Saiz v. State

NOT DESIGNATED FOR PUBLICATION

No. 123,612

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ISAAC D. SAIZ,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; SEAN M.A. HATFIELD, judge. Opinion filed May 6, 2022.
Affirmed.

Richard Ney, of Ney & Adams, of Wichita, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before POWELL, P.J., ATCHESON, J., and WALKER, S.J.

PER CURIAM: Isaac D. Saiz challenges the denial of his habeas corpus motion
under K.S.A. 60-1507, asserting his sentences for first-degree murder and various other
crimes, which he committed at 16 years old, violate the Eighth Amendment under Miller
v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). We stayed his
appeal pending the Kansas Supreme Court's decision in Williams v. State, 314 Kan. 466,
500 P.3d 1182 (2021), petition for cert. filed March 16, 2022. Following publication of
that decision, we requested and received additional briefing from the parties regarding
Williams' impact on Saiz' sentence.

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 After careful review we find, under the criteria set out in Miller, Williams, and
related cases, that Saiz' sentence does not violate the Eighth Amendment. In sentencing
him, the district court did not impose a mandatory sentence. And Saiz has not shown that
the sentencing court failed to consider his youth and attendant circumstances when
sentencing him. Thus, his habeas corpus challenge must fail, and the district court was
correct in denying his motion.

FACTS

The underlying facts of Saiz' convictions are set forth in his direct appeal. State v.
Saiz, 269 Kan. 657, 658-60, 7 P.3d 1214 (2000). Briefly, in 1998, at 16 years old, Saiz
killed a child while shooting at two teenagers during a gang-related, drive-by shooting.
He was prosecuted as an adult and found guilty of premeditated first-degree murder, two
counts of attempted murder, and criminal discharge of a firearm at an occupied building.
When Saiz committed his crimes, premeditated first-degree murder carried a minimum
sentence of life imprisonment without the possibility of parole for 25 years—a hard-25
sentence. K.S.A. 21-3401(a) (Furse); K.S.A. 1998 Supp. 22-3717(b)(1). However, if the
court determined that aggravating circumstances existed that outweighed any mitigating
circumstances, it could impose a hard-40 sentence—life imprisonment without the
possibility of parole for 40 years. K.S.A. 21-4633 (Furse); K.S.A. 21-4635(a)-(c) (Furse).

At sentencing, the district court found the aggravating factor that Saiz knowingly
or intentionally created a risk of death to multiple people outweighed the mitigating
factor of his age. The court imposed a hard-40 sentence for first-degree murder. And for
the remaining convictions, the district court sentenced Saiz to a consecutive 437-month
prison term—194 months for each attempted murder conviction and 49 months for
criminal discharge of a firearm at an occupied building, meaning his aggregated
controlling sentence is 917 months. The Kansas Supreme Court affirmed his convictions
and sentences on direct appeal. Saiz, 269 Kan. at 666-70.

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 Prior to his current K.S.A. 60-1507 motion before us, Saiz had filed two other
habeas corpus motions challenging, among other claims, his sentences. In 2001, he filed a
federal habeas corpus action, which was ultimately denied. Saiz v. McKune, No. 01-3185-
RDR, 2004 WL 291167 (D. Kan. 2004) (unpublished opinion). In 2009, Saiz filed a
habeas corpus motion under K.S.A. 60-1507 challenging the assistance of his trial
defense attorney and direct appeal counsel. The district court denied the motion as
untimely, and a panel of our court affirmed. Saiz v. State, No. 103,141, 2011 WL 767969
(Kan. App. 2011) (unpublished opinion).

In the years since Saiz' convictions, the United States Supreme Court has
expanded its Eighth Amendment cruel and unusual punishment jurisprudence as applied
to minors. Pertinent cases include Graham v. Florida, 560 U.S. 48, 74-75, 130 S. Ct.
2011, 176 L. Ed. 2d 825 (2010) (Eighth Amendment prohibits life without possibility of
parole for juveniles who commit nonhomicide crimes); and Roper v. Simmons, 543 U.S.
551, 573-74, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (capital punishment is cruel and
unusual punishment for offenses committed by a minor). Of key significance to Saiz'
case, in Miller v. Alabama, 567 U.S. 460, the Court held that mandatory life-without-
parole (LWOP) sentences as applied to minors convicted of homicide are
unconstitutional. Although the Court did not foreclose a life-without-parole sentence, it
noted a sentencing court must first consider "how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in prison." 567 U.S.
at 480. And in Montgomery v. Louisiana, 577 U.S. 190, 200, 208-09, 212, 136 S. Ct. 718,
193 L. Ed. 2d 599 (2016), the Court clarified Miller announced a substantive rule—life
without parole is disproportionate if the minor's crime "reflect[s] the transient immaturity
of youth"—that applies retroactively in state habeas corpus proceedings.

Saiz filed a habeas corpus motion under K.S.A. 60-1507 in February 2020. Citing
Miller, which prohibits mandatory LWOP sentences for juveniles convicted of homicide,
he argued his aggregated sentences constitutes cruel and unusual punishment under the

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Eighth Amendment because his 917-month sentence amounts to a de facto LWOP
sentence. He also cited Montgomery v. Louisiana, which held Miller applies
retroactively, to excuse his untimely and successive motion. In light of Montgomery, the
State agreed that the district court could address the motion's merits. The district court
heard arguments in October 2020 and took the matter under advisement.

Shortly after the district court took the matter under advisement, a panel of our
Court of Appeals published Williams v. State, 58 Kan. App. 2d 947, 476 P.3d 805 (2020),
rev. granted 312 Kan. 902 (2021). The Williams panel found Miller applies to
discretionary sentences, a hard-50 sentence is the functional equivalent of life without
parole, and the district court failed to adequately consider the defendant's youth and
attendant circumstances at sentencing. 58 Kan. App. 2d. at 963, 970-73, 975-76. In the
present case the district court allowed the parties to submit additional briefing for
consideration.

Following the additional briefing on the impact of Williams, the district court
denied Saiz' habeas corpus motion. The court agreed the motion was properly before it
but found the sentence did not implicate Miller; the sentence was neither a mandatory life
sentence nor did it preclude parole. And if Miller did apply, the sentencing court held it
had adequately considered Saiz' age before sentencing him.

Saiz has timely appealed from the district court's denial of his K.S.A. 60-1507
motion.

ANALYSIS

After the parties filed their original briefs, but before we heard oral argument in
November 2021 in this case, two new and clearly pertinent events commanded our
attention. First, the United States Supreme Court issued its decision in Jones v.

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Mississippi, 593 U.S. ___, 141 S. Ct. 1307, 1318-20, 209 L. Ed. 2d 390 (2021), which
significantly narrowed the scope of appellate review in juvenile LWOP sentences. The
timing of the Jones decision enabled the parties to discuss its potential application to
Saiz' case at oral argument before us.

Second, however, we learned that the Kansas Supreme Court had granted a
petition for review from the Court of Appeals decision in Williams. Since it became
apparent that the Supreme Court's decision in that case might well determine the outcome
of Saiz' contentions in his case, we stayed a decision on Saiz' appeal pending the Kansas
Supreme Court's decision. The Williams decision was handed down on December 17,
2021. Williams, 314 Kan. 466. We will discuss the impact of the decision in our analysis
that follows below.

After Williams was issued, at our request Saiz and the State submitted
supplemental briefs discussing Williams' impact on the present case. We have now
carefully reviewed the original and supplemental briefs of the parties and the recent cases
bearing on Saiz' contentions about his sentences. For the reasons we set forth below, we
have determined that the district court's denial of his habeas corpus motion must be
affirmed.

On appeal, Saiz raises three issues. First, he argues the State is barred from
arguing the Kansas sentencing scheme complies with Miller because it did not raise that
issue below. Second, he contends that Miller may be interpreted to prohibit de facto
LWOP sentences for juveniles because the Kansas Supreme Court in Williams did not
expressly overrule a prior case. And third, Saiz believes the district court failed to comply
with Miller when it used his age as an aggravating, rather than a mitigating, factor at his
sentencing. But based on our reading of our Supreme Court's opinion in Williams, Saiz is
not entitled to relief; the district court did consider his age before imposing a
discretionary sentence, although certainly not in the manner Saiz desired.

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 Before addressing Saiz' contentions, we first briefly review the legal landscape in
which his claims arise. In Miller, 567 U.S. at 470, 479-80, the United States Supreme
Court held that the Eighth Amendment prohibits mandatory LWOP sentences for
juveniles convicted of homicide. Because juveniles are fundamentally different from
adults—they are less mature, more susceptible to negative influences, and have not firmly
developed fixed character traits—the Court found that the traditional justifications for
LWOP incarceration for them are less compelling. 567 U.S. at 471-73. Thus, sentencing
schemes that mandate life without parole ignore these differences. 567 U.S. at 473-74.
Though courts may impose LWOP sentences, they must first follow a certain process—
considering a juvenile's youth—before doing so. 567 U.S. at 479-80, 483.

Four years after Miller, in Montgomery, 577 U.S. at 208-10, 212, the United States
Supreme Court explained that Miller announced a substantive rule—that life without
parole is appropriate only when the juvenile's crime reflects "permanent incorrigibility"
rather than merely "the transient immaturity of youth"—and applies retroactively in state
habeas proceedings. And most recently in Jones v. Mississippi, the Supreme Court
clarified that a court need not make a separate factual finding of permanent incorrigibility
or explain the basis for imposing life without parole. Such a requirement is unnecessary
because a court will necessarily consider a juvenile's youth when exercising its discretion
at sentencing. 141 S. Ct. at 1318-19.

In Williams, our Supreme Court held that a discretionary sentence does not violate
Miller. Relying on Jones, the court found Miller only bars mandatory LWOP sentences.
Williams, 314 Kan. at 470-72. When Williams was sentenced, Kansas law permitted a
district court to impose a hard-40 sentence, rather than the customary hard-25 sentence,
but only after determining whether aggravating circumstances outweighed mitigating
circumstances, such as the defendant's age. Because a hard-40 sentence required a court
to exercise its discretion, that sentence was not mandatory. 314 Kan. at 470-72.

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 After the supplemental briefing we ordered was received from Saiz and the State,
our Supreme Court handed down another important decision bearing on our issues. In
State v. Gulley, 315 Kan. 86, 505 P.3d 354 (2022), the court once again discussed the
nature of LWOP sentences for juveniles. In doing so, the court found a 679-month
sentence—which included mandatory life imprisonment without the possibility of parole
for 618 months and a consecutive 61-month prison term—was not the functional
equivalent to life without parole. Gulley, 315 Kan. 86, Syl ¶ 3. Miller does not apply to
life sentences imposed under Kansas law, because they offer the possibility of release
during the defendant's lifetime. 315 Kan. 101-03. And despite the inevitability of Gulley's
advanced age at the time of parole eligibility, our Supreme Court found that the
possibility of release during Gulley's lifetime did exist. 315 Kan. at 103. The court also
clarified Williams, noting a hard-50 sentence is not inherently the functional equivalent of
life without parole. 315 Kan. at 102.

We now turn to Saiz' specific issues in his appeal.

The State is entitled to argue that Williams applies to this case.

In his briefing, Saiz first argues that because the State agreed the district court
could address the merits of his habeas motion, the State cannot now assert Miller only
prohibits mandatory life-without-parole sentences. But the State's concession did not
concern Saiz' substantive arguments, only whether Saiz' motion could be heard despite its
untimely and successive status. Before the district court the State did argue that Miller
only applies to mandatory sentences.

Since there are no factual disputes in this case, the only question is the legal merit
of Saiz' claims. In ruling on Saiz' habeas corpus motion the district court obviously did
not have the benefit of the decisions of the United States Supreme Court in Jones, and of
the Kansas Supreme Court in Williams and now Gulley. We are in as good a position to

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know and apply the correct legal standards as the district court was. In fact, we are in a
much better position to apply the rapid-fire series of pertinent United States and Kansas
Supreme Court decisions. And we are bound by United States Supreme Court decisions
construing the constitution and opinions by the Kansas Supreme Court. See State v.
Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017); State v. Lawson, 296 Kan. 1084,
Syl. ¶ 1, 297 P.3d 1164 (2013). In short, we cannot accede to Saiz' request, because we
are not at liberty to ignore controlling authority.

In this appeal, the State may argue how Williams applies.

The district court did not violate Miller because it imposed a discretionary sentence.

Second, Saiz notes Williams did not address whether a de facto LWOP sentence
could violate Miller. But in State v. Brown, 300 Kan. 542, 564, 331 P.3d 781 (2014), the
Kansas Supreme Court previously found that Miller did not apply to a hard-20 sentence;
this provided Brown with a "'meaningful opportunity to obtain release.'" (Quoting
Graham v. Florida, 560 U.S. 48, 75, 130 S. Ct. 2011, 176 L. Ed. 2d 825 [2010].) Because
Williams did not overrule Brown, Saiz argues a de facto LWOP sentence may violate
Miller despite a discretionary sentencing scheme.

In response, the State argues Brown is distinguishable because it involved a
mandatory hard-20 sentence. We concur with the State's interpretation. Since Saiz'
sentence was discretionary, it does not violate Miller.

To violate Miller, a sentence must be both mandatory and impose life without
parole. Williams addresses mandatory sentences; Gulley and Brown discuss life without
parole. Gulley held that both the mandatory 618-month prison term and the total 679-
month term did not constitute life without parole. 315 Kan at 103. Compared to the 618
months' imprisonment in Gulley, Saiz' hard-40 certainly provides the possibility of

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release during his lifetime. But his aggregate sentence—917 months—is a much closer
question. With good-time credits, Saiz could serve a minimum of 371 months of the
consecutive 437-month term. K.S.A. 21-4638 (Furse); K.S.A. 21-4706(a) (Furse). If
served directly after his hard 40 murder sentence, his aggregate minimum sentence would
be 851 months, or approximately 71 years. Saiz could be eligible for release at 87 years
old. Based on Gulley, this likely provides a remote possibility of release during Saiz'
lifetime.

But even if we would construe this to be a de facto LWOP sentence for Saiz, his
sentence does not violate Miller because his sentencing judge was not required by law to
impose the specific sentence it chose to give Saiz. The district court exercised its
discretion in arriving at the 917-month aggregate sentence.

Williams provides a stronger foundation against Saiz' argument. Williams suggests
a LWOP sentence, de facto or otherwise, does not violate Miller if the district court has
discretion to impose the sentence after considering the juvenile's youth and attendant
circumstances. See Williams, 314 Kan. at 472-73. That is, a Miller violation occurs when
a sentence is both mandatory and constitutes life without parole.

To reiterate, Saiz' sentence was not mandatory. When Saiz committed his crimes,
the minimum sentence for first-degree premeditated murder was a hard-25 sentence.
K.S.A. 21-3401(a) (Furse); K.S.A. 1998 Supp. 22-3717(b)(1). But a court could impose a
hard-40 sentence if it determined aggravating circumstances outweighed any mitigating
circumstances. K.S.A. 21-4633 (Furse); K.S.A. 21-4635(a)-(c) (Furse). Likewise, when
separate sentences were imposed on the same day, a court could impose them
concurrently or consecutively. K.S.A. 21-4608(a) (Furse).

Saiz does not focus on any individual sentence; he argues his collective sentence
violates Miller. But as in Williams, the district court possessed discretion to impose the

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hard 40, rather than the mandatory hard 25, and to order the remaining convictions be
served consecutively. Because the district court had discretion, Saiz' sentence does not
violate Miller.

The court considered Saiz' age before sentencing.

Finally, Saiz contends that though Williams found a discretionary sentencing
procedure that includes consideration of a defendant's youth and attendant circumstances
satisfies Miller, Williams did not explain how thorough that consideration must be.
Because he and his counsel presented the district court with so little information about
those circumstances, he argues that the court could not have meaningfully considered his
youth as a mitigating factor. But Saiz has not asserted what additional information the
court should have considered, so we must presume the court properly considered his
youth.

Williams notes that, under Jones, sentencing courts will presumably consider a
defendant's youth and attendant circumstances. 314 Kan. at 472. Despite that
presumption, our Supreme Court confirmed this occurred when Williams argued, and the
court expressly acknowledged, his youth as a mitigating factor. 314 Kan. at 473. But
Williams did not explain how much information a court must consider. Miller cited
several categories of information relevant to assessing a juvenile's youth, such as the
defendant's chronological age, family and home environment, possibility of
rehabilitation, and the circumstances of the homicide. 567 U.S. at 477-78.

Saiz asserts the district court could not have meaningfully considered his youth
and attendant circumstances because he presented no evidence on this topic at sentencing.
His argument faces multiple hurdles. He seeks to gauge the thoroughness of the court's
analysis. But as Williams notes, Jones presumes a court will consider youth, and need not

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make specific findings of incorrigibility. That presumption suggests that during the life of
the case, the court will collect sufficient information to make the proper consideration.

The record here convinces us that Saiz cannot circumvent that presumption. While
Saiz did not discuss his youth at sentencing, the same judge also presided over the State's
motion for adult prosecution and the trial. Based on the judge's involvement, as well as
the extremely narrow scope of review allowed by Jones, we must presume the court
obtained adequate information to meaningfully consider his youth.

But even without that presumption, Saiz had the burden of producing this
evidence. See, e.g., State v. Scott, 286 Kan. 54, 99, 183 P.3d 801 (2008) (under what is
now K.S.A. 2020 Supp. 21-6617[e], concerning death penalty in capital murder case, a
defendant bears the burden of producing evidence of mitigating factors), overruled on
other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016). Saiz did not do so at
sentencing. And he does not describe what additional evidence the court should have
considered and how it would have influenced its sentencing decision. Without further
explanation, Saiz cannot show the court's consideration was inadequate.

Finally, in his supplemental brief Saiz argues the district court improperly treated
his age as an aggravating factor. At sentencing, the court explained:

"Now, it is clear to me from the evidence that has been presented, regardless of
the arguments made and theories voiced, that based on the evidence Mr. Saiz went out
that night to show himself a man, that he was one to be feared, that he was a man to be
dealt with. He has been successful. He is a man to be dealt with. I am afraid of him.
Society should be afraid of him, the effects that he may have on all of us. He did not
consider himself a child at that time. He desired to be viewed and treated as a man."

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But this explanation does not indicate the court used Saiz' age against him. It explains
why, after considering Saiz' age, the court did not find it outweighed any aggravating
factors.

Saiz has not rebutted the presumption that the district court properly considered
his youth and attendant circumstances. He has not shown what other information the
court should have considered. And the sentencing transcript demonstrates the court did
consider Saiz' age, though it did not reach the result Saiz sought.

Saiz' sentence does not violate Miller, and the district court adequately considered
Saiz' youth and attendant circumstances before imposing the sentences upon him.

Affirmed.

***

ATCHESON, J., concurring: I concur in the result the majority reaches in denying
the motion of Isaac D. Saiz for habeas corpus relief from consecutive sentences imposed
on him for murder and other crimes committed in a single episode when he was 16 years
old and that will keep him in prison at least until he is in his late 80s, assuming he lives
that long. I do so principally based on the Kansas Supreme Court's recent decision in
State v. Gulley, 315 Kan. 86, 505 P.3d 354 (2022).

In Gulley, the court held that a life sentence with the possibility of parole after
serving 618 months (or about 51 years) did not amount to cruel and unusual punishment
violating the Eighth Amendment to the United States Constitution when imposed on a
defendant for a premeditated murder committed as a juvenile. The court reasoned the
sentence allowed the actuarial possibility Gulley might be paroled. 315 Kan. at 102.
Here, that's also true of the sentence Saiz received on the first-degree murder conviction;

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he could be considered for parole after serving 40 years. But Saiz also received
consecutive prison sentences aggregating 437 months (or about 36 years) on three other
convictions for serious felonies. As the law now stands, Saiz must serve those sentences
on top of the 40-year minimum for the murder conviction before he may seek conditional
release.

In Gulley, the court also considered a consecutive sentence on another crime and
found no constitutional violation because the total period of incarceration did not
"ensure[] that Gulley will . . . live his entire life in prison." 315 Kan. at 103. Although
Saiz most probably will die in prison, it is not a certainty. And that appears to be enough
for the court to find the punishment constitutionally tolerable even if the wrongdoing—all
of which happened within a minute or so—might have been partly attributable to the
"'transient immaturity'" of youth rather than to the work of "'the rare juvenile offender
whose crime reflects irreparable corruption.'" Miller v. Alabama, 567 U.S. 460, 479-80,
132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) (quoting Roper v. Simmons, 543 U.S. 551,
573, 125 S. Ct. 1183, 161 L. Ed. 2d 1 [2005]).

In Miller, the Court held that a mandatory sentence of life in prison without parole
for a juvenile offender violates the Eighth Amendment because the punishment permits
no judicial differentiation between a defendant animated by the lack of insight, maturity,
and reflection that tend to mark youth itself and a defendant likely acting with
irredeemable incorrigibility. 567 U.S. at 479-80. The Court recognized that life without
parole would be a constitutionally permissible punishment for murder if the sentencing
judge were permitted to make that differentiation based on case specific circumstances.
At the same time, the Court did not suggest those constitutional considerations were
inapplicable to functionally equivalent sentences, such as a controlling term of years
approaching or exceeding a juvenile's projected life.

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 But there has been a judicial retrenchment from the principles outlined in Roper,
Miller, and Montgomery v. Louisiana, 577 U.S. 190, 206-09, 212, 136 S. Ct. 718, 193 L.
Ed. 2d 599 (2016), thus marking a return to giving predominant consideration to
retribution and a concomitant move away from recognizing rehabilitation as a
fundamental component of criminal punishments imposed on juveniles. See Jones v.
Mississippi, 593 U.S. ___, 141 S. Ct. 1307, 1328, 1311, 209 L. Ed. 2d 390 (2021)
(Sotomayor, J., dissenting); Gulley, 315 Kan. at 106-07 (Standridge, J., dissenting).
Based in part on Jones, the majority in Gulley carries on that retreat. 315 Kan. at 103.

Saiz planned and carried out a drive-by shooting that left an eight-year-old child
dead—an unintended victim of a despicable act. But as despicable the act, should our
criminal justice system categorically consign its juvenile perpetrator to prison without
some meaningful opportunity for release upon demonstrable maturation and
rehabilitation after serving an appropriately retributive punishment? Apparently so. And
consistent with Gulley, that's true here whether Saiz has, indeed, become a reasonably
responsible adult or has shown himself to be irredeemably malevolent. The failure to
draw that distinction is troubling when it comes to juveniles who commit factually
horrific crimes.

We are, nonetheless, constrained to apply the rule in Gulley, and the rule requires
we affirm the denial of any relief to Saiz on his K.S.A. 60-1507 motion. The majority so
holds. I am obligated to agree. See Majors v. Hillebrand, 51 Kan. App. 2d 625, 629-30,
349 P.3d 1283 (2015) (Court of Appeals required to follow Kansas Supreme Court
precedent absent some indication Supreme Court is departing from its previous position).
But I do not otherwise join in the majority opinion and would otherwise be inclined to
say Saiz ought to receive a new sentencing hearing.

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