FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10150
Plaintiff-Appellee,
D.C. No.
v. 2:96-cr-00464-
DLR-4
RILEY BRIONES, JR., AKA Unknown
Spitz,
Defendant-Appellant. OPINION
On Remand from the United States Supreme Court
Argued and Submitted September 22, 2021
Pasadena, California
Filed December 6, 2021
Before: Diarmuid F. O’Scannlain and Johnnie B.
Rawlinson, Circuit Judges, and David A. Ezra, * District
Judge.
Opinion by Judge O’Scannlain
*
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
2 UNITED STATES V. BRIONES
SUMMARY **
Criminal
On remand from the United States Supreme Court, and
further remand from the en banc court, the three-judge panel
affirmed the district court’s imposition of a sentence of life
without possibility of parole (LWOP) for crimes committed
by Riley Briones, Jr. while a juvenile.
This court affirmed Briones’s original life sentence in
1998. Following the Supreme Court’s decisions in Miller v.
Alabama, 567 U.S. 460 (2012) (holding that the Eighth
Amendment forbids a sentencing scheme that mandates life
in prison without possibility of parole for juvenile
offenders), and Montgomery v. Louisiana, 577 U.S. 190
(2016) (holding that Miller’s rule applied retroactively on
collateral review), Briones was resentenced to LWOP in
2016. The three-judge panel affirmed the sentence in United
States v. Briones, 890 F.3d 811 (9th Cir. 2018). The en banc
court subsequently vacated the sentence and remanded in
United States v. Briones, 929 F.3d 1057 (9th Cir. 2019)
(Briones II). The Supreme Court remanded for further
consideration in light of Jones v. Mississippi, 141 S. Ct. 1307
(2021).
In Jones, a case the Supreme Court took for the express
purpose of clarifying how to interpret Miller and
Montgomery, the Supreme Court held that in cases involving
LWOP defendants, a discretionary system—where a
sentencer can consider the defendant’s youth and has
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. BRIONES 3
discretion to impose a lesser sentence than LWOP—is
constitutionally sufficient. Jones likewise held that
permanent incorrigibility is not an eligibility criterion for the
imposition of juvenile LWOP sentences, and rejected the
argument that a sentencer must at least provide an on-the-
record sentencing explanation with an implicit finding of
permanent incorrigibility.
Briones argued—relying on the now-vacated en banc
decision in Briones II—that the resentencing record does not
reflect that the district court meaningfully engaged in
Miller’s central inquiry, namely, identifying those whose
crimes reflect permanent incorrigibility. The panel wrote
that Jones made altogether clear that—irrespective of any
seemingly contrary language in Miller or Montgomery—
permanent incorrigibility is not an eligibility criterion for
juvenile LWOP.
The panel held that Briones waived his argument that a
requirement of meaningful engagement with Miller’s central
inquiry comes from this court’s cases interpreting the federal
sentencing statute, 18 U.S.C. § 3553, as to which Jones is
irrelevant. The panel wrote that Briones’s statutory
argument would in any event fail on the merits.
The panel rejected Briones’s argument that Briones II
vacated his LWOP sentence for a second, independent
reason—namely, that the district court may not have
understood it was allowed to meaningfully consider
evidence of his post-conviction rehabilitation. The panel
wrote that the district court did consider Briones’s post-
incarceration rehabilitation, and explained that there is no
independent statutory requirement that a court imposing
juvenile LWOP “meaningfully engage” in a permanent-
incorrigibility analysis.
4 UNITED STATES V. BRIONES
The panel held that Briones waived his as-applied
challenge to the substantive proportionality of his sentence,
and wrote that all relevant factors militate against exercising
discretion to consider the merits of Briones’s otherwise-
waived substantive disproportionality arguments.
Reviewing for plain error, the panel rejected Briones’s
wholly speculative arguments advocating for categorical
bans on juvenile LWOP.
COUNSEL
Easha Anand (argued) and Damilola Arowolaju, The
Roderick & Solange MacArthur Justice Center, San
Francisco, California; Vikki M. Liles, The Law Office of
Vikki M. Liles P.L.C., Phoenix, Arizona; Melanie L.
Bostwick and Sheila Baynes, Orrick Herrington & Sutcliffe
LLP, Washington, D.C.; for Defendant-Appellant.
Krissa M. Lanham (argued), and Patrick J. Schneider,
Assistant United States Attorneys; Glenn B. McCormick,
Acting United States Attorney; Elizabeth A. Strange, Former
First Assistant United States Attorney; United States
Attorney’s Office, Phoenix, Arizona; for Plaintiff-Appellee.
UNITED STATES V. BRIONES 5
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a sentence of life imprisonment
without possibility of parole imposed on a juvenile is valid
after the Supreme Court’s recent decision in Jones v.
Mississippi, 141 S. Ct. 1307 (2021).
I
A
Riley Briones, Jr., a Salt River Pima-Maricopa Indian,
was a founder and leader of the “Eastside Crips Rolling
30’s,” a “violent and cold-blooded” gang which, as
described by the resentencing judge in this case, “terrorized
the Salt River Reservation community and surrounding area
for several years.” In this role, Briones participated in and
helped to plan a series of violent crimes on and around the
Salt River Reservation.
The most serious of these crimes was a murder
committed on May 15, 1994, when Briones was seventeen
years, eleven months, and eight days old. According to
evidence presented at trial, Briones and fellow gang
members planned to rob a Subway restaurant, knowing that
there would be only one employee present. Briones drove
four gang members to the restaurant and parked his car
outside while the other four—one of whom was armed with
a gun—went in to rob the store. They ordered sandwiches
from the lone employee, Brian Patrick Lindsay. While
Lindsay was preparing the order, the gunman returned to the
car to speak with Briones. Following his conversation with
Briones, the gunman went back into the restaurant, shot
Lindsay in the face, then shot him several more times as he
6 UNITED STATES V. BRIONES
lay on the floor. With the cash register locked, the gang
members were able to steal only the food they had ordered
and a bank bag containing $100. After his fellow gang
members got back in the car, Briones looked for a
maintenance man whom he thought had seen the robbery.
Briones instructed the other gang members to shoot the
maintenance man on sight, but they never found him.
Three weeks later, Briones helped plan the firebombing
of a rival gang member’s home and prepared the Molotov
cocktails to be used. Briones’s fellow gang member then
used the Molotov cocktails to set fire to a house with a family
(including an eleven-year-old girl) inside. Several months
later, the gang decided to try firebombing the same home
again. Briones once again provided Molotov cocktails and
drove fellow gang members to a kindergarten and an
abandoned trailer home to set diversionary fires. Briones
then drove them to the rival gang member’s home, which
they firebombed. Another month later, Briones helped plan
a drive-by shooting of the same home, although he was
neither the driver nor the shooter.
Over the next year, Briones continued to participate in
gang-related crimes, stopping only when he eventually was
arrested (at age 19 ½). 1 For instance, when one fellow gang
member revealed that he knew about the Subway robbery
and Lindsay murder, Briones pistol-whipped him. After
other gang members committed another drive-by shooting of
a home with a mother and child inside, Briones made sure
the culprits disposed of their clothes and accounted for the
shell casings. At trial, the Government also presented
1
In fact, it appears that Briones continued to participate in gang-
related activity, such as carving gang symbols into his jail cell door, even
after his arrest.
UNITED STATES V. BRIONES 7
evidence that Briones had discussed plans to blow up the Salt
River Police Department and to kill a tribal judge, federal
prosecutors, and Salt River Police investigators.
B
1
As a result of these crimes, Briones was arrested in 1995.
In 1996, he and four other members of the Eastside Crips
Rolling 30’s were indicted on a total of 17 federal charges.
Briones, specifically, was indicted for the following: one
count of First-Degree Felony Murder on an Indian
Reservation (18 U.S.C. §§ 1153, 1111, 2111); four counts of
Arson on an Indian Reservation (18 U.S.C. §§ 1153, 81);
two counts of Conspiracy to Commit Arson on an Indian
Reservation (18 U.S.C. §§ 1153, 371, 81); one count of
Possession of an Unregistered Destructive Device
(26 U.S.C. §§ 5861(d), 5841, 5871); one count of Assault
with a Dangerous Weapon on an Indian Reservation
(18 U.S.C. §§ 1153, 113(a)(3)); and one count of Tampering
with a Witness (18 U.S.C. § 1512(b)(3)). After a jury trial,
Briones was convicted of all such offenses.
At his original sentencing hearing in 1997, Briones
continued to deny responsibility for his crimes. The district
court found that Briones was the leader of the gang and, on
the felony murder count, imposed the then-mandatory
Guidelines sentence of life imprisonment without parole
(“LWOP”). On the remaining non-homicide counts, Briones
was sentenced to a total of twenty years’ imprisonment
(which he has since served), to run concurrently with his life
sentence.
8 UNITED STATES V. BRIONES
On direct appeal, we affirmed Briones’s conviction and
sentence. United States v. Briones, 165 F.3d 918 (9th Cir.
1998) (unpublished table decision).
2
Fifteen years after Briones’s original sentencing, the
Supreme Court held in Miller v. Alabama that “the Eighth
Amendment forbids a sentencing scheme that mandates life
in prison without possibility of parole for juvenile offenders”
and instead requires that sentencing judges “take into
account how children are different, and how those
differences counsel against irrevocably sentencing them to a
lifetime in prison.” 567 U.S. 460, 479–80 (2012) (emphasis
added).
After Miller, Briones filed a 28 U.S.C. § 2255 motion to
vacate his original LWOP sentence and to have it
reconsidered at a resentencing hearing where the district
court would have discretion—as required under Miller—to
impose a lesser sentence if deemed appropriate in light of
Briones’s “youth and attendant characteristics.” Miller,
567 U.S. at 483. The district court granted such motion in
2014 and ultimately set a resentencing hearing for 2016.
Several months before Briones’s resentencing, the
Supreme Court handed down Montgomery v. Louisiana,
which held that Miller’s rule applied retroactively on
collateral review. 577 U.S. 190, 206, 212 (2016). In dicta,
Montgomery also appeared to extend Miller’s rule,
suggesting that LWOP is “an unconstitutional penalty for . .
. juvenile offenders whose crimes reflect the transient
immaturity of youth,” i.e., “for all but . . . those whose
crimes reflect permanent incorrigibility.” Id. at 208–09.
UNITED STATES V. BRIONES 9
At the 2016 resentencing hearing, Briones’s counsel
requested a sentence of 360 months’ imprisonment, rather
than the Guidelines sentence of life imprisonment, for
Briones’s first-degree felony murder conviction. Invoking
the “hallmark[s] of youth” identified by Miller, counsel
argued that a life sentence was inappropriate in Briones’s
case, because his gang activity had been a product of
youthful immaturity and a desire for the “feeling of banding
together.” Counsel pointed to a dysfunctional childhood
environment, including parental drug and alcohol abuse, a
history of family criminality, Briones’s dropping out of
school in the tenth grade, and his difficulties as a Native
American attending school off the reservation where he
lived. To mitigate Briones’s culpability in the crime, counsel
averred that the Subway robbery scheme was not Briones’s
idea and noted that he was not the shooter. Briones himself
told the court that he “want[ed] to express remorse” and “to
express grief,” although he never actually took responsibility
for any of the crimes of which he was convicted. Finally, his
counsel pointed to evidence of rehabilitation, including that,
in all Briones’s time in prison, he never had been written up
for a disciplinary infraction, that he had no gang involvement
while in prison, that he had been working continuously, that
he had married his girlfriend (with whom he has a now-adult
child) after his incarceration, and that he sees his wife
regularly.
The Government’s counsel countered that Briones still
deserved a life sentence. The Government acknowledged
that, under Miller, “a life sentence for a juvenile is
inappropriate in all but the most egregious cases,” but argued
that Briones’s indeed “is the most egregious case.” While
recognizing that Briones was “really doing well in prison,”
the Government noted that Briones—even as he expressed
remorse—had failed to accept responsibility and had
10 UNITED STATES V. BRIONES
continued to minimize his role in the murder and in the gang.
Specifically, the Government contended that it was not
credible that Briones was unaware of his fellow gang
members’ intention to murder Lindsay, and that—on the
contrary—circumstantial evidence suggested Briones
himself may have ordered the murder (insofar as the gunman
reentered the restaurant to shoot Lindsay immediately after
speaking with Briones outside). The prosecutor described
Briones’s gang as “the most violent gang that I have ever
been involved in prosecuting,” including the Hell’s Angels.
Finally, the Government pointed out that although Briones
was a juvenile when the murder occurred, he was only barely
so—he was over seventeen years and eleven months old at
the time—and that he had continued to commit violent
crimes for another year and a half after turning eighteen,
stopping only after he was arrested.
After hearing from the parties and “[u]sing the
[G]uidelines as a starting point,” the district court calculated
a sentencing range of life imprisonment for Briones’s felony
murder conviction, with no objection from counsel. The
resentencing judge noted that, “[i]n addition to the
presentence report, I’ve considered the Government’s
sentencing memorandum, the defendant’s sentencing
memorandum[,] . . . the transcript of the [original]
sentencing[,] . . . the victim questionnaire and the letters on
behalf of [the] defendant.” He then found that “[a]ll
indications are that [Briones] was bright and articulate, he
has improved himself while he’s been in prison, but he was
the leader of a gang that terrorized the Salt River Reservation
community and surrounding area for several years. The gang
was violent and cold-blooded.” Briones “appeared to be the
pillar of strength for the people involved to make sure they
executed the plan [to murder Lindsay],” and he “was
involved in the final decision to kill the young clerk.” The
UNITED STATES V. BRIONES 11
judge explained that “in mitigation I do consider the history
of the abusive father, the defendant’s youth, immaturity, his
adolescent brain at the time, and the fact that it was impacted
by regular and constant abuse of alcohol and other drugs, and
he’s been a model inmate up to now. However, some
decisions have lifelong consequences.”
Ultimately, the district court announced that, “[h]aving
considered those things and all the evidence I’ve heard today
and everything I’ve read[,] . . . it’s the judgment of the Court
that Riley Briones, Jr.[,] is hereby committed to the Bureau
of Prisons for a sentence of life.” 2
Briones timely appealed to this court.
3
Briones filed an Opening Brief raising as his only non-
foreclosed argument that “[t]he district court did not
properly analyze whether [he] is one of the rare person[s]
whose juvenile crimes rendered him ‘incorrigible.’” In a
published opinion, this three-judge panel affirmed Briones’s
life sentence. United States v. Briones, 890 F.3d 811 (9th
Cir. 2018) (“Briones I”). 3
2
Because the federal system does not permit parole or early release
from life sentences, see 18 U.S.C. § 3624(b)(1), Briones’s sentence is
effectively for life without the possibility of parole.
3
I authored a separate opinion partially concurring in and partially
dissenting from the majority opinion in Briones I. See 890 F.3d at 822–
28 (O’Scannlain, J., concurring in part and dissenting in part). However,
for the reasons discussed in Parts II and III, infra, the concerns expressed
in my partial dissent have been mooted by Jones’s clarification of Miller
and Montgomery.
12 UNITED STATES V. BRIONES
After Briones filed a petition for rehearing en banc, this
court ordered en banc rehearing and vacated the original
three-judge panel’s decision. United States v. Briones,
915 F.3d 591 (9th Cir. 2019). The en banc panel
subsequently vacated Briones’s sentence and remanded.
United States v. Briones, 929 F.3d 1057 (9th Cir. 2019) (en
banc) (“Briones II”).
4
Following the en banc panel’s decision in Briones II, the
Government timely petitioned for certiorari.
During the pendency of such petition, the Supreme Court
issued its decision in Jones v. Mississippi, a case it had taken
for the express purpose of clarifying “how to interpret Miller
and Montgomery.” 141 S. Ct. at 1313. In Jones, the Court
held that in cases involving juvenile LWOP defendants, a
“discretionary sentencing system”—where a sentencer can
consider the defendant’s youth and has discretion to impose
a lesser sentence than LWOP—is “constitutionally
sufficient.” Id. Likewise, the Court held that “permanent
incorrigibility is not an eligibility criterion” for the
imposition of juvenile LWOP sentences, id. at 1315, and
rejected the argument that “a sentencer must at least provide
an on-the-record sentencing explanation with an ‘implicit
finding’ of permanent incorrigibility,” id. at 1319.
Subsequently, the Supreme Court issued an order
granting the Government’s petition for certiorari in this case,
vacating the en banc decision in Briones II, and remanding
to this court for further consideration in light of Jones.
United States v. Briones, 141 S. Ct. 2589 (2021).
UNITED STATES V. BRIONES 13
5
On remand from the Supreme Court, the en banc panel
from Briones II further remanded the case to this three-judge
panel. United States v. Briones, 1 F.4th 1204 (9th Cir. 2021)
(en banc).
II
A
Briones first argues—relying on the now-vacated en
banc decision in Briones II—that the resentencing record
below does not “reflect that the [district] court meaningfully
engaged in Miller’s central inquiry,” namely, identifying
“those whose ‘crimes reflect permanent incorrigibility.’”
Briones II, 929 F.3d at 1061, 1067 (quoting Montgomery,
577 U.S. at 209).
Jones, however, made clear that the Eighth Amendment
requires neither an explicit nor even an implicit finding of
permanent incorrigibility. See 141 S. Ct. at 1313 (“[A]
separate factual finding of permanent incorrigibility is not
required.”); id. at 1319 (“[A]n on-the-record sentencing
explanation with an implicit finding of permanent
incorrigibility (i) is not necessary to ensure that a sentencer
considers a defendant’s youth, [and] (ii) is not required by or
consistent with Miller . . . .”). Rather, Jones seized upon
Miller’s language purporting to “mandate[] ‘only that a
sentencer follow a certain process—considering an
offender’s youth and attendant characteristics—before
imposing’ a life-without-parole sentence.” Id. at 1311
(quoting Miller, 567 U.S. at 483). To that end, Jones
clarified that a “discretionary sentencing system is both
constitutionally necessary and constitutionally sufficient,”
because such discretion “suffices to ensure individualized
14 UNITED STATES V. BRIONES
consideration of a defendant’s youth.” Id. at 1313, 1321
(emphasis added).
Here, the district court plainly considered “youth and its
attendant characteristics,” id. at 1317 (quoting Montgomery,
577 U.S. at 210), at Briones’s resentencing. Indeed, the
resentencing judge explained, on the record, that “in
mitigation I do consider the history of the abusive father, the
defendant’s youth, immaturity, his adolescent brain at the
time, and the fact that it was impacted by regular and
constant abuse of alcohol and other drugs.” And as the
Government aptly notes, “Jones makes clear that in
explicitly addressing these items, the district court did more
than was required, not less.” That is because a sentencer with
discretion to consider youth “necessarily will consider” it,
“especially if”—as here—“defense counsel advance[d] an
argument based on the defendant’s youth.” Id. at 1319
(emphasis in original).
Nevertheless, Briones now argues that “Jones did not
purport to change” what he characterizes as Miller’s and
Montgomery’s “central inquiry” into permanent
incorrigibility. In support of this contention, he points to
Jones’s assurance that “[t]he Court’s decision today
carefully follows both Miller and Montgomery.” Id. at 1321.
Such language, Briones urges, must mean that Jones left in
place Montgomery’s dictum that LWOP is “an
unconstitutional penalty for . . . juvenile offenders whose
crimes reflect the transient immaturity of youth,” i.e., “for
all but . . . those whose crimes reflect permanent
incorrigibility.” Montgomery, 577 U.S. at 208–09.
Yet when the Jones Court stated that it was “carefully
follow[ing] both Miller and Montgomery,” 141 S. Ct. at
1321, it made clear that it read those cases for far narrower
propositions than Briones would have us read them here. See
UNITED STATES V. BRIONES 15
id. (“Miller held that a State may not impose a mandatory
life-without-parole sentence on a murderer under 18.
Today’s decision does not disturb that holding. Montgomery
later held that Miller applies retroactively on collateral
review. Today’s decision likewise does not disturb that
holding.”). Indeed, Jones made altogether clear that—
irrespective of any seemingly contrary language in Miller or
Montgomery—“permanent incorrigibility is not an
eligibility criterion” for juvenile LWOP. Id. at 1315.
B
Perhaps anticipating Jones’s foreclosure of his
constitutional claim, Briones now argues that “the
requirement of ‘meaningful engagement’” with what
Briones II characterized as Miller’s central inquiry “comes
from this Court’s cases interpreting the federal sentencing
statute, as to which, of course, Jones is irrelevant.” Cf.
Briones II, 929 F.3d at 1067 (citing United States v. Carty,
520 F.3d 984, 992 (9th Cir. 2008) (en banc) (applying
18 U.S.C. § 3553)).
As a threshold matter, Briones’s statutory argument
appears to have been waived twice over. He has waived such
argument by failing to raise it in his Opening Brief, see
Devereaux v. Abbey, 263 F.3d 1070, 1079 (9th Cir. 2001)
(en banc), and by affirmatively stating at oral argument in
Briones I that his claim was constitutional rather than
statutory, cf. Hilao v. Estate of Marcos, 393 F.3d 987, 993
(9th Cir. 2004).
And in any event, Briones’s statutory argument would
fail on the merits after Jones. Briones II relied on Carty for
its holding that “[w]hen a district court sentences a juvenile
offender in a case in which an LWOP sentence is possible,
the record must reflect that the court meaningfully engaged
16 UNITED STATES V. BRIONES
in Miller’s central inquiry.” Briones II, 929 F.3d at 1067
(citing Carty, 520 F.3d at 992). But Carty stated only the
general proposition that “[o]nce the sentence is selected, the
district court must explain it sufficiently to permit
meaningful appellate review.” 520 F.3d at 992. Carty does
not specifically require—or even refer to—the permanent-
incorrigibility analysis that Briones charges the district court
with failing to perform. Indeed, Carty recognized that
“[w]hat constitutes a sufficient explanation will necessarily
vary depending upon the complexity of the particular case.”
Id.
Here, then, Briones II’s application of Carty and § 3553
depended on the premise that such an incorrigibility analysis
was necessary “to permit meaningful appellate review” of
the district court’s chosen sentence under then-controlling
Eighth Amendment precedents. Briones II, 929 F.3d at 1067
(quoting Carty, 520 F.3d at 992). But once again, Jones
rendered such premise untenable when it held that
“permanent incorrigibility is not an eligibility criterion.”
141 S. Ct. at 1315.
III
Next, Briones characterizes Briones II as having
“vacated [his LWOP] sentence for a second, independent
reason” 4—namely, that “the district court may not have
understood it was allowed to meaningfully consider
evidence of [his] post-conviction rehabilitation.” See
929 F.3d at 1066–67. Briones argues that “[b]ecause Jones
4
That is, “independent” of the district court’s putative failure to
engage meaningfully in a permanent-incorrigibility analysis.
UNITED STATES V. BRIONES 17
had no effect on that portion of [the Briones II] opinion, it
should be reinstated.”
First, Briones’s factual premise is simply false. The
district court did consider Briones’s post-incarceration
rehabilitation—and explicitly stated as much, noting in its
on-the-record resentencing explanation that Briones had
“been a model inmate” and “improved himself while . . . in
prison.”
Moreover, Briones is mistaken to suggest that the
Briones II majority’s treatment of the rehabilitation-
evidence issue was “independent” of its view that the district
court failed to perform an adequate permanent-
incorrigibility analysis—or that “Jones had no effect on that
portion of [the Briones II] opinion.” The Briones II majority
explicitly reasoned that the district court’s putative failure to
consider Briones’s rehabilitation evidence “require[d]
remand” because that “is precisely the sort of evidence of
capacity for change that is key to determining whether a
defendant is permanently incorrigible.” 929 F.3d at 1067
(emphasis in original). But in light of Jones’s clarification
that “permanent incorrigibility is not an eligibility criterion”
for juvenile LWOP, 141 S. Ct. at 1315, the Briones II
majority’s chain of reasoning falls apart. 5 In sum, we
5
Put slightly differently, Briones II appeared to reason that the
district court erred by imposing LWOP without making a finding on
whether Briones’s rehabilitation evidence demonstrated the sort of
“capacity for change” that would rule out permanent incorrigibility.
929 F.3d at 1066–67. But of course, the import of such a finding could
be only that it might constitute (or at least contribute to) “an ‘implicit
finding’ of permanent incorrigibility.” Jones, 141 S. Ct. at 1319. And
Jones flatly “reject[ed]” the argument “that a sentencer must . . . provide
an on-the-record sentencing explanation with an ‘implicit finding’ of
permanent incorrigibility.” Id.
18 UNITED STATES V. BRIONES
conclude that there is no independent statutory requirement
that a court imposing juvenile LWOP “meaningfully
engage” in a permanent-incorrigibility analysis.
IV
Next, and for the first time in his Supplemental Brief on
remand, Briones raises two distinct arguments, each based
on a separate line of caselaw, in support of a novel as-applied
Eighth Amendment challenge to the substantive
proportionality of his sentence. 6
“As a general matter, ‘[w]e review only issues which are
argued specifically and distinctly in a party’s opening
brief,’” Devereaux, 263 F.3d at 1079 (quoting Greenwood v.
FAA, 28 F.3d 971, 977 (9th Cir. 1994)), and as a corollary,
“an issue will . . . be deemed waived if it is raised for the first
time in a supplemental brief,” id. (citing Kreisner v. City of
San Diego, 1 F.3d 775, 778 n.2 (9th Cir. 1993)). Nowhere in
6
First, Briones makes what is essentially a substantive version of
the procedural argument he has been pressing all along: He relies on
Montgomery to argue that, insofar as his “crime reflect[ed] transient
immaturity” rather than “permanent incorrigibility,” his juvenile LWOP
sentence is “disproportionate under the Eighth Amendment.” 577 U.S.
at 209, 211.
Second, Briones argues that his sentence also is substantively
disproportionate under the framework set forth in Chief Justice Roberts’s
concurring opinion in Graham v. Florida. See 560 U.S. 48, 86–96 (2010)
(Roberts, C.J., concurring). Specifically, Briones argues that an
examination of his crime of conviction, his sentence, and his
characteristics should give rise to “an inference of gross
disproportionality,” which would be “confirm[ed]” by
“intrajurisdictional and interjurisdictional comparisons” between his
sentence and other “sentences imposed for the same crime” in the same
jurisdiction and other jurisdictions, respectively. Id. at 88, 93.
UNITED STATES V. BRIONES 19
his Opening Brief did Briones challenge—or even
mention—the substantive proportionality of his sentence.
Rather, his only argument (other than those arguments he
expressly conceded were “foreclosed,” see infra Part V) was
that the district court committed procedural error “by
sentencing [him] . . . without assessing whether he is one of
the rare juveniles who is permanently incorrigible.”
Accordingly, Briones’s as-applied challenge to the
substantive proportionality of his sentence is waived.
Moreover, all relevant factors militate against exercising
our discretion to consider the merits of Briones’s otherwise-
waived substantive-disproportionality arguments. Briones
has made no attempt to establish “good cause” for his failure
to raise such arguments in his Opening Brief, and the
Government did not sua sponte raise the issue of substantive
proportionality in its Answering Brief. Cf. United States v.
Ullah, 976 F.2d 509, 514 (9th Cir. 1992). Most dispositively,
because Briones raises these arguments for the first time in
the Supplemental Brief he submitted in response to an order
for simultaneous briefing, the Government has not had an
opportunity to respond to them. As such, the Government
surely would be “prejudice[d],” id., if we were to consider
either of Briones’s novel arguments that his sentence was
substantively disproportionate. We therefore decline to
reach such arguments.
V
Finally, Briones argues that LWOP is categorically
unconstitutional for any juvenile offender, or, at least,
20 UNITED STATES V. BRIONES
categorically unconstitutional for juvenile homicide
offenders who were not the direct cause of a victim’s death. 7
Because Briones expressly concedes that he “did not
specifically object to the imposition of a life sentence” on
either of these grounds in the district court, we review for
plain error. See United States v. Ameline, 409 F.3d 1073,
1078 (9th Cir. 2005) (en banc). “An error is plain if it is
‘contrary to the law at the time of the appeal.’” Id. (quoting
Johnson v. United States, 520 U.S. 461, 468 (1997)). And
here, Briones also expressly concedes that existing law
imposes no categorical ban on LWOP either for juveniles,
generally, or for juvenile homicide offenders who did not
pull the trigger, more specifically. Effectively, then, Briones
has conceded that the district court committed no plain error.
We therefore reject his wholly speculative arguments
advocating for categorical bans on juvenile LWOP.
VI
The district court’s imposition of a new LWOP sentence
at Briones’s 2016 resentencing hearing is AFFIRMED.
7
In his Opening Brief, Briones acknowledged that both of these
arguments were “foreclosed” under existing law and that he was raising
them only “to preserve [them] for future litigation.”