United States v. Under Seal , 819 F.3d 715 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4265
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
UNDER SEAL,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:14-cr-00347-1)
Argued: December 8, 2015 Decided: March 30, 2016
Before AGEE and HARRIS, Circuit Judges, and Theodore D. CHUANG,
United States District Judge for the District of Maryland,
sitting by designation.
Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Harris and Judge Chuang joined.
ARGUED: Julia K. Martinez, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellant. Keva Jeannette McDonald,
THE LAW OFFICE OF KEVA J. MCDONALD, Fairfax, Virginia, for
Appellee. ON BRIEF: Dana J. Boente, United States Attorney,
Stephen M. Campbell, Tobias D. Tobler, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellant. Frank Salvato, SALVATO LAW,
Alexandria, Virginia, for Appellee.
AGEE, Circuit Judge:
Pursuant to 18 U.S.C. § 5032, the Government filed a motion
to transfer the Defendant -- who was a juvenile at the time of
the alleged offense -- for prosecution as an adult for murder in
aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). 1
This crime carries a mandatory statutory penalty of either death
or life imprisonment. The district court denied the
Government’s motion after concluding that the prosecution would
be unconstitutional given that recent Supreme Court decisions
have held that the United States Constitution prohibits
sentencing juvenile offenders to either of these punishments.
See Miller v. Alabama, 132 S. Ct. 2455 (2012) (mandatory life
imprisonment); Roper v. Simmons, 543 U.S. 551 (2005) (death
penalty).
The Government appeals the district court’s decision,
contending that its transfer motion should have been granted
because the Defendant could have been sentenced to a term of
years up to a discretionary life sentence. For the reasons set
forth below, we affirm the district court’s decision.
1
Federal law prohibits the public release of a juvenile’s
name in association with these proceedings. 18 U.S.C. §
5038(e). Accordingly, we use the designation “Defendant”
throughout this opinion.
2
I.
A.
Although the constitutionality of the juvenile transfer
provisions are not at issue in this case, they form the backdrop
for our discussion. The Juvenile Justice and Delinquency
Prevention Act (“the Act”), 18 U.S.C. § 5031 et seq., was
adopted to “remove juveniles from the ordinary criminal process
in order to avoid the stigma of a prior criminal conviction and
to encourage treatment and rehabilitation.” United States v.
Robinson, 404 F.3d 850, 858 (4th Cir. 2005). 2 The Act
establishes procedures for handling criminal charges brought
against juveniles in federal court. United States v. Juvenile
Male, 554 F.3d 456, 459 (4th Cir. 2009). To initiate a
proceeding under the Act, the Government files a delinquency
information rather than a criminal indictment. Id. at 460.
In relevant part, the Act permits juveniles 15 years or
older to be transferred from juvenile status for prosecution as
an adult if they are alleged to have committed certain violent
crimes, including murder. 18 U.S.C. § 5032. The district court
has authority to grant the transfer to adult status if, after a
hearing, it finds by a preponderance of the evidence that
2Unless otherwise indicated, all internal quotation marks,
citations, or alterations have been omitted in this and
subsequent citations.
3
“transfer would be in the interest of justice.” Id. The
statute delineates six factors for the court to consider in this
inquiry, including the age and social background of the
juvenile, the nature of the alleged offense, and the juvenile’s
prior delinquency record. Id. 3
B.
When he was a few months shy of his eighteenth birthday,
the Defendant allegedly participated in a gang-related murder.
The Government filed a delinquency information and certification
against the Defendant pursuant to 18 U.S.C. § 5032 and
simultaneously moved to transfer him for prosecution as an adult
for murder in aid of racketeering, in violation of 18 U.S.C. §
1959(a)(1).
The Defendant opposed the motion, arguing that transfer
would be unconstitutional given the Supreme Court’s decisions
holding that juvenile offenders could not be sentenced to either
death or mandatory life imprisonment, which are the only
penalties authorized in § 1959(a)(1) for murder in aid of
3 In cases where a juvenile is alleged to have committed an
offense that would render him eligible for transfer after having
already been convicted of a prior qualifying crime, the district
court does not engage in the “interest of justice” analysis, but
instead is instructed to transfer the juvenile “to the
appropriate district court of the United States for criminal
prosecution.” 18 U.S.C. § 5032.
By its terms, this provision does not apply to the
Defendant because he has no prior qualifying conviction.
4
racketeering. Separately, he also contested whether transfer
was in the “interest of justice” under the § 5032 factors.
The district court concluded that although the interest-of-
justice factors supported transfer, it would be unconstitutional
to grant the Government’s motion. This was so, it explained,
because district courts do not have discretion to sentence a
defendant to less than the statutory mandatory minimum penalty,
which, for violating § 1959(a)(1), is life imprisonment. It
recognized that under the Supreme Court’s decision in Miller v.
Alabama, 132 S. Ct. 2455 (2012), imposing a mandatory life
sentence on a juvenile, like the Defendant, is constitutionally
prohibited. The district court further observed that no
authority permitted it to impose a sentence lower than the
mandatory minimum provided by the statute. In so doing, it
rejected the Government’s argument that § 1959(a)(1) could be
excised to permit a sentence of a term of years for a juvenile
offender.
The Government noted a timely appeal, and we have
jurisdiction to consider this interlocutory appeal under the
collateral order doctrine. See United States v. Smith, 851 F.2d
706, 708 (4th Cir. 1988); see also United States v. Leon, 132
F.3d 583, 588-89 (10th Cir. 1997).
5
II.
A.
The parties agree that the Supreme Court’s recent decisions
prohibit a straight-forward transfer, prosecution, and
sentencing of a juvenile under the terms of the federal murder
in aid of racketeering statute. This is so because over the
past eleven years the Supreme Court has issued several decisions
affecting the constitutional boundaries of sentences imposed on
offenders who were juveniles when their crimes were committed.
Montgomery, Slip Op. 1.
In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court
held that the Constitution’s guarantee against cruel and unusual
punishment prohibited juvenile offenders from being sentenced to
death. Id. at 578 (“The Eighth and Fourteenth Amendments forbid
imposition of the death penalty on offenders who were under the
age of 18 when their crimes were committed.”). In Graham v.
Florida, 560 U.S. 48 (2010), the Supreme Court held that the
Constitution also prohibits juvenile offenders convicted of
nonhomicide offenses from being sentenced to life imprisonment
without parole. Id. at 82. 4 The Supreme Court concluded in
Miller that the Constitution prohibits juvenile offenders who
4 A “life sentence” in the federal sentencing scheme is the
same as “life without possibility of parole” because the federal
government has abolished parole. See Richmond v. Polk, 375 F.3d
309, 316 (4th Cir. 2004).
6
commit murder from being sentenced to mandatory life without
parole. 132 S. Ct. at 2460. And, most recently, in Montgomery
v. Louisiana, 577 U.S. ___ (2016), the Supreme Court clarified
that Miller contained both a substantive and procedural
component:
Because Miller determined that sentencing a
child to life without parole is excessive
for all but the rare juvenile offender whose
crime reflects irreparable corruption, it
rendered life without parole an
unconstitutional penalty for a class of
defendants because of their status—that is,
juvenile offenders whose crimes reflect the
transient immaturity of youth.
. . . . Miller, it is true, did not bar
a punishment for all juvenile offenders, as
the Court did in Roper[, but it] did bar
life without parole . . . for all but the
rarest of juvenile offenders[.]
To be sure, Miller’s holding [also] has
a procedural component. Miller requires a
sentence to consider a juvenile offender’s
youth and attendant characteristics before
determining that life without parole is a
proportionate sentence. . . .
Slip Op. 17-18.
It is in the context of the foregoing decisions that we
examine the statute under which the Government seeks to
prosecute the Defendant: murder in aid of racketeering. This
offense is included in the federal violent crimes in aid of
racketeering activity statute, which provides, in relevant part:
7
(a) Whoever, as consideration for the
receipt of, or as consideration for a
promise or agreement to pay, anything of
pecuniary value from an enterprise engaged
in racketeering activity, or for the purpose
of gaining entrance to or maintaining or
increasing position in an enterprise engaged
in racketeering activity, murders, kidnaps,
maims, assaults with a dangerous weapon,
commits assault resulting in serious bodily
injury upon, or threatens to commit a crime
of violence against any individual in
violation of the laws of any State or the
United States, or attempts or conspires so
to do, shall be punished--
(1) for murder, by death or life
imprisonment, or a fine under this title, or
both; and for kidnapping, by imprisonment
for any term of years or for life, or a fine
under this title, or both . . . .
18 U.S.C. § 1959(a).
Under the plain language of § 1959(a)(1), Congress has
authorized two penalties – and only two penalties – for the
crime of murder in aid of racketeering: “death or life
imprisonment.” 5 Further, we note that a district court
5 As § 1959(a)(1) reflects, a person convicted of murder in
aid of racketeering is also subject to a fine. However, we do
not believe Congress intended a fine to be a stand-alone penalty
for committing this offense. Rather, we agree with the Second
Circuit’s analysis in United States v. James, 239 F.3d 120 (2d
Cir. 2000), which observed that it would be “deeply problematic”
for Congress to have authorized a penalty of a fine only as an
alternative to “death or life imprisonment,” and that this
cannot have been what Congress intended. As such, the better
construction of this statute is that it authorizes a fine in
addition to either “death or life imprisonment.” Id. at 126-27;
see also United States v. Mahadi, 598 F.3d 883, 897 n.13 (D.C.
Cir. 2010) (reaching this same “common sense conclusion”).
(Continued)
8
ordinarily has “no discretion to impose a sentence outside the
statutory range established by Congress for the offense of
conviction.” United States v. Robinson, 404 F.3d 850, 862 (4th
Cir. 2005). 6 Consequently, life imprisonment is the mandatory
minimum punishment for this offense. See James, 239 F.3d at
127.
But, as reflected above, Miller and Roper have prohibited
juveniles from being sentenced to either of the congressionally
authorized punishments for murder in aid of racketeering. Thus,
the crux of the case before us is whether a judicial remedy
exists that would nonetheless allow juveniles to be prosecuted
for this offense, yet subjected to a punishment different from
that enacted by Congress.
B.
The Government contends that the district court should have
permitted transfer because if the Defendant is convicted of
violating § 1959(a)(1), the district court could sentence him to
Although the Supreme Court’s recent juvenile sentencing
decisions did not impact the continued vitality of the
authorized punishment of a fine in § 1959(a)(1), the Government
– for obvious reasons – does not want to prosecute the Defendant
for this offense only to subject him to a fine. Nor would a
fine-only offense fit logically within the structure Congress
enacted in § 1959(a) as a whole.
6 A district court is authorized to impose a sentence below
the statutory minimum in two circumstances unrelated to the
issues before us in this case. See 18 U.S.C. § 3553(e).
9
a term of years up to a maximum of life imprisonment. Although
we review the decision to deny a motion to transfer for abuse of
discretion, we review de novo the district court’s statutory and
constitutional rulings relating to the transfer. Juvenile Male,
554 F.3d at 465. 7
In support of its argument, the Government relies on the
principle that unconstitutional portions of a statute can be
“severed or excised so that the remaining constitutional
portions may be applied.” Opening Br. 12. The Government
contends that the impermissible punishments can be excised from
§ 1959(a)(1), leaving intact language contained later in that
subsection for the separate criminal act of kidnapping in aid of
racketeering, which authorizes a term of years up to a
discretionary maximum sentence of life. Specifically, the
Government urges the following excision of the sentencing
portion of the statute as applied to juvenile offenders:
[Violators] shall be punished--
(1) for murder, by death or life imprisonment, or a
fine under this title, or both; and for kidnapping,
by imprisonment for any term of years or for life,
or a fine under this title, or both; . . . .
§ 1959(a). The Government argues that this reconstruction of
the statute recognizes that Congress would rather have a
7The Defendant did not file a cross-appeal challenging the
district court’s analysis and conclusion that the interest-of-
justice factors would otherwise support transfer. As such, that
issue is not before us.
10
constitutional penalty provision of this sort than have the
entire penalty provision declared inapplicable to the worst
juvenile offenders. Additionally, the Government maintains that
this approach is consistent with how other courts have proceeded
in light of Miller.
When a court determines that a statute contains
unconstitutional provisions, it will “try to limit the solution
to the problem” by considering, for example, whether it is
possible “to sever its problematic portions while leaving the
remainder intact.” Ayotte v. Planned Parenthood of. N. New
England, 546 U.S. 320, 328-29 (2006). But in Roper and Miller,
the Supreme Court’s rulings affected multiple state and federal
statutes and the Court did not proceed to this next step of a
possible severability remedy. Some state legislatures have
since enacted statutes aimed at rectifying their problematic
sentencing provisions created by these decisions. E.g., 2014
Fla. Laws 220, 2014 Mich. Pub. Acts 22, 2013 Cal. Stat. ch. 312. 8
Congress, however, has taken no action to alleviate the
sentencing conundrum now existing in § 1959(a)(1) as applied to
juveniles. Moreover, the specific issue before us appears to be
8These legislative fixes vary, but can be broadly put into
three categories: (1) adopting Miller-compliant procedural
protections during the sentencing of juveniles; (2) enacting a
new penalty scheme for juveniles; and/or (3) authorizing parole
after a fixed period of a mandatory life sentence.
11
one of first impression in the federal courts: that is, no case
has arisen where the criminal act charged against a juvenile is
alleged to have been committed after Miller was decided. See
infra Section II.D. Accordingly, we must determine how the
Supreme Court’s decisions affect the Government’s ability to
prosecute juveniles for murder in aid of racketeering in the
absence of congressional action.
C.
1.
“Severance is a tool for preserving the current statute,
and it flows from the principle that invalidating a whole
statute may nullify more of the work of the people’s elected
representatives than is constitutionally necessary.” Covenant
Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421, 438
(4th Cir. 2007); see also Pittston Co. v. United States, 368
F.3d 385, 400 (4th Cir. 2004) (“[W]hen an application of a
statute is determined to be unconstitutional, courts seek to
preserve as much of the statute as is still consistent with
legislative intent . . . . Whenever an act of Congress contains
unobjectionable provisions separable from those found to be
unconstitutional, it is the duty of this court to so declare,
and to maintain the act in so far as it is valid.”).
The Supreme Court has articulated the “well established”
“standard for determining severability” as follows:
12
Unless it is evident that the Legislature
would not have enacted those provisions
which are within its power, independently of
that which is not, the invalid part may be
dropped if what is left is fully operative
as a law.
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987). As
this standard reflects, severance only works “if the balance of
the legislation [can] function[] independently.” Id.; see also
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.
477, 508 (2010) (holding that the statute remained “fully
operative as a law” following excision of unconstitutional
provisions, so excision was permitted so long as continued
enforceability of the excised statute would be consistent with
congressional intent). But where the “balance of the
legislation is incapable of functioning independently,” then
severance is not a viable option. Alaska Airlines, 480 U.S. at
685.
2.
Articulating a crime and providing a penalty for its
commission are indelibly linked. As the Supreme Court has
observed,
[t]he defendant’s ability to predict with
certainty the judgment from the face of the
felony indictment [historically] flowed from
the invariable linkage of punishment with
crime. See 4 Blackstone 369-370 (after
verdict, and barring a defect in the
indictment, pardon or benefit of clergy,
“the court must pronounce that judgment,
13
which the law hath annexed to the crime”
(emphasis added)).
Apprendi v. New Jersey, 530 U.S. 466, 478-79 (2000). Indeed,
the defining characteristic of a criminal statute is its
punitive effect. See Smith v. Doe, 538 U.S. 84, 92 (2003)
(describing the process of determining whether a statute should
be characterized as criminal or civil by looking to whether the
legislature intended to impose punishment, and if not, then
whether its scheme is nonetheless “so punitive either in purpose
or effect as to negate the State’s intention to deem it civil”);
see also Black’s Law Dictionary 1634 (10th ed.) (defining “penal
statute” as “[a] statute by which punishments are imposed for
transgressions of the law”).
Given this inherent connection between the crime and its
stated punishment, the Supreme Court has affirmed the dismissal
of an indictment charging a violation of an offense for which
the statute provided no corresponding penalty. United States v.
Evans, 333 U.S. 483, 495 (1948). In that case, the Court noted
that while the statute articulated multiple crimes, the penalty
provision was limited by its plain terms to only certain
offenses. Id. at 484. Consequently, it held that the statute
was “unenforceable for [those] offenses” where no punishment
existed. Id. at 495; see also id. at 486 (“[W]here Congress has
exhibited clearly the purpose to proscribe conduct within its
14
power to make criminal and has not altogether omitted provision
for penalty, every reasonable presumption attached to the
proscription to require the courts to make it effective in
accord with the evident purpose.” (emphasis added)). In short,
a criminal statute is not operative without articulating a
punishment for the proscribed conduct.
As enacted, § 1959(a)(1) functions without interpretive
difficulty in the sentencing of adult defendants: a person
convicted for murder in aid of racketeering “shall be punished”
“by death or life imprisonment, or a fine under this title, or
both[.]” Id. But once these unconstitutional punishments for
murder in aid of racketeering are removed for purposes of
prosecuting juveniles, as the Government now asks, no applicable
penalty provision remains. 9 Thus, while excising the penalty
provisions may cure the problem created by Miller and Roper, it
simultaneously creates a vacuum that renders the statute
unenforceable as pertaining to juveniles because what would
remain of the statute is “incapable of functioning
independently.” Alaska Airlines, 480 U.S. at 684.
3.
Nonetheless, the Government posits that the structure of §
1959(a)(1), which includes separate punishment provisions for
9 We do not include the § 1959(a)(1) fine in our
consideration for the reasons already discussed.
15
murder and kidnapping, could be reconstructed by making the
penalty for the act of kidnapping applicable to the act of
murder. The Government’s proposal contravenes the principles
governing both severance and due process.
At the outset, we observe that § 1959(a) prohibits
committing (or attempting or conspiring to commit) several
violent crimes in aid of racketeering. See United States v.
Fiel, 35 F.3d 997, 1003 (4th Cir. 1994). The statute’s
punishment provisions are each articulated in terms of the
underlying violent crime. Subsection (1) sets the punishments
for two of those underlying violent crimes: murder and
kidnapping.
Substituting the congressionally designated punishment for
one distinct act for that articulated for another, separate act
goes beyond the permissible boundaries of severance and treads
into the legislative role. See Ayotte, 546 U.S. at 329
(cautioning that courts cannot rewrite statutes in the name of
severance in order “to conform [them] to constitutional
requirements”). Legislatures, not courts, are charged with
articulating the authorized penalties for criminal conduct. See
Harris v. United States, 536 U.S. 545, 557 (2002) (explaining
that defining criminal conduct, including its appropriate
punishment, is “a task generally left to the legislative
branch”); Mistretta v. United States, 488 U.S. 361, 364 (1989)
16
(“Congress, of course, has the power to fix the sentence for a
federal crime, and the scope of judicial discretion with respect
to a sentence is subject to congressional control.”). Only when
Congress has articulated the penalties authorized by law for a
criminal act does the judiciary’s work begin. E.g., Williams v.
New York, 337 U.S. 241, 247 (1949) (noting that a sentencing
judge’s broad discretion to impose a sentence is limited by the
“fixed statutory or constitutional limits [regarding] the type
and extent of punishment after the issue of guilt” has been
resolved).
To demonstrate why the Government’s proposal in this case
differs from an appropriate remedy of severance and excision,
and instead usurps the constitutional allocation of the power to
write a statute to Congress, consider the following
illustration. After Roper, but before Miller, the Supreme Court
had only declared that it was unconstitutional to sentence
juveniles to death and left intact the constitutionality of
lesser sentences. At that point in time, a juvenile such as the
Defendant could not have been sentenced to death, but could (and
must) have been sentenced to mandatory life imprisonment. Thus,
post-Roper, the murder in aid of racketeering statute
effectively could have been excised to read:
17
[Violators] shall be punished--
(1) for murder, by death or life
imprisonment, or a fine under this title, or
both; and for kidnapping, by imprisonment
for any term of years or for life, or a fine
under this title, or both . . . .
18 U.S.C. § 1959(a)(1). In looking at the severance remedy of
excising the unconstitutional death penalty provision, an
acceptable punishment that Congress had specifically authorized
remained intact: mandatory life imprisonment. And because “the
balance of the legislation [could] function[] independently,”
excising the unconstitutional death penalty provision and
enforcing the remainder would have been an appropriate judicial
action. Alaska Airlines, 480 U.S. at 685.
But what the Government proposes here post-Miller is
altogether different: using excision to combine the penalty
provisions for two distinct criminal acts. The serendipitous
juxtaposition of the two separate criminal acts (murder and
kidnapping) within one subsection of § 1959(a) does not make the
Government’s proposal any less of an impermissible judicial
rewriting of one offense’s penalty provision. 10 The penalty
10 To illustrate this point, suppose the statutory maximum
for kidnapping in aid of racketeering was not discretionary life
imprisonment, but rather five years’ imprisonment. The
Government could not credibly argue that the five-year
kidnapping maximum should be applied to murder in aid of
racketeering by a juvenile under the auspices of being a mere
excision within the same statutory subsection. Yet upon the
(Continued)
18
enacted for the kidnapping-based offense cannot simply be
interchanged with and applied to the murder-based offense, as
these are two wholly separate means of violating § 1959 with
distinct elements. See United States v. Umaña, 750 F.3d 320,
334-35 (4th Cir. 2014). 11
Under the guise of severance principles, the Government
seeks to have the judiciary create in the first instance an
appropriate punishment now that the Supreme Court has ruled the
only penalties Congress chose for the crime are unconstitutional
as applied to juveniles. Accepting the Government’s invitation
would be “nothing less than judicial legislation pure and
excision of text contemplated by the Government's severance
analysis, that is the result that would necessarily follow.
11 To establish a claim under § 1959(a), the government must
prove the following elements:
(1) that there was an enterprise engaged in
racketeering activity;
(2) that the enterprise’s activities affected
interstate commerce;
(3) that the defendant committed the alleged
crime of violence; and
(4) that the defendant, in committing the alleged
crime of violence, acted in response to
payment or a promise of payment by the
enterprise or for the purpose of gaining
entrance to or maintaining or increasing
position in an enterprise.
Umaña, 750 F.3d at 334-35. Obviously, to establish a murder-
based offense, the Government’s proof as to the third and fourth
elements must demonstrate that the defendant committed a murder,
while to establish a kidnapping-based offense, the Government’s
proof must relate to kidnapping. See id.
19
simple.” Ballard v. Miss. Cotton Oil Co., 34 So. 533, 554
(Miss. 1903).
4.
We also observe that the Government’s reliance on United
States v. Booker, 543 U.S. 220 (2005), overstates a court’s goal
of looking to what Congress would have preferred in remedying
the problem of unconstitutional provisions through severance.
Booker expressly disclaimed “creat[ing] a new kind of
severability analysis,” id. at 247, and applied the well-
established inquiry we described earlier. Id. at 246, 248-49.
That inquiry looks to legislative intent in determining whether
unconstitutional provisions can be severed from constitutional
ones, and leaves in place “valid provisions of an act . . .
unless it is evident that the Legislature would not have enacted
those provisions which are within its power, independently of
that which is not.” Pittston Co. v. United States, 368 F.3d
385, 400 (4th Cir. 2004); see also Ayotte, 546 U.S. at 330
(reiterating that “a court cannot use its remedial powers to
circumvent the intent of the legislature”). But nothing in
Booker allows this Court to replace excised language from one
provision with language not previously applicable to it from a
separate provision. See Ayotte, 546 U.S. at 329 (observing,
post-Booker, that when considering whether severability is an
appropriate remedy, courts must “restrain [them]selves from
20
rewriting [the] law to conform it to constitutional requirements
even as we strive to salvage it”). 12
Looking to legislative intent to remedy a constitutional
defect is of limited utility when there is no indication what
that legislative intent would be under the circumstances. See
Booker, 543 U.S. at 246. In the absence of language in the
murder in aid of racketeering penalty provision itself that
could authorize a term of less than life imprisonment, we cannot
fill a void in the statutory language by looking to other
offenses. 13
12
The Government states that the excision it proposes is
similar to the excision the Supreme Court made in Booker when it
excised provisions setting out the standard of review on appeal
because they cross-referenced the unconstitutional provisions
making the sentencing guidelines mandatory. See Reply Br. 4.
In Booker, the Supreme Court held that the absence of
articulated standards of review posed no problem because the
“appropriate review standards [could be inferred] from related
statutory language, the structure of the statute, and the sound
administration of justice.” 543 U.S. at 260-61.
The Government overlooks the Booker opinion’s recognition
immediately prior to that statement that the excision of the
standard-of-review provisions did “not pose a critical problem
for the handling of appeals . . . because, as we have previously
held, a statute that does not explicitly set forth a standard of
review may nonetheless do so implicitly.” Id. at 260.
In contrast, the excision of a criminal offense’s penalty
provision does “pose a critical problem” and courts have no
authority to implicitly decide an appropriate punishment range
in the first instance.
13 The Government contends that Congress would obviously cap
a juvenile’s sentencing exposure for murder in aid of
racketeering at life imprisonment. However, in light of Roper,
Miller, and Montgomery, juvenile sentencing is undergoing
substantive changes. We have no way of knowing how Congress
(Continued)
21
5.
Grafting a newly applicable penalty provision into the
murder in aid of racketeering statute, as the Government
proposes, also runs counter to the Constitution’s guarantee of
due process. “Elementary notions of fairness enshrined in our
constitutional jurisprudence dictate that a person receive fair
notice not only of the conduct that will subject him to
punishment, but also of the severity of the penalty that a State
may impose.” BMW of N. Am. v. Gore, 517 U.S. 559, 574 (1996);
see United States v. Batchelder, 442 U.S. 114, 123 (1979)
(observing that “vague sentencing provisions may pose
constitutional questions if they do not state with sufficient
clarity the consequences of violating a given criminal
statute”). 14
would or will act and would be engaging in pure speculation in
guessing what that result might be. Despite having four years
to act since being alerted by Miller to the constitutional
problem posed by statutes that have a mandatory minimum of life
imprisonment, Congress has failed to address the matter. It is
their place under the Constitution’s separation of powers to do
so, not ours. See Evans, 333 U.S. at 495 (observing that
manipulating a statute to fill in a missing penalty provision
“is a task outside the bounds of judicial interpretation”).
14 Citing Peugh v. United States, 133 S. Ct. 2072 (2013),
the Defendant argues that prosecuting him for murder in aid of
racketeering with a judicially created penalty would violate the
Constitution’s prohibition against ex post facto laws. This
argument is misplaced as the plain language of the Constitution
limits its application to legislative acts: “No . . . ex post
facto Law shall be passed.” U.S. Const. art. I, § 9, cl. 3
(Continued)
22
Our concerns about lack of notice arise from the Government
urging us to look outside the express language of the stated
offense for an acceptable alternative penalty. When the crime
at issue in this case occurred, Congress unambiguously informed
individuals that murder in aid of racketeering was punishable by
death or mandatory life imprisonment. Congress provided for no
other penalty. However, a juvenile like the Defendant could not
be sentenced to either of those punishments after Miller. Nor
would that juvenile have notice at the time of the alleged crime
that he could be subject to any other punishment, such as
imprisonment to a term of years. And, more precisely for the
Government’s proposal, a juvenile had no notice at the time of
the alleged crime that the punishment provided for a different
offense (kidnapping in aid of racketeering) might now be
(limiting acts of Congress). We are not dealing with a law
Congress enacted here, but with the court’s interpretation of
those laws. As such, the Ex Post Facto Clause is not at issue.
See Rogers v. Tennessee, 532 U.S. 451, 460 (2001).
To the extent this case raises problems with notice and
warning, they fall within the ambit of the Due Process Clause.
Id. at 459 (observing that prior cases addressing the ex post
facto consequences of judicial actions have “rested on core due
process concepts of notice, foreseeability, and . . . the right
to fair warning”); cf. Peugh, 133 S. Ct. at 2085 (observing
that, in part, the Ex Post Facto Clause “ensures that
individuals have fair warning of applicable laws”).
23
applicable to him through the court’s use of severability
principles. 15
The Government argues that juveniles such as the Defendant
had adequate notice of their potential maximum punishment – life
imprisonment – based on the existing statutory language, and
that Miller simply required a court to consider certain factors
before imposing that maximum sentence. We disagree. The only
authorized statutory punishment was mandatory life imprisonment,
not an indeterminate punishment capped at life imprisonment.
That the authorized penalty for murder in aid of racketeering is
greater than the Government’s proposed alternate penalty may
lessen, but does not obviate, the concern as to notice. If the
“[d]eprivation of the right to fair warning . . . can result . .
. from an unforeseeable and retroactive judicial expansion of
statutory language that appears narrow and precise on its face,”
Rogers, 532 U.S. at 457, then surely it can also come from an
unforeseeable and retroactive judicial severability analysis
that would result in excising an offense’s penalty provision so
that the penalty for another offense would now apply.
15As is often the circumstance when it comes to notice of
criminal penalties, the Court must consider the legal fiction
that a criminal will carefully consider the text of the law
before he breaks it. See McBoyle v. United States, 283 U.S. 25,
27 (1931).
24
D.
The Government also points to various cases where juvenile
offenders convicted under a statute requiring life imprisonment
prior to Miller have subsequently been sentenced or resentenced
to a term of years or a discretionary life sentence. For
example, the Government cites United States v. Maldonado, No. 09
Cr. 339–02, 2012 WL 5878673 (S.D.N.Y. Nov. 21, 2012), aff’d sub
nom. United States v. Guerrero, 560 F. App’x 110 (2d Cir. 2014),
a district court decision in which the juvenile offender had
been convicted prior to Miller for two offenses that carried
mandatory terms of life imprisonment. Id. at *9. At the
defendant’s post-Miller sentencing hearing, the district court
observed that a mandatory life sentence could no longer be
imposed, and then proceeded to analyze the factors outlined in
Miller. The court concluded those factors supported life
imprisonment and imposed that sentence. Id. at *9-11.
This case does not offer persuasive support for the
proposition that for a crime committed after Miller, the
Government can initiate a prosecution against a juvenile for an
offense when its only articulated penalties are prohibited. As
an initial matter, it does not appear that the parties in
Maldonado raised the arguments presented here. Maldonado does
not involve a defendant whose alleged criminal conduct occurred
after Miller, nor does it involve a prosecution that began after
25
Miller. This procedural difference also means that Maldonado
did not give rise to the due process problems the instant case
poses because at the time that Maldonado committed his crime and
was prosecuted for it, the statute had a functioning penalty
provision. Only later did any constitutional prohibition come
to light.
The Government also cites to a handful of cases where
federal courts have authorized the resentencing of juvenile
offenders convicted and sentenced prior to Miller to support its
position that sentencing courts can impose a term of years
instead of mandatory life imprisonment. E.g., United States v.
Bryant, 609 F. App’x 925, 927 (9th Cir. 2015); Pete v. United
States, Nos. CV 13–8149–PCT–RCB (DKD), CR 03–0355–PCT–RCB, 2014
WL 88015, at *1-2 (D. Ariz. Jan. 9, 2014) (government conceded
retroactive applicability and did not oppose defendant’s § 2255
motion for resentencing, so district court ordered that relief
in light of Miller requiring individualized sentencing for
juvenile offenders). But these cases are distinguishable for
the same reasons set forth above. Those courts were looking to
how to remedy a mandatory life sentence that was validly imposed
at the time, but which was subsequently determined to be
unconstitutional. That presents a fundamentally different
inquiry from the case before us.
26
Lastly, the Government asserts that the district court’s
rationale, coupled with the conclusion that Miller is
retroactive, would require reversing countless convictions. The
Supreme Court has already considered -- and rejected -- a
similar suggestion in Montgomery. As noted, subsequent to oral
argument in this case, the Supreme Court decided that Miller is
indeed retroactively applicable on collateral review. See
Montgomery, slip op. at 15-22. The Court in Montgomery was
careful to note, however, that the problems arising from
Miller’s retroactivity could be remedied short of vacating
convictions or requiring resentencing. Id. at 20-21. The
limits of Montgomery will no doubt be litigated in future cases,
but for present purposes it is sufficient to observe that the
Supreme Court has indicated that vacating a conviction may not
be necessary in order to remedy a past Miller violation. Id.
Whatever the appropriate remedies may be for those juvenile
offenders who were convicted and sentenced prior to Miller, they
stand on entirely different ground than the Defendant. This
case only requires considering whether initiating prosecution of
a juvenile for murder in aid of racketeering alleged to have
occurred after Miller would be unconstitutional because the
sentencing court could not constitutionally impose the only two
authorized penalties for that offense. We hold that such a
prosecution cannot constitutionally proceed.
27
III.
The Supreme Court’s conclusion in Evans nearly seven
decades ago aptly addresses the Government’s argument for a
judicial remedy in the case before us:
This is a task outside the bounds of
judicial interpretation. It is better for
Congress, and more in accord with its
function, to revise the statute than for us
to guess at the revision it would make.
That task it can do with precision. We
could do no more than make speculation law.
333 U.S. at 495.
For that reason and as further explained above, we agree
with the district court that the Defendant cannot be prosecuted
for murder in aid of racketeering because his conviction would
require the court to impose an unconstitutional sentence. 16
Therefore, the district court did not err in denying the
Government’s motion to transfer the Defendant for prosecution as
an adult and its decision is affirmed.
AFFIRMED
16 The Defendant acknowledges that other prosecutorial
options may be available to the Government. For example, our
holding does not prevent the Government from seeking the
Defendant’s transfer for prosecution as an adult for a different
federal crime that would not violate the above principles, nor
does it prohibit the Government from trying the Defendant as a
juvenile for this offense, subject to the then-applicable
sentencing provisions. Those options are solely in the
Government’s province to pursue and we offer no opinion in that
regard.
28