NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10412
Plaintiff-Appellee, D.C. No.
3:01-cr-01062-DGC-3
v. District of Arizona
JOHNNY ORSINGER, AKA Johnnie
Orsinger, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-10413
Plaintiff-Appellee, D.C. No.
3:01-cr-01072-DGC-5
v.
JOHNNY ORSINGER, AKA Johnnie
Orsinger,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted August 15, 2017
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and EZRA,**
District Judge.
Johnny Orsinger asks this Court to vacate his life sentences for four murders
and to remand for re-sentencing. The facts of this case are known to the parties,
and we do not repeat them here. We have jurisdiction pursuant to 28 U.S.C.
§ 1291.
I
Orsinger argues that the district court erred at his re-sentencing by failing
properly to consider his claim that he was not permanently incorrigible and hence
ineligible for a life sentence under Montgomery v. Louisiana, 136 S. Ct. 718, 734
(2016), which held that Miller v. Alabama, 567 U.S. 460, 472 (2012), bars a
sentence of life without parole “for all but the rarest of juvenile offenders, those
whose crimes reflect permanent incorrigibility.” Although the district court did not
use the specific word “incorrigible,” it did recognize that Miller permits life
sentences for juvenile offenders only in “uncommon” cases, 567 U.S. at 479, and
the court made a finding that Orsinger did indeed fit within that “uncommon” class
of juvenile offenders. That conclusion was appropriately supported by a detailed
consideration of the evidence viewed through the light of the factors identified in
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
2
Miller and in 18 U.S.C. § 3553(a).
Orsinger also takes issue with the district court’s focus on the heinous nature
of his crimes. It is true that the heinousness was a key part of the court’s analysis,
but Miller allows—and in fact expects—a sentencing court to consider the nature
of the offense as part of its analysis. 567 U.S. at 479–80 (tasking sentencing
judges with differentiating between “the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile offender whose crime
reflects irreparable corruption.”) (emphasis added) (quoting Roper v. Simmons, 543
U.S. 551, 573 (2005)). There was thus no error in the district court’s considering
the heinousness of the crimes.
II
Orsinger also argues that his sentence violates the Eighth Amendment
because he is, in fact, not one of the incorrigible juvenile offenders for whom a life
sentence is permissible. He specifically points to evidence of rehabilitation that he
believes establishes he is not incorrigible. The district court did consider the
evidence that Orsinger had improved himself while imprisoned, but it did not find
that sufficient to outweigh the countervailing evidence that Orsinger was one of the
uncommon juvenile offenders for whom a life sentence was warranted. Orsinger is
correct that he put forth evidence of rehabilitation, but we are persuaded that there
are, at the very least, “two permissible views of the evidence” as to his
3
incorrigibility, so “the factfinder’s choice between them cannot be clearly
erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).1
AFFIRMED.
1
Orsinger also argues preemptively that his appeal waiver does not preclude
his challenge to his sentence, but because the government agrees with him, we do
not consider the issue.
4