                             In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
Nos. 14-2737, 14-2818
EMMANUEL MARTINEZ AND
TIMOTHY VALLEJO,
                                           Petitioners-Appellants,

                                v.

UNITED STATES OF AMERICA,
                                             Respondent-Appellee.
                    ____________________

        Appeals from the United States District Court for the
                   Eastern District of Wisconsin.
   Nos. 2:13-CV-00278, 2:12-CV-01051 — Rudolph T. Randa, Judge.
                    ____________________

  ARGUED SEPTEMBER 28, 2015 — DECIDED OCTOBER 16, 2015
                ____________________

   Before FLAUM, KANNE, and SYKES, Circuit Judges.
    FLAUM, Circuit Judge. Petitioners Emmanuel Martinez and
Timothy Vallejo appeal from the district court’s denial of
their motion to vacate, set aside, or correct their sentences
under 28 U.S.C. § 2255. They were separately sentenced to
life in prison for violating the Racketeer Influenced and Cor-
rupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c), for
crimes committed when they were juveniles, including first-
2                                       Nos. 14-2737, 14-2818

degree murder. Martinez and Vallejo contend that they are
entitled to new sentencing hearings under Miller v. Alabama,
132 S. Ct. 2455 (2012), which held that mandatory sentences
of life in prison without parole for juveniles violate the
Eighth Amendment. The district court denied their § 2255
motions, reasoning that petitioners’ life sentences did not
violate Miller because they were not mandatory. For the rea-
sons that follow, we agree and affirm.
                       I. Background
    A. Petitioners’ RICO Convictions and Sentencings
    In 2005, Martinez, Vallejo, and forty-seven other people
were indicted for crimes committed while they were mem-
bers of the Milwaukee chapter of the Latin Kings gang or-
ganization. Both Martinez and Vallejo pled guilty to a RICO
offense in violation of 18 U.S.C. § 1962 and admitted to en-
gaging in predicate racketeering activities, including the
murder of Kevin Hirschfield on April 19, 2003. Martinez and
Vallejo encountered Hirschfield when he intervened in a
fight between members of the Latin Kings after stopping at a
gas station in Milwaukee. Armando Barragan, the leader of
the 19th Street Latin Kings, mistakenly attributed a punch he
received to Hirschfield and ordered Vallejo to shoot him.
Vallejo, who was seventeen years old at the time, fired five or
six times. Martinez, who was sixteen, also fired seven shots
at Hirschfeld.
    Martinez’s plea agreement included one additional pred-
icate racketeering act: the attempted murder of a rival gang
member, Daniel Fonesca. Vallejo’s plea agreement included
two additional predicate acts: the attempted murders of
Geremais Hernandez and Jose Rivera. Both Vallejo and Mar-
Nos. 14-2737, 14-2818                                        3

tinez were under the age of eighteen when they committed
these acts.
    Martinez and Vallejo separately entered into plea agree-
ments, which addressed potential penalties. The agreements
stated that the offense to which they pled guilty “carrie[d]
the following maximum term of imprisonment and fine: …
life imprisonment and $250,000.” The plea agreements also
stated that the district court could “impose any sentence au-
thorized by law up to the maximum penalties,” and that it
had the discretion to “impose a reasonable sentence above or
below the calculated guideline range,” which was 360
months to life.
    At Martinez’s July 10, 2009 sentencing hearing, the gov-
ernment asked the district court to sentence Martinez “to a
term of imprisonment within the statutory guideline range.”
Defense counsel asked the district court to consider a sen-
tence “in the range of 20 to 25 years.” Before sentencing Mar-
tinez, the district court discussed the considerations that in-
formed the sentence, including the nature and circumstances
of the offense, the sentencing guidelines’ recommended
range, and the history and characteristics of the defendant.
The court noted that Hirschfield’s murder was a heinous
crime and discussed how the Latin Kings had negatively
impacted the Milwaukee area. The district court observed
that Martinez came from a dysfunctional family and the
gang had become a substitute family. The court also ob-
served that Martinez was a young person when he commit-
ted the crimes, and that his judgment was “blunted by im-
maturity, and drugs, and associations, and illusions.” None-
theless, the court imposed the “maximum sentence”—life in
prison.
4                                             Nos. 14-2737, 14-2818

    Vallejo was sentenced six months later, on January 26,
2010. At Vallejo’s sentencing hearing, the district court stated
that it would consider the sentencing guidelines’ recom-
mended range of 360 months to life, as well as the factors set
forth in 18 U.S.C. § 3553, “which direct the Court to impose a
sentence not more than necessary to achieve the objectives of
that section.” The court considered that Vallejo had come
from a dysfunctional family and that he had a “young mind”
and bad judgment. But in light of the “monstrous” nature of
Hirschfield’s murder, the court sentenced Vallejo to life in
prison. Neither Martinez nor Vallejo filed a direct appeal.1
    B. Supreme Court Decision in Miller v. Alabama
    On July 25, 2012, the Supreme Court decided Miller v. Al-
abama, 132 S. Ct. 2455 (2012), which held that the Eighth
Amendment prohibits the imposition of a mandatory life
sentence without the possibility of parole for juveniles. The
underlying criminal cases involved two fourteen-year-old
offenders who were convicted of murder and sentenced to
life in prison without the possibility of parole. In both cases,
the sentencing authority had no discretion to impose a dif-
ferent punishment: “State law mandated that each juvenile
die in prison even if a judge or jury would have thought that
his youth and its attendant characteristics, along with the
nature of his crime, made a lesser sentence (for example, life
with the possibility of parole) more appropriate.” Id. at 2460.



    1 The district court suggested that the government move for a sen-
tence reduction under Federal Rule of Criminal Procedure 35 if Martinez
and Vallejo assisted the government in prosecuting Armando Barragan,
but Barragan has not yet been apprehended.
Nos. 14-2737, 14-2818                                         5

    In Miller, the Supreme Court emphasized the importance
of allowing the sentencing authority to consider the mitigat-
ing qualities of youth, including the defendant’s “immaturi-
ty, impetuosity, and failure to appreciate risks and conse-
quences,” as well as his family and home environment, and
to adjust the sentence as necessary in light of these factors.
Id. at 2468. Although the Supreme Court did not address de-
fendants’ alternative argument, that the Eighth Amendment
requires a categorical bar on life-without-parole sentences
for juveniles, it held:
       [W]e think appropriate occasions for sentenc-
       ing juveniles to this harshest possible penalty
       will be uncommon. … Although we do not
       foreclose a sentencer’s ability to make that
       judgment in homicide cases, we require it to
       take into account how children are different,
       and how those differences counsel against ir-
       revocably sentencing them to a lifetime in pris-
       on.
Id. at 2469 (internal citations omitted).
   C. Petitioners’ § 2255 Proceedings
    Within a year of the Supreme Court’s decision in Miller,
Martinez and Vallejo separately filed pro se motions to va-
cate, set aside, or correct their sentences under 28 U.S.C. §
2255. Martinez and Vallejo argued that their sentences vio-
lated Miller because they were sentenced to life in prison for
offenses committed as juveniles.
   On October 4, 2013, the district court denied Martinez’s
motion. It found that under the RICO sentencing scheme,
“the [c]ourt has the discretion, after analysis of the appropri-
6                                       Nos. 14-2737, 14-2818

ate sentencing factors, to sentence a juvenile defendant any-
where along the sentencing scale up to life.” The district
court concluded that because “[i]t was not required to im-
pose the sentence that it did,” Martinez’s sentence was not
mandatory and did not violate Miller. The district court de-
nied Vallejo’s motion for the same reasons on June 25, 2014.
    Martinez did not receive notice of the district court’s de-
cision until after the deadline to file an appeal had passed.
Several months later, Martinez and Vallejo together filed a
joint motion for relief from the judgment under Federal Rule
of Civil Procedure 60(b), which the district court granted on
July 30, 2014. Martinez then filed a notice of appeal and a
motion for a certificate of appealability on August 6, 2014.
Vallejo filed the same ten days later. On October 28, 2014, we
granted the certificates of appealability and consolidated the
appeals.
                       II. Discussion
   The parties agree that Martinez and Vallejo were sen-
tenced to life in prison for offenses committed as juveniles
and that Miller applies retroactively. They dispute whether
the district court correctly determined that petitioners’ life
sentences were not mandatory under the RICO sentencing
provision, 18 U.S.C. § 1963(a). We review this issue of statu-
tory interpretation de novo. United States v. Jones, 372 F.3d
910, 911–12 (7th Cir. 2004).
    Martinez and Vallejo were convicted of criminal RICO
offenses under 18 U.S.C. § 1962(c). A conviction under that
statute must be based on at least two predicate racketeering
activities, which form the basis for the ultimate sentence un-
der § 1963(a):
Nos. 14-2737, 14-2818                                           7

       Whoever violates any provision of section 1962
       of this chapter shall be fined under this title or
       imprisoned not more than 20 years (or for life if
       the violation is based on a racketeering activity
       for which the maximum penalty includes life
       imprisonment), or both … .
18 U.S.C. § 1963(a) (emphasis added).
   There are two plausible interpretations of this statutory
language. First, it is possible that the statute mandates a life
sentence whenever the predicate act carries a maximum sen-
tence of life in prison. This is the interpretation that Martinez
and Vallejo ask us to adopt. Under this reading, the phrase
“not more than” does not apply to the parenthetical. Thus, in
the cases of Martinez and Vallejo, the statute provides that
they “shall be … imprisoned … for life.”
   Alternatively, it is possible that § 1963(a) sets only maxi-
mum sentences. Under this interpretation, the sentencing
provision sets a maximum sentence of twenty years in most
cases, or life if the predicate offense carries that option. Thus,
the statute provides that Martinez and Vallejo “shall be …
imprisoned not more than … for life.”
    The district court adopted the second interpretation—
that § 1963(a) established a maximum, not a mandatory, sen-
tence of life in prison for Martinez and Vallejo. At each of
Martinez’s and Vallejo’s sentencing hearings, the court stat-
ed that it could impose a sentence ranging from 360 months
to life, and then weighed the aggravating and mitigating fac-
tors to determine whether the offense warranted a sentence
8                                                Nos. 14-2737, 14-2818

below the maximum.2 At no point did the district court indi-
cate that it was required to impose a life sentence. The facts
of this case are therefore very different from those in Miller,
where the sentencing authority in one of the underlying cas-
es explained, “there’s only one possible punishment.” 132 S.
Ct. at 2461 (internal quotation marks omitted).
    Nonetheless, because reasonable minds could differ as to
the meaning of § 1963(a), it is ambiguous. See River Rd. Hotel
Partners, LLC v. Amalgamated Bank, 651 F.3d 642, 649–50 (7th
Cir. 2011). “Because we see ambiguity, we look at the entire
text and structure of the statute to determine its meaning.”
United States v. Misc. Firearms, Explosives, Destructive Devices
& Ammunition, 376 F.3d 709, 712 (7th Cir. 2004).
   It is undisputed that the first part of § 1963 sets a maxi-
mum sentence of twenty years. Although it is unclear
whether the “not more than” language also applies to the
parenthetical, the fact that the parenthetical refers to a “max-
imum penalty” suggests that both clauses set maximum sen-
tences. This interpretation would also allow for a consistent
application of the provision across all types of crimes.
   Two neighboring statutes that penalize violent racketeer-
ing crimes are drafted very differently. These statutes indi-
cate that the only sentencing options for racketeering crimes
involving murder are death or life imprisonment. See 18
U.S.C. § 1958 (prohibiting murder for hire and providing


    2 Although the district court ultimately imposed life sentences, it
considered Martinez and Vallejo’s youth and family environments, as
well as the potential effects of peer pressure. We therefore reject petition-
ers’ argument that they did not receive the individualized sentencing
that Miller requires.
Nos. 14-2737, 14-2818                                           9

that “if death results,” the pepetrator “shall be punished by
death or life imprisonment”); 18 U.S.C. § 1959 (prohibiting
violent crimes in aid of racketeering activities and providing
that an offender “shall be punished—for murder, by death
or life imprisonment”). These penalty provisions are severe,
but they are not complex. Had Congress wished to provide
for a mandatory penalty for murder under § 1963, it easily
could have used this same language. See, e.g., Whitfield v.
United States, 543 U.S. 209, 216–17 (2005) (finding that where
Congress imposed an explicit overt act requirement in twen-
ty-two conspiracy statutes, but did not do so in a provision
governing conspiracy to commit money laundering, the
Court would not read in such a requirement); Central Bank of
Denver v. First Interstate Bank, 511 U.S. 164, 176–77 (1994)
(holding that because “Congress knew how to impose aiding
and abetting liability when it chose to do so,” and the statute
in question did not include the words “aid” and “abet,” the
statute did not provide for aiding and abetting liability).
    Federal courts across the United States have adopted the
government’s interpretation by sentencing defendants under
§ 1963(a) to sentences less than life, even when the predicate
offense carries a possible life sentence. See, e.g., United States
v. Fields, 325 F.3d 286, 288 (D.C. Cir. 2003) (“[F]or the armed
kidnapping and the RICO charge, [the district court] im-
posed sentence terms of 292 months, well within the life max-
imum.” (emphasis added)); Allen v. United States, 45 F. App’x
402, 404–05 (6th Cir. 2002) (upholding a 360 month sentence
for a RICO conviction and finding that § 1963 incorporates
federal and state sentencing maximums); United States v.
Bernard, 10 F. App’x 18, 19 (2d Cir. 2001) (observing that
where defendant’s predicate felony “carries a maximum
term of life imprisonment, that maximum applies” and up-
10                                        Nos. 14-2737, 14-2818

holding defendant’s 405 month sentence). This interpretation
is consistent with the Department of Justice’s position that
§ 1963(a) sets a maximum sentence of twenty years in typical
cases, or a maximum sentence of life where the underlying
racketeering activity provides for life imprisonment. See
Criminal RICO: 18 U.S.C. §§ 1961–1968: A Manual for Feder-
al Prosecutors (5th rev. ed. 2009).
    The legislative history, which we are permitted to con-
sider when construing an ambiguous statute, supports the
government’s interpretation. See Five Points Rd. Joint Venture
v. Johanns, 542 F.3d 1121, 1128 (7th Cir. 2008). Section 1963(a)
originally provided for a maximum penalty of twenty years
in all cases. See Racketeer Influenced and Corrupt Organiza-
tions, Pub. L. No. 91, 452 § 901(a), 84 Stat. 941, 943 (1970). In
1988, Congress amended the statute by adding the parenthe-
tical. The House of Representatives record explains that
Congress was concerned with the anomaly that, as originally
enacted, § 1963 limited the maximum sentence to twenty
years even when the underlying predicate crime was pun-
ishable by a much longer sentence:
       Section 1963(a) presently provides for a maxi-
       mum prison term of 20 years. It is possible,
       however, for a RICO prosecution to be based,
       in part, upon a “racketeering activity” … that
       authorizes the imposition of a prison term in
       excess of 20 years. [The amendment] would, in
       such a case, authorize a maximum prison term of
       life.
134 Cong. Rec. 33300 (1988) (emphasis added). The accom-
panying Senate report similarly explains that the amend-
ment “permits imprisonment for life if the defendant is con-
Nos. 14-2737, 14-2818                                       11

victed of a predicate offense that carries a maximum penalty
of life.” S. Rep. No. 100-459, at 7 (1988) (emphasis added).
    If we were to set aside this legislative history and adopt
Martinez and Vallejo’s interpretation, we would require
courts to impose a sentence of life in prison under § 1963
whenever the predicate offense carries a life sentence as an
option. This interpretation would conflict not only with set-
tled sentencing practices, but also with the spirit of Miller
and other Supreme Court decisions that have moved away
from mandatory sentencing to allow courts the flexibility to
“tailor the sentence in light of other statutory concerns.”
United States v. Booker, 543 U.S. 220, 245 (2005) (Breyer, J.,
dissenting in part). We decline to undermine this trend in
sentencing law by reading a severe mandatory penalty into
§ 1963.
                        III. Conclusion
    Because Martinez and Vallejo’s life sentences were im-
posed after an individualized sentencing, and not by statuto-
ry mandate, we conclude that the district court did not vio-
late Miller. For this reason, we need not reach the question of
whether Miller applies retroactively.
                                                    AFFIRMED
