     Case: 18-50225       Document: 00515173123        Page: 1   Date Filed: 10/24/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                      No. 18-50225                     October 24, 2019
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                Plaintiff-Appellee,

v.

TONY SPARKS,

                Defendant-Appellant.



                    Appeal from the United States District Court
                         for the Western District of Texas



Before ELROD, GRAVES, and OLDHAM, Circuit Judges. *
ANDREW S. OLDHAM, Circuit Judge:
      Tony Sparks and his fellow gang members carjacked Todd and Stacie
Bagley at gunpoint. The gang locked the Bagleys in the trunk for hours,
emptied the Bagleys’ bank account, and tried to pawn Stacie’s wedding ring.
During the gang’s crime spree, the Bagleys sang gospel songs from the trunk
and told their captors about Jesus. Eventually one of the gang members popped
the trunk, cursed at the couple, and executed Todd in front of his wife. That
same gang member shot Stacie in the face but failed to kill her. Others
incinerated the car to destroy the evidence and burned Stacie alive.


      *   Judge Graves concurs in the judgment only.
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                                    No. 18-50225
      For his role in this crime, Sparks received a below-Guidelines 35-year
sentence. Sparks says that violates the Eighth Amendment. We disagree.
                                           I.
                                           A.
      On June 20, 1999, Tony Sparks went to a convenience store in Killeen,
Texas, with Christopher Vialva and Christopher Lewis. 1 The three of them
were members of a local gang known as the 212 PIRU Bloods. They planned to
dupe a Good Samaritan into giving them a ride before carjacking him or her at
gunpoint. Sparks brought the gun, a .22 caliber pistol.
      Police initially thwarted the plan by detaining the trio for violating the
city’s juvenile curfew law. (Sparks was 16 at the time.) Before being detained,
Lewis threw the pistol into the bushes. Sparks’s mother picked up Sparks and
Lewis, and Vialva was released because he was an adult.
      The following day, Sparks, Vialva, and Lewis regrouped. They recruited
two other members of their gang, Brandon Bernard and Terry Brown, to help
with the carjacking. Vialva and Bernard retrieved the .22 caliber pistol that
Lewis had discarded the night before. Because it was wet with dew, they
worried that it would not function. So Bernard obtained a Glock .40 caliber
pistol to use for the carjacking.
      That afternoon, the five 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.


      1We previously reported the factual background of this case in United States v.
Bernard, 299 F.3d 467 (5th Cir. 2002). The factual recitation here comes principally from
Bernard, as supplemented by Sparks’s record.
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        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
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                                  No. 18-50225
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.
                                       B.
      Sparks pleaded guilty to aiding and abetting a carjacking, and he hoped
to receive an offense-level reduction for acceptance of responsibility. U.S.S.G.
§ 3E1.1. But as he was awaiting sentencing, Sparks was implicated in a plot to
escape from his detention center. As Sparks himself acknowledges, another
inmate, Christopher Kirvin, choked a prison guard unconscious and stole her
keys. The Pre-Sentence Report (“PSR”) implicated Sparks based on a witness
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who heard Sparks planning the escape attempt with Kirvin. Sparks flushed a
toilet repeatedly during the assault to mask the sound of the prison guard’s
screams. Based on the escape attempt, the PSR added two points to Sparks’s
offense level for obstructing justice. Id. § 3C1.1. It also denied Sparks an
offense-level reduction for accepting responsibility. Id. § 3E1.1. Given the
nature of the crime and the Bagleys’ murders, the PSR recommended an
offense level of 45—two levels above the highest value on the sentencing table.
      When the district court sentenced Sparks in 2001, it agreed with the
PSR’s factual findings and sentencing calculation. Applying the Guidelines,
which were mandatory before United States v. Booker, 543 U.S. 220 (2005), the
court sentenced Sparks to life in prison without the possibility of parole
(“LWOP”).
      We affirmed Sparks’s sentence on direct appeal. See United States v.
Sparks, 31 F. App’x 156 (5th Cir. 2001). In 2003, Sparks filed a pro se motion
under 28 U.S.C. § 2255 to vacate his sentence, and the district court denied it.
Sparks filed an appeal, but we dismissed it for want of prosecution. United
States v. Sparks, No. 03-50781 (5th Cir. Nov. 19, 2003).
      Since then, several Supreme Court decisions involving the Eighth
Amendment raised constitutional concerns about Sparks’s LWOP sentence. In
Graham v. Florida, 560 U.S. 48 (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 (2012), the Court held that juveniles may not receive
mandatory sentences of life without parole. And in Montgomery v. Louisiana,
136 S. Ct. 718 (2016), the Court made Miller retroactive to cases on collateral
review.
      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
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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).
      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’s 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.
      The district court carefully examined Sparks’s 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
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                                   No. 18-50225
district court chose to vary downward and sentenced Sparks to 35 years, with
credit for time in custody. Sparks appealed.
                                         II.
      Sparks’s 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. It’s not clear from
Sparks’s 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.
                                         A.
      Miller   announced      a   substantive    Eight    Amendment       rule:   The
Constitution prohibits sentencing a juvenile to mandatory LWOP because it
“poses too great a risk of disproportionate punishment.” 567 U.S. at 479. But
Miller did “not consider” whether “the Eighth Amendment requires a
categorical bar on life without parole for juveniles.” Ibid.
      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. Our sister
circuits’ post-Miller decisions recognize as much. See Contreras v. Davis, 716 F.
App’x 160, 163 (4th Cir. 2017); Kelly v. Brown, 851 F.3d 686, 687–88 (7th Cir.
2017); United States v. Jefferson, 816 F.3d 1016, 1019 (8th Cir. 2016); Davis v.
McCollum, 798 F.3d 1317, 1320–21 (10th Cir. 2015); Croft v. Williams, 773 F.3d
170, 171 (7th Cir. 2014); Evans-Garcia v. United States, 744 F.3d 235, 241 (1st
Cir. 2014); Bell v. Uribe, 748 F.3d 857, 869–70 (9th Cir. 2014); United States v.
Reingold, 731 F.3d 204, 214 (2d Cir. 2013). 2 Numerous state courts have reached


      2The Fourth Circuit in Malvo v. Mathena, 893 F.3d 265 (4th Cir. 2018), held that
Montgomery expanded Miller to cover discretionary LWOP sentences. Id. at 273–74. The
Supreme Court granted certiorari. 139 S. Ct. 1317 (2019) (mem.).
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the same conclusion. See, e.g., Lucero v. People, 394 P.3d 1128, 1132 (Colo. 2017);
Conley v. State, 972 N.E.2d 864, 879 (Ind. 2012); State v. Russell, 908 N.W.2d
669, 676 (Neb. 2018); Jones v. Commonwealth, 795 S.E.2d 705, 722 (Va. 2017).
Thus, if a sentencing court has the option to choose a sentence other than life
without parole, it can choose life without parole without violating Miller.
      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. See Bowling v. Dir., Va. Dep’t of Corr., 920 F.3d 192, 197 (4th
Cir. 2019); Goins v. Smith, 556 F. App’x 434, 440 (6th Cir. 2014); Lucero, 394
P.3d at 1132; Lewis v. State, 428 S.W.3d 860, 863–64 (Tex. Crim. App. 2014).
Nor do sentences to a term of years. See Walton, 537 F. App’x at 437; United
States v. Morgan, 727 F. App’x 994, 997 (11th Cir. 2018) (per curiam); United
States v. Lopez, 860 F.3d 201, 211 (4th Cir. 2017); Lucero, 394 P.3d at 1133. All
of these sentences can be imposed on a mandatory basis for juveniles without
implicating Miller because they are not LWOP sentences.
      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). 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.
      A panel of the Third Circuit nevertheless tried. See United States v.
Grant, 887 F.3d 131 (3d Cir. 2018), reh’g en banc granted, opinion vacated, 905
F.3d 258 (3d Cir. 2018). In Grant, the panel sought to “effectuate” Miller by
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inventing a “rebuttable presumption” that a juvenile offender “should be
afforded an opportunity for release before the national age of retirement.” Id.
at 152–53. The panel conceded it had no “principled basis” for drawing that
line. Id. at 150. The panel further conceded it couldn’t be sure what line it was
drawing: “We cannot say with certainty what the precise national age of
retirement is, as it is a figure that incrementally fluctuates over time.” Id. at
151. It also admitted that reliance on a “national retirement age” would fail to
account for “locality, state, gender, race, wealth, or other differentiating
characteristics.” Ibid. The panel went on to discuss the history of Social
Security, Gallup polls, and one academic study before pronouncing a “national
retirement age” of sixty-five. Id. at 151–52. But even in its pronouncement of
the rule, the panel appeared to recognize the arbitrariness of its decision:
“Without definitively determining the issue, we consider sixty-five as an
adequate approximation of the national age of retirement to date. However,
district courts retain the discretion to determine the national age of retirement
at sentencing, and remain free to consider evidence of the evolving nature of
this estimate.” Id. at 152. Such reasoning is not bound by law.
      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




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                                       No. 18-50225
parole, he has failed to demonstrate a violation of Miller’s substantive
requirements. 3
                                             B.
       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.
       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); Lopez, 860 F.3d at 211; Jefferson, 816 F.3d at 1018 n.3




       3 It is unclear whether Sparks also intended to challenge the substantive
reasonableness of his sentence under Gall v. United States, 552 U.S. 38 (2007). The issue is
not adequately briefed, but even if it were, Sparks has failed to show an abuse of discretion.
Id. at 51. Sparks has a remarkable history of violence in prison. Even so, the district court
varied down from the Guidelines, sentencing him to 35 years. Sparks has not rebutted the
presumption that his below-Guidelines sentence is reasonable. See United States v. Simpson,
796 F.3d 548, 557 (5th Cir. 2015).
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(noting that the “Supreme Court has not yet applied its constitutional decision
in Miller to a life sentence imposed by a federal court,” and questioning Miller’s
applicability to a sentence imposed under the advisory Guidelines). Thus, a
sentence that satisfies § 3553(a)’s procedural requirements cannot be
challenged under the procedural component of the Miller decision.
      Reflecting some confusion over the procedural requirements of Miller, the
district court’s opinion contains separate discussions of Miller and § 3553(a).
Other courts have similarly treated the so-called “Miller factors” as separate
from the § 3553(a) factors. See, e.g., United States v. Orsinger, 698 F. App’x 527,
527 (9th Cir. 2017) (per curiam) (noting that the district court considered the
evidence in “light of the factors identified in Miller and in 18 U.S.C. § 3553(a)”);
United States v. Garcia, 666 F. App’x 74, 78 (2d Cir. 2016) (per curiam) (referring
to “Miller and § 3553(a) factors” as separate and distinct); United States v.
Guzman, 664 F. App’x 120, 122 (2d Cir. 2016) (per curiam) (noting that the
district court “gave ample consideration to each of the Miller factors, together
with the sometimes-overlapping § 3553(a) factors”); United States v. Guerrero,
560 F. App’x 110, 112 (2d Cir. 2014) (per curiam) (holding that the “district court
properly considered all of the Miller factors . . . and other mitigating factors
under 18 U.S.C. § 3553(a)”), aff’g United States v. Maldonado, No. 09-CR-339-
02, 2012 WL 5878673, at *9 (S.D.N.Y. Nov. 21, 2012) (discussing “Miller factors”
separately from § 3553(a) factors).
      In a recent en banc opinion, the Ninth Circuit vacated a sentence imposed
under § 3553(a) after hearing “evidence related to a number of the Miller
factors” because the district court’s “sentencing remarks focused on the
punishment warranted by the terrible crime Briones participated in, rather
than whether Briones was irredeemable.” United States v. Briones, 929 F.3d
1057, 1066 (9th Cir. 2019) (en banc). Though the Ninth Circuit claimed not to
hold that “the district court erred simply by failing to use any specific words,”
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id. at 1067, that appears to be exactly what the court did, see id. at 1073
(Bennett, J., dissenting). We reject the view that a procedurally proper sentence
imposed under § 3553(a) can be vacated merely because the district court failed
to quote certain magic words from the Supreme Court’s Miller decision. As the
Court has clearly said, “Miller did not require trial courts to make a finding of
fact regarding a child’s incorrigibility.” Montgomery, 136 S. Ct. at 735. The Court
was “careful to limit the scope of any attendant procedural requirement to avoid
intruding more than necessary upon the States’ sovereign administration of
their criminal justice systems.” Ibid. Hence, the Court reiterated, “Miller did not
impose a formal factfinding requirement.” Ibid.
      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).
                                       III.
      Sparks also argues that the district court erred in calculating the offense
level under the Guidelines. The district court increased Sparks’s offense level
by two points for obstructing justice, U.S.S.G. § 3C1.1, and denied him a two-
point reduction for accepting responsibility, id. § 3E1.1. Those decisions were
based on the court’s finding that Sparks attempted to escape from his detention
center. Sparks claims he was not involved in the attempt.
      We review the district court’s factual findings for abuse of discretion,
which occurs when the court relies on “clearly erroneous facts.” Gall, 552 U.S.
at 51. “Generally, a PSR ‘bears sufficient indicia of reliability to be considered
as evidence by the sentencing judge in making factual determinations.’” United
States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (quoting United States v.
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Nava, 624 F.3d 226, 231 (5th Cir. 2010)). A district court may adopt facts
contained in the PSR “without further inquiry” if those facts have an “adequate
evidentiary basis with sufficient indicia of reliability.” Ibid. (quoting United
States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007)).
      Sparks’s PSR contains reliable evidence that he tried to escape from his
detention center. That evidence includes an interview with a witness who
heard Sparks discussing the escape plan with another inmate, Christopher
Kirvin. The witness said that when Kirvin attacked a prison guard, Sparks
repeatedly flushed a toilet to mask the sound of her screams. Sparks also
admitted to a probation officer that he participated in the escape attempt. The
district court reasonably relied on the PSR.
                                  *     *      *
      Sparks’s sentence is AFFIRMED.




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