Wednesday, August 19th, 2020

Circuit Vacates LWOP Sentence Based On Inadequate Consideration Of Juvenile Offender’s Age

In United States v. Delgado, the Circuit (Pooler, joined by Jacobs and Carney) vacated a life sentence imposed on a 17-year-old convicted of two murders, on the ground that the district court had failed to give the requisite consideration to the defendant’s age, as required by Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

Delgado was a gang member in Buffalo. A rival gang shot and injured Delgado’s brother. In retaliation, Delgado attacked members of the rival gang, but wound up shooting and killing two bystanders instead. He was 17 at the time. After a jury trial, Delgado was convicted of multiple offenses arising from his long-term gang membership, including RICO conspiracy (predicated in part on the murders), drug conspiracy, and § 924(c). The district court (Arcara, WDNY) sentenced him to life.

The Circuit vacated the life sentence. The Circuit acknowledged that Miller prohibits only mandatory LWOP sentences for juveniles, and Delgado’s sentence was not mandatory. But, the Circuit explained, Montgomery clarifies that “Miller has both substantive and procedural components.” As to substance, only “the rarest of juvenile offenders”­—those whose crimes reflect “permanent incorrigibility” and “irreparable corruption”—may be sentenced to LWOP. As to procedure, the sentencing court must “consider a juvenile offender’s youth and attendant characteristics” before concluding that he is the rare child who merits LWOP.

Applying those principles, the Circuit held that Delgado’s LWOP sentence was improper because the district court “did not reference Delgado’s age at all, much less grapple with it. … Delgado’s sentencing hearing does not indicate that there was deliberate consideration of his character as a juvenile. … Miller requires the district court to undertake additional reflection on the special social, psychological, and biological factors attributable to youth, and such reflection is absent from Delgado’s sentencing hearing transcript.” Of note, the Circuit so held even though the district court (i) knew Delgado’s age, and (ii) stated that it had considered the § 3553(a) factors, one of which, § 3553(a)(5), incorporates a Guideline policy statement on youth as a basis for a downward departure (U.S.S.G. § 5H1.1). More explicit consideration of age was required.

The Circuit also affirmed Delgado’s convictions over various challenges:

(1) The district court did not abuse its discretion in admitting evidence that a (lawfully purchased) assault rifle was seized from Delgado’s home at the time of his arrest. The assault rifle was relevant to the RICO conspiracy count, which alleged that gang members maintained stashes of weapons for use in gang business.

(2) No Bruton violation arose from the admission of a non-testifying co-conspirator’s post-arrest statement that many gang members had discussed retaliating for the shooting of Delgado’s brother. Under Circuit precedent, a Bruton violation occurs only if the statement “standing alone” is inculpatory. Here, the statement was not facially incriminating, but became so only in connection with other testimony, and did not refer to Delgado by name.

(3) The district court did not commit clear error in crediting the prosecutor’s race-neutral reason for peremptorily striking a Hispanic venireperson (namely, that she did not follow the news because it was too ugly), so there was no Batson error.

(4) Delgado was not entitled to a jury instruction on the New York state-law defense of extreme emotional disturbance in connection with the murder predicates for the RICO conspiracy. Delgado only asserted that he was angry and vengeful after the shooting of his brother, and New York law establishes that anger alone does not constitute the kind of mental infirmity or loss of self-control that supports the defense. Nor was Delgado entitled to an instruction on a statute of limitations defense for the § 924(c) count. Circuit precedent holds that firearm possession in furtherance of a continuing offense (such as RICO conspiracy) is itself a continuing offense, and Delgado had not shown that he withdrew from the RICO conspiracy outside the § 924(c) limitations period.

The main takeaway for practitioners is straightforward: Before a district court may sentence a juvenile to LWOP, the court must give express and sustained consideration to the juvenile’s “age” and “the special social, psychological, and biological factors attributable to youth.”

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Categories: 3553(a), 924(c), Batson, bruton, RICO
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