                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 6 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-10412

                Plaintiff-Appellee,             D.C. No.
                                                3:01-cr-01062-DGC-3
 v.                                             District of Arizona

JOHNNY ORSINGER, AKA Johnnie
Orsinger,                                       MEMORANDUM*

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    15-10413

                Plaintiff-Appellee,             D.C. No.
                                                3:01-cr-01072-DGC-5
 v.

JOHNNY ORSINGER, AKA Johnnie
Orsinger,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                      Argued and Submitted August 15, 2017
                            San Francisco, California


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and EZRA,**
District Judge.

      Johnny Orsinger asks this Court to vacate his life sentences for four murders

and to remand for re-sentencing. The facts of this case are known to the parties,

and we do not repeat them here. We have jurisdiction pursuant to 28 U.S.C.

§ 1291.

                                           I

      Orsinger argues that the district court erred at his re-sentencing by failing

properly to consider his claim that he was not permanently incorrigible and hence

ineligible for a life sentence under Montgomery v. Louisiana, 136 S. Ct. 718, 734

(2016), which held that Miller v. Alabama, 567 U.S. 460, 472 (2012), bars a

sentence of life without parole “for all but the rarest of juvenile offenders, those

whose crimes reflect permanent incorrigibility.” Although the district court did not

use the specific word “incorrigible,” it did recognize that Miller permits life

sentences for juvenile offenders only in “uncommon” cases, 567 U.S. at 479, and

the court made a finding that Orsinger did indeed fit within that “uncommon” class

of juvenile offenders. That conclusion was appropriately supported by a detailed

consideration of the evidence viewed through the light of the factors identified in




      **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.

                                           2
Miller and in 18 U.S.C. § 3553(a).

      Orsinger also takes issue with the district court’s focus on the heinous nature

of his crimes. It is true that the heinousness was a key part of the court’s analysis,

but Miller allows—and in fact expects—a sentencing court to consider the nature

of the offense as part of its analysis. 567 U.S. at 479–80 (tasking sentencing

judges with differentiating between “the juvenile offender whose crime reflects

unfortunate yet transient immaturity, and the rare juvenile offender whose crime

reflects irreparable corruption.”) (emphasis added) (quoting Roper v. Simmons, 543

U.S. 551, 573 (2005)). There was thus no error in the district court’s considering

the heinousness of the crimes.

                                          II

      Orsinger also argues that his sentence violates the Eighth Amendment

because he is, in fact, not one of the incorrigible juvenile offenders for whom a life

sentence is permissible. He specifically points to evidence of rehabilitation that he

believes establishes he is not incorrigible. The district court did consider the

evidence that Orsinger had improved himself while imprisoned, but it did not find

that sufficient to outweigh the countervailing evidence that Orsinger was one of the

uncommon juvenile offenders for whom a life sentence was warranted. Orsinger is

correct that he put forth evidence of rehabilitation, but we are persuaded that there

are, at the very least, “two permissible views of the evidence” as to his


                                           3
incorrigibility, so “the factfinder’s choice between them cannot be clearly

erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).1

      AFFIRMED.




1
      Orsinger also argues preemptively that his appeal waiver does not preclude
his challenge to his sentence, but because the government agrees with him, we do
not consider the issue.

                                         4
