                                   PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            _____________

                No. 16-3820
               _____________

      UNITED STATES OF AMERICA

                      v.

              COREY GRANT,
                       Appellant

               ______________

On Appeal from the United States District Court
         for the District of New Jersey
 (D.C. Crim. Action No. 2-90-cr-00328-009)
   District Judge: Honorable Jose L. Linares
                ______________

           Argued October 26, 2017
              ______________
Before: GREENAWAY, JR., COWEN, Circuit Judges and
PADOVA,1 District Judge.

                (Opinion Filed: April 9, 2018)

                      ______________

                         OPINION
                      ______________

Lawrence S. Lustberg [ARGUED]
Avram D. Frey
Gibbons P.C.
One Gateway Center
Newark, NJ 07102
             Counsel for Appellant

Mark E. Coyne
Bruce P. Keller [ARGUED]
Office of United States Attorney
970 Broad Street
Room 700
Newark, N.J., 07102
              Counsel for Appellee




       1
         Honorable John R. Padova, Senior Judge of the United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.




                              2
GREENAWAY, JR., Circuit Judge.

         Corey Grant was sixteen years old when he committed
various crimes that led to his ultimate incarceration. He was
convicted in 1992 of conspiracy and racketeering under the
Racketeer Influenced and Corrupt Organizations Act
(“RICO”), as well as of various drug trafficking charges and a
gun charge. At sentencing, the District Court determined that
Grant would never be fit to reenter society and sentenced him
to life in prison without the possibility of parole (“LWOP”) for
the RICO conspiracy and racketeering convictions. He
received a concurrent forty-year term for the drug convictions
and a mandatory consecutive five-year term for the gun
conviction.

       In 2012, the Supreme Court decided Miller v. Alabama,
which held, inter alia, that only incorrigible juvenile homicide
offenders who have no capacity to reform may be sentenced to
LWOP. 567 U.S. 460, 479-80 (2012). It also extended the
Court’s earlier holding in Graham v. Florida, 560 U.S. 48, 75
(2010)—that juvenile non-homicide offenders are entitled to a
“meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation”—to all non-
incorrigible juvenile homicide offenders. 567 U.S. at 479
(quoting Graham, 560 U.S. at 75); see also id. at 473; Graham,
560 U.S. at 82. In light of Miller, the District Court granted
Grant’s 28 U.S.C. § 2255 motion. At resentencing, the District
Court determined that Grant’s upbringing, debilitating
characteristics of youth, and post-conviction record
demonstrated that he had the capacity to reform and that a
LWOP sentence was therefore inappropriate under Miller.
Instead, the District Court sentenced Grant to a term of sixty-
five years without parole.




                               3
       On appeal, Grant challenges the constitutionality of his
new sentence. He contends that he will be released at age
seventy-two at the earliest, which he purports to be the same
age as his life expectancy. In Grant’s estimation, his sentence
violates the Eighth Amendment to the Constitution of the
United States because it constitutes de facto LWOP and
therefore fails to account for his capacity for reform and to
afford him a meaningful opportunity for release.

       This case presents several difficult challenges for this
Court. It calls upon us to decide a novel issue of constitutional
law: whether the Eighth Amendment prohibits a term-of-years
sentence for the duration of a juvenile homicide offender’s life
expectancy (i.e., “de facto LWOP”) when the defendant’s
“crimes reflect transient immaturity [and not] . . . irreparable
corruption.” Montgomery v. Louisiana, 136 S. Ct. 718, 734
(2016). Next, if we find that it does, then we must decide what
framework will properly effectuate the Supreme Court’s
determination that the Eighth Amendment affords non-
incorrigible juvenile offenders a right to a meaningful
opportunity for release. Furthermore, we must take great pains
throughout our discussion to account for the substantive
distinction that the Supreme Court has made between
incorrigible and non-incorrigible juvenile offenders in order to
ensure that the latter is not subjected to “a punishment that the
law cannot impose upon [them].” Id. (quoting Schriro v.
Summerlin, 542 U.S. 348, 352 (2004)).

        Our decision today therefore represents an incremental
step in the constitutional discourse over the unique protections
that the Eighth Amendment affords to juvenile homicide
offenders.




                               4
I.      FACTS AND PROCEDURAL HISTORY

        In March 1987, local law enforcement authorities in
 Elizabeth, New Jersey became aware of an organized gang of
 teenagers called the E-Port Posse, led by Bilal Pretlow. The
 Posse operated a narcotics network that would regularly buy
 multi-kilogram amounts of cocaine in New York City, cut and
 package the cocaine in stash houses, and sell it on the streets of
 Elizabeth. Its members had access to firearms and they
 regularly used threats, physical violence and murder to carry
 out their objectives. Appellant Corey Grant—who was thirteen
 when he joined the Posse in 1986—was employed as one of
 the Posse’s main enforcers.

        On January 25, 1991, a superseding indictment charged
 Grant with RICO conspiracy (Count 1), in violation of 18
 U.S.C. § 1962(d); racketeering (Count 2), in violation of 18
 U.S.C. § 1962(c); conspiracy to possess with the intent to
 distribute cocaine (Count 4), in violation of 21 U.S.C. § 846;
 two counts of possession with the intent to distribute cocaine
 (Counts 5 and 6), in violation of 21 U.S.C. § 841(a)(1); and
 two counts of possession of a weapon in relation to a crime of
 violence or drug trafficking, in violation of 18 U.S.C. § 924(c)
 (Counts 10 and 11), one of which was dismissed prior to the
 return of a verdict.2

        Grant, who was below the age of eighteen during his
 tenure with the Posse, proceeded to trial as an adult in February
 1992. The jury returned a partial verdict finding him guilty of

        2
          The indictment charged multiple individuals involved
 in the E-Port Posse. The charges discussed here are limited to
 those made against Grant.




                                 5
the RICO conspiracy, racketeering, and drug and gun
possession counts (Counts 1, 2, 4, 5, 6, and 11), and—as
predicates for the racketeering charge—found that he
murdered Mario Lee and attempted to murder Dion Lee.

       Dion Lee was a former member of the E-Port Posse who
continued to individually sell drugs after leaving the gang. In
August 1989, Grant, who was sixteen years old at the time,
encountered a group of rival drug dealers while delivering
drugs for Pretlow, including Lee. Grant warned Lee at
gunpoint not to be in Pretlow’s territory unless he was working
for Pretlow. Lee refused, and Grant struck him in the head with
a gun while another Posse member assaulted him. When Lee
retreated, Grant and an associate shot him in the leg. Lee
ultimately survived.

       Later that month, Grant encountered Dion’s brother,
Mario Lee, another independent drug dealer who was warned
by the Posse not to operate within its territory. Grant
confronted Lee in an apartment courtyard where drugs were
commonly sold and tried to force Lee into the building. Lee
broke free and began to retreat, but Grant ordered his associate
to shoot Lee to prevent any escape. The associate killed Lee.

       At sentencing, the District Court denied Grant’s
departure motion and imposed a sentence within the then-
mandatory Sentencing Guidelines of LWOP on the two RICO
counts, a concurrent forty-year term of imprisonment on the
drug-trafficking counts, and a five-year consecutive term of
imprisonment on the gun possession count. The convictions
and sentence were affirmed on direct appeal. United States v.
Grant, 6 F.3d 780 (3d Cir. 1993) (unpublished table decision),
cert. denied, 510 U.S. 1061 (1994).




                               6
       Twelve years later, Grant sought a writ of habeas corpus
pursuant to 28 U.S.C. § 2241, which was dismissed for lack of
jurisdiction. We affirmed. Grant v. Williamson, 198 F. App’x
263, 264 (3d Cir. 2006). Grant then filed a § 2255 motion,
which was dismissed as untimely. Grant v. United States, No.
CIV. A. 06-5952 HAA, slip op. at 1 (D.N.J. Feb. 8, 2008).

        In 2012, the Supreme Court decided Miller, which held
that mandatory LWOP sentences for juvenile homicide
offenders violated the Eighth Amendment. 567 U.S. at 479.
Grant subsequently sought and received leave from this Court
to file a second § 2255 motion. In re Pendleton, 732 F.3d 280,
282 (3d Cir. 2013) (per curiam). He argued that his LWOP
sentence was imposed without consideration of mitigating
circumstances related to his age at the time of his crimes. The
District Court agreed and ordered that Grant be resentenced.
Grant v. United States, No. CIV. A. 12-6844 JLL, slip. op. at
7 (D.N.J. Nov. 12, 2014).

        At resentencing, the District Court limited the scope of
its review to the RICO conspiracy and racketeering counts, the
charges for which Grant received a mandatory life sentence,
thereby leaving in place the forty-year sentence for drug crimes
and the mandatory consecutive five-year sentence for illegal
gun possession. It determined that Grant’s upbringing,
debilitating characteristics of youth, and post-conviction
record sufficiently evidenced that he was not incorrigible and
that an LWOP sentence was therefore inappropriate under
Miller. However, the District Court also emphasized that it
would issue a sentence that “promote[s] respect for the law,”
“provide[s] just punishment,” and “protect[s] the public.”
App. 154-55. It then imposed a term of sixty-years’
imprisonment on Counts 1 and 2 to run concurrently with the




                               7
      drug charges, resulting in a new effective sentence of sixty-five
      years without parole.3

            Under this sentence, assuming good time credit, see 18
      U.S.C. § 3624(b)(1), Grant will be eligible for release at age
      seventy-two, which he contends is the same age as his life
      expectancy. Grant now appeals his new sentence to this Court.

II.          JURISDICTION AND STANDARD OF REVIEW

              The District Court had jurisdiction under 18 U.S.C.
      § 3231, and we have jurisdiction under 28 U.S.C. § 1291 and
      18 U.S.C. § 3742(a). “We employ a plenary standard of review
      to a defendant’s Eighth Amendment challenge to his sentence.”
      United States v. Miknevich, 638 F.3d 178, 185 (3d Cir. 2011).




             3
               The District Court also unwittingly imposed a sixty-
      year sentence on Count 4, a drug offense for which Grant was
      originally sentenced to forty years. The District Court
      decided—just prior to issuing this sentence—that the scope of
      its review was limited to Counts 1 and 2, and that it would leave
      intact the original sentence for Grant’s drug convictions. App.
      152 (“[T]here is nothing in the record before me that would
      indicate that [there] was some kind of clear manifest injustice
      by [the original District Court] with the sentence that [it] issued
      with regard to the drug conviction . . . .”). The District Court’s
      sixty-year resentence to Count 4 was therefore undoubtedly
      inadvertent error. We will vacate that sentence and instruct the
      District Court to reinstate the original forty-year concurrent
      sentence for Count 4.




                                      8
III.          SUPREME COURT PRECEDENT

               The Supreme Court has long grappled with the societal
       bounds of imposing the most severe punishments. It has
       maintained that the scope of what is considered cruel and
       unusual punishment under the Eighth Amendment is not fixed,
       but instead depends on “the evolving standards of decency that
       mark the progress of a maturing society.” Miller, 567 U.S. at
       469 (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). Of
       equal importance, sentencing must also be individualized to
       account for the defendant’s mitigating circumstances to ensure
       that the most serious punishments are “reserved only for the
       most culpable defendants committing the most serious
       offenses.” Id. at 476. The Court therefore has categorically
       prohibited the imposition of the most severe punishments on
       classes of defendants that have diminished culpability due to
       immutable characteristics and where state practice and
       legislative enactments demonstrate a national consensus
       against imposing those punishments on members of that class.
       See, e.g., Atkins v. Virginia, 536 U.S. 304, 321 (2002) (holding
       that Eighth Amendment proscribes death penalty for
       intellectually disabled offenders).

              This case requires us to further consider the societal
       boundaries of punishing juvenile homicide offenders. We
       therefore feel it necessary to inform our forthcoming analysis
       by detailing the line of Supreme Court cases that, under the
       Eighth Amendment, has proscribed the most severe
       punishments from being imposed on juvenile offenders: (1)
       Roper v. Simmons, 543 U.S. 551, 568 (2005) (prohibiting death
       penalty for juvenile offenders); (2) Graham, 560 U.S. at 82
       (prohibiting LWOP for juvenile non-homicide offenders); (3)
       Miller, 567 U.S. at 479 (prohibiting mandatory LWOP for
       juvenile homicide offenders); and (4) Montgomery, 136 S. Ct.




                                      9
at 729, 736 (holding that Miller applies retroactively on
collateral review). At bottom, we must consider whether the
logic of these cases—that the debilitating characteristics of
youth make juveniles less deserving of the most severe
punishments—forecloses de facto LWOP for juvenile
offenders whose crimes do not reflect “irreparable corruption.”
Montgomery, 136 S. Ct. at 726 (quoting Miller, 567 U.S. at
480-81). As such, this case requires us to consider the next
incremental step in the constitutional dialogue over the
contours of the Eighth Amendment’s protections, as applied to
juvenile homicide offenders.

A.     Roper v. Simmons

       In Roper, the Supreme Court held that the Eighth
Amendment prohibits the death penalty for defendants who
committed their crimes before the age of eighteen. 543 U.S. at
578. After determining that there existed a national consensus
against the death penalty for juvenile offenders, the Court,
relying on science and social science, reasoned that, relative to
adults, juveniles have a “lack of maturity and an
underdeveloped sense of responsibility”; that they “are more
vulnerable or susceptible to negative influences and outside
pressures, including peer pressure”; and that their characters
and personality traits are “more transitory, less fixed.” Id. at
569-70 (quoting Johnson v. Texas, 589 U.S. 350, 367 (1993));
accord Graham, 560 U.S. at 68. The failings of a minor
therefore are not the moral equivalent of those of an adult
because there is a greater possibility that a minor’s character
deficiencies “will be reformed.”          543 U.S. at 570.
Accordingly, Roper established the principle that juvenile
offenders are not deserving of the most severe punishments
because they are innately less culpable than adults. Id. at 569-




                               10
70 (“[J]uvenile offenders cannot with reliability be classified
among the worst offenders.”).

       In light of these innate characteristics, the Court also
determined that the penological justifications for the death
penalty—i.e., retribution and deterrence—have diminished
applicability to juvenile offenders. Retribution, the Court
noted, “is not proportional if the law’s most severe penalty is
imposed on one whose culpability or blameworthiness is
diminished, to a substantial degree, by reason of youth and
immaturity.” Id. at 571. As for deterrence, the Court
determined that “the same characteristics that render juveniles
less culpable than adults suggest as well that juveniles will be
less susceptible to deterrence.” Id. Thus, because juveniles are
less culpable than adults and there is diminished justification
for imposing severe punishments on juvenile offenders, the
Court concluded that the Eighth Amendment does not permit
juvenile offenders to be sentenced to death. Id. at 578.

B.     Graham v. Florida

       Building on the logic of Roper, Graham held that the
Eighth Amendment bars juvenile offenders from being
sentenced to LWOP for a non-homicide crime. 560 U.S. at 74-
75, 82. As with Roper, the Graham Court first determined that
a national consensus had developed against LWOP for juvenile
non-homicide offenders.4 Id. at 62-67. It then reaffirmed



       4
          The Court reasoned that “only 11 jurisdictions
nationwide in fact impose life without parole sentences on
juvenile nonhomicide offenders—and most of those do so
quite rarely—while 26 States, the District of Columbia, and the




                              11
Roper’s fundamental principle that juveniles are less culpable
than adults, id. at 68, and concluded that “compared to an adult
murderer, a juvenile offender who did not kill or intend to kill
has a twice diminished moral culpability. The age of the
offender and the nature of the crime each bear on the analysis,”
id. at 69.

        The Court reasoned that LWOP was an overly severe
punishment because it uniquely shares particular
characteristics with capital punishment. Like the death
penalty, LWOP “alters the offender’s life by a forfeiture that is
irrevocable” and “deprives the convict of the most basic
liberties without giving hope of restoration.” Id. at 69-70; see
also id. at 69 (“[LWOP] is the second most severe penalty
permitted by law.” (quoting Harmelin v. Michigan, 501 U.S.
957, 1001 (1991))). Put differently:

       Life in prison without the possibility of parole
       gives no chance for fulfillment outside prison
       walls, no chance for reconciliation with society,
       no hope. Maturity can lead to that considered
       reflection which is the foundation for remorse,
       renewal, and rehabilitation. A young person who
       knows that he or she has no chance to leave
       prison before life’s end has little incentive to
       become a responsible individual.




Federal Government do not impose them despite apparent
statutory authorization.” Graham, 560 U.S. at 64.




                               12
Id. at 79. Also, according to the Court, LWOP is an even
harsher punishment for juveniles than it is for adults because
“a juvenile offender will on average serve more years and a
greater percentage of his life in prison than an adult offender.”
Id. at 70. Thus, “[a] 16-year-old and a 75-year-old each
sentenced to life without parole receive the same punishment
in name only.” Id. at 70. “This reality,” the Court stated,
“cannot be ignored.”

       Next, the Court extended the penological reasoning of
Roper to LWOP, noting that “none of the goals of penal
sanctions that have been recognized as legitimate—retribution,
deterrence, incapacitation, and rehabilitation—provides an
adequate justification” and that “[a] sentence lacking any
legitimate penological justification is by its nature
disproportionate to the offense.” Id. at 71. Regarding
retribution and deterrence, the Court reiterated its reasoning
from Roper. Id. at 71-72. But unlike in Roper, the Graham
Court also addressed incapacitation and rehabilitation,
concluding that neither justified the imposition of LWOP on
juvenile non-homicide offenders.

       As to the former, the Court explained:

       To justify life without parole on the assumption
       that the juvenile offender forever will be a danger
       to society requires the sentencer to make a
       judgment that the juvenile is incorrigible. The
       characteristics of juveniles make that judgment
       questionable. It is difficult even for expert
       psychologists to differentiate between the
       juvenile offender whose crime reflects
       unfortunate yet transient immaturity, and the rare
       juvenile offender whose crime reflects




                               13
       irreparable corruption. . . . [I]ncorrigibility is
       inconsistent with youth.

Id. at 72-73 (citations and internal quotation marks omitted).
Regarding rehabilitation, the Court reasoned that LWOP
“forswears altogether the rehabilitative ideal” because “[b]y
denying the defendant the right to reenter the community, the
State [impermissibly] makes an irrevocable judgment about
that person’s value and place in society” that fails to account
for his or her “capacity for change and limited moral
culpability.” Id. at 74.

       Critical to this case, in order to effectuate its holding
that the Eighth Amendment forbids LWOP sentences for
juvenile non-homicide offenders, the Court mandated that such
offenders be afforded a “meaningful opportunity to obtain
release” during their lifetime:

       A State is not required to guarantee eventual
       freedom to a juvenile offender convicted of a
       nonhomicide crime. What the State must do,
       however, is give defendants like Graham some
       meaningful opportunity to obtain release based
       on demonstrated maturity and rehabilitation. . . .
       The Eighth Amendment does not foreclose the
       possibility that persons convicted of
       nonhomicide        crimes     committed     before
       adulthood will remain behind bars for life. It
       does prohibit States from making the judgment
       at the outset that those offenders never will be fit
       to reenter society.

Id. at 75; see also id. at 82 (“A State need not guarantee the
offender eventual release, but if it imposes a sentence of life it




                               14
must provide him or her with some realistic opportunity to
obtain release before the end of that term.”). It is the scope of
this mandate, which the Court reiterated in Miller, that we
consider today. See Miller, 567 U.S. at 479 (quoting Graham,
560 U.S. at 75).

C.     Miller v. Alabama

       Relying on Graham as its “foundation stone,” Miller
held that mandatory LWOP sentences for juvenile homicide
offenders violate the Eighth Amendment. Id. at 470 n.4, 479;
see also id. at 473 (“Graham’s reasoning implicates any life-
without-parole sentence imposed on a juvenile, even as its
categorical bar relates only to nonhomicide offenses.”).
Mandatory LWOP, the Court reasoned, contradicts Graham’s
and Roper’s core principle—“that imposition of a State’s most
severe penalties on juvenile offenders cannot proceed as
though they were not children”—because it prevents
sentencing judges from taking into account the juvenile’s
youth and attendant circumstances. Id. at 473-74.

         Furthermore, having found in Graham that juvenile
life sentences were analogous to capital punishment, the Court
in Miller concluded that a line of cases that requires
individualized sentencing when imposing the death penalty
also applies to mandatory LWOP for juvenile offenders. Id. at
475-76. Accordingly, a sentencing court must have the ability
to consider the “mitigating qualities of youth” because “youth
is more than a chronological fact.” Id. at 476 (citations
omitted).

       Notably, however, the Court did not categorically ban
LWOP for juvenile homicide offenders. Rather, it required
courts to conduct individualized sentencing hearings that “take




                               15
into account how children are different, and how these
differences counsel against irrevocably sentencing them to a
lifetime in prison” before imposing LWOP. Id. at 480. In
discussing the deficiencies of a scheme that treats every child
as an adult, the Court enumerated various considerations that
doubtlessly can be used to determine whether a juvenile
offender is incorrigible:

     “[C]hronological age and its hallmark features—among
      them, immaturity, impetuosity, and failure to appreciate
      risks and consequences.” Id. at 477.

     “[T]he family and home environment that surrounds
      [the juvenile offender]—and from which he cannot
      usually extricate himself—no matter how brutal or
      dysfunctional.” Id.

     “[T]he circumstances of the homicide offense,
      including the extent of his participation in the conduct
      and the way familial and peer pressures may have
      affected him.” Id.

     “[T]hat he might have been charged and convicted of a
      lesser offense if not for incompetencies associated with
      youth—for example, his inability to deal with police
      officers or prosecutors (including on a plea agreement)
      or his incapacity to assist his own attorneys.” Id. at 477-
      78.

     “[T]he possibility of rehabilitation . . . .” Id. at 478.

       The Court, however, cautioned that the bar for imposing
LWOP is high. It predicted that LWOP would “be uncommon”
and reserved only for “the rare juvenile offender whose crime




                               16
reflects irreparable corruption.” Id. at 479-80 (quoting Roper,
543 U.S. at 573). Thus, while not a categorical bar, Miller
effectively prohibits LWOP for nearly all juvenile offenders.
Only those who are permanently incorrigible may receive such
a sentence.

D.     Montgomery v. Louisiana

       Montgomery held that Miller applied retroactively on
collateral review because it announced a new substantive rule
of constitutional law:

       Even if a court considers a child’s age before
       sentencing him or her to a lifetime in prison, that
       sentence still violates the Eighth Amendment for a
       child whose crime reflects unfortunate yet
       transient immaturity. 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. As a
       result, Miller announced a substantive rule of
       constitutional law. Like other substantive rules,
       Miller is retroactive . . . .

Montgomery, 136 S. Ct. at 734 (internal quotation marks and
citations omitted).

       Montgomery also reiterated that “Miller requires a
sentencer to consider a juvenile offender’s youth and attendant
characteristics before determining that life without parole is a




                              17
proportionate sentence” and that “[a] hearing where ‘youth and
its attendant characteristics’ are considered as sentencing
factors is necessary to separate those juveniles who may be
sentenced to life without parole from those who may not.” Id.
at 734-35. Thus, after echoing Miller’s admonition that
imposition of LWOP on a juvenile homicide offender will be
“rare,” the Court made clear that “Miller drew a line between
children whose crimes reflect transient immaturity and those
rare children whose crimes reflect irreparable corruption.” Id.
at 734.

       Several state legislatures have reacted to Miller and
Montgomery by either affording juvenile homicide offenders
an early opportunity to seek parole, capping the length that a
juvenile offender may be sentenced for homicide, or both. See,
e.g., N.J. Stat. Ann. § 2C:11-3(b)(5) (requiring courts to either
sentence juvenile homicide offenders to 30 years without
parole or to make them eligible for parole after 30 years).
Conversely, Congress—which abolished parole in the federal
system5—has not enacted any legislation to date to effectuate
the Supreme Court’s holdings. Our task, therefore, is to
determine what minimum protections the Supreme Court’s
Eighth Amendment jurisprudence requires in the absence of
such congressional action.6


       5
        See Comprehensive Crime Control Act of 1984, Pub.
L. No. 98-473, § 218(a)(5), 98 Stat. 1837, 2027 (repealing 18
U.S.C. §§ 4201-4218).
       6
          Our decision today is therefore not the only
constitutionally permissible remedy to this case, as Congress
retains the prerogative to afford additional protections to
juvenile homicide offenders beyond the minimal safeguards




                               18
IV.      DE-FACTO LWOP

          Grant challenges the constitutionality of his sixty-five
  year sentence, arguing that it violates the Eighth Amendment
  under Miller because he will be released no earlier than at age
  seventy-two. Citing various life expectancy estimates, Grant
  argues that his life expectancy is also seventy-two, and that he
  is therefore likely to die in prison since decades of
  imprisonment diminish life expectancy. This case raises an
  issue of first impression for this Court: does the Eighth
  Amendment prohibit term-of-years sentences for the entire
  duration of a juvenile homicide offender’s life expectancy
  when the defendant’s “crimes reflect transient immaturity [and
  not] . . . irreparable corruption,” Montgomery, 136 S. Ct. at
  734?

         We hold that it does.7 A term-of-years sentence without
  parole that meets or exceeds the life expectancy of a juvenile


  that the Eighth Amendment provides. See Miknevich, 638 F.3d
  at 186 (“[Congress] possesses broad authority to determine the
  types and limits of punishments for crimes.”).
         7
            This holding extends to all sentencings of juvenile
  non-homicide offenders because, by definition, such offenders
  are not incorrigible. See Graham, 560 U.S. at 69 (“[W]hen
  compared to an adult murderer, a juvenile offender who did not
  kill or intend to kill has a twice diminished moral
  culpability.”). Since we hold that non-incorrigible juvenile
  homicide offenders cannot be sentenced to de facto LWOP, the
  same must be true for juvenile non-homicide offenders as well.
  See id. (“The Court has recognized that defendants who do not
  kill, intend to kill, or foresee that life will be taken are




                                19
offender who is still capable of reform is inherently
disproportionate and therefore violates the Eighth Amendment
under both Miller and Graham. We reach this conclusion for
three reasons. First, Miller reserves the sentence of LWOP
only for juvenile homicide offenders “whose crimes reflect
permanent incorrigibility.” Id. Second, the Supreme Court’s
concerns about the diminished penological justification for
LWOP sentences for juvenile offenders apply with equal
strength to de facto LWOP sentences. Third, de facto LWOP
is irreconcilable with Graham and Miller’s mandate that
sentencing judges must provide non-incorrigible juvenile
offenders with a “meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.” Graham,
560 U.S. at 75; see also Miller, 567 U.S. at 479.8

A.    Miller reserved LWOP only for “incorrigible” juvenile
      homicide offenders.

       To fully appreciate why LWOP sentences for juvenile
homicide offenders who are capable of reform violate the
Eighth Amendment, we must first consider the genesis of the
Supreme Court’s distinction between incorrigible and non-
incorrigible juveniles. Miller, like Graham and Roper, is based

categorically less deserving of the most serious forms of
punishment than are murderers.”).
      8
         Notably, at oral argument, the Government conceded
that a sentence that exceeds the life expectancy of a non-
incorrigible juvenile homicide offender violates the Eighth
Amendment. The Government contends, however, that in this
case, Grant’s life expectancy is 76.7 and that he is therefore
likely to be released before his death, consistent with Miller.




                              20
on the principle that the debilitating characteristics of youth—
namely that children have heightened immaturity, increased
vulnerability to peer pressure, and more transient identities—
make “children . . . constitutionally different from adults for
purposes of sentencing.” Miller, 567 U.S. at 471. Miller
therefore requires sentencing courts to “take into account how
children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.”
Id. at 480.

        To effectuate this constitutional principle that youth
mitigates against the imposition of the most severe
punishments on children, the Court “drew a line” between two
classes of juvenile homicide offenders. Montgomery, 136 S.
Ct. at 734. The first is non-incorrigible juvenile offenders who
are capable of reform and “whose crimes reflect transient
immaturity.” Id. (quoting Miller, 567 U.S. at 479). The second
is “rare” incorrigible juvenile offenders who have no capacity
for change and “whose crimes reflect irreparable corruption.”
Id. (quoting Miller, 567 U.S. at 479-80). Only the second class
of homicide offenders may be sentenced to LWOP. That this
distinction is of constitutional magnitude was made
incontrovertibly clear in Montgomery, where the Court held
that Miller announced a substantive rule of constitutional law
because “juvenile offenders whose crimes reflect the transient
immaturity of youth” constitute a class of defendants upon
which LWOP cannot be imposed. Id. (“Before Miller, every
juvenile convicted of a homicide offense could be sentenced to
life without parole. After Miller, it will be the rare juvenile
offender who can receive that same sentence.”). We must
therefore give effect to the Supreme Court’s pronouncement
that children who are found to have the capacity for change are
to be treated differently than those who are not.




                              21
        A sentence for a juvenile offender who is not
incorrigible but that still results in him spending the rest of his
life in prison does not appreciate the categorical differences
between children and adults and between children who are
incorrigible and those that have “diminished culpability and
greater prospects for reform.” Miller, 567 U.S. at 471.
Moreover, there is no indication that Miller’s holdings
depended on a sentence formally being designated as LWOP.
For example, the Court’s categorization of LWOP as a
particularly harsh sentence for juveniles, and even as one akin
to the death penalty, see id. at 474, did not turn on the
sentence’s formal designation.               Both punishments
“[i]mprison[] an offender until he dies” and “alters the
remainder of his life by a forfeiture that is irrevocable.” Id. at
474-75. Indeed, it would make little sense if sentencing courts
could circumvent Miller and eradicate this constitutionally
required distinction simply by imposing extraordinarily high
term-of-years sentences. Thus, a sentence that treats a non-
incorrigible juvenile offender as if he or she were an
incorrigible one is irreconcilable with Miller.

B.     The Court’s penological concerns regarding juvenile
       LWOP sentences apply with equal strength to de facto
       LWOP sentences.

        A de facto LWOP sentence for a non-incorrigible
juvenile offender also violates the Eighth Amendment because
it lacks an adequate constitutional justification to make it a
proportionate sentence. See Graham, 560 U.S. at 71 (“A
sentence lacking any legitimate penological justification is by
its nature disproportionate to the offense.”). “Miller . . . did
more than require a sentencer to consider a juvenile offender’s
youth before imposing life without parole; it established that
the penological justifications for life without parole collapse in




                                22
light of ‘the distinctive attributes of youth.’” Montgomery, 136
S. Ct. at 734 (quoting Miller, 567 U.S. at 472). Indeed, all of
the reasons provided in Graham for why traditional
penological justifications cannot validate LWOP against non-
homicide offenders, see 560 U.S. at 71-75, apply with equal
strength to non-incorrigible juvenile homicide offenders: the
impotence of deterring juveniles, the shortcomings of
retribution as a result of diminished culpability, the increased
opportunity for reform that vitiates incapacitation, and the
irreconcilable tension between LWOP sentences and
rehabilitation. These distinctive attributes are equally relevant
regardless of the crime or of the formal distinction between de
facto and de jure LWOP sentences:

       [N]one of what it said about children—about
       their distinctive (and transitory) mental traits and
       environmental        vulnerabilities—is      crime-
       specific. Those features are evident in the same
       way, and to the same degree, when . . . a botched
       robbery turns into a killing. So Graham’s
       reasoning implicates any life-without-parole
       sentence imposed on a juvenile, even as its
       categorical bar relates only to nonhomicide
       offenses.

Miller, 567 U.S. at 473; see also id. at 471 (“Our decisions
rest[] . . . on common sense—on what ‘any parent knows’
. . . .” (quoting Roper, 543 U.S. at 569)).9 Thus, without an

       9
          Incapacitation is the only conceivable penological
justification that could apply with more force to a non-
incorrigible juvenile homicide offender than to a juvenile non-
homicide offender. The logic there would be that recidivism
by the homicide offender poses an enhanced risk to public




                               23
adequate constitutional justification, de facto LWOP remains a
disproportionate sentence for a non-incorrigible juvenile
offender, rendering it unconstitutional under the Eighth
Amendment. Id. at 473 (“The characteristics of youth, and the
way they weaken rationales for punishment, can render a life-
without-parole sentence disproportionate.”); see also id. at 469
(“[T]he concept of proportionality is central to the Eighth
Amendment.” (quoting Graham, 560 U.S. at 59)).

C.     De facto LWOP violates Graham’s and Miller’s
       “meaningful opportunity to obtain release” mandate.

       For the purposes of considering whether a de facto
LWOP sentence for a non-incorrigible juvenile offender
affords him or her a “meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation,” Graham,
560 U.S. at 75, we feel it only necessary to state the obvious: a
de facto LWOP sentence cannot possibly provide a meaningful

safety than does that of a non-homicide offender. However,
Graham squarely forecloses this argument: “To justify life
without parole on the assumption that the juvenile offender
forever will be a danger to society requires the sentencer to
make a judgment that the juvenile is incorrigible.” 560 U.S. at
72. Under Miller, a judge can still make a determination that
the juvenile offender is incorrigible and sentence him to
LWOP, thereby incapacitating the offender and removing him
or her from society. Thus, a juvenile homicide offender who
is not incorrigible by definition does not pose a permanent
danger to society, making perpetual incapacitation an
inappropriate penological justification for the sentence.




                               24
opportunity for release because it relegates the juvenile
offender to spending the rest of his or her life behind prison
bars and prohibits him or her from ever reentering society. As
the Graham Court stated:

      [LWOP] forswears altogether the rehabilitative
      ideal. By denying the defendant the right to
      reenter the community, the State makes an
      irrevocable judgment about that person’s value
      and place in society. This judgment is not
      appropriate in light of a juvenile . . . offender’s
      capacity for change and limited moral
      culpability.

560 U.S. at 74. The Court’s reasoning in Graham applies to
de facto LWOP sentences with the same force as it does to de
jure ones. Like de jure LWOP, de facto LWOP is entirely
incompatible with Graham’s mandate that those juvenile
offenders capable of reform be afforded a meaningful
opportunity for release. See Moore v. Biter, 725 F.3d 1184,
1194 (9th Cir. 2013) (“[De facto LWOP] is irreconcilable
with Graham’s mandate that a juvenile nonhomicide offender
must be provided ‘some meaningful opportunity’ to reenter
society.” (quoting Graham, 560 U.S. at 75)); see also Miller,
567 U.S. at 473 (“Life without parole . . . [is] at odds with a
child’s capacity for change.”).10


      10
          As a secondary argument, the Government contends
that geriatric release under 18 U.S.C. § 3582(c)(1)(A)(ii)—
which Grant could be eligible for when he reaches 70—
satisfies Graham’s requirement of meaningful opportunity for
release.




                              25
D.     The Decisions of Other Circuits

       Our holding that Miller and its antecedents prohibit
sentencing non-incorrigible juvenile offenders to term-of-
years sentences that meet or exceed their life expectancy has
also been adopted by a plurality of our sister circuits. Notably,
in McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016), Judge
Posner applied the logic of Miller to vacate a 100-year sentence
imposed on a non-incorrigible juvenile offender, reasoning that
the District Court “did not consider the Supreme Court’s
‘children are different’ statement in Miller,” and that:

        [I]t is such a long term of years (especially given
       the unavailability of early release) as to be—
       unless there is a radical increase, at present
       unforeseeable, in longevity within the next 100
       years—a de facto life sentence, and so the logic
       of Miller applies. . . .

       [T]he “children are different” passage . . . from
       Miller v. Alabama cannot logically be limited to
       de jure life sentences, as distinct from sentences
       denominated in numbers of years yet highly
       likely to result in imprisonment for life.


       It does not. A decision under this provision is entirely
discretionary with the Bureau of Prisons and does not assure,
subject to judicial review, consideration of youth and attendant
circumstances. See 18 U.S.C. § 3582(c)(1)(A) (“[T]he court,
upon motion of the Director of the Bureau of Prisons, may
reduce the term of imprisonment . . . .” (emphasis added)).




                               26
Id. at 911.

        Similarly, in Moore, the Ninth Circuit reviewed under
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, the
California Court of Appeal’s decision that Graham did not
apply to a 254-year sentence for multiple crimes on the basis
that it was a term-of-years sentence.11 725 F.3d at 1187. The


       11
         The Ninth Circuit’s review of the California Court of
Appeal’s decision—i.e., that of an intermediate state court—
arose from litigation over Moore’s federal habeas petition:

       Moore filed pro se state habeas petitions in the
       Los Angeles County Superior Court, the
       California Court of Appeal, and the California
       Supreme Court, arguing that his sentence was
       unconstitutional    under Graham. The       Los
       Angeles County Superior Court summarily
       denied Moore’s petition. The California Court of
       Appeal held that Graham does not apply to
       Moore’s sentence. The California Supreme
       Court summarily denied review.

       On May 10, 2011, Moore filed a timely federal
       habeas petition. The district court summarily
       dismissed Moore’s federal petition on the ground
       that Moore had not exhausted his available state
       remedies. . . .

       Moore timely filed a notice of appeal and applied
       for a certificate of appealability.




                              27
Ninth Circuit held that the state court’s failure to apply
Graham was “contrary to . . . clearly established Federal law,”
id. at 1186 (quoting 28 U.S.C. § 2254(d)(1)), because (1)
“Graham’s focus was not on the label of a ‘life sentence,’” id.
at 1192; (2) both LWOP and de facto LWOP “deny the juvenile
the chance to return to society,” id.; and (3) the sentence “is
irreconcilable with Graham’s mandate that a juvenile
nonhomicide offender must be provided ‘some meaningful
opportunity’ to reenter society,” id. at 1194 (quoting Graham,
560 U.S. at 75).

        Moreover, in Budder v. Addison, 851 F.3d 1047 (10th
Cir. 2017), the Tenth Circuit held, also on AEDPA review, that
a sentence of 155 years violated the Eighth Amendment under
Graham. Id. at 1053 n.4 (“Graham addressed any sentence
that would deny a juvenile nonhomicide offender a realistic
opportunity to obtain release, regardless of the label a state
places on that sentence.”). It reasoned that Graham created a
categorical rule, which a state cannot escape “merely because
[it] does not label this punishment as ‘life without parole.’” Id.
at 1056.

       The Eighth Circuit is the only federal court of appeals
to date to hold otherwise. In United States v. Jefferson, 816
F.3d 1016 (8th Cir. 2016), the Eighth Circuit determined that
Miller did not apply to de facto life sentences because “[t]he
Court in Miller did not hold that the Eighth Amendment
categorically prohibits imposing a sentence of life without
parole on a juvenile offender.” Id. at 1018-19. But Jefferson
misses the point of Graham and Miller: a juvenile homicide
offender may be sentenced to LWOP only if he or she is

Moore, 725 F.3d at 1187.




                               28
 determined to be incorrigible at sentencing, otherwise the State
 “must provide him or her with some realistic opportunity to
 obtain release before the end of that term.” Graham, 560 U.S.
 at 82 (emphasis added); see also Miller, 567 U.S. at 479. That
 Miller did not categorically prohibit LWOP altogether does not
 mean that it permits de facto LWOP sentences for juvenile
 offenders who are not incorrigible. We therefore decline to
 follow Jefferson.

        The weight of authority supports our conclusion that the
 Eighth Amendment prohibits de facto LWOP sentences for
 juvenile offenders that are not incorrigible. Here, the District
 Court found that Grant is capable of reform, and that
 determination is not before us on appeal. Under Miller and our
 holding today, the District Court’s finding therefore
 categorically forecloses a sentence of LWOP, whether de jure
 or de facto, and requires the District Court to sentence Grant in
 a manner that allows for “some meaningful opportunity to
 obtain release based on demonstrated maturity and
 rehabilitation.” Graham, 560 U.S. at 75; see also Miller, 567
 U.S. at 479. We will therefore vacate Grant’s sentences as to
 Counts 1 and 2, and remand to the District Court for further
 proceedings consistent with this opinion.

V.      JUVENILE SENTENCING AND MEANINGFUL
        OPPORTUNITY FOR RELEASE

        Having held that a term-of-years sentence that meets or
 exceeds the life-expectancy of a non-incorrigible juvenile
 offender violates the Eighth Amendment, we must now
 consider the contours of the offender’s right to a meaningful
 opportunity for release. See Graham, 560 U.S. at 75; see also
 Miller, 567 U.S. at 479. Grant contends that his sentence does
 not afford him such an opportunity. Relying on various




                                29
mortality estimates and social scientific studies, he argues that
the District Court determined him to be capable of reform, but
that he was nonetheless still sentenced to a term-of-years that
allows release only when he is seventy-two, the same age as
his estimated life expectancy.12 Even if his life expectancy
exceeds his sentence by some years, he contends that a
meaningful opportunity for release must afford him an
opportunity for “[p]ersonal [f]ulfillment,” which release at age
seventy-two does not provide. Appellant Reply Br. at 1.

       The Government disagrees. It contends that seventy-
two is Grant’s life expectancy measured from birth, but that his
life expectancy measured from his current age of forty-four is
actually 76.7 years. Grant’s sentence is constitutional, the
Government argues, because he should live 4.7 years past his
release at age seventy-two. Thus, in the Government’s
estimation, Grant’s sentence sufficiently provides for “hope for
some years of life outside prison walls,” which is all that
Graham and Miller require. Government Br. at 29 (emphasis
omitted) (quoting Montgomery, 136 S. Ct. at 737).

        To determine what constitutes a meaningful opportunity
for release, we look to the Supreme Court’s original diagnosis
of the constitutional infirmity that plagues juvenile LWOP.
See Casey v. Planned Parenthood of Se. Pa., 14 F.3d 848, 857
(3d Cir. 1994) (“We must look to the language of the Supreme
Court’s opinion to see what it intend[s] . . . .”). In holding that
juvenile LWOP is not an appropriate sentence in light of an
offender’s capacity for change and limited culpability, the


       12
         Grant’s expected age of release accounts for good
time credit. See 18 U.S.C. § 3624(b)(1).




                                30
Court viewed the problem with the punishment as more
profound than just denial of release:

       [A] categorical rule [barring LWOP] gives all
       juvenile nonhomicide offenders a chance to
       demonstrate maturity and reform. The juvenile
       should not be deprived of the opportunity to
       achieve maturity of judgment and self-
       recognition of human worth and potential. . . .
       Life in prison without the possibility of parole
       gives no chance for fulfillment outside prison
       walls, no chance for reconciliation with society,
       no hope.

Graham, 560 U.S. at 79; see also id. at 69-70 (“[LWOP]
deprives the convict of . . . hope of restoration”); id. at 73 (“A
life without parole sentence improperly denies the juvenile
offender a chance to demonstrate growth and maturity.”). This
passage conveys the essence of what a “meaningful
opportunity for release” is: a non-incorrigible juvenile offender
must be afforded an opportunity for release at a point in his or
her life that still affords “fulfillment outside prison walls,”
“reconciliation with society,” “hope,” and “the opportunity to
achieve maturity of judgment and self-recognition of human
worth and potential.” Id. at 79. That is, the mandate
encompasses more than mere physical release at a point just
before a juvenile offender’s life is expected to end.

       The contours of the requirement are also informed by
the Court’s concern that “defendants serving life without
parole sentences are often denied access to vocational training
and other rehabilitative services that are available to other
inmates.” Id. at 74; see also id. at 79 (“[I]t is the policy in some
prisons to withhold counseling, education, and rehabilitation




                                31
programs for those who are ineligible for parole
consideration.”). This view illustrates the Court’s belief that—
in order to afford “hope” and a chance for “fulfillment outside
prison walls,” “reconciliation with society,” and “self-
recognition of human worth and potential,” consistent with the
Eighth Amendment, id. at 79—the State must give non-
incorrigible juvenile offenders the opportunity to meaningfully
reenter society upon their release.13 See id. at 75 (“[The Eighth
Amendment] prohibit[s] States from making the judgment at
the outset that those offenders never will be fit to reenter
society.”); see also id. at 74 (stating that it is “not appropriate”
for sentencing courts to “deny[] the [non-incorrigible juvenile]
defendant the right to reenter the community” in light of his or
her “capacity for change and limited moral culpability”
(emphasis added)).

       We must therefore effectuate the Court’s mandate and
adopt a broader conception of what constitutes a “meaningful
opportunity for release” than what the Government puts forth.
The Government’s “hope for some years outside prison walls”
standard is too narrow in light of the Court’s statements that
the Eighth Amendment requires mitigating the pernicious long
term effects that LWOP has on juvenile offenders who still
have the capacity to reform. However, we agree with the
Government that the Supreme Court has not gone as far as to
say that juvenile offenders must be afforded a right to a

       13
          This same concern—lack of vocational training—
also animated the Court to adopt a categorical rule in Graham,
rather than a case-by-case approach, in order to “avoid[] the
perverse consequence in which the lack of maturity that led to
an offender’s crime is reinforced by the prison term.” Graham,
560 U.S. at 79.




                                32
“meaningful life” after prison—in fact, neither Miller nor
Graham even guarantees that a juvenile offender will ever be
released from prison during his or her lifetime. Graham, 560
U.S. at 75; see also Miller, 567 U.S. at 479.

        With this in mind, we elect to fashion a principled legal
framework that carries out the Supreme Court’s holdings but
goes no further. We do so for three reasons. First, as always,
we are “bound to follow the mandate of the Supreme Court as
embodied in its opinion.” Casey, 14 F.3d at 859. Second,
“juvenile offenders whose crimes reflect the transient
immaturity of youth” are now a constitutionally recognized
class of defendants that are afforded a right to a meaningful
opportunity for release. Montgomery, 136 S. Ct. at 734. The
distinction between incorrigible and non-incorrigible juvenile
homicide offenders is undoubtedly substantive, and we must
therefore take great precautions to ensure that courts properly
account for this feature once they have determined that a
juvenile offender is capable of reform. See id. (“Miller
announced a substantive rule of constitutional law.”). And
third, by providing principled guidance to lower courts on how
to effectuate the Court’s meaningful opportunity for release
mandate, we “ensure[] ‘careful observation of [the] allocation
of authority’ established by the three-tier system of federal
courts which ‘is necessary for a properly functioning
judiciary.’” Casey, 14 F.3d at 857 (first alteration added)
(quoting Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506,
1508 (11th Cir. 1987)). Accordingly, for all of these reasons,
we resolve to provide such guidance in order to fulfill our
judicial responsibility to give life to the minimum
constitutional protections that the Supreme Court has found the
Eighth Amendment requires.




                               33
       To begin, a sentencing process that effectuates both our
holding that de facto LWOP for non-incorrigible juvenile
offenders violates the Eighth Amendment and a meaningful
opportunity for release must start with a factual determination
of the juvenile offender’s life expectancy. We shall require
sentencing courts to make this determination so that a juvenile
offender who is capable of reform is not sentenced to a term-
of-years beyond his or her expected mortality. Additionally,
the juvenile offender’s life expectancy provides an informed
estimate that allows sentencing courts to calculate the amount
of time that he or she will have to reenter society after an
opportunity for release.

       How, then, does one measure life expectancy? One
source could be actuarial tables or life expectancy data. In
addition to accounting for gender, life expectancy tables can
“focus more granularly on numerous other distinctions that
impact the life expectancy of a particular individual, such as
race, income, geography, education, family history, medical
history, and other factors.” United States v. Mathurin, 868
F.3d 921, 932 (11th Cir. 2017). But reliance solely on life
expectancy tables is problematic. In Mathurin, the Eleventh
Circuit identified the serious constitutional issues that relying
on such data can raise:

       [This] approach does raise some questions,
       including whether it would be constitutional to
       rely on a person’s race in determining how long
       a sentence to impose on that individual. By
       Defendant’s reasoning, and based on the
       mortality table he cited in the district court,
       Hispanics should receive longer sentences than
       either whites or blacks solely because they
       generally live longer, and Hispanic females




                               34
       should receive the longest sentences of all due to
       their longer average life expectancy. . . .

       Further, mortality tables shed no light on
       whether it is one’s membership in a certain racial
       or ethnic population that, as a biological matter,
       determines life expectancy or whether instead it
       is the social, economic, medical, and cultural
       factors associated with a particular ethnic
       identity that primarily determine how long an
       individual can be expected to live.

Id. (citations omitted). These concerns are not confined to the
context of race, either. By virtue of having a longer life
expectancy based on an actuarial table, women would be
sentenced to longer prison terms than men, the richer longer
than the poorer, and the well-educated longer than the lesser
educated, to name a few. We therefore decline to advise that
life expectancy be measured based solely on actuarial tables
alone. See O’Toole v. United States, 242 F.2d 308, 309 (3d
Cir. 1957) (“[L]ife tables are a guide, not a formula which a
judge . . . is compelled to apply.”).

       Rather, to avoid the aforementioned constitutional
problems, we hold that a sentencing judge must conduct an
individualized evidentiary hearing to determine the non-
incorrigible juvenile homicide offender’s life expectancy
before sentencing him or her to a term-of-years sentence that
runs the risk of meeting or exceeding his or her mortality. Such
hearings are already a familiar exercise for lower courts, which
routinely measure life expectancy in various tort, contract, and
employment disputes. See, e.g., Anastasio v. Schering Corp.,
838 F.2d 701, 709 (3d Cir. 1988) (“A claimant’s work and life
expectancy are pertinent factors in calculating front pay, just




                              35
as they are in assessing damages for future loss of earnings in
breach of employment contract and personal injury cases.”).
Critically, in addition to actuarial tables, lower courts should
consider any evidence made available by the parties that bears
on the offender’s mortality, such as medical examinations,
medical records, family medical history, and pertinent expert
testimony. Our foregoing constitutional concerns are dispelled
by consideration of such evidence at an individualized hearing,
which affords lower courts substantial discretion to “make an
individualized assessment based on the facts presented,” Gall
v. United States, 552 U.S. 38, 50 (2007), so that “the
punishment . . . fit[s] the offender and not merely the crime,”
Pepper v. United States, 562 U.S. 476, 487-88 (2011) (quoting
Williams v. People of State of N.Y., 337 U.S. 241, 247 (1949)).

        Once a non-incorrigible juvenile offender’s life
expectancy has been determined, the next step is for a
sentencing court to shape a sentence that properly accounts for
a meaningful opportunity for release. As discussed, a
“meaningful opportunity for release” must provide for “hope”
and a chance for “fulfillment outside prison walls,”
“reconciliation with society,” and “the opportunity to achieve
maturity of judgment and self-recognition of human worth and
potential.” Graham, 560 U.S. at 79. This mandate, therefore,
raises a challenging question for this Court: at what age is one
still able to meaningfully reenter society after release from
prison? Is there a principled reason for why, say, a juvenile
offender can properly reenter society at age fifty but not at age
sixty? At age sixty but not at age seventy? We believe not.
Unlike in Roper, where the Supreme Court relied on scientific
and social scientific scholarship to proscribe the death penalty
for anyone who commits a crime before the age of eighteen,
see 543 U.S. at 569-70, we are not aware of any widely




                               36
accepted studies to support such precise line drawing on a
principled basis in the prison release context.

        However, what is clear is that society accepts the age of
retirement as a transitional life stage where an individual
permanently leaves the work force after having contributed to
society over the course of his or her working life. See, e.g.,
Retirement, BLACK’S LAW DICTIONARY (10th ed. 2014)
(“Termination of one’s own employment or career, esp. upon
reaching a certain age . . . .”). It is indisputable that retirement
is widely acknowledged as an earned inflection point in one’s
life, marking the simultaneous end of a career that contributed
to society in some capacity and the birth of an opportunity for
the retiree to attend to other endeavors in life.

        As we stated above, a non-incorrigible juvenile offender
is not guaranteed an opportunity to live a meaningful life, and
certainly not to a meaningful retirement. Nevertheless, in order
to effectuate the Eighth Amendment’s requirement of
meaningful opportunity for release, a juvenile offender that is
found to be capable of reform should presumptively be
afforded an opportunity for release at some point before the age
of retirement. Cf. Graham, 560 U.S. at 58 (“To determine
whether a punishment is cruel and unusual, courts must look
beyond historical conceptions to the evolving standards of
decency that mark the progress of a maturing society.”
(internal quotation marks omitted) (quoting Estelle, 429 U.S.
at 102)). A sentence that preserves the juvenile offender’s
opportunity to contribute productively to society inherently
provides him or her with “hope” to “reconcil[e] with society”
and achieve “fulfillment outside prison walls.” Id. at 79. It
also accounts for the Court’s trepidation that LWOP sentences
deprive non-incorrigible juvenile offenders of vocational
training opportunities, which presumably otherwise prepare




                                37
them to become productive members of society’s working
class. See id. at 74.

       Accordingly, lower courts must consider the age of
retirement as a sentencing factor, in addition to life expectancy
and the § 3553(a) factors, when sentencing juvenile offenders
that are found to be capable of reform. Critically, under all
circumstances, lower courts must only consider the uniform
national age of retirement. Otherwise, estimates of retirement
ages that account for locality, state, gender, race, wealth or
other differentiating characteristics raise similar constitutional
concerns to those plagued by reliance on life-expectancy tables
alone. Without fixing the age of retirement to a uniform
standard, classes of juvenile defendants that retire on average
later in life would unreasonably be subjected to longer
sentences. Cf. Mathurin, 868 F.3d at 932 (sentencing juveniles
based solely on mortality tables “would unquestionably lead to
challenges from defendants from longer-living ethnic groups
who would be subject to longer sentences based on that
ethnicity”).

       We cannot say with certainty what the precise national
age of retirement is, as it is a figure that incrementally
fluctuates over time. The Social Security Administration
(“SSA”) provides for early retirement at age sixty-two and—
for people born after 1960—for full retirement at age sixty-
seven. See 20 C.F.R. § 404.409. Over half of Americans that
retired in 2016 did so early and before their full retirement
age.14 A series of polls conducted by Gallup News since April

       14
          The SSA reported that 1,647,370 of the 2,910,752
Americans who claimed Social Security retirement benefits
had their benefits reduced for early retirement. See SOC. SEC.
ADMIN., ANNUAL STATISTICAL SUPPLEMENT 2017, TABLE




                               38
2014 have indicated sixty-two, sixty-five, and sixty-six as
either the mean or median ages of retirement or expected ages
of retirement.15 Yet another study concluded that the average
age of retirement is sixty-four for men and sixty-two for
women. See ALICIA H. MUNNELL, CTR. FOR RET. RESEARCH
AT BOS. COLL., The Average Age of Retirement: An Update
(2015). Thus, by all accounts, the national age of retirement to
date is between sixty-two and sixty-seven inclusive.

       However, the age of sixty-five appears to be the
commonly accepted age of retirement in the national
conscience. It was set as the original normal retirement age
when the Social Security Act was enacted in 1935, and remains
one of the most—if not the most—frequent ages of retirement.
See Social Security Act of 1935, Pub. L. No. 74-271, § 210(c),

6.B3, NUMBER AND PERCENTAGE DISTRIBUTION WITH AND
WITHOUT REDUCTION FOR EARLY RETIREMENT, BY SEX
AND MONTHLY BENEFIT, 2016 (2017).

       15
           Lydia Saad, Three in 10 U.S. Workers Foresee
Working Past Retirement Age, Gallup News (May 13, 2016),
http://news.gallup.com/poll/191477/three-workers-foresee-
working-past-retirement-age.aspx; Rebecca Rifkin, Americans
Settling on Older Retirement Age, Gallup News (Apr. 29,
2015),          http://news.gallup.com/poll/182939/americans-
settling-older-retirement-age.aspx; Rebecca Rifkin, Average
U.S. Retirement Age Rises to 62, Gallup News (Apr. 28, 2014),
http://news.gallup.com/poll/168707/average-retirement-
agerises.aspx?g_source=position5&g_medium=related%20&
g_%20 campaign=tiles.




                              39
49 Stat. 620 (defining “qualified individual” for Social
Security purposes in part as “any individual with respect to
whom . . . is at least sixty-five years of age”); id. § 202(a)
(authorizing “qualified individual[s]” to receive Social
Security payments “on the date [they] attain[] the age of sixty-
five”).16 Today, pension plans must begin to distribute benefits
by age sixty-five to qualify for various significant tax benefits,
see 26 U.S.C. § 401(a)(14)(A), and the Employment
Retirement Security Act defines the term “normal retirement
age” in part as “the time a plan participant attains age 65,” 29
U.S.C. § 1002(24); see also 26 U.S.C. § 411(a)(8)(B)(i)
(same); 26 C.F.R. § 1.411(a)-7(b)(ii)(A) (same). 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



       16
           See also Norma B. Coe et. al., Sticky Ages: Why Is
Age 65 Still a Retirement Peak? (Ctr. for Ret. Research at Bos.
Coll., Working Paper No. 2013-2, 2013) (explaining why
retirees commonly elect to retire at age sixty-five even after
SSA increased full retirement age to sixty-six); Wojciech
Kopczuk & Jae Song, Stylized Facts and Incentive Effects
Related to Claiming of Retirement Benefits Based on Social
Security Administration Data 14 (Univ. of Mich. Ret. Research
Ctr., Working Paper No. 2008-200, 2008) (concluding from
SSA administrative data that “retiring around [one’s] 65th
birthday has intrinsic value to individuals”); id. at 13 (“It is
clear that following the increase in the full retirement age, the
number of retirements at the 65th birthday remains elevated
. . . .”).




                               40
remain free to consider evidence of the evolving nature of this
estimate.

        We do not, however, categorically foreclose the
possibility that a district judge may sentence a non-incorrigible
juvenile offender beyond the national age of retirement, subject
to the § 3553(a) factors. A sentencing judge has “greater
familiarity with . . . the individual case and the individual
defendant before him than the . . . appeals court.” Kimbrough
v. United States, 552 U.S. 85, 109 (2007) (quoting Rita v.
United States, 551 U.S. 338, 357-58 (2007)). “He is therefore
‘in a superior position to find facts and judge their import under
§ 3553(a)’ in each particular case.” Id. (quoting Gall, 552 U.S.
at 51); see also United States v. Booker, 543 U.S. 220, 233
(2005) (“We have never doubted the authority of a judge to
exercise broad discretion in imposing a sentence within a
statutory range.”). In light of the fact that Miller did not
categorically bar a sentencing court from imposing LWOP on
juvenile homicide offenders to begin with, we believe that it
would be inappropriate to restrict a district court’s discretion
to fashion an appropriate term-of-years sentence in the
alternative.

        We therefore adopt only a rebuttable presumption that a
non-incorrigible juvenile offender should be afforded an
opportunity for release before the national age of retirement,
not a hard and fast rule. While we believe that this presumption
is necessary to give life to the Supreme Court’s holdings in
Graham and Miller, it also affords lower courts the discretion
to depart from it in the exceptional circumstances where a
juvenile offender is found to be capable of reform but the
§ 3553(a) factors still favor a sentence beyond the national age
of retirement. We believe that such instances will be rare and
unusual, and that, even then, a term-of-years sentence cannot




                               41
meet or exceed the juvenile offender’s life expectancy.
However, given the “discrete institutional strengths” of district
courts to provide for individualized sentencing, Kimbrough,
552 U.S. at 109, we see no reason why they should not retain
such discretion in the juvenile context, so long as their
departure is consistent with Miller’s Eighth Amendment
guarantee for a meaningful opportunity for release.17

        To summarize, we hold that: (1) a sentence that either
meets or exceeds a non-incorrigible juvenile offender’s life
expectancy violates the Eighth Amendment; (2) courts must
hold evidentiary hearings to determine the non-incorrigible
juvenile homicide offender’s life expectancy before sentencing
him or her to a term-of-years that may meet or exceed his or
her expected mortality; and (3) when sentencing the juvenile
homicide offender, a court must consider as sentencing factors
his or her life expectancy and the national age of retirement, in
addition to the § 3553(a) factors, to properly structure a
meaningful opportunity for release. A non-incorrigible
juvenile offender should presumptively be sentenced below the
national age of retirement, unless the remaining sentencing

       17
          However, as with all sentences, district courts are
required to take into account the “overarching provision” of
§ 3553(a), which compels them to “‘impose a sentence
sufficient, but not greater than necessary,’ to accomplish the
goals of sentencing.” Kimbrough, 552 U.S. at 101 (quoting 18
U.S.C. § 3553(a)); see also United States v. Olhovsky, 562 F.3d
530, 552 (3d Cir. 2009) (“The ‘overarching principle’ of
parsimony that Congress included in § 3553 directs the courts
to impose a sentence ‘sufficient, but not greater than necessary,
to comply with the purposes set forth in [§ 3553(a)].’” (quoting
18 U.S.C. § 3553(a))).




                               42
  factors strongly mitigate against doing so. Sentencing judges
  therefore retain the discretion to sentence incorrigible juvenile
  offenders to LWOP and non-incorrigible ones to a term-of-
  years beyond the national age of retirement but below life
  expectancy, although we believe that either of these
  circumstances will be rare and exceptional.18

         Our decision today effectuates Miller and its
  antecedents—as we are required to do—which provide that
  non-incorrigible juvenile offenders must be afforded a
  meaningful opportunity for “fulfillment outside prison walls,”
  “reconciliation with society,” “hope,” and the “opportunity to
  achieve maturity of judgment and self-recognition of human
  worth and potential.” Graham, 560 U.S. at 79. We will vacate
  Grant’s sixty-year sentences for the RICO conspiracy and
  racketeering convictions, and remand to the District Court to
  resentence Grant consistent with this opinion.19

VI.      SENTENCING PACKAGE DOCTRINE

         Separately, Grant argues that the sentencing package
  doctrine requires vacatur of his forty-year concurrent sentence




         18
             Nothing in our opinion today disturbs a district
  court’s ability to determine in the first instance that a juvenile
  is incorrigible and therefore eligible for LWOP under Miller.
         19
           Because we vacate for the aforementioned reasons,
  we need not consider Grant’s alternative contention that the
  District Court did not adequately consider his youth and
  attendant circumstances.




                                 43
for the drug convictions and the five-year consecutive sentence
for the gun offense. That doctrine states:

      [W]hen a defendant is found guilty on a
      multicount indictment, there is a strong
      likelihood that the district court will craft a
      disposition in which the sentences on the various
      counts form part of an overall plan. When a
      conviction on one or more of the component
      counts is vacated, common sense dictates that the
      judge should be free to review the efficacy of
      what remains in light of the original plan, and to
      reconstruct the sentencing architecture upon
      remand . . . if that appears necessary in order to
      ensure that the punishment still fits both crime
      and criminal.

United States v. Miller, 594 F.3d 172, 180 (3d Cir. 2010)
(alteration in original) (quoting United States v. Davis, 112
F.3d 118, 122 (3d Cir. 1997)); see also id. at 181-82 (“When a
conviction on one or more interdependent counts is vacated on
appeal, the resentencing proceeding conducted on remand is de
novo unless we specifically limit the district court’s
authority.”). This argument is before us on plain error review
because defense counsel did not explicitly raise the sentencing
package doctrine below, a point which Grant concedes.20

      20
         Grant argues that de novo review should nonetheless
apply because defense counsel repeatedly argued below that all
of the sentences across the multiple counts were “all part and
parcel of one sentence [of life without parole].” Appellant
Reply Br. at 22 (quoting A40). Grant relies on Brennan v.
Norton for the proposition that the “crucial question regarding
waiver is whether [Grant] presented the argument with




                              44
sufficient specificity to alert the district court.” 350 F.3d 399,
418 (3d Cir. 2003) (quoting Keenan v. City of Phila., 983 F.2d
459, 471 (3d Cir. 1993)).

        The sentencing package doctrine, however, has been
applied in our precedential opinions only to vacated
convictions—not vacated sentences—because “[w]hen a
conviction on one or more of the component counts is vacated,
common sense dictates that the judge should be free to review
the efficacy of what remains in light of the original plan . . . in
order to ensure that the punishment still fits both crime and
criminal.” Miller, 594 F.3d at 180 (quoting Davis, 112 F.3d at
122). Grant’s request that the District Court resentence him de
novo in light of his vacated sentences did not invoke the
doctrine because the “crime and criminal” remained
unchanged given that his underlying convictions were still
intact. He also did not contend to the District Court that the
doctrine should be extended to vacated sentences.

       Grant therefore failed to adequately raise his sentencing
package argument before the District Court, and this issue is
not preserved. See Doe v. Mercy Catholic Med. Ctr., 850 F.3d
545, 558 (3d Cir. 2017) (“Theories not raised squarely [before
the district court] cannot be surfaced for the first time on
appeal.”); United States v. Joseph, 730 F.3d 336, 337 (3d Cir.
2013) (“We hold that for parties to preserve an argument for
appeal, they must have raised the same argument in the District
Court—merely raising an issue that encompasses the appellate
argument is not enough.”); United States v. Dupree, 617 F.3d
724, 728 (3d Cir. 2010) (“[V]ague allusion[s] to an issue will
not suffice to preserve it for appeal[.]” (first and second




                                45
United States v. Price, 458 F.3d 202, 206 (3d Cir. 2006) (“We
apply plain error review when an issue was not brought to the
attention of the district court.”); see Appellant Reply Br. at 22
(“[C]ounsel did not use the magic words ‘sentencing package
doctrine’ . . . .”).

         Grant’s sentencing package contention fails on plain
error review. The sentencing package doctrine provides a basis
for a de novo resentencing when “a conviction on one or more
interdependent counts is vacated.” Miller, 594 F.3d at 181-82
(emphasis added); see also Dean v. United States, 137 S. Ct.
1170, 1176 (2017) (explaining that sentencing package cases
“typically involve . . . a successful attack by a defendant on
some but not all of the counts of conviction.” (quoting
Greenlaw v. United States, 554 U.S. 237, 253 (2008))). Here,
all of Grant’s convictions were affirmed on direct review, and
the sentencing package doctrine, as we have previously defined
it, is therefore inapplicable. Whether the doctrine should also
apply to vacated sentences raises a substantial question that
merits further consideration.21 See United States v. Catrell,

alterations added) (quoting In re Ins. Brokerage Antitrust
Litig., 579 F.3d 241, 262 (3d Cir. 2009))).
       21
         Grant incorrectly contends that our precedent already
dictates that the sentencing package doctrine applies to
instances where a sentence alone is vacated. Two of the three
cases that he relies on—United States v. Fumo, 513 F. App’x.
215 (3d Cir. 2013), and United States v. Brown, 385 F. App’x.
147 (3d Cir. 2010)—are not precedential, and as such, are of
no effect. See Internal Operating Procedures of the United
States Court of Appeals for the Third Circuit, 5.7 (January
2017) (“The court by tradition does not cite to its not
precedential opinions as authority.”). The third case, United




                               46
   774 F.3d 666, 670 (10th Cir. 2014) (applying sentencing
   package doctrine to vacated sentence). However, we decline
   to reach that issue today because Grant did not adequately
   preserve it, see supra note 20, and it is therefore not properly
   before us. See United States v. Dupree, 617 F.3d 724, 727 (3d
   Cir. 2010) (“[A]rguments not raised in the district courts are
   waived on appeal.”). The alleged error that Grant identifies is
   not plain, and his sentences on the drug and gun possession
   convictions remain unchanged.22

VII.      CONCLUSION

          For the aforementioned reasons, we will vacate Grant’s
   sentences as to his RICO conspiracy and racketeering
   convictions (Counts 1 and 2). We will also vacate Grant’s
   sentence for drug conspiracy (Count 4) so that the District
   Court may correct its inadvertent sentencing error and reinstate
   the original forty-year concurrent sentence for this conviction.
   This case is remanded to the District Court to resentence Grant
   consistent with this opinion.



   States v. Guevremont, 829 F.2d 423 (3d Cir. 1987), does not
   explicitly invoke the doctrine. Furthermore, we adopted the
   sentencing package doctrine in 1997, ten years after
   Guevremont was decided. See Davis, 112 F.3d at 122; see also
   Miller, 594 F.3d at 180 (“In Davis, we endorsed the
   ‘sentencing package doctrine’ . . . .”).
          22
             We do, however, exempt Grant’s sentence to Count 4
   from this holding. As discussed above, supra note 3, we will
   vacate this sentence for the sole purpose of allowing the
   District Court to correct its inadvertent sentencing error.




                                 47
United States v. Grant, No. 16-3820, concurring in part and
dissenting in part.

COWEN, Circuit Judge.

        I join in full Parts III through V of the majority. I
completely agree with the majority’s approach to the
challenging yet critical issues that this appeal raises with
respect to the Eighth Amendment and juvenile sentencing and
that we must vacate Grant’s sixty-year sentences as to Counts
1 and 2. Furthermore, the sixty-year sentence imposed on
Count 4 constituted an inadvertent error and must be vacated.
However, I cannot join Part VI of the majority opinion. In
short, Grant raised with sufficient specificity the argument
that the sentencing package doctrine applied in this case, and
the District Court thereby committed reversible error by
failing to apply this doctrine. Accordingly, I would vacate all
of the sentences imposed by the District Court and remand for
resentencing de novo on Counts 4, 5, 6, and 11 as well as on
Counts 1 and 2.

      As the majority notes, the sentencing package doctrine
generally states:

      “[W]hen a defendant is found guilty on a
      multicount indictment, there is a strong
      likelihood that the district court will craft a
      disposition in which the sentences on the
      various counts form part of an overall plan.
      When a conviction on one or more of the
      component counts is vacated, common sense
      dictates that the judge should be free to review
      the efficacy of what remains in light of the
      original plan, and to reconstruct the sentencing




                              1
       architecture upon remand . . . if that appears
       necessary in order to ensure that the punishment
       still fits both crime and criminal.

(Maj. Op. at 43-44 (quoting United States v. Miller, 594 F.3d
172, 180 (3d Cir. 2010)).) “When a conviction on one or
more interdependent counts is vacated on appeal, the
resentencing proceeding conducted on remand is de novo
unless we specifically limit the district court’s authority.”
Miller, 594 F.3d at 181-82. It appears uncontested that this
doctrine applies in the § 2255 context. See, e.g., United
States v. Davis, 112 F.3d 118, 120-24 (3d Cir. 1997).

        While the majority relies on the plain error standard of
review, I believe that Grant adequately preserved his
argument regarding the applicability of the sentencing
package doctrine. Although (at least in retrospect) Grant
should have explicitly referred to the doctrine, there is no
“magic words” requirement for deciding whether a party has
sufficiently raised a particular theory or argument. Instead,
“the ‘crucial question regarding waiver is whether [Grant]
presented the argument with sufficient specificity to alert the
district court.’” (Id. at 44 n.20 (quoting Brennan v. Norton,
350 F.3d 399, 418 (3d Cir. 2003)).) Grant clearly argued that
the District Court was required to resentence de novo on all
counts. At the resentencing hearing ordered by the District
Court, his attorney’s statements implicated the basic notion of
a single sentencing “package” by characterizing the
individual sentences as “part and parcel” of one overall
sentence:

       [T]his was all part and parcel of one sentence. I
       don’t think anybody looked upon this as
       somehow a breakdown of you got 40 on this,




                               2
      you got 40 on that and five on that. This was a
      life sentence” (A40); “[I]t is really part and
      parcel of the entire sentence that was imposed
      here, Judge. [To now say] you really got this
      40, and you got this five, I mean really is not
      the spirit of Miller” (A43); “If you parcel out
      the 40 at this time, Judge, is not really
      consistent with what Judge Ackerman was
      doing. Ackerman knew, Judge Ackerman that
      he was giving him life without parole. So, I
      mean, to say now that, well, this part should
      stand, I mean, it is not really consistent with
      what the sentence was. The sentence was life
      without parole. I submit to your Honor that
      really what we are here for today is a new
      sentencing hearing” (A44); “[I]t should be clear
      that really it is a whole new sentencing.
      Everything was part and parcel of imposing a
      sentence that the Court thought was the correct
      sentence” (A85).

I do not believe that anything more was required to raise the
sentencing package doctrine (after all, it is Grant’s position
that the doctrine clearly applies where a sentence is vacated
and not merely where the underlying conviction is vacated,
and, as I explain below, I agree with Grant). In fact, the
District Court told defense counsel that “I understand your
point.” (A42.) “You are saying that I should look at this as
one cohesive sentence of life and treat it that way in
determining what is an appropriate total sentence.” (Id.) “So
the 40-year sentence -- anyway, I understand your point. You
say it is part and parcel of all one sentence, and that the
sentence as a whole was offensive to the Miller concept,




                              3
right?” (A44.) The District Court then expressly disposed of
Grant’s argument that “this is an entirely new sentence”
(A151) and essentially applied law of the case principles
instead of the sentencing package doctrine.

       According to the majority, “[t]he sentencing package
doctrine . . . has been applied in our precedential opinions
only to vacated convictions—not vacated sentences—because
‘[w]hen a conviction on one or more of the component counts
is vacated, common sense dictates that the judge should be
free to review the efficacy of what remains in light of the
original plan . . . in order to ensure that the punishment still
fits both crime and criminal.’” (Maj. Op. at 44-45 n.20
(quoting Miller, 594 F.3d at 180).) However, I see no reason
why the doctrine does not apply to vacated sentences. In
other words, what real difference is there between a vacated
sentence and a vacated conviction for purposes of the
sentencing package doctrine? A vacated sentence on one or
more counts may mean that “what remains” no longer fits the
“criminal.” “Because a district court’s ‘original sentencing
intent may be undermined by altering one portion of the
calculus, United States v. White, 406 F.3d 827, 832 ([7th Cir.
2005]), an appellate court when reversing one part of a
defendant’s sentence ‘may vacate the entire sentence . . . so
that, on remand, the trial court can reconfigure the sentencing
plan . . . to satisfy the sentencing factors in 18 U.S.C. §
3553(a).’ Greenlaw v. United States, [554 U.S. 237, 253
(2008)].” Pepper v. United States, 562 U.S. 476, 507 (2011)
(emphasis added); see also, e.g., 28 U.S.C. § 2255(a) (“A
prisoner in custody under sentence of a court established by
Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court




                               4
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct the
sentence.” (emphasis added)).             In United States v.
Guevremont, 829 F.2d 423 (3d Cir. 1987), we allowed the
district court to correct an illegal sentence:

             In addition to allowing an increase in
      sentence when the sentence is less than the
      statutory minimum, courts have also held that,
      where the sentencing judge’s intention is clear,
      an increase of the sentence to make it conform
      with that intention is constitutional. In United
      States v. Busic, 639 F.2d 940 (3d Cir.), cert
      denied, [452 U.S. 918] (1981), we rejected the
      argument that the Constitution does not allow
      an increase of sentence in a case where the
      sentencing judge’s intention is clear. In Busic,
      we ruled that, where one count of an
      interdependent sentencing plan has been
      vacated on appeal, the entire plan should be
      vacated and the defendant should be
      resentenced according to the initial intent of the
      court. We found that, under the circumstances,
      concerns of judicial vindictiveness were
      removed and to hold otherwise would allow
      “the court’s sentencing plan . . . [to be]
      thwarted.” 639 F.2d at 947.




                              5
 Id. at 428 (citations omitted).1 Accordingly, it is not
surprising that the Tenth Circuit “appl[ied] [the] sentencing
package doctrine to [a] vacated sentence.” (Id. at 46-47
(citing United States v. Catrell, 774 F.3d 666, 670 (10th Cir.
2014)).) While the Catrell court acknowledged that it (like
both the Third Circuit and the Supreme Court) has stated that
the doctrine applies when one of the counts is set aside,
“[t]his language is best viewed as descriptive rather than
prescriptive.” Catrell, 774 F.3d at 670.

       Furthermore, the specific circumstances of this case
clearly favor the application of the sentencing package
doctrine. This case involves more than, to give two
examples, mere errors in calculating the defendant’s offense
level or range under the Sentencing Guidelines. (See, e.g.,
Appellee’s Brief at 20-21 (“Since, then, however, at least one
panel, citing United States v. Ciavarella, 716 F.3d 705, 735
(3d Cir. 2013), has opined that de novo resentencing still
would not be required, even when a conviction is vacated



      1
          The majority asserts that Guevremont did not
explicitly invoke the sentencing package doctrine and was
decided ten years before this Court adopted the doctrine.
However, Guevremont did, at the very least, rely on our
language in Busic, which, in turn, “gave rise to what has since
been termed the sentencing package doctrine,” United States
v. Murray, 144 F.3d 270, 273 (3d Cir. 1998). The majority
also recognizes that the Court has applied this doctrine in the
context of vacated sentences in two non-precedential
decisions. See United States v. Fumo, 513 F. App’x 215,
218-19 (3d Cir. 2013); United States v. Brown, 385 F. App’x
147, 148 (3d Cir. 2010).




                              6
unless the vacated count affects the defendant’s total offense
level or guideline range.” (citing United States v. Walpole,
599 F. App’x 56, 58 (3d Cir. 2015))).) Instead, the District
Court determined that Grant’s original LWOP sentences were
unconstitutional under the Supreme Court’s recent rulings
applying the Eighth Amendment to juvenile sentencing and
ultimately resentenced him to serve concurrent terms of sixty
years on these counts. We then have considered in this
appeal novel issues of constitutional law regarding the unique
protections that the Eighth Amendment affords to juvenile
offenders. Based on our holdings, “[w]e will vacate Grant’s
sixty-year sentences for the RICO conspiracy and
racketeering convictions, and remand to the District Court to
resentence Grant consistent with this opinion.” (Maj. Op. at
43 (footnote omitted).) In turn, the government asserts that
Grant’s emphasis on the interconnected nature of the
sentences does not alter the analysis because it is undisputed
that a defendant’s sentences, “when ‘collect[ed] . . . in the
aggregate, [Appellant’s Brief at 51-52], constitute an entire
package.” (Appellee’s Brief at 22 (citing United States v.
Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir. 1989) (en banc)).)
Specifically, the five-year consecutive sentence on the gun
conviction was clearly implicated by this constitutional
analysis. For instance, the majority acknowledged in its
introduction as well as its summary of the factual and
procedural history that “the District Court sentenced Grant to
a term of sixty-five years without parole” (Maj. Op. at 3) and,
“[u]nder this sentence, assuming good time credit, see 18
U.S.C. § 3624(b)(1), Grant will be eligible for release at age
seventy-two, which he contends is the same age as his life
expectancy” (id. at 8). Both Grant and the government relied
on this sixty-five-year term in their respective life expectancy
arguments. In addition, the original LWOP sentences




                               7
affected the sentencing decisions on the remaining counts by
rendering such decisions merely symbolic.          Whatever
sentence the sentencing court imposed on the drug (and gun)
counts, it was clear that Grant would die in prison.
Accordingly, the District Court indicated at its original
sentencing that it “wants to send a message” about the
“plague” of drugs. (A450-A451.) “On resentencing, of
course, with the LWOP sentences on Counts 1 and 2 vacated,
the 40 years on Counts 4-6 were highly consequential,
establishing a substantial floor for the overall sentence.”
(Appellant’s Brief at 52.)

        Eighth Amendment case law likewise indicates that the
sentencing package doctrine governs this proceeding.
“Notably, in McKinley v. Butler, 809 F.3d 908 (7th Cir.
2016), Judge Posner applied the logic of Miller to vacate a
100-year sentence imposed on a non-incorrigible juvenile
offender.” (Maj. Op. at 26.) However, this offender was
actually sentenced to “consecutive 50-year prison terms.” Id.
at 909. The majority also relies on AEDPA rulings from the
Ninth and the Tenth Circuit concluding that the respective
aggregate sentences violated the Eighth Amendment under
Miller and Graham, respectively. See Budder v. Addison,
851 F.3d 1047, 1049 (10th Cir.) (three life sentences and
additional sentence of twenty years all to be served
consecutively and petitioner will not be eligible for parole
until he served 131.75 years), cert. denied sub nom. Byrd v.
Budder, 138 S. Ct. 475 (2017); Moore v. Biter, 725 F.3d
1184, 1187 (9th Cir. 2013) (consecutive sentences totaling
254 years and four months with parole eligibility after
petitioner served 127 years and two months).                 The
Massachusetts Supreme Judicial Court determined that “a
trial court judge, in resentencing a juvenile offender originally




                               8
sentenced to multiple consecutive terms of life without the
possibility of parole, may conduct a sentencing hearing to
consider resentencing the juvenile offender to concurrent
terms.” Commonwealth v. Costa, 33 N.E.3d 412, 415 (Mass.
2015). Like this Court, Massachusetts recognizes the
sentencing package doctrine. See, e.g., id. at 417. While the
practical consequences of deciding between consecutive and
concurrent sentences were originally limited to the
defendant’s treatment in prison, the state’s intervening case
law applying Miller “transformed a choice that could be
regarded as ‘somewhat symbolic’ into one of some
consequence since a consecutive sentence doubles the amount
of time the defendant must serve before he becomes eligible
for parole.” Id.

        Significantly, the Wyoming Supreme Court expressly
invoked the sentencing package doctrine in reversing a “de
facto” LWOP sentence and “remand[ing] to the district court
with instructions to resentence on all counts.” Bear Cloud v.
State, 334 P.3d 132, 135 (Wyo. 2014). The state supreme
court originally affirmed sentences of “20-25 years in prison
for Aggravated Burglary, life in prison ‘according to law’ for
first-degree murder [i.e., LWOP], to be served consecutively
to the aggravated burglary sentence; and 20-25 years in prison
for conspiracy to commit aggravated burglary, to be served
concurrently with the first-degree murder sentence.” Id.
(citation omitted). The United States Supreme Court granted
certiorari, ordering “‘Judgment vacated, and case remanded to
the Supreme Court of Wyoming for further consideration in
light of [Miller].” Id. (quoting Bear Cloud v. Wyoming, 133
S. Ct. 183, 183-84 (2012)). The Wyoming Supreme Court
originally determined on remand from the United States
Supreme Court that only the life sentence was at issue, and




                              9
the state trial court accordingly resentenced Bear Cloud to life
imprisonment with the possibility of parole after serving
twenty-five years, to run consecutive to the previously
imposed sentence of twenty to twenty-five years for
aggravated burglary and concurrently to the additional twenty
to twenty-five sentence for conspiracy. Id. at 136. Bear
Cloud appealed, and the Wyoming Supreme Court
acknowledged that its earlier remand for resentencing solely
on the LWOP sentence was inconsistent with Pepper as well
as the state supreme court’s own holding in an appeal filed by
Bear Cloud’s co-defendant, see Sen v. State, 301 P.3d 106
(Wyo. 2013). Bear Cloud, 334 P.3d at 141. “When the
United States Supreme Court vacated the judgment in [the
first Bear Cloud disposition], it wiped the slate clean. We
remand for the district court to consider the entire sentencing
package—that is, the sentences for all three counts—when it
resentences Mr. Bear Cloud.” Id. at 142; see also, e.g., id. at
141 (“That process must be applied to the entire sentencing
package, when the sentence is life without parole, or when
aggregate sentences result in the functional equivalent of life
without parole.”); Sen, 301 P.3d at 127 (“Further, because
Sen’s sentence of life without the possibility of parole may
have impacted the sentencing decisions with respect to his
conspiracy and aggravated burglary convictions, which
resulted in an additional 40 to 50 years imprisonment beyond
his life term, we think the appropriate course is to vacate
those sentences and remand for resentencing on all counts in
order to give full effect to our decision.”).

        The District Court, however, did not “consider the
entire sentencing package” when it resentenced Grant. As the
government acknowledges, the doctrine “leaves a judge ‘free
to review,’ ‘entitled to reconsider’ and with jurisdiction to




                              10
recalculate’ [the] § 2255 petitioner’s entire sentence.”
(Appellee’s Brief at 21 (quoting Davis, 112 F.3d at 122-23).)
However, the District Court instead considered and applied
the law of the case doctrine, explaining that “it would be
almost unfair to the system and unfair to Judge Ackerman all
of these years later for me to sort of sit in his shoes to figure
out, with him having the feel of the case, having listened to
the evidence of the distribution of the drugs, the extent of the
drugs, the nature of the drug trafficking and enterprise that
was involved here” and that there was nothing in the record
indicating “that this was some kind of clear manifest injustice
by Judge Ackerman” with respect to the drug and gun counts.
(A152.) Accordingly, I would vacate the sentences on the
drug and gun counts (as well as the RICO conspiracy and
racketeering counts) and remand for resentencing de novo.




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