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Williams v. United States

Court of Appeals of The District of Columbia

April 11, 2019

Brian K. Williams, Appellant,
v.
United States, Appellee.

          Argued June 5, 2018

          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

         Dissenting opinion by Associate Judge Easterly at page 45.

         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 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 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.

         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 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 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 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 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.

         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 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.[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 47, 49, 68, 78, 79, 81. 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 opportunity for a reduction of sentence to deserving prisoners. Post at 47, 68-70. But this is quibble; the distinction the dissent draws between release and sentence reduction is of no constitutional significance, for as explained earlier, sentence reduction is an effective means for the court to provide for release.

         The dissent further objects that the IRAA judicial review procedure places the burden of proof on the defendant to show that he has reformed, rather than requiring the government to prove that his crime reflects permanent incorrigibility. Post at 73 n.22. This objection, which equally could be leveled against parole hearings, misapprehends what the Supreme Court held in Miller and Montgomery. Under those cases, a judicial prediction of permanent incorrigibility is necessary only to support the denial of any meaningful opportunity for release based on demonstrated maturation and rehabilitation. The IRAA, however, provides exactly that opportunity. Consequently, as Montgomery states, the burden is indeed on the prisoner to "demonstrate the truth of Miller's central intuition - that children who commit even heinous crimes are capable of change."[61]

         The Supreme Court has repeatedly emphasized that it is the opportunity for eventual release, not the actuality of eventual release, that the Eighth Amendment demands. Life sentences for juvenile offenders are not in themselves unconstitutional, nor do they require any finding of incorrigibility to be constitutional, so long as the requisite opportunity for release exists. The Constitution does not guarantee that juvenile offenders will be released eventually or require a finding of incorrigibility as a condition of withholding release from those who fail to reform.

         Furthermore, the Supreme Court did not say, nor in our view did it imply, that a parole hearing is the only constitutionally acceptable remedial alternative to vacating and relitigating the sentence ab initio.[62] While in Montgomery the Supreme Court gave Wyoming's parole statute (allowing parole consideration after 25 years) as an example of an acceptable approach, the Court explicitly left it up to the States to devise appropriate procedures to vindicate the Eighth Amendment's requirements in this area.[63] If, as the Court held in Montgomery, the Eighth Amendment permits a State to remedy unconstitutional LWOP sentences by legislatively providing the opportunity for early release by a parole board, then surely the Eighth Amendment permits a State to remedy unconstitutional LWOP sentences by legislatively providing the opportunity for early release by a court. To reject the latter alternative simply because it is not denominated "parole" is to exalt form over substance without any grounding in Eighth Amendment jurisprudence.

         Other States have enacted judicial sentence review procedures similar to that in the IRAA to provide juvenile offenders receiving life or long term-of-years prison sentences with the meaningful opportunity to obtain release mandated by Graham and Miller.[64] For example, Fla. Stat. § 921.1402 allows an offender serving such a sentence to apply for judicial review after 25 years and requires the sentencing court to hold a hearing on the application to determine "whether the sentence should be modified" in light of the offender's demonstrated maturity and rehabilitation. The Florida Supreme Court held that this provision satisfies Miller's requirement that juvenile offenders be given a meaningful opportunity for future release from incarceration.[65] In other words, the Court deemed the statutory provision of IRAA-type judicial review to be equivalent to the provision of parole review for purposes of complying with the Eighth Amendment as construed in Miller and Montgomery.[66]

         In support of its counter-factual theme that the IRAA cannot remedy an unconstitutional LWOP sentence because it leaves that sentence unaltered, the dissent relies on, and largely echoes, a pre-Montgomery decision of the California Supreme Court, People v. Gutierrez.[67] In that case, the Court held that the potential for relief under California's "recall and resentencing" statute[68] - a statute similar, though not identical, to the IRAA - was not an adequate remedy for an LWOP sentence imposed on a juvenile offender pursuant to a statute that established an unconstitutional presumption in favor of life without parole.[69] The rationale articulated in Gutierrez, like that of the dissent in this case, is undermined by Montgomery's subsequent holding that Miller violations can be cured without resentencing by providing the offender with the opportunity for release from prison based on a showing of maturation and rehabilitation.[70] When the California Supreme Court addressed the recall and resentencing statute after Montgomery was decided, in In re Kirchner, [71] it articulated a different rationale for concluding that the statutory remedy was insufficient to remedy a Miller violation. Specifically, the Court found the statute inadequate because, by its terms, it makes resentencing "unavailable to some juvenile offenders who are serving sentences that contravene Miller," and it fails to "require consideration of all relevant evidence bearing on the Miller factors . . . as part of the resentencing inquiry."[72] The IRAA differs from the California law; it is subject to neither of these defects.

         Ultimately, even if a few other State courts have rejected their States' judicial review mechanisms as an alternative to resentencing juvenile offenders serving unconstitutional LWOP sentences, that is of little moment. In Montgomery, the Supreme Court held that resentencing is not the only acceptable means of remedying the Eighth Amendment violation, and that it suffices for a State to make consideration for release on parole meaningfully available to such offenders in lieu of resentencing them. The critical question before us, therefore, is how judicial review under the IRAA compares with parole consideration. We think it compares quite favorably.

         We certainly do not see that the judicial hearing required by the IRAA is inferior to a parole hearing from the defendant's point of view, or in terms of meeting the concerns expressed in Miller and Montgomery that the differences between children and adults be taken fully into account to avoid disproportionately harsh sentences for juvenile offenders. The IRAA judicial hearing is superior to a parole hearing in those respects, for one reason because the IRAA explicitly requires judges to give individualized consideration to the factors specific to juveniles that "counsel against sentencing them to a lifetime in prison."[73] In addition, the formal judicial hearing envisioned by the IRAA provides defendants significant procedural guarantees, in contrast to the "minimal" procedures that the Constitution requires in parole proceedings.[74] These include a fuller opportunity to present relevant evidence (and, by implication, to challenge the government's evidence) with the assistance of counsel, [75] and a written, structured decision by the judge that is subject to more stringent constitutional and statutory requirements and is more fully reviewable on appeal.[76]

         Appellant objects that the IRAA commits the motion for reduction of sentence to the judge's discretion "with no guidance to judges about how to weigh the enumerated factors."[77] Even if this were so, the Supreme Court did not suggest in Montgomery that the Eighth Amendment requires such precision to guide parole[78] or any other procedure for remedying a Miller violation. It is common for decisions of constitutional magnitude to be based on a judge's discretionary consideration of multiple factors without preordained weights assigned to them; many such decisions are not amenable to such advance fine-tuning, and sentence reduction in this context is surely one of them. The factors to be considered are too many and vary too greatly from individual to individual for any predetermined formula to govern their weighing and balancing, and rigid adherence to such a formula would run counter to the essence of the evaluation of each juvenile's unique characteristics, degree of culpability, and prospects for reformation required by the Eighth Amendment.

         We reject appellant's assertions that judicial review in the IRAA context is therefore "illusory" and that "[a]s long as a judge holds an IRAA hearing, allows the defendant to present evidence, and issues a written order, the refusal to reduce a sentence that should never have been imposed will be, for all practical purposes, unreviewable."[79] The judge is obligated to accord the prisoner a fair hearing and to make findings and conclusions supported by the record with respect to the pertinent factors enumerated in the IRAA. Thus, the judicial exercise of discretion, in an IRAA proceeding as in other areas, is reviewable for compliance with constitutional and other legal requirements and for abuse under well-established standards of reasonableness;[80] it is far more amenable to review, we would add, than a parole board decision to deny parole. Although (as appellant points out) this court has observed that "[g]enerally, sentences within statutory limits are unreviewable aside from constitutional considerations, "[81] that observation has little bearing here, where not only are "constitutional considerations" and the Supreme Court's articulation of the relevant requirements of the Eighth Amendment at the forefront, but also the IRAA itself clearly sets forth the criteria that the court must consider.

         Finally, appellant objects that the availability of IRAA relief evaporates after three unsuccessful tries, creating the possibility that a defendant whose sentence violated Miller would have to spend his entire life in prison even if he eventually might, on a fourth (or later) attempt, have been able to demonstrate that he is rehabilitated and deserving of release. Appellant states that, in contrast, District of Columbia prisoners who are eligible for parole may be reconsidered for parole on an annual basis. That may be so, but as the government rejoins, when the Supreme Court said States could remedy Miller violations by permitting the defendant to be considered for parole, it did not describe what the parole scheme had to look like or imply that it needed to be as generous as the District's scheme in providing repeated opportunities for parole reconsideration. Parole practices and procedures are not uniform throughout the United States; some jurisdictions restrict the frequency or number of parole hearings quite significantly, as much or more than the restriction on sentence reduction motions set by the IRAA.[82] And appellant's argument that three chances are not enough to provide a meaningful opportunity to attain demonstrable maturity and rehabilitation is unpersuasive, given that the prisoner has twenty years in which to make progress before he can take the first of those chances, another five years in which to make further progress before he can take the second chance, and yet another five years before he can take his third chance. Moreover, the prisoner can wait to move for reduction of his sentence if he needs more time to make the showing of his rehabilitation and suitability for return to society. That a prisoner may fail to reform over the course of at least thirty years and may file motions that are premature does not mean he has been denied what the Eighth Amendment requires.[83]

         For the foregoing reasons, we affirm the Superior Court's denial of appellant's § 23-110 motion for relief from his sentence, without prejudice to his right to seek a reduction of his sentence pursuant to the IRAA.

         So ordered.

          Easterly, Associate Judge, dissenting:

         In 1992, Brian Williams was sentenced to an aggregate term of at least six decades in prison for a double murder and related crimes he committed at age 17. Although he was resentenced in 1995, his minimum term of incarceration is still 62 years. Pursuant to his 1995 sentence, Mr. Williams remains in prison today and will not become eligible to be released from prison until he is 79 years old-at or very near the end of his life. Mr. Williams is serving a sentence that violates his rights under the Eighth Amendment. He is entitled to habeas relief.

         In a trio of decisions-Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016)-the Supreme Court interpreted the Eighth Amendment to generally bar sentences that condemn juvenile offenders to die in prison; only an exceptionally rare subset who are both convicted of homicide and proven irreparably corrupt may be so sentenced. In Montgomery, the Court clarified that this Eighth Amendment right not to be sentenced to die in prison is a substantive right; that it renders unconstitutionally imposed sentences void and unenforceable; and that it must be retroactively enforced in state court habeas proceedings. The Majority Opinion alternately assumes and agrees that whether a juvenile offender's sentence to die in prison is mandatory or discretionary, eponymous or de facto, the juvenile offender's Eighth Amendment rights are implicated. I would so hold. Moreover, because life expectancy statistics endorsed by both Mr. Williams and the government project that Mr. Williams will die in his mid to late 70s, I would hold that Mr. Williams' 62-year sentence is unconstitutional and void and grant him the habeas relief to which he is entitled under D.C. Code § 23-110: a new, constitutionally-compliant sentence.

         Yet the Majority Opinion rejects Mr. Williams' entitlement to a new, lawful sentence and affirms the trial court's denial of his § 23-110 motion. My colleagues in the Majority conclude that, even if Mr. Williams' sentence was unconstitutional at the time it was imposed, his request for habeas relief in the form of resentencing has been "moot[ed]" by the enactment of D.C. Code § 24-403.03, a provision of the Incarceration Reduction Amendment Act of 2016 (IRAA). They reason that D.C. Code § 24-403.03-which authorizes a court to review a juvenile offender's sentence no earlier than twenty years after its imposition, to consider a nonexclusive list of factors, and then to determine solely in its discretion whether to reduce the sentence-"effectively convert[ed]" Mr. Williams' unconstitutional sentence into a constitutional one by giving Mr. Williams all he is entitled: an opportunity for release. For multiple reasons, I cannot agree.

         First, it is wrong to say that the violation of a substantive right is cured solely with a procedural remedy. Mr. Williams' right under the Eighth Amendment not to be sentenced to die in prison is not fulfilled by giving him access to sentence review under D.C. Code § 24-403.03. It is fulfilled by giving him a constitutional sentence-one that gives him "hope for some years of life outside prison walls." Montgomery, 136 S.Ct. at 737.

         Second, it is wrong to say Mr. Williams' unconstitutional sentence has been "effectively" fixed by D.C. Code § 24-403.03 and only remains in place "as a purely formal matter." It is no mere formality that the only basis for Mr. Williams' current imprisonment is the 1995 sentencing order that requires him to spend the rest of his life in prison. This sentencing order is entirely unchanged by the existence of a statutory procedure that only allows a juvenile offender at a future point in time to request sentence review-as opposed to authorizing him, after service of a minimum sentence term, to request release. Indeed, under the Majority Opinion's logic, the existence of any future sentence review procedure would relegitimize the practice, condemned in Graham and Miller, of sentencing juvenile offenders to die in prison without ensuring at the outset that they meet the strict constitutional criteria for imposition of such sentences.

         Third, it is wrong to say that § 24-403.03's twenty-years-in-the-future, discretionary sentence review procedure protects the substance of Mr. Williams' Eighth Amendment rights, even belatedly. This statute, which was never intended as a Montgomery fix, does not require a court to discern if a juvenile offender is one of those rare few incorrigibles who may be lawfully sentenced to die in prison, much less require it to resentence a corrigible juvenile offender to something less than life imprisonment. Thus, as a statutory matter, a corrigible juvenile offender unconstitutionally sentenced to die in prison could seek review under § 24-403.03, be denied discretionary relief, and remain subject to an unconstitutional sentence.

         Unquestionably, the Supreme Court in Montgomery gave states flexibility in curing the violation of juvenile offenders' substantive rights under the Eighth Amendment. States do not have to individually "relitigate" now-void sentences to life imprisonment; they may instead categorically replace juvenile offenders' unconstitutional sentences to die in prison with parolable or lesser term-of-years sentences. But the Council of the District of Columbia has not done this, and the flexibility the Supreme Court gave the states does not authorize the District's courts to hold unconstitutional sentences in place and rely on a years-in-the-future, discretionary sentence review mechanism like D.C. Code § 24-403.03 as a constitutional cure-all. Our court will stand alone in the nation in holding that it does.

         By withholding from Mr. Williams the relief that he is due-a new, constitutionally-compliant sentence-the Majority Opinion flouts the Supreme Court's directives, renders our habeas review inadequate, and negatively distinguishes us from other jurisdictions. The denial of Mr. Williams' § 23-110 motion should be reversed, not affirmed.

         I. Because Mr. Williams' Substantive Rights Under the Eighth Amendment Were Violated, He Is Entitled to Habeas Relief.

         A. Juvenile Offenders Have a Substantive Eighth Amendment Right Not to be Sentenced To Die in Prison.

         In a trilogy of cases, Graham, Miller, and Montgomery, the Supreme Court held that the Eighth Amendment generally prohibits sentencing juveniles to die in prison. For juveniles who commit nonhomicide offenses, life without parole sentences are barred entirely, per Graham. Ante at 13. For the vast majority of juveniles who commit homicide offenses, life without parole sentences are likewise barred, per Miller and Montgomery; such sentences are authorized only in the exceptionally rare case where the government has proved that the juvenile is irreparably corrupt. Id. at 14-15. These limits on juvenile sentencing are founded in a recognition that juveniles are developmentally distinct and thus "constitutionally different from adults." Montgomery, 136 S.Ct. at 733 (quoting Miller, 567 U.S. at 471). Because juveniles are both less culpable for their behavior and more receptive to rehabilitation, their criminal conduct is in all likelihood the product of "unfortunate yet transient immaturity." Montgomery, 136 S.Ct. at 734 (quoting Miller, 567 U.S. at 479); see also ante at 15. Accordingly, there is almost never a legitimate penological justification to sentence juvenile offenders to die in prison. They must receive sentences that give them "hope for some years of life outside prison walls."[1] Montgomery, 136 S.Ct. at 737.

         The Supreme Court's opinion in Montgomery is the culmination of its Eighth Amendment jurisprudence to date regarding the sentencing of juvenile offenders, and understanding its holding-that the Eighth Amendment substantively proscribes all sentences that condemn juvenile offenders to die in prison (excepting those of homicide offenders proved before sentencing to be incorrigible)-is critical to the correct analysis of Mr. Williams' appeal.[2] Like Mr. Williams, Mr. Montgomery was taken into custody at age 17 for a homicide offense and was sentenced to die in prison. After his conviction was final, he sought to challenge his sentence on Eighth Amendment grounds in state habeas proceedings. Whether he could prevail on this claim in post-conviction proceedings turned on whether the Supreme Court's decision in Miller constituted "a new substantive rule of constitutional law"-i.e., a "rule[] prohibiting a certain category of punishment for a class of defendants because of their status or offense"-that retroactively applied to his sentence. 136 S.Ct. at 728-29.

         To answer this question, the Court in Montgomery first confirmed that the retroactivity rules set forth in Teague v. Lane, 489 U.S. 288 (1989) (requiring retroactive application of all substantive constitutional rules, but not all procedural constitutional rules), applied in state collateral review proceedings. 136 S.Ct. at 729-32. The Court explained that these retroactivity rules were themselves constitutionally compelled under the Supremacy Clause because "[a] conviction or sentence imposed in violation of a substantive rule is not just erroneous but contrary to law and, as a result, void." Id. at 731. A state court engaged in collateral review consequently

has no authority to leave in place a conviction or sentence that violates a substantive rule. . . . A penalty imposed pursuant to an unconstitutional law is no less void because the prisoner's sentence became final before the law was held unconstitutional. There is no grandfather clause that permits States to enforce punishments the Constitution forbids.

Id. In short, the Court determined that "[i]n adjudicating claims under its collateral review procedures[, ] a State may not deny a controlling right asserted under the Constitution . . . ." Id. at 732.

         The Court then confirmed that its Eighth Amendment bar on sentencing juvenile offenders to die in prison is a substantive rule.[3] 136 S.Ct. at 734. The Court explained that although Miller "did not bar a punishment for all juvenile offenders, as the Court did in Roper or Graham[, ]" it "did bar life without parole . . . for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility." Id. at 734. The recognition in Miller that there might be some subset of juveniles for whom life without parole "could be a proportionate sentence" was immaterial. Id. Rather,

[l]ike other substantive rules, Miller is retroactive because it necessarily carr[ies] a significant risk that a defendant-here, the vast majority of juvenile offenders-faces a punishment that the law cannot impose upon him.

Id. (internal quotation marks omitted); see also id. ("Before Miller, every juvenile convicted of a homicide offense could be sentenced to life without parole. After Miller, it will be the rare juvenile offender who can receive that same sentence.").[4]

         Having confirmed that Mr. Montgomery's sentence as a juvenile offender to die in prison was unconstitutional under Miller and void under Teague, the Court reversed the Louisiana Supreme Court's affirmance of Mr. Montgomery's sentence, id. at 737, and on remand, that court directed that Mr. Montgomery be resentenced in compliance with Miller, see State v. Montgomery, 194 So.3d 606, 606-07 (La. 2016). Mr. Williams suffered the same Eighth Amendment violation as Mr. Montgomery and he is entitled to the same relief.

         B. Mr. Williams' Substantive Sentencing Rights Under the Eighth Amendment Were Violated.

         Just like Mr. Montgomery's sentence, Mr. Williams' sentence violates the Eighth Amendment bar on sentencing juvenile offenders to die in prison. The only distinction between the two cases is that Mr. Williams received a life sentence by virtue of an aggregation of sentences the trial court imposed in its discretion. As the Majority Opinion acknowledges, the trial court never took any evidence or made any finding that Mr. Williams was irreparably corrupt so as to authorize the imposition of such a sentence consistent with the Eighth Amendment.[5]

         In line with the government's concession and the decisions of numerous other state courts, the Majority Opinion agrees that Miller (and Graham) "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." Ante at 15-16. The Majority Opinion further assumes without deciding that Miller and Montgomery apply to Mr. Williams' sentence to die in prison even though it was not mandatorily imposed. Id. at 18. But my colleagues in the Majority unnecessarily sidestep a determination that Mr. Williams was unconstitutionally sentenced based on its assessment that we do not possess the facts to resolve with sufficient precision whether Mr. Williams' period of ineligibility for parole under his aggregate sentence is "close to his expected life span." Id. at 5. We know all we need to know in this case to make this determination.

         The Majority Opinion acknowledges that Mr. Williams was sentenced to an aggregate of 62 years to life in prison for offenses he committed at age 17. Ante at 8. In his pro se § 23-110 motion, Mr. Williams argued that this sentence condemned him to die in prison. He relied on his understanding that "[t]he life expectancy for a black man is in [his] 70s." In its Opposition to Mr. Williams' § 23-110 motion, the government did not contest his assertion and, as Centers for Disease Control and Prevention (CDC)[6] statistics cited by both Mr. Williams and the government on appeal demonstrate, Mr. Williams was correct.[7]

         Mr. Williams is now 46 years old. According to the CDC, 45-year-old men[8]in the United States are expected to live an additional 34.2 years (to age 79.2); this figure drops to 31.4 years (76.4) for "Black" men and drops again to 31.2 years (76.2) for "non-Hispanic Black men."[9] This figure would presumably drop even lower if the CDC further disaggregated data for non-Hispanic Black men, like Mr. Williams, who are living in prison.[10] Contrast these life expectancy figures with one number-79-the age Mr. Williams, incarcerated at 17, would have to reach to become eligible for parole under his aggregate minimum sentence of 62 years.[11]See ante at 8 & n.14.

         Thus if the question is whether Mr. Williams' aggregate minimum sentence gives him any "hope for some years of life outside prison walls," Montgomery, 136 S.Ct. at 737, the honest answer is no.[12] The government's argument to the contrary is premised on a distorted understanding of what it means to have a sentence that gives some "hope" of living "some years of [one's] life outside prison." Id. It argues that "even when parole eligibility takes decades-beyond a person's average life expectancy-the possibility of parole means that the offender still has some hope for release" (emphasis in original). But the possibility of being released on parole beyond one's life expectancy if one is so lucky as to beat the odds of death does not give a defendant "hope" in the sense that the Supreme Court, focused on juveniles' corrigibility and ability to learn to become productive members of society, meant in Montgomery. [13]

         On the record before us, we must conclude that Mr. Williams' Eighth Amendment right as a juvenile offender not to be sentenced to die in prison was violated.

         C. Mr. Williams Is Entitled to Habeas Relief Under D.C. Code § 23-110.

         Mr. Williams is in precisely the same position as Mr. Montgomery before he prevailed in the Supreme Court. Mr. Williams is being held in prison pursuant to a life without parole sentence that violates the Eighth Amendment, and he has been wrongly denied habeas relief. As the Supreme Court explained in Mr. Montgomery's case, a juvenile offender's unconstitutional sentence to die in prison is void. See Section I.A supra. Such a sentence is without legal force "from the start"; it is "a nullity." Brown v. United States, 795 A.2d 56, 61 (D.C. 2002) (considering a sentencing challenge under the Double Jeopardy Clause); see also, e.g., Veal, 784 S.E.2d at 409-11 (concluding that appellant's sentence, imposed in violation of Miller and Montgomery, is not merely "voidable," but "void"). The Supreme Court further held in Mr. Montgomery's case that the Louisiana courts reviewing his state collateral review petition were obligated ...


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