                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4265


UNITED STATES OF AMERICA,

                Plaintiff - Appellant,

           v.

UNDER SEAL,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:14-cr-00347-1)


Argued:   December 8, 2015                 Decided:   March 30, 2016


Before AGEE and HARRIS, Circuit Judges, and Theodore D. CHUANG,
United States District Judge for the District of Maryland,
sitting by designation.


Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Harris and Judge Chuang joined.


ARGUED: Julia K. Martinez, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellant.   Keva Jeannette McDonald,
THE LAW OFFICE OF KEVA J. MCDONALD, Fairfax, Virginia, for
Appellee.   ON BRIEF: Dana J. Boente, United States Attorney,
Stephen M. Campbell, Tobias D. Tobler, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia,   for  Appellant.      Frank  Salvato,  SALVATO   LAW,
Alexandria, Virginia, for Appellee.
AGEE, Circuit Judge:

       Pursuant to 18 U.S.C. § 5032, the Government filed a motion

to transfer the Defendant -- who was a juvenile at the time of

the alleged offense -- for prosecution as an adult for murder in

aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). 1

This crime carries a mandatory statutory penalty of either death

or     life       imprisonment.           The       district      court     denied   the

Government’s motion after concluding that the prosecution would

be unconstitutional given that recent Supreme Court decisions

have       held    that   the        United       States   Constitution       prohibits

sentencing juvenile offenders to either of these punishments.

See Miller v. Alabama, 132 S. Ct. 2455 (2012) (mandatory life

imprisonment);        Roper     v.    Simmons,      543    U.S.    551    (2005)   (death

penalty).

       The    Government        appeals       the    district      court’s    decision,

contending that its transfer motion should have been granted

because the Defendant could have been sentenced to a term of

years up to a discretionary life sentence.                        For the reasons set

forth below, we affirm the district court’s decision.




       1
       Federal law prohibits the public release of a juvenile’s
name in association with these proceedings.       18 U.S.C. §
5038(e).    Accordingly, we use the designation “Defendant”
throughout this opinion.


                                              2
                                               I.

                                               A.

      Although         the   constitutionality              of   the    juvenile       transfer

provisions are not at issue in this case, they form the backdrop

for   our       discussion.          The     Juvenile        Justice      and       Delinquency

Prevention       Act    (“the       Act”),    18      U.S.C.     §     5031    et    seq.,   was

adopted to “remove juveniles from the ordinary criminal process

in order to avoid the stigma of a prior criminal conviction and

to encourage treatment and rehabilitation.”                              United States v.

Robinson,        404    F.3d    850,       858       (4th    Cir.      2005). 2       The     Act

establishes       procedures         for     handling       criminal      charges      brought

against juveniles in federal court.                         United States v. Juvenile

Male,     554    F.3d    456,       459    (4th      Cir.    2009).           To    initiate    a

proceeding under the Act, the Government files a delinquency

information rather than a criminal indictment.                           Id. at 460.

      In relevant part, the Act permits juveniles 15 years or

older to be transferred from juvenile status for prosecution as

an adult if they are alleged to have committed certain violent

crimes, including murder.                 18 U.S.C. § 5032.             The district court

has authority to grant the transfer to adult status if, after a

hearing,    it     finds       by    a    preponderance          of    the    evidence       that


      2Unless otherwise indicated, all internal quotation marks,
citations, or alterations have been omitted in this and
subsequent citations.


                                                 3
“transfer       would   be   in     the    interest       of    justice.”          Id.        The

statute delineates six factors for the court to consider in this

inquiry,        including     the    age      and     social         background        of     the

juvenile, the nature of the alleged offense, and the juvenile’s

prior delinquency record.             Id. 3

                                              B.

     When he was a few months shy of his eighteenth birthday,

the Defendant allegedly participated in a gang-related murder.

The Government filed a delinquency information and certification

against        the   Defendant      pursuant         to   18     U.S.C.       §    5032       and

simultaneously moved to transfer him for prosecution as an adult

for murder in aid of racketeering, in violation of 18 U.S.C. §

1959(a)(1).

     The       Defendant     opposed      the      motion,      arguing   that         transfer

would be unconstitutional given the Supreme Court’s decisions

holding that juvenile offenders could not be sentenced to either

death     or     mandatory    life        imprisonment,          which    are      the      only

penalties       authorized     in    §     1959(a)(1)          for   murder       in    aid    of


     3 In cases where a juvenile is alleged to have committed an
offense that would render him eligible for transfer after having
already been convicted of a prior qualifying crime, the district
court does not engage in the “interest of justice” analysis, but
instead is instructed to transfer the juvenile “to the
appropriate district court of the United States for criminal
prosecution.” 18 U.S.C. § 5032.
     By its terms, this provision does not apply to the
Defendant because he has no prior qualifying conviction.


                                              4
racketeering.          Separately, he also contested whether transfer

was in the “interest of justice” under the § 5032 factors.

     The district court concluded that although the interest-of-

justice factors supported transfer, it would be unconstitutional

to grant the Government’s motion.                    This was so, it explained,

because district courts do not have discretion to sentence a

defendant to less than the statutory mandatory minimum penalty,

which, for violating § 1959(a)(1), is life imprisonment.                                It

recognized that under the Supreme Court’s decision in Miller v.

Alabama,    132   S.     Ct.    2455     (2012),      imposing    a    mandatory       life

sentence on a juvenile, like the Defendant, is constitutionally

prohibited.        The     district        court      further     observed      that    no

authority   permitted          it   to   impose      a     sentence    lower   than     the

mandatory minimum provided by the statute.                            In so doing, it

rejected the Government’s argument that § 1959(a)(1) could be

excised to permit a sentence of a term of years for a juvenile

offender.

     The    Government          noted     a       timely     appeal,    and     we     have

jurisdiction      to    consider       this   interlocutory       appeal       under    the

collateral order doctrine.               See United States v. Smith, 851 F.2d

706, 708 (4th Cir. 1988); see also United States v. Leon, 132

F.3d 583, 588-89 (10th Cir. 1997).




                                              5
                                       II.

                                       A.

     The parties agree that the Supreme Court’s recent decisions

prohibit     a    straight-forward           transfer,   prosecution,      and

sentencing of a juvenile under the terms of the federal murder

in aid of racketeering statute.               This is so because over the

past eleven years the Supreme Court has issued several decisions

affecting the constitutional boundaries of sentences imposed on

offenders who were juveniles when their crimes were committed.

Montgomery, Slip Op. 1.

     In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court

held that the Constitution’s guarantee against cruel and unusual

punishment prohibited juvenile offenders from being sentenced to

death.     Id. at 578 (“The Eighth and Fourteenth Amendments forbid

imposition of the death penalty on offenders who were under the

age of 18 when their crimes were committed.”).                 In Graham v.

Florida, 560 U.S. 48 (2010), the Supreme Court held that the

Constitution     also    prohibits     juvenile    offenders   convicted   of

nonhomicide offenses from being sentenced to life imprisonment

without parole.         Id. at 82. 4        The Supreme Court concluded in

Miller that the Constitution prohibits juvenile offenders who

     4 A “life sentence” in the federal sentencing scheme is the
same as “life without possibility of parole” because the federal
government has abolished parole. See Richmond v. Polk, 375 F.3d
309, 316 (4th Cir. 2004).


                                        6
commit murder from being sentenced to mandatory life without

parole.   132 S. Ct. at 2460.       And, most recently, in Montgomery

v. Louisiana, 577 U.S. ___ (2016), the Supreme Court clarified

that    Miller   contained   both    a      substantive   and    procedural

component:

           Because Miller determined that sentencing a
           child to life without parole is excessive
           for all but the rare juvenile offender whose
           crime reflects irreparable corruption, it
           rendered     life    without    parole    an
           unconstitutional penalty for a class of
           defendants because of their status—that is,
           juvenile offenders whose crimes reflect the
           transient immaturity of youth.

                . . . . Miller, it is true, did not bar
           a punishment for all juvenile offenders, as
           the Court did in Roper[, but it] did bar
           life without parole . . . for all but the
           rarest of juvenile offenders[.]

                To be sure, Miller’s holding [also] has
           a procedural component.    Miller requires a
           sentence to consider a juvenile offender’s
           youth and attendant characteristics before
           determining that life without parole is a
           proportionate sentence. . . .

Slip Op. 17-18.

       It is in the context of the foregoing decisions that we

examine   the    statute   under    which     the   Government   seeks     to

prosecute the Defendant: murder in aid of racketeering.                  This

offense is included in the federal violent crimes in aid of

racketeering activity statute, which provides, in relevant part:




                                     7
              (a)   Whoever,  as   consideration   for  the
              receipt of, or as consideration for a
              promise or agreement to pay, anything of
              pecuniary value from an enterprise engaged
              in racketeering activity, or for the purpose
              of gaining entrance to or maintaining or
              increasing position in an enterprise engaged
              in racketeering activity, murders, kidnaps,
              maims, assaults with a dangerous weapon,
              commits assault resulting in serious bodily
              injury upon, or threatens to commit a crime
              of   violence  against   any   individual  in
              violation of the laws of any State or the
              United States, or attempts or conspires so
              to do, shall be punished--

              (1)   for   murder,    by   death  or   life
              imprisonment, or a fine under this title, or
              both; and for kidnapping, by imprisonment
              for any term of years or for life, or a fine
              under this title, or both . . . .

18 U.S.C. § 1959(a).

     Under     the   plain   language   of     §   1959(a)(1),     Congress     has

authorized two penalties – and only two penalties – for the

crime    of    murder   in   aid   of       racketeering:       “death   or   life

imprisonment.” 5        Further,   we       note   that     a    district     court


     5 As § 1959(a)(1) reflects, a person convicted of murder in
aid of racketeering is also subject to a fine.     However, we do
not believe Congress intended a fine to be a stand-alone penalty
for committing this offense.    Rather, we agree with the Second
Circuit’s analysis in United States v. James, 239 F.3d 120 (2d
Cir. 2000), which observed that it would be “deeply problematic”
for Congress to have authorized a penalty of a fine only as an
alternative to “death or life imprisonment,” and that this
cannot have been what Congress intended.     As such, the better
construction of this statute is that it authorizes a fine in
addition to either “death or life imprisonment.” Id. at 126-27;
see also United States v. Mahadi, 598 F.3d 883, 897 n.13 (D.C.
Cir. 2010) (reaching this same “common sense conclusion”).
(Continued)
                                        8
ordinarily has “no discretion to impose a sentence outside the

statutory   range   established    by       Congress   for   the   offense    of

conviction.”    United States v. Robinson, 404 F.3d 850, 862 (4th

Cir. 2005). 6   Consequently, life imprisonment is the mandatory

minimum punishment for this offense.                See James, 239 F.3d at

127.

       But, as reflected above, Miller and Roper have prohibited

juveniles from being sentenced to either of the congressionally

authorized punishments for murder in aid of racketeering.                Thus,

the crux of the case before us is whether a judicial remedy

exists that would nonetheless allow juveniles to be prosecuted

for this offense, yet subjected to a punishment different from

that enacted by Congress.

                                       B.

       The Government contends that the district court should have

permitted   transfer   because    if       the   Defendant   is   convicted   of

violating § 1959(a)(1), the district court could sentence him to




     Although the Supreme Court’s recent juvenile sentencing
decisions did not impact the continued vitality of the
authorized punishment of a fine in § 1959(a)(1), the Government
– for obvious reasons – does not want to prosecute the Defendant
for this offense only to subject him to a fine.     Nor would a
fine-only offense fit logically within the structure Congress
enacted in § 1959(a) as a whole.
     6 A district court is authorized to impose a sentence below

the statutory minimum in two circumstances unrelated to the
issues before us in this case. See 18 U.S.C. § 3553(e).


                                       9
a term of years up to a maximum of life imprisonment.                            Although

we review the decision to deny a motion to transfer for abuse of

discretion, we review de novo the district court’s statutory and

constitutional rulings relating to the transfer.                         Juvenile Male,

554 F.3d at 465. 7

      In support of its argument, the Government relies on the

principle that unconstitutional portions of a statute can be

“severed     or    excised      so    that        the    remaining       constitutional

portions   may    be    applied.”           Opening      Br.    12.      The   Government

contends that the impermissible punishments can be excised from

§ 1959(a)(1), leaving intact language contained later in that

subsection for the separate criminal act of kidnapping in aid of

racketeering,      which       authorizes         a     term    of     years   up    to     a

discretionary      maximum      sentence          of    life.         Specifically,        the

Government      urges    the     following         excision       of    the    sentencing

portion of the statute as applied to juvenile offenders:

      [Violators] shall be punished--
        (1) for murder, by death or life imprisonment, or a
        fine under this title, or both; and for kidnapping,
        by imprisonment for any term of years or for life,
        or a fine under this title, or both; . . . .

§ 1959(a).        The Government argues that this reconstruction of

the   statute     recognizes         that    Congress          would    rather      have     a

      7The Defendant did not file a cross-appeal challenging the
district court’s analysis and conclusion that the interest-of-
justice factors would otherwise support transfer. As such, that
issue is not before us.


                                             10
constitutional       penalty    provision         of    this       sort   than    have      the

entire     penalty    provision      declared          inapplicable       to     the    worst

juvenile offenders.          Additionally, the Government maintains that

this approach is consistent with how other courts have proceeded

in light of Miller.

      When     a     court      determines            that     a     statute         contains

unconstitutional provisions, it will “try to limit the solution

to   the   problem”    by    considering,         for        example,     whether      it    is

possible “to sever its problematic portions while leaving the

remainder    intact.”        Ayotte    v.    Planned          Parenthood       of.     N.   New

England, 546 U.S. 320, 328-29 (2006).                    But in Roper and Miller,

the Supreme Court’s rulings affected multiple state and federal

statutes and the Court did not proceed to this next step of a

possible     severability       remedy.          Some    state       legislatures           have

since     enacted    statutes      aimed    at    rectifying         their     problematic

sentencing provisions created by these decisions.                                E.g., 2014

Fla. Laws 220, 2014 Mich. Pub. Acts 22, 2013 Cal. Stat. ch. 312. 8

Congress,     however,       has    taken        no    action       to    alleviate         the

sentencing conundrum now existing in § 1959(a)(1) as applied to

juveniles.     Moreover, the specific issue before us appears to be


      8These legislative fixes vary, but can be broadly put into
three categories: (1) adopting Miller-compliant procedural
protections during the sentencing of juveniles; (2) enacting a
new penalty scheme for juveniles; and/or (3) authorizing parole
after a fixed period of a mandatory life sentence.


                                           11
one of first impression in the federal courts: that is, no case

has arisen where the criminal act charged against a juvenile is

alleged to have been committed after Miller was decided.                               See

infra Section       II.D.      Accordingly,      we    must       determine    how     the

Supreme     Court’s    decisions     affect     the    Government’s      ability        to

prosecute juveniles for murder in aid of racketeering in the

absence of congressional action.

                                         C.

                                         1.

       “Severance is a tool for preserving the current statute,

and    it   flows   from     the    principle    that    invalidating         a   whole

statute may nullify more of the work of the people’s elected

representatives than is constitutionally necessary.”                          Covenant

Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421, 438

(4th Cir. 2007); see also Pittston Co. v. United States, 368

F.3d   385,   400     (4th   Cir.    2004)    (“[W]hen       an   application      of    a

statute is determined to be unconstitutional, courts seek to

preserve as much of the statute as is still consistent with

legislative intent . . . .            Whenever an act of Congress contains

unobjectionable       provisions      separable       from    those    found      to    be

unconstitutional, it is the duty of this court to so declare,

and to maintain the act in so far as it is valid.”).

       The Supreme Court has articulated the “well established”

“standard for determining severability” as follows:

                                         12
              Unless it is evident that the Legislature
              would not have enacted those provisions
              which are within its power, independently of
              that which is not, the invalid part may be
              dropped if what is left is fully operative
              as a law.

Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987).                                   As

this standard reflects, severance only works “if the balance of

the legislation [can] function[] independently.”                             Id.; see also

Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.

477,    508   (2010)       (holding     that        the    statute      remained     “fully

operative     as     a    law”   following          excision      of    unconstitutional

provisions,     so       excision    was    permitted        so       long   as   continued

enforceability of the excised statute would be consistent with

congressional        intent).           But        where    the        “balance     of     the

legislation     is       incapable     of   functioning        independently,”            then

severance is not a viable option.                    Alaska Airlines, 480 U.S. at

685.

                                              2.

       Articulating        a   crime    and        providing      a    penalty     for     its

commission     are       indelibly     linked.        As    the       Supreme     Court    has

observed,

              [t]he defendant’s ability to predict with
              certainty the judgment from the face of the
              felony indictment [historically] flowed from
              the invariable linkage of punishment with
              crime.    See 4 Blackstone 369-370 (after
              verdict,   and  barring  a  defect   in  the
              indictment, pardon or benefit of clergy,
              “the court must pronounce that judgment,

                                              13
            which the law hath         annexed      to   the    crime”
            (emphasis added)).

Apprendi v. New Jersey, 530 U.S. 466, 478-79 (2000).                       Indeed,

the   defining      characteristic     of    a   criminal      statute     is   its

punitive effect.        See Smith v. Doe, 538 U.S. 84, 92 (2003)

(describing the process of determining whether a statute should

be characterized as criminal or civil by looking to whether the

legislature    intended    to    impose     punishment,     and     if   not,   then

whether its scheme is nonetheless “so punitive either in purpose

or effect as to negate the State’s intention to deem it civil”);

see also Black’s Law Dictionary 1634 (10th ed.) (defining “penal

statute” as “[a] statute by which punishments are imposed for

transgressions of the law”).

      Given this inherent connection between the crime and its

stated punishment, the Supreme Court has affirmed the dismissal

of an indictment charging a violation of an offense for which

the statute provided no corresponding penalty.                 United States v.

Evans, 333 U.S. 483, 495 (1948).             In that case, the Court noted

that while the statute articulated multiple crimes, the penalty

provision     was   limited     by   its    plain   terms      to   only   certain

offenses.     Id. at 484.       Consequently, it held that the statute

was   “unenforceable     for    [those]     offenses”    where      no   punishment

existed.    Id. at 495; see also id. at 486 (“[W]here Congress has

exhibited clearly the purpose to proscribe conduct within its


                                       14
power to make criminal and has not altogether omitted provision

for   penalty,         every       reasonable        presumption       attached          to     the

proscription          to    require    the     courts     to    make     it   effective          in

accord with the evident purpose.” (emphasis added)).                                 In short,

a   criminal      statute         is   not    operative        without    articulating           a

punishment for the proscribed conduct.

      As   enacted,          §    1959(a)(1)       functions     without       interpretive

difficulty       in    the       sentencing     of    adult     defendants:          a    person

convicted for murder in aid of racketeering “shall be punished”

“by death or life imprisonment, or a fine under this title, or

both[.]”        Id.        But once these unconstitutional punishments for

murder     in    aid       of    racketeering       are   removed      for     purposes         of

prosecuting juveniles, as the Government now asks, no applicable

penalty provision remains. 9                   Thus, while excising the penalty

provisions may cure the problem created by Miller and Roper, it

simultaneously             creates     a     vacuum     that     renders       the       statute

unenforceable          as       pertaining    to    juveniles      because      what          would

remain      of        the        statute      is      “incapable         of     functioning

independently.”             Alaska Airlines, 480 U.S. at 684.

                                               3.

      Nonetheless, the Government posits that the structure of §

1959(a)(1),       which         includes     separate     punishment      provisions           for

      9 We do not include the § 1959(a)(1)                                    fine       in    our
consideration for the reasons already discussed.


                                               15
murder      and        kidnapping,        could    be     reconstructed              by    making     the

penalty       for      the    act    of    kidnapping         applicable            to    the   act    of

murder.          The Government’s proposal contravenes the principles

governing both severance and due process.

       At        the     outset,      we     observe          that    §        1959(a)      prohibits

committing          (or      attempting       or    conspiring            to     commit)        several

violent crimes in aid of racketeering.                                See United States v.

Fiel,       35    F.3d       997,    1003     (4th       Cir.    1994).              The    statute’s

punishment          provisions        are    each       articulated            in    terms      of    the

underlying violent crime.                    Subsection (1) sets the punishments

for     two       of      those      underlying          violent       crimes:            murder      and

kidnapping.

       Substituting the congressionally designated punishment for

one distinct act for that articulated for another, separate act

goes beyond the permissible boundaries of severance and treads

into     the      legislative         role.         See       Ayotte,          546       U.S.   at    329

(cautioning that courts cannot rewrite statutes in the name of

severance          in       order    “to     conform          [them]       to        constitutional

requirements”).                Legislatures,            not    courts,         are       charged     with

articulating the authorized penalties for criminal conduct.                                           See

Harris v. United States, 536 U.S. 545, 557 (2002) (explaining

that     defining            criminal       conduct,          including         its        appropriate

punishment,            is    “a     task    generally          left       to     the      legislative

branch”); Mistretta v. United States, 488 U.S. 361, 364 (1989)

                                                   16
(“Congress, of course, has the power to fix the sentence for a

federal crime, and the scope of judicial discretion with respect

to a sentence is subject to congressional control.”).                      Only when

Congress has articulated the penalties authorized by law for a

criminal act does the judiciary’s work begin.                 E.g., Williams v.

New York, 337 U.S. 241, 247 (1949) (noting that a sentencing

judge’s broad discretion to impose a sentence is limited by the

“fixed statutory or constitutional limits [regarding] the type

and extent of punishment after the issue of guilt” has been

resolved).

        To demonstrate why the Government’s proposal in this case

differs from an appropriate remedy of severance and excision,

and instead usurps the constitutional allocation of the power to

write     a    statute      to    Congress,        consider     the        following

illustration.       After Roper, but before Miller, the Supreme Court

had   only    declared     that   it     was   unconstitutional       to    sentence

juveniles     to   death   and    left    intact   the   constitutionality        of

lesser sentences.        At that point in time, a juvenile such as the

Defendant could not have been sentenced to death, but could (and

must) have been sentenced to mandatory life imprisonment.                      Thus,

post-Roper,        the   murder     in     aid     of    racketeering        statute

effectively could have been excised to read:




                                          17
             [Violators] shall be punished--

            (1)   for   murder,    by   death  or   life
            imprisonment, or a fine under this title, or
            both; and for kidnapping, by imprisonment
            for any term of years or for life, or a fine
            under this title, or both . . . .

18 U.S.C. § 1959(a)(1).                In looking at the severance remedy of

excising     the       unconstitutional         death     penalty       provision,    an

acceptable punishment that Congress had specifically authorized

remained intact: mandatory life imprisonment.                         And because “the

balance    of    the      legislation     [could]    function[]        independently,”

excising     the       unconstitutional         death     penalty       provision    and

enforcing the remainder would have been an appropriate judicial

action.    Alaska Airlines, 480 U.S. at 685.

     But     what      the    Government        proposes       here    post-Miller    is

altogether       different:      using     excision       to   combine    the   penalty

provisions for two distinct criminal acts.                        The serendipitous

juxtaposition        of    the   two    separate     criminal     acts    (murder    and

kidnapping) within one subsection of § 1959(a) does not make the

Government’s         proposal    any     less   of   an    impermissible        judicial

rewriting       of   one    offense’s     penalty    provision. 10        The    penalty


     10 To illustrate this point, suppose the statutory maximum
for kidnapping in aid of racketeering was not discretionary life
imprisonment, but rather five years’ imprisonment.           The
Government   could  not  credibly   argue  that   the  five-year
kidnapping maximum should be applied to murder in aid of
racketeering by a juvenile under the auspices of being a mere
excision within the same statutory subsection.     Yet upon the
(Continued)
                                           18
enacted        for   the   kidnapping-based     offense   cannot     simply    be

interchanged with and applied to the murder-based offense, as

these are two wholly separate means of violating § 1959 with

distinct elements.          See United States v. Umaña, 750 F.3d 320,

334-35 (4th Cir. 2014). 11

        Under    the   guise   of   severance   principles,   the    Government

seeks to have the judiciary create in the first instance an

appropriate punishment now that the Supreme Court has ruled the

only penalties Congress chose for the crime are unconstitutional

as applied to juveniles.            Accepting the Government’s invitation

would     be    “nothing    less    than    judicial   legislation    pure    and




excision of text contemplated by the Government's severance
analysis, that is the result that would necessarily follow.
     11 To establish a claim under § 1959(a), the government must

prove the following elements:
     (1) that there was an enterprise engaged in
         racketeering activity;
     (2) that the enterprise’s activities affected
         interstate commerce;
     (3) that the defendant committed the alleged
         crime of violence; and
     (4) that the defendant, in committing the alleged
         crime of violence, acted in response to
         payment or a promise of payment by the
         enterprise or for the purpose of gaining
         entrance to or maintaining or increasing
         position in an enterprise.
Umaña, 750 F.3d at 334-35.     Obviously, to establish a murder-
based offense, the Government’s proof as to the third and fourth
elements must demonstrate that the defendant committed a murder,
while to establish a kidnapping-based offense, the Government’s
proof must relate to kidnapping. See id.


                                           19
simple.”      Ballard v. Miss. Cotton Oil Co., 34 So. 533, 554

(Miss. 1903).

                                           4.

      We also observe that the Government’s reliance on United

States v. Booker, 543 U.S. 220 (2005), overstates a court’s goal

of looking to what Congress would have preferred in remedying

the   problem   of   unconstitutional            provisions    through   severance.

Booker     expressly      disclaimed            “creat[ing]    a   new    kind     of

severability     analysis,”         id.    at    247,   and   applied    the   well-

established inquiry we described earlier.                     Id. at 246, 248-49.

That inquiry looks to legislative intent in determining whether

unconstitutional provisions can be severed from constitutional

ones, and leaves in place “valid provisions of an act . . .

unless it is evident that the Legislature would not have enacted

those provisions which are within its power, independently of

that which is not.”           Pittston Co. v. United States, 368 F.3d

385, 400 (4th Cir. 2004); see also Ayotte, 546 U.S. at 330

(reiterating that “a court cannot use its remedial powers to

circumvent    the    intent    of    the    legislature”).         But   nothing   in

Booker allows this Court to replace excised language from one

provision with language not previously applicable to it from a

separate provision.           See Ayotte, 546 U.S. at 329 (observing,

post-Booker, that when considering whether severability is an

appropriate     remedy,    courts         must    “restrain    [them]selves      from

                                           20
rewriting [the] law to conform it to constitutional requirements

even as we strive to salvage it”). 12

       Looking to legislative intent to remedy a constitutional

defect is of limited utility when there is no indication what

that legislative intent would be under the circumstances.                     See

Booker, 543 U.S. at 246.             In the absence of language in the

murder      in   aid   of   racketeering    penalty    provision   itself    that

could authorize a term of less than life imprisonment, we cannot

fill    a   void   in   the    statutory    language    by   looking   to   other

offenses. 13


       12
        The Government states that the excision it proposes is
similar to the excision the Supreme Court made in Booker when it
excised provisions setting out the standard of review on appeal
because they cross-referenced the unconstitutional provisions
making the sentencing guidelines mandatory.     See Reply Br. 4.
In Booker, the Supreme Court held that the absence of
articulated standards of review posed no problem because the
“appropriate review standards [could be inferred] from related
statutory language, the structure of the statute, and the sound
administration of justice.” 543 U.S. at 260-61.
     The Government overlooks the Booker opinion’s recognition
immediately prior to that statement that the excision of the
standard-of-review provisions did “not pose a critical problem
for the handling of appeals . . . because, as we have previously
held, a statute that does not explicitly set forth a standard of
review may nonetheless do so implicitly.” Id. at 260.
     In contrast, the excision of a criminal offense’s penalty
provision does “pose a critical problem” and courts have no
authority to implicitly decide an appropriate punishment range
in the first instance.
     13 The Government contends that Congress would obviously cap

a  juvenile’s    sentencing  exposure  for   murder  in   aid  of
racketeering at life imprisonment. However, in light of Roper,
Miller, and Montgomery, juvenile sentencing is undergoing
substantive changes.     We have no way of knowing how Congress
(Continued)
                                       21
                                           5.

      Grafting     a    newly      applicable     penalty    provision      into     the

murder    in    aid     of     racketeering       statute,   as    the     Government

proposes, also runs counter to the Constitution’s guarantee of

due process.       “Elementary notions of fairness enshrined in our

constitutional jurisprudence dictate that a person receive fair

notice    not    only     of      the   conduct    that   will    subject      him    to

punishment, but also of the severity of the penalty that a State

may impose.”      BMW of N. Am. v. Gore, 517 U.S. 559, 574 (1996);

see   United     States      v.    Batchelder,     442    U.S.    114,   123     (1979)

(observing       that        “vague      sentencing       provisions       may       pose

constitutional questions if they do not state with sufficient

clarity    the     consequences          of     violating    a     given     criminal

statute”). 14




would or will act and would be engaging in pure speculation in
guessing what that result might be.    Despite having four years
to act since being alerted by Miller to the constitutional
problem posed by statutes that have a mandatory minimum of life
imprisonment, Congress has failed to address the matter. It is
their place under the Constitution’s separation of powers to do
so, not ours.     See Evans, 333 U.S. at 495 (observing that
manipulating a statute to fill in a missing penalty provision
“is a task outside the bounds of judicial interpretation”).
     14 Citing Peugh v. United States, 133 S. Ct. 2072 (2013),

the Defendant argues that prosecuting him for murder in aid of
racketeering with a judicially created penalty would violate the
Constitution’s prohibition against ex post facto laws.      This
argument is misplaced as the plain language of the Constitution
limits its application to legislative acts: “No . . . ex post
facto Law shall be passed.”     U.S. Const. art. I, § 9, cl. 3
(Continued)
                                           22
       Our concerns about lack of notice arise from the Government

urging us to look outside the express language of the stated

offense for an acceptable alternative penalty.                When the crime

at issue in this case occurred, Congress unambiguously informed

individuals that murder in aid of racketeering was punishable by

death or mandatory life imprisonment.              Congress provided for no

other penalty.      However, a juvenile like the Defendant could not

be sentenced to either of those punishments after Miller.                    Nor

would that juvenile have notice at the time of the alleged crime

that   he   could   be    subject   to    any   other   punishment,   such   as

imprisonment to a term of years.                And, more precisely for the

Government’s proposal, a juvenile had no notice at the time of

the alleged crime that the punishment provided for a different

offense     (kidnapping     in   aid     of   racketeering)   might   now    be




(limiting acts of Congress).     We are not dealing with a law
Congress enacted here, but with the court’s interpretation of
those laws. As such, the Ex Post Facto Clause is not at issue.
See Rogers v. Tennessee, 532 U.S. 451, 460 (2001).
     To the extent this case raises problems with notice and
warning, they fall within the ambit of the Due Process Clause.
Id. at 459 (observing that prior cases addressing the ex post
facto consequences of judicial actions have “rested on core due
process concepts of notice, foreseeability, and . . . the right
to fair warning”); cf. Peugh, 133 S. Ct. at 2085 (observing
that, in part, the Ex Post Facto Clause “ensures that
individuals have fair warning of applicable laws”).


                                         23
applicable    to    him    through   the      court’s    use   of   severability

principles. 15

      The Government argues that juveniles such as the Defendant

had adequate notice of their potential maximum punishment – life

imprisonment – based on the existing statutory language, and

that Miller simply required a court to consider certain factors

before imposing that maximum sentence.                 We disagree.     The only

authorized statutory punishment was mandatory life imprisonment,

not   an   indeterminate      punishment      capped    at   life   imprisonment.

That the authorized penalty for murder in aid of racketeering is

greater    than    the    Government’s    proposed      alternate    penalty   may

lessen, but does not obviate, the concern as to notice.                   If the

“[d]eprivation of the right to fair warning . . . can result . .

. from an unforeseeable and retroactive judicial expansion of

statutory language that appears narrow and precise on its face,”

Rogers, 532 U.S. at 457, then surely it can also come from an

unforeseeable      and    retroactive     judicial      severability    analysis

that would result in excising an offense’s penalty provision so

that the penalty for another offense would now apply.




      15As is often the circumstance when it comes to notice of
criminal penalties, the Court must consider the legal fiction
that a criminal will carefully consider the text of the law
before he breaks it. See McBoyle v. United States, 283 U.S. 25,
27 (1931).


                                         24
                                                    D.

         The Government also points to various cases where juvenile

offenders convicted under a statute requiring life imprisonment

prior to Miller have subsequently been sentenced or resentenced

to   a    term    of     years      or      a    discretionary       life    sentence.           For

example, the Government cites United States v. Maldonado, No. 09

Cr. 339–02, 2012 WL 5878673 (S.D.N.Y. Nov. 21, 2012), aff’d sub

nom. United States v. Guerrero, 560 F. App’x 110 (2d Cir. 2014),

a district court decision in which the juvenile offender had

been convicted prior to Miller for two offenses that carried

mandatory        terms      of   life       imprisonment.           Id.     at    *9.      At    the

defendant’s post-Miller sentencing hearing, the district court

observed        that    a    mandatory           life    sentence    could       no     longer    be

imposed, and then proceeded to analyze the factors outlined in

Miller.          The     court      concluded            those   factors     supported          life

imprisonment and imposed that sentence.                          Id. at *9-11.

         This    case       does    not          offer    persuasive       support       for     the

proposition        that       for       a       crime    committed     after       Miller,       the

Government can initiate a prosecution against a juvenile for an

offense when its only articulated penalties are prohibited.                                       As

an   initial      matter,          it    does      not    appear    that     the      parties     in

Maldonado raised the arguments presented here.                                   Maldonado does

not involve a defendant whose alleged criminal conduct occurred

after Miller, nor does it involve a prosecution that began after

                                                    25
Miller.      This procedural difference also means that Maldonado

did not give rise to the due process problems the instant case

poses because at the time that Maldonado committed his crime and

was prosecuted for it, the statute had a functioning penalty

provision.     Only later did any constitutional prohibition come

to light.

     The     Government      also   cites      to    a    handful       of   cases      where

federal    courts    have     authorized       the       resentencing        of    juvenile

offenders convicted and sentenced prior to Miller to support its

position     that   sentencing      courts      can      impose     a    term     of    years

instead of mandatory life imprisonment.                     E.g., United States v.

Bryant, 609 F. App’x 925, 927 (9th Cir. 2015); Pete v. United

States, Nos. CV 13–8149–PCT–RCB (DKD), CR 03–0355–PCT–RCB, 2014

WL 88015, at *1-2 (D. Ariz. Jan. 9, 2014) (government conceded

retroactive applicability and did not oppose defendant’s § 2255

motion for resentencing, so district court ordered that relief

in   light    of    Miller    requiring        individualized           sentencing          for

juvenile offenders).           But these cases are distinguishable for

the same reasons set forth above.                   Those courts were looking to

how to remedy a mandatory life sentence that was validly imposed

at   the   time,    but     which   was     subsequently          determined           to   be

unconstitutional.            That   presents         a    fundamentally           different

inquiry from the case before us.



                                          26
     Lastly, the Government asserts that the district court’s

rationale,       coupled      with     the      conclusion        that     Miller       is

retroactive, would require reversing countless convictions.                          The

Supreme    Court      has   already    considered      --    and    rejected       --   a

similar suggestion in Montgomery.                As noted, subsequent to oral

argument in this case, the Supreme Court decided that Miller is

indeed     retroactively       applicable       on   collateral         review.      See

Montgomery, slip op. at 15-22.                  The Court in Montgomery was

careful     to   note,      however,     that    the   problems          arising    from

Miller’s     retroactivity       could    be     remedied     short       of   vacating

convictions      or   requiring      resentencing.          Id.    at    20-21.       The

limits of Montgomery will no doubt be litigated in future cases,

but for present purposes it is sufficient to observe that the

Supreme Court has indicated that vacating a conviction may not

be necessary in order to remedy a past Miller violation.                       Id.

     Whatever the appropriate remedies may be for those juvenile

offenders who were convicted and sentenced prior to Miller, they

stand on entirely different ground than the Defendant.                               This

case only requires considering whether initiating prosecution of

a juvenile for murder in aid of racketeering alleged to have

occurred    after     Miller    would    be     unconstitutional          because     the

sentencing court could not constitutionally impose the only two

authorized penalties for that offense.                      We hold that such a

prosecution cannot constitutionally proceed.

                                          27
                                       III.

     The     Supreme      Court’s    conclusion      in   Evans      nearly     seven

decades    ago    aptly   addresses      the     Government’s   argument      for   a

judicial remedy in the case before us:

            This is a task outside the bounds of
            judicial interpretation.   It is better for
            Congress, and more in accord with its
            function, to revise the statute than for us
            to guess at the revision it would make.
            That task it can do with precision.       We
            could do no more than make speculation law.

333 U.S. at 495.

     For that reason and as further explained above, we agree

with the district court that the Defendant cannot be prosecuted

for murder in aid of racketeering because his conviction would

require    the    court    to   impose      an   unconstitutional      sentence. 16

Therefore,       the   district     court     did   not   err   in    denying    the

Government’s motion to transfer the Defendant for prosecution as

an adult and its decision is affirmed.

                                                                          AFFIRMED




     16 The Defendant acknowledges that other prosecutorial
options may be available to the Government.     For example, our
holding does not prevent the Government from seeking the
Defendant’s transfer for prosecution as an adult for a different
federal crime that would not violate the above principles, nor
does it prohibit the Government from trying the Defendant as a
juvenile for this offense, subject to the then-applicable
sentencing provisions.     Those options are solely in the
Government’s province to pursue and we offer no opinion in that
regard.


                                         28
