Brian K. WILLIAMS, Appellant,
v.
UNITED STATES, Appellee.
Argued
June 5, 2018
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[Copyrighted Material Omitted]
Page 839
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 Courts 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 Amendments 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
Page 840
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 defendants 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 Courts 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 appellants 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 appellants 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 appellants sentence as imposed was "de facto"
LWOP.
The
governments 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
Page 841
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
appellants 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 appellants 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 appellants
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
appellants 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
Page 843
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 "Grahams 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 offenders youth before imposing life
without parole.... Even if a court considers a childs 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
Millers 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 governments 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 defendants 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 Courts 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
Page 846
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 Courts 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
defendants 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 defendants 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
Page 848
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 defendants 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
defendants 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 defendants 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 defendants 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 defendants 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.
Page 849
[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 appellants 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 prisoners 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 IRAAs 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
Page 850
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 ...