Williams v. United States

         Argued June 5, 2018

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          Appeal from the Superior Court of the District of Columbia, (FEL-5400-90), (Hon. Harold L. Cushenberry, Jr., Trial Judge)

          Mikel-Meredith Weidman, Public Defender Service, with whom Samia Fam, Public Defender Service, was on the brief, for appellant.

         Sharon A. Sprague, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney, Channing D. Phillips, United States Attorney at the time of initial briefing, and Elizabeth Trosman, Suzanne Grealy Curt, Angela N. Buckner, Patricia A. Heffernan, and Eric Hansford, Assistant United States Attorneys, were on the brief, for appellee.

         Before Glickman, Thompson, and Easterly, Associate Judges.

          OPINION

         Glickman, Associate Judge:

         Appellant Brian Williams is serving a sentence of 62 years to life in prison for two murders and other offenses committed when he was 17 years of age. He appeals from the denial of a motion collaterally challenging the constitutionality of his conviction and sentence pursuant to D.C. Code § 23-110 (2012 Repl.) Appellant contends his sentence is "de facto" life without parole ("LWOP") and therefore unconstitutional and subject to correction under the Supreme Court’s decisions in Miller v. Alabama ^[1] and Montgomery v. Louisiana .^[2] Miller held that "mandatory life [imprisonment] without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishments."^[3] In so holding, as Montgomery subsequently clarified, Miller "bar[red] life without parole ... for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility."^[4] All other offenders who were juveniles at the time of their crimes are entitled to "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."^[5] Montgomery further held that this is a substantive rule of constitutional law

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that applies retroactively to prisoners whose sentences were final when Miller was decided.^[6] Such prisoners, the Court held, "must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored."^[7] Accordingly, because the sentencing court in the present case did not find appellant to be permanently incorrigible, he asks us to vacate his sentence and remand his case for resentencing.

         The United States concedes that an aggregate term-of-years sentence for multiple offenses qualifies as "de facto" LWOP for purposes of Miller and Montgomery if it precludes parole consideration for a period of time clearly exceeding the defendant’s natural life expectancy.^[8] The government argues, however, that the holdings of Miller and Montgomery are inapplicable to this case because they apply only to mandatory LWOP sentences (i.e., only when the sentencing court has no discretion to sentence the offender to less than LWOP or its equivalent), and not to discretionary LWOP sentences such as the sentence appellant received. There is a conflict in the lower courts over this issue, and on March 18, 2019, the Supreme Court granted the petition for certiorari in Mathena v. Malvo to settle it.^[9] As we explain in this opinion, our disposition of this appeal makes it unnecessary to await the Supreme Court’s ultimate decision in Malvo . We can assume, without deciding, that the Eighth Amendment principles enunciated in Miller and Montgomery apply regardless of whether the LWOP sentence is "mandatory" or "discretionary."

         The government also disputes appellant’s claim that his aggregate sentence rendered him ineligible for parole for as long as, or longer than, his life expectancy. This is a factual question that the record before us does not resolve, though the period of appellant’s ineligibility for parole does appear to be close to his expected life span.^[10] For purposes of this appeal, we may assume, without deciding, that appellant’s sentence as imposed was "de facto" LWOP.

         The government’s primary argument on appeal is that appellant is not entitled to the resentencing relief he requests, even assuming the applicability of Miller and Montgomery, because the Council of the District of Columbia has legislatively remedied the claimed Eighth Amendment

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infirmity in his sentence by making him eligible for release from prison well before his current parole-eligibility date. We agree with the government on this latter point.

         Montgomery held that Miller violations may be remedied legislatively by allowing juvenile offenders who received LWOP sentences "to be considered for parole, rather than by resentencing them."^[11] Although the District prospectively abolished parole almost two decades ago, the Council adopted a comparable remedy for unconstitutional LWOP sentences in the Incarceration Reduction Amendment Act of 2016 (the "IRAA").^[12] The IRAA permits a defendant who has served at least 20 years of imprisonment for an offense committed before his 18th birthday to apply to the court (instead of to a parole board) for relief from his sentence in light of his lesser culpability as a juvenile and his maturation and rehabilitation in prison. Because we conclude that the IRAA provides appellant with the requisite "meaningful opportunity" to obtain release from prison well before the end of his natural life expectancy based on his maturation and rehabilitation, we deny his request for a resentencing.

          I.

          On March 11, 1990, appellant and three other men armed themselves with pistols and a shotgun and carried out a plan to rob two cocaine dealers. During the robbery, the two unarmed dealers were shot and killed while lying face down on the floor, and the wife of one of the victims was assaulted. The conspirators got away with 17 ounces of cocaine, which they divided up among themselves. When appellant was arrested, he told police he was at home with his girlfriend on the night of the murders; he later urged his girlfriend to lie to the grand jury in support of that alibi.

         At appellant’s trial in January 1992, the jury returned a verdict of guilty on fourteen counts, including multiple counts of first-degree felony murder while armed. This court affirmed appellant’s convictions in 1995 and remanded the case for vacatur of those convictions that were subject to merger.^[13] This was done, and on July 28, 1995, the trial judge sentenced appellant to an aggregate sentence of 62 years to life in prison.^[14] Appellant was seventeen years old when he committed the offenses. According to the Bureau of Prisons, he will not be eligible for parole until 2048, when he will be 75 years old.

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          On April 6, 2015, appellant filed a pro se motion presenting the claim that his sentence was unconstitutional under Miller because it was equivalent to a sentence of life without parole.^[15] The government opposed the motion. On May 9, 2016, the trial judge ruled that appellant was not entitled to relief. The judge rejected appellant’s Eighth Amendment claim on the grounds that he had not sentenced appellant under a statute mandating a life sentence without the possibility of parole and that he had taken appellant’s youth into account.^[16] Appellant timely noticed this appeal.^[17]

          II.

         The Eighth Amendment prohibits the infliction of "cruel and unusual punishments."^[18] In the years since appellant was sentenced, the Supreme Court issued a series of four decisions applying this prohibition to the sentencing of offenders who were juveniles when their crimes were committed.

         In the first of these decisions, Roper v. Simmons ,^[19] the Court held that the Cruel and Unusual Punishments Clause of the Eighth Amendment prohibits imposition of the death penalty on an offender who was younger than 18 when he committed a capital crime. In so ruling, the Court set forth the premises for concluding that the most severe punishments are, or may be, disproportionately harsh when applied to juveniles because of their lessened culpability and greater prospects for maturation and rehabilitation. The Court identified "[t]hree general differences between juveniles under 18 and adults demonstrat[ing] that juvenile offenders cannot with reliability be classified among the worst offenders."^[20] First, as compared to adults, juveniles have "a lack of maturity and an underdeveloped sense of responsibility," causing them to act more impulsively and recklessly; second, juveniles are more vulnerable or susceptible to outside pressures and negative influences, "including peer pressure"; and third, they are more amenable to correction and reformation because their characters are "not as well formed" and their personality traits are "more transitory, less fixed."^[21] While these characteristics may not be true of every juvenile under 18, the Court recognized

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that "[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption."^[22]

         In the three decisions following Roper, the Court turned from the death penalty to consider the constitutionality of sentencing juveniles to what it called "the second most severe penalty permitted by law,"^[23] life imprisonment without parole. The Court recognized this to be "especially harsh punishment for a juvenile [who] will on average serve more years and a greater percentage of his life in prison than an adult offender."^[24] It came to the conclusion in these cases that LWOP sentences are almost always disproportionately severe and constitutionally impermissible for offenders under 18 years of age because of their diminished culpability and greater receptivity to rehabilitation, and the dubiousness of making at the time of sentencing an "irrevocable judgment" that a juvenile offender is "incorrigible" and "forever will be a danger to society."^[25]

         In Graham, the first case in the LWOP trilogy, the Court held that for any "juvenile offender who did not commit homicide[,] the Eighth Amendment forbids the sentence of life without parole" without exception.^[26] When a juvenile is sentenced to life for a non-homicide crime, the State must give him or her what the Court called a "meaningful" and "realistic opportunity to obtain release before the end of that term."^[27] Two years later, the Court declared in Miller that "Graham’s reasoning implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses."^[28] Although Graham had not absolutely proscribed LWOP sentences for juvenile homicide offenders, Miller held that the Eighth Amendment forbids a sentencing scheme under which LWOP is mandatory for any class of juvenile offenders, because "[b]y making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment."^[29] The Court declared that before imposing life without parole on a juvenile offender in any homicide case, the sentencer is required "to take into account how children are different, and how those differences counsel

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against irrevocably sentencing them to a lifetime in prison."^[30]

         In the third case, Montgomery, the Court clarified that "Miller ... did more than require a sentencer to consider a juvenile offender’s youth before imposing life without parole.... Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects ‘unfortunate yet transient immaturity.’ "^[31] Montgomery described Miller’s retroactive "substantive holding" as being "that life without parole is an excessive sentence for children whose crimes reflect transient immaturity."^[32] Miller thus "bar[red] life without parole ... for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility."^[33]

         In line with the government’s concession in this case, numerous courts have understood Miller (and Graham ) to apply not only to sentences that literally impose imprisonment for life without the possibility of parole, but also to lengthy term-of-years sentences (for one offense or for multiple offenses in the aggregate) that amount to "de facto" life without parole because they foreclose the defendant’s release from prison for all or virtually all of his expected remaining life span.^[34] We agree with that understanding.

         Although Miller addressed only mandatory LWOP sentencing schemes, many courts have read it, especially after Montgomery, as equally applicable to discretionary LWOP sentences.^[35] We apprehend that the recent grant of certiorari in Malvo

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means the Supreme Court is likely to clarify whether the constitutional principles articulated in Miller and Montgomery apply to discretionary as well as mandatory LWOP sentences imposed on juvenile homicide offenders. For present purposes, we may assume arguendo an affirmative answer to that question; the answer makes no difference to our analysis and disposition of the present appeal.

          Importantly, the Supreme Court’s three LWOP decisions do not proscribe, and impose no restrictions on, sentencing juvenile offenders to "life with the possibility of parole."^[36] The Court emphasized that the Eighth Amendment does not require States "to guarantee eventual freedom" to juvenile offenders who are ineligible for LWOP sentences.^[37] The Eighth Amendment demands only that those offenders be afforded "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."^[38] The corollary is that, consistent with the Constitution, "[t]hose prisoners who have shown an inability to reform will continue to serve life sentences."^[39] Thus, providing a "meaningful" opportunity for reformed juvenile offenders to secure release from prison remedies the unconstitutionality of an LWOP sentence barred by Miller by turning it into a sentence that is constitutional because release is realistically possible after all.

         The Court did not define what constitutes a "meaningful" opportunity to obtain

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release; essentially the only guidance it provided on that score was to say that "prisoners like Montgomery [a juvenile homicide offender serving an LWOP sentence] must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored."^[40]

         The Court left it up to the States, "in the first instance, to explore the means and mechanisms for compliance" with this duty^[41] and to "develop[ ] appropriate ways to enforce the constitutional restriction upon [their] execution of sentences."^[42] It made clear in Montgomery that juvenile offenders serving unconstitutional LWOP sentences did not need to be resentenced to cure the Eighth Amendment violation in their sentences:

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.... Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity - and who have since matured - will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment."^[43]

         As an example of a sufficient remedial alternative to resentencing, the Court cited a Wyoming statute making juvenile homicide offenders eligible for parole after 25 years.^[44]

         The Council of the District of Columbia responded to the constitutional imperatives declared in Graham, Miller, and Montgomery by passing the Incarceration Reduction Amendment Act of 2016 (the "IRAA").^[45] The IRAA went into effect on April 4, 2017. It bans LWOP sentences and eliminates mandatory minimum prison terms for all offenders who were under 18 years of age when they committed their crimes.^[46] In addition, the IRAA establishes a sentence review procedure intended to comply with the Supreme Court’s LWOP decisions by ensuring that all juvenile offenders serving lengthy prison terms have a realistic, meaningful opportunity to obtain release based on their diminished culpability and their maturation and rehabilitation.

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          The sentence review procedure is set forth in Section 306 (b) of the IRAA.^[47] The Council modeled it on legislation enacted in Florida and Delaware and under consideration in Congress.^[48] It provides that "[n]otwithstanding any other provision of law," the sentencing "court may reduce a term of imprisonment imposed upon a defendant for an offense committed before the defendant’s 18th birthday" if the defendant "has served at least 20 years in prison" without having become eligible for release on parole.^[49] This relief is available regardless of whether the imposed period of imprisonment without parole violated the Eighth Amendment under Graham and Miller .^[50]

         A defendant may apply for such relief by motion and submit supporting affidavits and documentation, and the court is required to hold a hearing on the motion.^[51] At the hearing, the defendant and his counsel "shall be given an opportunity to speak on the defendant’s behalf" and may be permitted to introduce evidence.^[52]

         The IRAA allows the court to reduce the term of imprisonment if it finds that "the defendant is not a danger to the safety of any person or the community and that the interests of justice warrant a sentence modification."^[53] This standard, in conjunction with the requirement that the defendant must have served at least 20 years of

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his prison term, is essentially equivalent to the standard for granting parole.^[54] The 20-year waiting period is consistent with the 25-year waiting period for parole eligibility that the Supreme Court deemed constitutionally acceptable in Montgomery .

         In determining whether sentence modification is warranted, the court is required to consider "[t]he defendant’s age at the time of the offense; " "[w]hether the defendant has "demonstrated maturity, rehabilitation, and a fitness to reenter society; " and "[t]he diminished culpability of juveniles as compared to that of adults, and the hallmark features of youth, including immaturity, impetuosity, and failure to appreciate risks and consequences, which counsel against sentencing them to a lifetime in prison[.]"^[55] The statute goes on to identify a number of specific factors bearing on the defendant’s maturation, rehabilitative progress and amenability to reform, that the court must consider, including:

(2) The nature of the offense and the history and characteristics of the defendant;

(3) Whether the defendant has substantially complied with the rules of the institution to which he or she has been confined and whether the defendant has completed any educational, vocational, or other program, where available;

          * * *

(7) Any reports of physical, mental, or psychiatric examinations of the defendant conducted by licensed health care professionals;

(8) The defendant’s family and community circumstances at the time of the offense, including any history of abuse, trauma, or involvement in the child welfare system;

(9) The extent of the defendant’s role in the offense and whether and to what extent an adult was involved in the offense.^[56]

         The IRAA requires the court to issue a written opinion "stating the reasons for granting or denying the application[.]"^[57] This requirement of a written opinion helps to ensure the effectiveness of appellate review, which is for abuse of discretion.^[58] If the court grants the application, it shall proceed to resentence the defendant under the sentencing regime that originally governed his sentence.^[59] If a defendant’s initial motion for a reduced sentence is denied, the IRAA provides the defendant with two further opportunities to obtain release. The defendant may file a second sentence reduction motion after five years; if that motion too is denied, he may file a third such motion after another five years. If that third motion is denied as well, no further motions under the IRAA are permitted.

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^[60]

         Although review under the IRAA is not denominated "resentencing," it would seem to equate to a resentencing in all but name. However we characterize it, the IRAA sentence review procedure provides a realistic, meaningful opportunity for all prisoners serving LWOP sentences for juvenile offenses to obtain release and "some years of life outside prison walls" based on demonstrated maturity and rehabilitation. For example, the court could render a prisoner in appellant’s circumstances (one serving an indeterminate sentence) eligible for parole much earlier (or, indeed, immediately) by lowering the minimum terms imposed for each count of conviction and/or making his individual sentences run concurrently instead of consecutively; or the court could alter his sentence in various other ways and even reduce it to time served, effecting the prisoner’s prompt release, based on its determination of his reformation and suitability for such relief. For prisoners serving determinate term-of-years sentences, the IRAA empowers the court to grant early release more directly by simply reducing the length of the prison term. The IRAA’s provision of this opportunity for release does all the Supreme Court has said is necessary in its juvenile LWOP cases for such sentences to pass muster under the Eighth Amendment, for it was only the previous unavailability of such an opportunity that caused those sentences to contravene that Amendment. The IRAA thus furnishes a sufficient remedy for Miller violations. Because this remedy is available to appellant - in fact, we are informed that he already has applied in Superior Court for modification of his sentence pursuant to the IRAA - his § 23-110 claim is now moot. The sentence appellant is serving is now equivalent, for Eighth Amendment purposes, to a life sentence with parole eligibility - a sentence the Eighth Amendment permits.

          Appellant and our dissenting colleague nonetheless assert that because the IRAA does not require parole consideration directly, it leaves the original, presumptively unconstitutional LWOP sentences "in place" and unaltered. E.g., post at 856, 857, 864-65, 868-69, 869, 869-70. Perhaps that is so as a purely formal matter, but it is not so in reality or from the perspective of satisfying the requirements of the Eighth Amendment. There is no constitutional magic in the word "parole." In reality, the IRAA fundamentally transformed every LWOP sentence imposed in Superior Court for crimes committed by juvenile offenders, by effectively converting each such sentence into one with multiple realistic and meaningful possibilities of release while the offender still has years of life left. What was presumptively unconstitutional in those sentences therefore was not left "in place"; it was superseded by a new procedure providing all that the Eighth Amendment requires.

          Simply put, by enacting the IRAA, the Council legislatively modified what were life sentences without the possibility of parole, changing them all into life sentences with a constitutional equivalent of parole. While the judicial hearing contemplated by the IRAA is not identical in all respects to a parole hearing, it serves the same purpose and requires judges to do what appellant would have parole boards do: consider whether defendants ostensibly sentenced to life in prison for crimes committed as juveniles have earned back their liberty by demonstrating their capacity for reformation. The dissent objects that while parole provides the opportunity for outright release from prison to those found to deserve it, the IRAA only provides the

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opportunity for a reduction of sentence to deserving prisoners. Post at 856, 864-66. But this is quibble; the distinction the dissent draws between release and sentence reduction is of no constitutional significance, for as explained earlier, sentence ...