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United States v. Briones

United States Court of Appeals, Ninth Circuit

July 9, 2019

United States of America, Plaintiff-Appellee,
v.
Riley Briones, Jr., AKA Unknown Spitz, Defendant-Appellant.

          Argued and Submitted En Banc March 27, 2019 San Francisco, California

          Appeal from the United States District Court for the District of Arizona D.C. No. 2:96-cr-00464-DLR-4 Douglas L. Rayes, District Judge, Presiding

          Easha Anand (argued), Orrick Herrington & Sutcliffe LLP, San Francisco, California; Vikki M. Liles (argued), The Law Office of Vikki M. Liles P.L.C., Phoenix, Arizona; Melanie L. Bostwick, Orrick Herrington & Sutcliffe LLP, Washington, D.C.; for Defendant-Appellant.

          Krissa M. Lanham (argued) and Patrick J. Schneider, Assistant United States Attorneys; Elizabeth A. Strange, First Assistant United States Attorney; United States Attorney's Office, Phoenix, Arizona; for Plaintiff-Appellee.

          John R. Mills and Scott P. Wallace, Phillips Black Inc., San Francisco, California; Robin Wechkin, Sidley Austin LLP, Seattle, Washington; Ronald Sullivan, Fair Punishment Project, Cambridge, Massachusetts; for Amici Curiae National Association of Criminal Defense Lawyers, ACLU, Fair Punishment Project, Juvenile Law Center, Roderick and Solange MacArthur Justice Center, Alaska Association of Criminal Defense Lawyers, Arizona Attorneys for Criminal Justice, California Attorneys for Criminal Justice, Hawaii Association of Criminal Defense Lawyers, Idaho Association of Criminal Defense Lawyers, Montana Association of Criminal Defense Lawyers, Nevada Attorneys for Criminal Justice, Oregon Criminal Defense Lawyer's Association, and Washington Association of Criminal Defense Lawyers.

          William H. Milliken and Michael E. Joffre, Sterne Kessler Goldstein & Fox PLLC, Washington, D.C., for Amici Curiae Professors Douglas A. Berman, William W. Berry, Jenny E. Carroll, Cara H. Drinan, Alison Flaum, Shobha L. Mahadev, Sarah French Russell, and Kimberly Thomas.

          Keith J. Hilzendeger, Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Amici Curiae Ninth Circuit Federal Public and Community Defenders.

          Before: Sidney R. Thomas, Chief Judge, and Susan P. Graber, M. Margaret McKeown, Kim McLane Wardlaw, Marsha S. Berzon, Milan D. Smith, Jr., Sandra S. Ikuta, Morgan Christen, Jacqueline H. Nguyen, Mark J. Bennett, and Ryan D. Nelson, Circuit Judges.

         SUMMARY [*]

         Criminal Law

         The en banc court vacated a sentence of life without the possibility of parole (LWOP), which the district court reimposed at resentencing after having granted the defendant's 28 U.S.C. § 2255 motion following the Supreme Court's decision in Miller v. Alabama, 567 U.S. 460 (2012); and remanded for consideration of the entirety of the defendant's sentencing evidence.

         In 1997, the defendant received a mandatory LWOP sentence for his role, at age 17, in a robbery that resulted in murder.

         The en banc court held that the district court's analysis at resentencing was inconsistent with the constitutional principles set forth in Miller, which held that mandatory LWOP sentences for juvenile offenders violate the Eighth Amendment's prohibition on cruel and unusual punishment, and subsequent case law, including Montgomery v. Louisiana, 136 S.Ct. 718 (2016), which specified that an LWOP sentence is constitutionally permissible only for "the rarest of juvenile offenders"-specifically, those whose "crimes reflect permanent incorrigibility" and "irreparable corruption."

         The en banc court wrote that when courts consider Miller's central inquiry, they must reorient the sentencing analysis to a forward-looking assessment of the defendant's capacity for change or propensity for incorrigibility, rather than a backward-focused review of the defendant's criminal history. Based on the district court's articulated reasoning at resentencing, the en banc court could not tell whether the district court appropriately considered the relevant evidence of the defendant's youth or the evidence of his post-incarceration efforts at rehabilitation. The en banc court observed that the district court's remarks focused on the punishment warranted by the terrible crime, rather than whether the defendant was irredeemable; and that the district court's statement that it considered some factors in "mitigation" suggests that the district court applied the Sentencing Guidelines and improperly began with a presumption that LWOP would be appropriate.

         The en banc court deemed most significant that the defendant offered abundant evidence that he was not irreparably corrupt or irredeemable because he had done what he could to improve himself within the confines of incarceration. The en banc court wrote that the eighteen years that passed between the original sentencing and the resentencing - including the first fifteen years during which defendant's LWOP sentence left no hope that he would ever be released - provide a compelling reason to credit the sincerity of his efforts to rehabilitate himself. The en banc court wrote that this is precisely the sort of evidence of capacity for change that is key to determine whether a defendant is permanently incorrigible, yet the record does not show that the district court considered it. The en banc court reaffirmed that when a substantial delay occurs between a defendant's initial crime and later sentencing, the defendant's post-incarceration conduct is especially pertinent to a Miller analysis. The en banc court concluded that the heavy emphasis on the defendant's crime, coupled with the defendant's evidence that his is not one of those rare and uncommon cases for which LWOP is a constitutionally acceptable sentence, requires remand.

         Dissenting, Judge Bennett, joined by Judge Ikuta, wrote that the district court fully complied with Miller, did not commit any constitutional error, and imposed a permissible sentence supported by the record.

          OPINION

          CHRISTEN, Circuit Judge

         In 1997, Riley Briones, Jr. received a mandatory sentence of life without the possibility of parole (LWOP) for his role in a robbery that resulted in murder. Briones was 17 years old at the time of the crime. In 2012, the Supreme Court held that mandatory LWOP sentences for juvenile offenders violate the Eighth Amendment's prohibition on cruel and unusual punishment. Miller v. Alabama, 567 U.S. 460, 465 (2012). After the Miller decision issued, Briones filed a motion pursuant to 28 U.S.C. § 2255 seeking to have his sentence vacated. The district court granted the motion, held a second sentencing hearing, and reimposed the original sentence. Because the district court's analysis was inconsistent with the constitutional principles the Supreme Court delineated in Miller and subsequent case law, we vacate Briones's sentence and remand to the district court.

         I. Background

         Briones grew up on the Salt River Indian Reservation in Arizona. As a child, Briones endured physical abuse from his father, Riley Briones, Sr., and was introduced to drugs and alcohol at age 11. Briones was a fairly good student and he aspired to attend college. After he and his girlfriend had a child while still in high school, however, he dropped out to take a full-time position in an apprentice program, training to be a heavy equipment operator.

         Briones, his father, and his brother Ricardo founded a gang called the Eastside Crips Rolling 30's. While still a teenager, Briones planned and participated in a number of violent, gang-related crimes on the Reservation. The most serious of these crimes was the robbery of a Subway restaurant in May 1994, when Briones was seventeen years old. Although Ricardo came up with the idea, Briones agreed to the plan and drove four of the gang's members to the restaurant to carry it out. Briones remained in the car as the getaway driver while the others went inside and ordered food from the lone employee, Brian Lindsey. As the food was being prepared, the only armed member of the cohort left the restaurant, spoke to Briones, then reentered the store and shot Lindsey as he stood at the front counter, killing him. The gang members grabbed their food and a bag of money and ran back to Briones's car.

         Briones was arrested on December 21, 1995. He was charged with "first degree/felony murder" for the Subway robbery, and also charged with arson, assault, and witness tampering because of other gang-related offenses. Briones's father and brother were among the five co-defendants. The government extended pre-trial plea offers of twenty years in prison to all five defendants, but Briones's father was "adamant" that neither he nor either of his sons should accept the deal. Briones rejected the government's offer, went to trial, and was convicted on all charges. For the felony murder conviction, he was sentenced to a mandatory term of life imprisonment without the possibility of parole.[1]

         In June of 2012, the Supreme Court issued its decision in Miller and held that the Eighth Amendment prohibits sentencing schemes that mandate life in prison without the possibility of parole for juvenile defendants. 567 U.S. at 479. Miller explained that sentencing courts must consider the unique social and psychological characteristics of juvenile offenders because "hallmark features" of youth reduce the penological justifications for imposing LWOP sentences on juveniles. Id. at 477-80. After Miller was decided, Briones filed a motion pursuant to 28 U.S.C. § 2255 seeking to have his sentence vacated. The government conceded that his "mandatory life sentence [was] constitutionally flawed[, ]"[2]and the district court granted Briones's motion.

         Before Briones was resentenced, the Supreme Court issued Montgomery v. Louisiana, 136 S.Ct. 718 (2016), establishing that Miller's substantive rule is to be given retroactive effect. Id. at 736. Montgomery also provided additional guidance about the proper application of Miller and specified that a sentence of life without the possibility of parole is constitutionally permissible only for "the rarest of juvenile offenders"-specifically, those whose "crimes reflect permanent incorrigibility" and "irreparable corruption." Montgomery, 136 S.Ct. at 734.

         By the time the district court resentenced Briones in March 2016, he was almost forty years old and he had served nearly eighteen years in prison without a single infraction of prison rules. In addition to maintaining a perfect disciplinary record, Briones held a job in food service; volunteered to speak with young inmates about how to change their lives; completed his GED; and, in 1999 (sixteen years before his resentencing), married Carmelita, the woman he had been dating since high school and with whom he had a daughter. By all accounts, and as even the government conceded, Briones had been a model inmate.

         Briones cited Miller extensively in the memorandum he filed in anticipation of the resentencing hearing, and he asked the district court to impose a sentence of 360 months in accordance with the factors identified in Miller and his extensive history of rehabilitative efforts. In his testimony at the resentencing hearing, Briones expressed "[g]rief, regret, sorrow, pain, sufferings" for his crimes and for Lindsey's death. He described how he was haunted by his actions, and he apologized to his own family and to the victim's family. Briones's counsel argued that a life sentence would be "unconstitutional in violation of Graham and Miller," and that the presumption in Briones's case should be against a life sentence because Miller requires that LWOP be the exception rather than the rule. The government contended that Briones had not accepted responsibility because, when he was interviewed in advance of the second sentencing hearing, Briones contested some aspects of the PSR's description of his responsibilities in the gang. But Briones did not dispute the role he played in the Subway robbery and murder, even saying at one point in his testimony that it was "probably [his] fault" that the robbery was not called off.

         The district court's sentencing remarks were quite brief; its justification for reimposing LWOP comprised less than two pages of transcript. The court considered the PSR and letters written on Briones's behalf, the parties' sentencing memoranda, the transcript of the previous sentencing hearing, and the victim questionnaire. The court began with the Sentencing Guidelines calculation-which yielded a life sentence-and then stated: "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." The district court acknowledged that "[a]ll indications are that defendant was bright and articulate" and that "he has improved himself while he's been in prison," but the court described Briones's role in the Subway robbery as "be[ing] the pillar of strength for the people involved to make sure they executed the plan." The court stated that "some decisions have lifelong consequences" and reimposed a life sentence. Because there is no parole in the federal system, the parties agree that Briones's life sentence is effectively LWOP. See Sentencing Reform Act of 1984, Pub. L. No. 98-473, tit. II, §§ 218(a)(5), 235(a)(1), 98 Stat 1837, 2027, 2031.

         II. Miller and Montgomery

         The Supreme Court held in Miller "that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." 567 U.S. at 479. Miller built on the Court's decisions in Roper v. Simmons, 543 U.S. 551, 568-69 (2005), and Graham v. Florida, 560 U.S. 48, 75 (2010), which established that juvenile offenders are not eligible for capital sentences and that the Eighth Amendment precludes LWOP sentences for juveniles who commit non-homicide crimes. Miller, 567 U.S. at 470. These decisions reflect the understanding that "children are constitutionally different from adults for purposes of sentencing." Id. at 471.

         Miller further develops these constitutional principles, requiring that, even when terribly serious and depraved crimes are at issue, courts "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at 480. Miller identified several characteristics of youth: (1) difficulty appreciating risks; (2) inability to escape dysfunctional home environments; (3) susceptibility to familial and peer pressure; (4) inability to deal competently with law enforcement or the justice system; and (5) potential for rehabilitation. Id. at 477-78. The Court held that these factors must be considered to determine whether a ...


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