Sunday, May 20, 2018

Case o' The Week: Ninth Affirms an LWOP Flop -- Briones and Miller Sentencing of Juvenile Offenders


“The majority accuses me of retrying Briones’s case rather than reviewing it as an appellate court should.  . . . But it is the majority that has invented a basis for the sentence which cannot be found in the record. The reason courts of appeals accord great deference to a district court’s sentencing decision is that “[t]he sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than ... the appeals court.” Rita, 551 U.S. at 357–58, 127 S.Ct. 2456. Unlike the majority, I would take advantage of that expertise by remanding for an actual determination of Briones's incorrigibility  rather than attempting to divine one by reading a transcript through squinted eyes.”

United States v. Briones, 2018 WL 2223819, *13 (9th Cir. May 16, 2018) (O’Scannlain, J., concurring in part and dissenting in part), decision available here.

The Hon. Judge Diarmuid O'Scannlain

Players: Decision by Judge Rawlinson, joined by D.J. Ezra. 
  Partial concurrence and partial dissent by Judge Diarmuid O’Scannlain.  

Facts: Briones was a gang leader. Id. at *1. When he was 17, he planned the robbery of a restaurant that resulted in a homicide (although he was not the shooter). Id. He also planned a Moltov cocktail assault on a rival gang member’s home: he didn’t throw them, no one was killed. Id.
  He was prosecuted on multiple offenses, and the Feds offered him 20 years -- the deal fell through because his father, a co-D, rejected the deal. Id.
  At sentencing, the district judge imposed a LWOP sentence. Id.
  Fifteen years later, the Supreme Court decided Miller v. Alabama, and rejected mandated LWOP sentences for juveniles. Id. Briones filed a Miller § 2255 petition. Id. The district court vacated the mandatory life sentence and conducted a re-sentencing hearing. Id.
  At the Miller resentencing, Briones described his parents’ drug and alcohol abuse, the family’s history of criminality, the challenges he faced as a Native American attending school off of the reservation, and his inability to challenge his father when the father rejected the twenty year deal. Id. at *2. Briones explained that he had started drinking at 12, and had used cocaine and LSD as a minor before the offenses of conviction. Id. at *3. The defense urged a thirty-year sentence.
  The district court instead re-sentenced Briones to life. Id. at *3.

Issue(s): “We must decide whether the district court appropriately rejected a juvenile offender’s argument that he should not receive a sentence of life without parole.” Id. at *1.

Held: “On this record, we cannot honestly say that the district court’s imposition of a sentence of life imprisonment was illogical, implausible, or without support in inferences that may be drawn from facts in the record. . . . In other words, no error occurred and without error there can be no plain error.” Id. at *8 (internal quotations, citations, and footnotes omitted).

Of Note: In an important concurrence and dissent, Judge O’Scannlain questions the majority’s tolerance of a sentencing that does not appear to have grabbled with the core Miller question, and that again produced a life sentence for this juvenile offender. Id. at *9 (O’Scannlain, J., concurring in part and dissenting in part). The dissent is well-grounded in the Supreme’s admonition that LWOP sentences are barred “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. at *9 (citation omitted).
  Judge O’Scannlain explains that he “cannot agree . . . with the majority’s holding that the district court sufficiently considered Briones’s claim that he was not in that class of rare juvenile individuals constitutionally eligible for a life-without-parole sentence.” Id. at *9. He writes, “The majority reads too much into the district court’s cursory explanation of its sentence, and it divines that the district court must have adopted the rationale for its sentence suggested by the government on appeal. Although a sentencing court need not pedantically recite every fact and legal conclusion supporting its sentence, it must provide enough explanation for a court of appeals to evaluate whether or not the decision to reject a defendant's argument is consistent with law. The sparse reasoning of the district court in this case gives me no such assurance.” Id. at *10.
  To fully appreciate the significance of this remarkable dissent, take a look at another Judge O’Scannlain dissent, from an order denying rehearing en banc. United States v. Paul, 583 F.3d 1136 (9th Cir. 2009) (ord. denying rehearing en banc) (O’Scannlain, J., dissenting); see also blog entry here. The Paul dissent is written by a jurist who is generally skeptical of Circuit meddling with district court sentencing decisions.
  If Judge O’Scannlain is this troubled by Briones, the Ninth should be as well. This opinion cries out for en banc review.

How to Use: Have you represented a juvenile hammered with LWOP in federal court? If so, contact the FPD in your district – we can help explore options for a Miller § 2255.
                                   
For Further Reading: Who exactly are the “rare juveniles” the deserve LWOP sentences?
  For an accessible piece giving a general overview of that open question, see “Life After Miller: Retroactive Sentencing and the Rare Juvenile,” available here.



Image of the Honorable Judge Diarmuid F. O’Scannlain from https://www.nationalreview.com/2017/01/ninth-circuit-judge-oscannlain-senior-status/

Steven Kalar, Federal Public Defender, ND Cal. Website at www.ndcalfpd.org

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