuit Judge, concurring. RESTREPO,
Circuit Judge, joins. KRAUSE, Circuit Judge, joins Section
II.
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 Eighth
Amendment requires sentencing courts to afford non-
incorrigible juvenile homicide offenders a “meaningful
opportunity to obtain release based on demonstrated maturity
and rehabilitation” plays no role in my colleagues’ writing.
567 U.S. 460, 479 (2012) (quoting Graham v. Florida, 560
U.S. 48, 75 (2010)). Thus, I only concur in the judgment as to
Section III.A of the majority opinion. I join Section III.B of
the majority opinion in toto.
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 life without
parole. Jones, 141 S. Ct. at 1321. Jones provides that such a
sentence complies with the Eighth Amendment so long as the
sentence is discretionary and the sentencing court considered
youth as a mitigating factor. Id. at 1313.
1
I appreciate that my colleagues in the majority believe
that the effect of Jones on Miller (and on the matter before us)
is that of its holdings regarding constitutionality and remedy—
that is, whether the sentencing court must consider youth as a
mitigating factor and make a corrigibility finding—are
necessarily dispositive at the initial stage of the sentencing
process. But here, the facts implicate a point in the sentencing
court’s decision-making process that is outside the ambit of
Jones.
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
1
Consistent with this pronouncement in Graham, the
Court also noted in Miller that “[l]ife without parole . . . [is] at
odds with a child’s capacity for change.” 567 U.S. at 473. That
Miller did not categorically prohibit LWOP altogether does not
mean that it permits LWOP sentences for juvenile homicide
offenders who are not incorrigible.
2
also id. at 1337 (“For present purposes, sentencers should hold
this Court to its word: Miller and Montgomery are still good
law. . . . Sentencers are thus bound to continue applying those
decisions faithfully.”) (Sotomayor, J., dissenting). As Justice
Kavanaugh highlighted: “[o]n the question of what Miller
required, Montgomery was clear: ‘A hearing where youth and
its attendant characteristics are considered as sentencing
factors is necessary to separate those juveniles who may be
sentenced to life without parole from those who may not.’” Id.
at 1317-18 (quoting Montgomery v. Louisiana, 577 U.S. 190,
210 (2016)). If Miller and Montgomery are not overturned, as
the Jones Court made clear, then courts are still bound by the
holdings of those cases. See Montgomery, 577 U.S. at 209
(“Miller did bar life without parole . . . for all but the rarest of
juvenile offenders, those whose crimes reflect permanent
incorrigibility.”). If Miller and Montgomery have no continued
vitality beyond their narrowest holdings, the Jones Court easily
could have said so.
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
3
sentencing an offender under 18 to life without parole.”). If
Miller’s requirement that a non-incorrigible juvenile homicide
offender be afforded a “meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation”
does not remain, then what is the purpose of Jones’s
unequivocal assertion that Miller and Montgomery have
continued vitality?
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
4
decisions underscore Graham’s lessons. Montgomery affirms
that Miller “established that the penological justifications for
life without parole collapse in light of ‘the distinctive attributes
of youth.’” 577 U.S. at 208 (quoting Miller, 567 U.S. at 472).
Further, Montgomery explains that Miller drew a constitutional
“line between children whose crimes reflect transient
immaturity and those rare children whose crimes reflect
irreparable corruption.” Id. at 209.2 The Montgomery Court
2
As is true with any finding of corrigibility, youth must
be taken to account. The Miller Court requires that the
sentencing court “take into account how children are different,
and how those differences counsel against irrevocably
sentencing them to a lifetime in prison” before imposing
LWOP. 567 U.S. at 480. Thus, the Miller Court enumerated
various considerations that can be used to determine whether a
juvenile offender is incorrigible:
• “[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
5
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
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.
3
Even if one interprets Jones as the Majority does, the
meaningful opportunity standard continues to govern in cases
involving juvenile non-homicide offenders. See Jones, 141 S.
Ct. at 1314; Graham, 560 U.S. at 75. The discussion that
follows thus provides guidance to district courts confronting
Eighth Amendment claims brought by such offenders.
6
intend[s] . . . .”).4 In holding that juvenile LWOP is not an
appropriate sentence for non-homicide offenders in light of an
offender’s capacity for change and limited culpability, the
Court viewed the problem with the punishment as more
profound than just denial of release:
[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.
4
Whether “meaningful opportunity to obtain release”
evolves from the Supreme Court’s application of “the evolving
standards of decency” is of no moment. Miller, 567 U.S. at
479; Concurring Op. at 1. Judge Hardiman’s objections to
decades of Supreme Court case law do not aid district courts in
the difficult task of determining what is a just sentence given a
horrible crime committed by a juvenile whose youth is a
mitigating factor. Further, our explication of Graham, Miller,
and Montgomery does not represent an extension of the
holdings pronounced in those cases. Lastly, Jones accords
unfettered discretion to any sentencing court to mete out a
sentence of any term of years or life without parole if youth is
considered and a discretionary sentencing scheme is invoked.
A consideration of meaningful opportunity to obtain release
does nothing to impede the exercise of that discretion.
7
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.”).
This passage conveys the essence of what a
“meaningful opportunity to obtain release” is: a non-
incorrigible juvenile offender must be afforded an opportunity
for release at a point in his or her life that still affords
“fulfillment outside prison walls,” “reconciliation with
society,” “hope,” and “the opportunity to achieve maturity of
judgment and self-recognition of human worth and potential.”
Id. at 79. That is, the requirement encompasses more than mere
physical release at a point just before a juvenile offender’s life
is expected to end.
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,”
5
This same concern—lack of vocational training—also
animated the Court to adopt a categorical rule in Graham,
rather than a case-by-case approach, in order to “avoid[] the
perverse consequence in which the lack of maturity that led to
an offender’s crime is reinforced by the prison term.” Graham,
560 U.S. at 79.
8
“reconciliation with society,” and “self-recognition of human
worth and potential,” consistent with the Eighth Amendment,
id. at 79—the State must give non-incorrigible juvenile
offenders the opportunity to meaningfully reenter society upon
their release. See id. at 75 (“[The Eighth Amendment]
prohibit[s] States from making the judgment at the outset that
those offenders never will be fit to reenter society.”); see also
id. at 74 (stating that it is “not appropriate” for sentencing
courts to “deny[] the [non-incorrigible juvenile] defendant the
right to reenter the community” in light of his or her “capacity
for change and limited moral culpability” (emphasis added)).6
The Supreme Court indicated in Graham, Miller, and
Montgomery that a constitutionally 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
6
The Government in its submissions is not reluctant to
embrace the notion that a corrigible juvenile homicide offender
is entitled to a meaningful opportunity to obtain release. But
the Government’s “hope for some years of life outside prison
walls” standard is too narrow in light of the Court’s statements
that the Eighth Amendment requires mitigating the pernicious
long-term effects that LWOP has on juvenile offenders who
still have the capacity to reform. Appellee’s Br. 29.
9
who receive life sentences “some meaningful opportunity to
obtain release,” it sought to preserve their “incentive to become
. . . responsible individual[s],” reward “good behavior and
character improvement,” and avoid “the perverse consequence
in which the lack of maturity that led to an offender’s crime is
reinforced by the prison term.” Id. at 70, 79. If a decision-
maker cannot consider maturity and rehabilitation, then a
release mechanism fails to accomplish these purposes.
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
7
Perhaps the best illustration of this requirement comes
from the Supreme Court’s jurisprudence contrasting clemency
and parole. In most cases, a governor or president may
“commute a sentence at any time for any reason without
reference to any standards.” Solem v. Helm, 463 U.S. 277, 301
(1983). Because inmates cannot predict when they will be
considered for relief, what factors will influence release
decisions, or how likely they are to win a reprieve, clemency
creates little incentive for “good behavior and character
improvement.” Graham, 560 U.S. at 70.
10
realistic opportunity from a remote one, several of its decisions
provide useful benchmarks. On one side of the spectrum, a
release mechanism that fails to result in the release of any
offender “in over eight years” cannot cure the Eighth
Amendment concerns associated with a life sentence. Solem v.
Helm, 463 U.S. 277, 302 (1983). On the other side of the
spectrum, the Court has acknowledged that “[a] State may
remedy a Miller violation by permitting juvenile homicide
offenders to be considered for parole.” Montgomery, 577 U.S.
at 212.
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.
8
This will be a vast majority of juvenile offenders. See
Montgomery, 577 U.S. at 209.
11
AMBRO, Circuit Judge, concurring in part and dissenting in
part, with whom MCKEE, Circuit Judge, joins.
RESTREPO, Circuit Judge, joins except with respect to Part I.
I.
I join in the unanimous judgment of the Court with
respect to the Eighth Amendment issue in this case, but I do
not join the entirety of my colleagues’ reasoning. Like Judge
Greenaway, and unlike the majority, I believe that Miller and
Montgomery, on their face, were best read to guarantee a
meaningful opportunity for release for juvenile offenders who,
like Grant, were found to be capable of reform (i.e., are not
incorrigible). Compare Concurring Op. at 5 with Maj. Op. at
12–14. The problem is that unlike Judge Greenaway, I believe
that Jones effectively overruled those portions of Miller and
Montgomery, and therefore the majority’s reasoning is more
aligned with the current state of the law. Compare Maj. Op. at
10, with Concurring Op. at 1; see also Jones v. Mississippi, 141
S. Ct. 1307, 1315 (2021) (holding that “permanent
incorrigibility is not an eligibility criterion” for sentences of
life without parole); id. at 1328 (Thomas, J., concurring)
(observing that “though the Court purports to leave
Montgomery’s holding intact, it recognizes that Montgomery’s
analysis is untenable and not to be repeated”); id. at 1328
(Sotomayor, J., dissenting) (observing that the majority
opinion “guts Miller . . . and Montgomery”). Still, as my
colleagues have written well and exhaustively on the nuances
of the Eighth Amendment issue in this case and my slight
difference in reasoning will not affect the ultimate judgment, I
do not grapple with this issue any further.
II.
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 concedes 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
2
argument was unpreserved. Maj. Op. at 22–23. But in doing
so, it holds counsel to too high a standard. A party preserves
an argument by raising it with “sufficient specificity to alert the
district court.” Brennan v. Norton, 350 F.3d 399, 418 (3d Cir.
2003) (internal quotation marks and citation omitted). It need
only be made in substance; magic words are not needed. See
United States v. Miller, 833 F.3d 274, 283–84 (3d Cir. 2016).
Counsel for Grant clearly urged the District Court to consider
his existing sentence—life imprisonment on two RICO counts,
forty years on three drug charges, and five years on a gun
charge—as one cohesive package.
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 resentence 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
3
considered it anew without the constraints of plain-error
review.
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
1
I note that panels of our Court have applied the sentencing
package doctrine to vacated sentences in not-precedential
opinions. See United States v. Fumo, 513 F. App’x 215, 218
(3d Cir. 2013) (“The District Court also appropriately turned
to the well-established ‘sentencing package’ doctrine to
support its approach to the restitution amounts on remand.”);
United States v. Brown, 385 F. App’x 147, 148 (3d Cir. 2010)
(citing Davis to justify a District Court’s decision to increase
the sentence on one count on resentencing after a sentence on
another count was challenged on appeal). And within our
Circuit Chief Judge Hornak of the Western District of
Pennsylvania has twice followed suit. See United States v.
Green, No. 2:04-cr-00233, 2020 WL 4034834, at *7 (W.D. Pa.
July 17, 2020) (applying the doctrine to a vacated sentence and
citing Fumo and Brown for support); United States v. Black,
No. 2:11-cr-00045-4, 2019 WL 211086, at *9 (W.D. Pa. Jan.
16, 2019) (same).
4
Cir. 2018) (Cowen, J., concurring in part and dissenting in
part), vacated, 905 F.3d 285 (3d Cir. 2018) (mem.). In my
view, Judge Cowen got the law right, and I will not rehash all
of his well-reasoned arguments. Instead, I write briefly to
explain why this application of the sentencing package
doctrine is both important and proper.
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.
5
In that case, a judge can set the sentence on the other counts
knowing that the stakes for the defendant are essentially zero:
He will die in jail on count A no matter what the judge does
with count B. The judge might therefore choose to give only a
trivial sentence on count B, knowing that it doesn’t matter, or
instead give an inordinately high sentence on count B, using it
as a costless outlet to send a message and promote deterrence.
State supreme courts across the country have been quick to
recognize this reality. See People v. Turner, 936 N.W.2d 827,
827 (Mich. 2020) (mem.) (holding that “a concurrent sentence
for a lesser offense is invalid if there is reason to believe that it
was based on a legal misconception that the defendant was
required to serve a mandatory sentence of life without parole
on the greater offense”); Commonwealth v. Costa, 33 N.E.3d
412, 417 (Mass. 2015) (holding that the decisions that led to
vacating a juvenile offender’s life sentence “transformed a
choice [to impose consecutive versus concurrent sentences]
that could be regarded as somewhat symbolic into one of some
consequence” (internal quotation marks omitted)); Bear Cloud
v. State, 334 P.3d 132, 143 (Wyo. 2014) (concluding that, “[o]n
remand, the district court should weigh the entire sentencing
package” of a juvenile, rather than simply the one count
carrying a life sentence); Sen v. State, 301 P.3d 106, 127 (Wyo.
2013) (holding that “because Sen's sentence of life without the
possibility of parole may have impacted the sentencing
decisions with respect to [other counts], . . . the appropriate
course is to vacate those sentences and remand for resentencing
on all counts”).
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
6
was decided prior to the creation of our formal sentencing
package doctrine, Maj. Op. at 23 n.4, Guevremont is at least
compelling authority, and we should affirm that its reasoning
still applies. And while it is true that recent decisions generally
describe the sentencing package doctrine as applying when a
“conviction has been vacated, as opposed to just a sentence,”
that language “is best viewed as descriptive rather than
prescriptive.” United States v. Catrell, 774 F.3d 666, 670 (10th
Cir. 2014) (emphases in original). We should join the Tenth
Circuit—the only one of our sister circuits to consider this
issue squarely—and hold that the sentencing package doctrine
applies to vacated sentences. Id.
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
7
Imprisonment Supervised Release
1992 2016 1992 2016
Count(s)
I and II
5 years,
RICO (including
concurrent
murder and Life
with other
attempted murder counts
predicates)
60 years
IV
Conspiracy to
possess with 5 years on
intent to 40 years, all counts to
distribute cocaine concurrent run Life
with life 40 years, concurrently
V and VI sentence concurrent
Possession with
with 60-
intent to
year
distribute cocaine sentence
5 years, 5 years, 5 years,
XI consecutive consecutive concurrent
Gun possession to other to other with other
counts counts 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
8
five-year mandatory minimum sentence on the gun count, he
ultimately sentenced Grant to forty years on the drug counts
(well above the mandatory minimum) to run concurrently with
the life sentence.
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
2
Judge Linares also increased Grant’s term of imprisonment
for the drug conspiracy charge (Count IV) from 40 to 60 years.
While this could have been an intentional change if Judge
Linares viewed himself as engaging in de novo resentencing,
the majority concludes that this was simply an “inadvertent
sentencing error.” Maj. Op. at 24 n.5. The majority does not
address whether it also views the increased term of supervised
release on Counts IV–VI as another inadvertent error.
3
The majority has similarly concluded that “[t]he Court
decided to limit resentencing to Counts I and II.” Maj. Op. at
24 n.5.
9
To do otherwise, he believed, would “be almost unfair to the
system and unfair to Judge Ackerman all of these years later.”
App. at 152. This would have the effect of setting a floor of 45
years on Grant’s sentence and could easily have affected the
ultimate 65-year sentence. As the Government pointed out at
resentencing, “45 years . . . , other than the fact of the gun
count, doesn’t really account for the murders . . . .” App. at
128. That is, if Judge Linares wanted to impose an incremental
punishment for the murder and attempted murder (included in
RICO Counts I and II), he would need to go above the floor of
45 years for the drug and gun counts. And he did—sentencing
Grant to 60 years on the RICO counts. This suggests that an
isolated piece of Judge Ackerman’s old sentencing plan
(imprisonment on Counts IV–VI and XI) may have been the
tail that wagged the dog at Grant’s resentencing rather than the
sentencing plan being refashioned from scratch.
* * * * *
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.
10