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December 2019 - Page 2

Federal Corner: Sentencing Juvenile Defendants After Miller

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What is a court to do with an inmate who was sentenced to life without parole for an offense that was committed when he was 16 years old and is now seeking habeas relief? A panel of the United States Court of Appeals for the Fifth Circuit answered that question on October 24, 2019, in United States v. Sparks, ___F.3d___, 2019 WL 5445897 (5th Cir. 2019) [Panel: Circuit Judges Elrod, Graves, and Oldham. (Opinion by Oldham)].

In Sparks, the Court held, as to the life without parole issue, that

  • an inmate’s 35-year sentence did not violate the Eighth Amendment prohibition against sentencing a juvenile offender to a mandatory life sentence without the possibility of parole; and,
  • the sentence satisfied the procedural requirement that a court consider the inmate’s youth and its attendant characteristics.

The Beginning of the Case

In 2001, Sparks pleaded guilty to the offense of aiding and abetting a carjacking that resulted in death. A district judge of the Western District of Texas sentenced him to life without parole. On direct appeal, he argued that he was sentenced for a murder that he did not commit. On December 14, 2001, a panel of the Circuit [Circuit Judges Davis, Benavides, and Stewart] (per curiam) affirmed the judgment and sentence in his case, holding that he was not sentenced for the murder—rather, for aiding and abetting a carjacking which resulted in the death of the victim. United States v. Sparks, 31 Fed.Appx. 156 (2001).

The offense, the plea, and sentencing in the district court and the opinion in Sparks’ first appeal to the United States Court of Appeals for the Fifth Circuit all occurred before United States v. Booker1 made the United States Sentencing Guidelines advisory rather than mandatory and before Graham v. Florida,2 in which the Court held that juveniles may not be sentenced to life without parole for non-homicide cases. Relying on Graham, Sparks began seeking habeas relief.

Judge Oldham’s opinion reads, in part, as follows:

The Absolutely Horrible Facts in the Case

[F]ive gang members went to an IGA supermarket to find a carjacking victim. Bernard and Brown acted as lookouts while Sparks, Vialva, and Lewis approached potential victims to ask for a ride. No one offered them a ride, so they drove to a “Mickey’s” convenience store. Bernard and Brown went to a nearby laundromat to play video games. Sparks, Vialva, and Lewis went to the front of the convenience store.

        Shortly after arriving at the convenience store, Sparks found Todd Bagley using a payphone outside. Todd and his wife Stacie were youth ministers from Iowa. They’d previously lived in Killeen because Todd was a veteran of the U.S. Army and had been stationed at Fort Hood. The young couple had gone to church at Grace Christian, where they worked with the youth group. They were back in Killeen on a vacation to see old friends and attend a revival meeting at the church.

        Sparks approached Todd and asked if he would give Sparks, Vialva, and Lewis a ride to another location. Todd conferred with Stacie, and the young couple unsuspectingly agreed to give the gang members a ride. Bernard and Brown returned to their homes to wait for further instructions from Vialva.

        Sparks, Vialva, and Lewis got into the back seat of the Bagleys’ car. Todd drove while his wife sat in the front passenger seat. In accordance with their plan, Sparks and Vialva pulled out two handguns, and Vialva pointed his gun at Todd. Vialva told the Bagleys that the “plan had changed,” and he forced Todd to drive to a semi-rural location near the edge of Killeen. While Vialva pointed a gun at the Bagleys, Sparks and Vialva robbed them of their money, wallets, purse, debit card, identification, and jewelry. Vialva demanded their bank account’s pin number and then forced the Bagleys into the trunk of their car.

        With the Bagleys locked in the trunk, Sparks, Vialva, and Lewis went on an hours-long crime spree. They went to an ATM to steal all of the Bagleys’ money. That effort was frustrated, however, because the youth ministers had less than $100 in their bank account. They tried to pawn Stacie’s wedding ring. They used what little money they could steal from the Bagleys to buy cigars, cigarettes, and fast food from Wendy’s.

        Meanwhile, the Bagleys evangelized from the trunk. According to Lewis (who later testified), the Bagleys asked him and Sparks about God, Jesus, and church. The Bagleys acknowledged not having earthly wealth, but they told their captors that faith in Jesus is more valuable than money. The Bagleys talked about the revival meeting at Grace Christian. And the Bagleys urged their captors to have faith in Jesus Christ. The Bagleys begged for their lives.

        As night began to fall, Sparks told the gang that he needed to go home to avoid violating his 8 p.m. probation curfew for a previous robbery conviction. The group dropped Sparks off at his home. Sparks took the Bagleys’ jewelry with him. But Vialva asked Sparks not to take his .22 caliber handgun. After initially refusing, Sparks agreed.

        Bernard and Brown purchased fuel to burn the Bagleys’ car. Vialva and Lewis picked them up, and the four gang members drove (again, with the Bagleys still locked in the trunk) to the Belton Lake Recreation Area on the Fort Hood military installation. Vialva parked the Bagleys’ car on top of a little hill. Brown and Bernard poured lighter fluid on the interior of the car. All the while, the Bagleys sang and prayed in the trunk.

        Stacie’s last words were “Jesus loves you,” and “Jesus, take care of us.” Vialva crudely cursed at her, told Lewis to pop the trunk, and then executed Todd in front of his wife. Vialva shot Todd in the head with the .40 caliber Glock, killing him instantly. Then Vialva shot Stacie in the face but failed to kill her. Bernard set the car on fire and burned Stacie alive. Todd was 26. Stacie was 28.

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The Three Supreme Court Decisions on Life Without Parole for Defendants Under 17 Years of Age

Since then, several Supreme Court decisions involving the Eighth Amendment raised constitutional concerns about Sparks’ LWOP sentence. In Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the Court held that juveniles may not be sentenced to life without parole for non-homicide offenses. In Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the Court held that juveniles may not receive mandatory sentences of life without parole. And in Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 193 L.Ed.2d 599 (2016), the Court made Miller retroactive to cases on collateral review.

The Procedural Background

We authorized Sparks to file a successive § 2255 motion based on Graham. In re Sparks, 657 F.3d 258, 262 (5th Cir. 2011). The district court denied the motion. But we granted a certificate of appealability, United States v. Sparks, No. 13-50807 (5th Cir. July 10, 2014), and remanded the case for reconsideration at the Government’s request, United States v. Sparks, No. 13-50807 (5th Cir. Feb. 10, 2015). We also authorized Sparks to file a successive § 2255 motion based on Miller, which the Government did not oppose. In re Sparks, No. 16-50973 (5th Cir. Nov. 18, 2016).

The Re-Sentencing Hearing Before Judge Yeakel

Upon joint motion of the parties, the district court consolidated the motions and ordered a resentencing. It provided Sparks with court-appointed experts and conducted a five-day sentencing hearing. At the hearing, the Government introduced evidence that Sparks committed repeated acts of brutal violence during his first decade in prison. In 2004, Sparks participated in a riot involving approximately 600 inmates, carrying a baseball bat during the fighting. In July 2006, Sparks stabbed his cellmate 12 times in the back, neck, head, and right arm. In September 2007, he stabbed another inmate in the neck, resulting in a spinal cord injury that left the inmate unable to walk or urinate by himself. In March 2008, Sparks attempted to murder an inmate by stabbing him repeatedly in the head, resulting in brain damage and the loss of the victim’s right eye. Sparks’ violence led to his transfer to ADX Florence in Colorado, a supermax facility where the nation’s most dangerous federal prisoners are located. Before that transfer, he had been sanctioned for at least 23 incidents. And in 2014, Sparks instructed two inmates to assault another inmate.

Judge Yeakel’s Memorandum Opinion

The district court carefully examined Sparks’ youth and its attendant characteristics in a twenty-six-page memorandum opinion. The district court included a thorough discussion of Miller and the 18 U.S.C. § 3553(a) factors. The court also considered the PSR, which could not identify any basis under § 3553(a) for varying from the recommended sentence of life imprisonment. The district court could not “imagine a worse offense, nor [could] the court imagine a more callous perpetrator than the defendant.” Nonetheless, the district court chose to vary downward and sentenced Sparks to 35 years, with credit for time in custody. Sparks appealed.

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Sparks’ Argument on Appeal

Sparks’ principal argument on appeal is that the district court violated Miller v. Alabama. That case held the Eighth Amendment prohibits mandatory LWOP sentences for juveniles. Miller, 567 U.S. at 465, 132 S.Ct. 2455. It’s not clear from Sparks’ briefs whether he thinks his below-Guidelines sentence violates the substantive or procedural aspects of the Miller decision. At argument, his counsel urged us to consider both. We do so.

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Understanding Miller

Three corollaries follow from Miller’s substantive rule. First, it “did not foreclose a sentencer’s ability to impose life without parole” on a discretionary basis. Montgomery, 136 S. Ct. at 726; see also Miller, 567 U.S. at 483, 132 S.Ct. 2455.

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Second, Miller has no relevance to sentences less than LWOP. See United States v. Walton, 537 F. App’x 430, 437 (5th Cir. 2013) (per curiam). This means that sentences of life with the possibility of parole or early release do not implicate Miller.

* * *

Third, a term-of-years sentence cannot be characterized as a de facto life sentence. Miller dealt with a statute that specifically imposed a mandatory sentence of life. The Court distinguished that sentencing scheme from “impliedly constitutional alternatives whereby ‘a judge or jury could choose, rather than a life-without-parole sentence, a lifetime prison term with the possibility of parole or a lengthy term of years.’” Lucero, 394 P.3d at 1133 (quoting Miller, 567 U.S. at 489, 132 S.Ct. 2455). Given Miller’s endorsement of “a lengthy term of years” as a constitutional alternative to life without parole, it would be bizarre to read Miller as somehow foreclosing such sentences.

* * *

There Was No Substantive Miller Violation

Sparks cannot show a substantive Miller violation. First, he received a discretionary sentence under § 3553(a) rather than a mandatory sentence. Second, he was sentenced to thirty-five years in prison rather than life without parole. Because Sparks did not receive a mandatory sentence of life without parole, he has failed to demonstrate a violation of Miller’s substantive requirements.

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The Procedural Argument

The procedural component of Miller “requires a sentencer to consider a juvenile offender’s youth and attendant characteristics before determining that life without parole is a proportionate sentence.” Montgomery, 136 S. Ct. at 734. In Miller and Montgomery, the Supreme Court considered state laws in Alabama and Louisiana imposing mandatory LWOP sentences on juveniles. But federal prisoners have procedural protections that state prisoners do not have—namely, the sentencing factors in § 3553(a) and the advisory Sentencing Guidelines. 

Judge Yeakel’s §3553(a) Analysis Satisfies Miller

Under § 3553(a), a sentencing court “shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of sentencing. In choosing an appropriate sentence, the court must examine “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). It must also consider the policy statements of the Sentencing Commission, id. § 3553(a)(5), which expressly allow for consideration of the defendant’s age, “including youth,” U.S.S.G. § 5H1.1, p.s.

        The § 3553(a) analysis satisfies Miller’s procedural requirement that the court consider the defendant’s youth and its attendant characteristics before imposing a sentence of life without parole. See Moore v. United States, 871 F.3d 72, 79 (1st Cir. 2017)É

* * *

Thus, a sentence that satisfies § 3553(a)’s procedural requirements cannot be challenged under the procedural component of the Miller decision.

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There Was No Procedural Miller Violation

In this case, the district court appointed taxpayer-funded experts for Sparks, held a lengthy five-day hearing, and wrote twenty-six pages explaining its sentence. This fulsome process gave Sparks far more than the minimum procedure necessary to conduct a proper § 3553(a) analysis. And we agree with the Government that Miller does not add procedural requirements over and above § 3553(a).

* * *

Sparks’ sentence is affirmed.

My Thoughts

  • We will probably never be confronted with a Graham v. Florida issue because the law is now so well settled.
  • As usual, Judge Lee Yeakel showed wisdom as he decided the Miller issue in Sparks.

Shout Outs

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A big shout out to appellate adept Keith Hampton for his win in the long-running case of Greg Kelley—finally found innocent in the CCA. All the judges agreed he was innocent, and left undisturbed Judge King’s findings and conclusions regarding Kelley’s other claims of ineffective assistance and due process. His case was sent back to Williamson County, where DA Shawn Dick had no plans to further pursue charges against him. Then District Court Judge Donna King declared Greg actually innocent, making him eligible for a wrongful conviction payout of $80,000 for each year he was wrongly imprisoned. The former Leander football star, who can now entertain college offers, spent three years in jail and has waited another two years to hear the good news. Way to keep battling, Keith. We can now hope that you take your experience and provide a voice for justice on the Court of Criminal Appeals.

And a big shout out as well to Kristin Etter of Austin, whose painstaking efforts have lead to another victim of Williamson County justice under Ken Anderson being cleared of a charge haunting him for decades. D, railroaded in 1993 into a plea of molesting a 4-year-old girl, was hounded from neighborhood to neighborhood by the specter of a sex-offender status originally set to expire after 10 years. After 20 years, he contacted Kristin for help—who in her investigation of the case discovered that evidence not revealed at the time showed that the prosecutors of the time were ready to drop the case for lack of credible evidence. She then approached a district judge with her findings, who took minutes to undo the bogus conviction. This and the Morton case point to the crying need for a thorough review of all convictions during the Anderson era. The details of her efforts can be found in the Austin paper (https://tinyurl.com/shl6srn). Way to go, Kristin! You make us proud.

Kudos to Dean Watts of Nacogdoches, who recently had an Assault Family Violence case dismissed by the state halfway through trial. D was forced to trial in the Class C case because a plea would lead to immigration problems. The prosecutor would not change or reduce the charge despite the fact that an affidavit of non-prosecution had been signed by D and the victim asked several times that the charges be dropped. As Dean notes: “At trial, the victim did not show up. Undeterred, the prosecutor tried to use only the police officer to convict the defendant. After I objected to the State trying to offer inadmissible hearsay statements and a videotape without the proper predicate being laid, the State finally dismissed the case mid trial.” Congrats, Dean, for a righteous win.

Hats off to Dana Williams of Livingston for her recent win in Polk County. D, a 62-year-old man, was accused of 2nd-degree felony Aggravated Assault with a Deadly Weapon. State alleged that D entered CW’s yard and swung a machete at him, a paraplegic, and his family. Dana said D had complained earlier that day about CW’s loose pitbulls terrorizing anyone who passed on the street. Records showed over 20 complaints about the dogs. State called witnesses to back up CW’s story, but they admitted to taking the machete from D, almost severing his arm, before they kicked and beat him and left the scene. Officers tased D within 30 seconds of arriving, saying he was “resisting arrest”—even though video showed D to be compliant. Officers also admitted they never considered the statements of two independent witnesses, who called 911 because D was being severely beaten and testified that they never saw D enter CW’s yard or swing the machete at anyone. D was the only person injured, requiring 21 stitches after the incident. The DA argued “consciousness of guilt” due to D’s inability to return from out-of-state, resulting in his failure to appear. The jury returned a verdict of NG after an hour and 15 minutes. Congratulations, Dana, on a good win.

A shout out to Mark Griffith of Waxahachie for his latest win but in a different venue. Dallas client was charged with Sexual Assault of a child. The State gave discovery that did not have near enough in it, says Mark: “We got the rest and all was full of Brady. I had never met prosecutor until that day. She then spent an hour talking to complainant. She still did not know what she was doing, so I told her I had never lost a sex case without a confession.” Some 20 minutes later the case was dismissed. Mark says that Sarah Jacobs and Makenzie Zarate were co-counsels and deserve most of the credit. Great work, team, in the big D.

Kudos to Amber Vazquez of Austin for a recent Facebook post with a lot to say about the defense lawyer’s life: “Today I witnessed a great act of mercy and watched another client get sentenced to a long prison sentence—both events will forever change many lives. In the first, Judge Cliff Brown offered my young client another shot at redemption, even though he did something bad and reckless. This young man was truly remorseful, and I had the good fortune to work with Jeremy Sylestine as the prosecutor, who was fair and kind. My client’s parents cried with joy, as did my client afterwards. It’s amazing what one act of grace can do in changing a person’s path forever.
 “Then, this afternoon in a different court, I had a father of five children, one of whom is special needs, sentenced to longer than he deserved for an act borne out of desperation. My team and I had fought so hard to keep him free, so it was incredibly heartbreaking.
 “I never forget the heartbreaks and the humans that I could not save, but I know it’s the losses that make me a better lawyer, not the wins. It always makes me think of this passage from the Velveteen Rabbit about becoming real:
 “‘It doesn’t happen all at once,’ said the Skin Horse. ‘You become. It takes a long time. That’s why it doesn’t happen often to people who break easily, or have sharp edges, or who have to be carefully kept. Generally, by the time you are Real, most of your hair has been loved off, and your eyes drop out, and you get loose in the joints and very shabby. But these things don’t matter at all, because once you are Real you can’t be ugly, except to people who don’t understand.’”