NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 19 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TONATIHU AGUILAR, No. 17-16013
Petitioner-Appellant, D.C. No. 2:14-cv-02513-DJH
v.
MEMORANDUM*
CHARLES L. RYAN; ATTORNEY
GENERAL FOR THE STATE OF
ARIZONA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Argued and Submitted February 6, 2019
Submission Vacated March 19, 2019
Resubmitted August 12, 2022
Phoenix, Arizona
Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.
Tonatihu Aguilar was convicted of two first-degree murders in Arizona state
court. Aguilar was sixteen at the time of each crime. For the first conviction, Aguilar
was sentenced to life without the possibility of parole (“LWOP”), and for the second,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
he was resentenced to LWOP after his death sentence was vacated in light of Roper
v. Simmons, 543 U.S. 551 (2005). Arguing that the LWOP sentences violated the
Eighth Amendment’s prohibition against cruel and unusual punishment because of
his age at the time of the murders, Aguilar unsuccessfully sought post-conviction
relief in state court. Aguilar’s 28 U.S.C. § 2254 habeas corpus petition was then
denied by the district court, which granted a certificate of appealability. We affirm.
1. Aguilar contends that his LWOP sentences were unconstitutional under the
Supreme Court’s decisions in Miller v. Alabama, 567 U.S. 460 (2012), and
Montgomery v. Louisiana, 577 U.S. 190 (2016), because neither sentencing judge
made an express nor an implicit finding of incorrigibility. Although that argument
finds some facial support in the language of those two cases, it is foreclosed by the
Supreme Court’s later decision in Jones v. Mississippi, in which certiorari was
granted for the express purpose of explaining “how to interpret Miller and
Montgomery.” 141 S. Ct. 1307, 1313 (2021). Jones clarified that the Eighth
Amendment categorically forbade mandatory sentencing schemes and required
“only that a sentencer follow a certain process—considering an offender’s youth and
attendant characteristics—before imposing” LWOP. Id. at 1311 (quoting Miller,
567 U.S. at 483). The Court stressed that “a separate factual finding of permanent
incorrigibility is not required,” id. at 1318, nor is an “on-the-record sentencing
explanation with an implicit finding of permanent incorrigibility,” id. at 1320. The
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“key assumption of both Miller and Montgomery,” the Court explained, “was that
discretionary sentencing allows the sentencer to consider the defendant’s youth, and
thereby helps ensure that life-without-parole sentences are imposed only in cases
where that sentence is appropriate in light of the defendant’s age.” Id. at 1318; see
also Jessup v. Shinn, 31 F.4th 1262, 1266 (9th Cir. 2022) (“Miller requires, for a
juvenile offender, an individualized sentencing hearing during which the sentencing
judge assesses whether the juvenile defendant warrants a sentence of life with the
possibility of parole.”).
2. Both of Aguilar’s sentencing hearings complied with the rule announced
in Jones. Arizona law at the time of these sentencings did not require that LWOP
be imposed “automatically, with no individualized sentencing considerations
whatsoever.” Id. at 1267; see Ariz. Rev. Stat. § 13-703(A) (2001). In the first
sentencing, the judge referred to age as a mitigating factor and in the second case the
judge heard extensive argument about why Aguilar’s age supported a lesser
sentence. As Jones held, the Eighth Amendment requires no more.
3. Aguilar also argues that his sentences were unconstitutional because the
Arizona legislature had in 1993 eliminated parole for crimes committed in 1994 or
later, and replaced parole with a credit system for early release, see Jessup, 31 F.4th
at 1266–67, and that statutory scheme was not amended until after the Supreme
Court’s decision in Miller to allow life sentences with the possibility of parole for
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juvenile offenders convicted of first-degree murder, see State v. Randles, 334 P.3d
730, 732 (Ariz. Ct. App. 2014). However, in Jessup, we found that habeas relief
was not warranted in these circumstances because in imposing an LWOP sentence,
the sentencing judge considered the defendant’s “age and other relevant
considerations” before concluding that no possibility of release was warranted. 31
F.4th at 1267. We also noted that nothing “in the record suggests that the precise
form of potential release at issue had any effect on the sentencing judge’s exercise
of discretion. Much to the contrary, the record makes clear that the sentencing judge
(and everyone else involved) genuinely, if mistakenly, thought that he was
considering a sentence of life with the possibility of parole.” Id. The same is true
here.
4. Finally, Aguilar contends that Arizona law at the time of his sentencings
did not afford the judge the discretion Miller requires because age did not
automatically justify a sentence other than death and because Arizona had a causal-
nexus requirement for mitigating evidence in death penalty cases. Even assuming
that these arguments were exhausted in the state court, they fail. Even before Roper
held that a death sentence could not be imposed on a defendant less than eighteen
years of age, 543 U.S. at 568, Arizona law did not foreclose age from being a
substantial, or even dispositive, mitigating factor in capital sentencing decisions, see
State v. Jackson, 918 P.2d 1038, 1048 (Ariz. 1996); State v. Jimenez, 799 P.2d 785,
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797 (Ariz. 1990). Any causal-nexus requirement had been abandoned by the
Arizona Supreme Court by the time of Aguilar’s resentencing in the second case.
See State v. Anderson, 111 P.3d 369, 391–92 (Ariz. 2005). And, the record in the
first case does not suggest that any absence of a causal nexus prevented the judge
from considering Aguilar’s youth before imposing LWOP; indeed, as noted above,
the judge expressly noted age as a mitigating factor.1
AFFIRMED.
1
Aguilar’s motion for judicial notice is denied.
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