                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                  No. 16-10150
                Plaintiff-Appellee,
                                              D.C. No.
                 v.                        2:96-cr-00464-
                                               DLR-4
RILEY BRIONES, JR., AKA Unknown
Spitz,
             Defendant-Appellant.            OPINION


      Appeal from the United States District Court
               for the District of Arizona
      Douglas L. Rayes, District Judge, Presiding

    Argued and Submitted En Banc March 27, 2019
              San Francisco, California

                      Filed July 9, 2019

 Before: Sidney R. Thomas, Chief Judge, and Susan P.
Graber, M. Margaret McKeown, Kim McLane Wardlaw,
 Marsha S. Berzon, Milan D. Smith, Jr., Sandra S. Ikuta,
Morgan Christen, Jacqueline H. Nguyen, Mark J. Bennett,
         and Ryan D. Nelson, Circuit Judges.

              Opinion by Judge Christen;
               Dissent by Judge Bennett
2                  UNITED STATES V. BRIONES

                            SUMMARY*


                           Criminal Law

    The en banc court vacated a sentence of life without the
possibility of parole (LWOP), which the district court
reimposed at resentencing after having granted the
defendant’s 28 U.S.C. § 2255 motion following the Supreme
Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012);
and remanded for consideration of the entirety of the
defendant’s sentencing evidence.

    In 1997, the defendant received a mandatory LWOP
sentence for his role, at age 17, in a robbery that resulted in
murder.

    The en banc court held that the district court’s analysis at
resentencing was inconsistent with the constitutional
principles set forth in Miller, which held that mandatory
LWOP sentences for juvenile offenders violate the Eighth
Amendment’s prohibition on cruel and unusual punishment,
and subsequent case law, including Montgomery v. Louisiana,
136 S. Ct. 718 (2016), which specified that an LWOP
sentence is constitutionally permissible only for “the rarest of
juvenile offenders”—specifically, those whose “crimes
reflect permanent incorrigibility” and “irreparable
corruption.”

   The en banc court wrote that when courts consider
Miller’s central inquiry, they must reorient the sentencing

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V. BRIONES                     3

analysis to a forward-looking assessment of the defendant’s
capacity for change or propensity for incorrigibility, rather
than a backward-focused review of the defendant’s criminal
history. Based on the district court’s articulated reasoning at
resentencing, the en banc court could not tell whether the
district court appropriately considered the relevant evidence
of the defendant’s youth or the evidence of his post-
incarceration efforts at rehabilitation. The en banc court
observed that the district court’s remarks focused on the
punishment warranted by the terrible crime, rather than
whether the defendant was irredeemable; and that the district
court’s statement that it considered some factors in
“mitigation” suggests that the district court applied the
Sentencing Guidelines and improperly began with a
presumption that LWOP would be appropriate.

    The en banc court deemed most significant that the
defendant offered abundant evidence that he was not
irreparably corrupt or irredeemable because he had done what
he could to improve himself within the confines of
incarceration. The en banc court wrote that the eighteen
years that passed between the original sentencing and the
resentencing – including the first fifteen years during which
defendant’s LWOP sentence left no hope that he would ever
be released – provide a compelling reason to credit the
sincerity of his efforts to rehabilitate himself. The en banc
court wrote that this is precisely the sort of evidence of
capacity for change that is key to determine whether a
defendant is permanently incorrigible, yet the record does not
show that the district court considered it. The en banc court
reaffirmed that when a substantial delay occurs between a
defendant’s initial crime and later sentencing, the defendant’s
post-incarceration conduct is especially pertinent to a Miller
analysis. The en banc court concluded that the heavy
4               UNITED STATES V. BRIONES

emphasis on the defendant’s crime, coupled with the
defendant’s evidence that his is not one of those rare and
uncommon cases for which LWOP is a constitutionally
acceptable sentence, requires remand.

    Dissenting, Judge Bennett, joined by Judge Ikuta, wrote
that the district court fully complied with Miller, did not
commit any constitutional error, and imposed a permissible
sentence supported by the record.


                        COUNSEL

Easha Anand (argued), Orrick Herrington & Sutcliffe LLP,
San Francisco, California; Vikki M. Liles (argued), The Law
Office of Vikki M. Liles P.L.C., Phoenix, Arizona; Melanie
L. Bostwick, Orrick Herrington & Sutcliffe LLP,
Washington, D.C.; for Defendant-Appellant.

Krissa M. Lanham (argued) and Patrick J. Schneider ,
Assistant United States Attorneys; Elizabeth A. Strange, First
Assistant United States Attorney; United States Attorney’s
Office, Phoenix, Arizona; for Plaintiff-Appellee.

John R. Mills and Scott P. Wallace, Phillips Black Inc., San
Francisco, California; Robin Wechkin, Sidley Austin LLP,
Seattle, Washington; Ronald Sullivan, Fair Punishment
Project, Cambridge, Massachusetts; for Amici Curiae
National Association of Criminal Defense Lawyers, ACLU,
Fair Punishment Project, Juvenile Law Center, Roderick and
Solange MacArthur Justice Center, Alaska Association of
Criminal Defense Lawyers, Arizona Attorneys for Criminal
Justice, California Attorneys for Criminal Justice, Hawaii
Association of Criminal Defense Lawyers, Idaho Association
                UNITED STATES V. BRIONES                   5

of Criminal Defense Lawyers, Montana Association of
Criminal Defense Lawyers, Nevada Attorneys for Criminal
Justice, Oregon Criminal Defense Lawyer’s Association, and
Washington Association of Criminal Defense Lawyers.

William H. Milliken and Michael E. Joffre, Sterne Kessler
Goldstein & Fox PLLC, Washington, D.C., for Amici Curiae
Professors Douglas A. Berman, William W. Berry, Jenny E.
Carroll, Cara H. Drinan, Alison Flaum, Shobha L. Mahadev,
Sarah French Russell, and Kimberly Thomas.

Keith J. Hilzendeger, Assistant Federal Public Defender; Jon
M. Sands, Federal Public Defender; Office of the Federal
Public Defender, Phoenix, Arizona; for Amici Curiae Ninth
Circuit Federal Public and Community Defenders.


                        OPINION

CHRISTEN, Circuit Judge:

    In 1997, Riley Briones, Jr. received a mandatory sentence
of life without the possibility of parole (LWOP) for his role
in a robbery that resulted in murder. Briones was 17 years
old at the time of the crime. In 2012, the Supreme Court held
that mandatory LWOP sentences for juvenile offenders
violate the Eighth Amendment’s prohibition on cruel and
unusual punishment. Miller v. Alabama, 567 U.S. 460, 465
(2012). After the Miller decision issued, Briones filed a
motion pursuant to 28 U.S.C. § 2255 seeking to have his
sentence vacated. The district court granted the motion, held
a second sentencing hearing, and reimposed the original
sentence.     Because the district court’s analysis was
inconsistent with the constitutional principles the Supreme
6               UNITED STATES V. BRIONES

Court delineated in Miller and subsequent case law, we
vacate Briones’s sentence and remand to the district court.

                       I. Background

    Briones grew up on the Salt River Indian Reservation in
Arizona. As a child, Briones endured physical abuse from his
father, Riley Briones, Sr., and was introduced to drugs and
alcohol at age 11. Briones was a fairly good student and he
aspired to attend college. After he and his girlfriend had a
child while still in high school, however, he dropped out to
take a full-time position in an apprentice program, training to
be a heavy equipment operator.

    Briones, his father, and his brother Ricardo founded a
gang called the Eastside Crips Rolling 30’s. While still a
teenager, Briones planned and participated in a number of
violent, gang-related crimes on the Reservation. The most
serious of these crimes was the robbery of a Subway
restaurant in May 1994, when Briones was seventeen years
old. Although Ricardo came up with the idea, Briones agreed
to the plan and drove four of the gang’s members to the
restaurant to carry it out. Briones remained in the car as the
getaway driver while the others went inside and ordered food
from the lone employee, Brian Lindsey. As the food was
being prepared, the only armed member of the cohort left the
restaurant, spoke to Briones, then reentered the store and shot
Lindsey as he stood at the front counter, killing him. The
gang members grabbed their food and a bag of money and ran
back to Briones’s car.

   Briones was arrested on December 21, 1995. He was
charged with “first degree/felony murder” for the Subway
robbery, and also charged with arson, assault, and witness
                    UNITED STATES V. BRIONES                             7

tampering because of other gang-related offenses. Briones’s
father and brother were among the five co-defendants. The
government extended pre-trial plea offers of twenty years in
prison to all five defendants, but Briones’s father was
“adamant” that neither he nor either of his sons should accept
the deal. Briones rejected the government’s offer, went to
trial, and was convicted on all charges. For the felony murder
conviction, he was sentenced to a mandatory term of life
imprisonment without the possibility of parole.1

    In June of 2012, the Supreme Court issued its decision in
Miller and held that the Eighth Amendment prohibits
sentencing schemes that mandate life in prison without the
possibility of parole for juvenile defendants. 567 U.S. at 479.
Miller explained that sentencing courts must consider the
unique social and psychological characteristics of juvenile
offenders because “hallmark features” of youth reduce the
penological justifications for imposing LWOP sentences on
juveniles. Id. at 477–80. After Miller was decided, Briones
filed a motion pursuant to 28 U.S.C. § 2255 seeking to have
his sentence vacated. The government conceded that his




    1
      The Presentence Report (PSR) reflects other very serious criminal
conduct. It describes Briones providing Molotov cocktails for gang
members to throw at the homes of rival gang members; planting
diversionary fires to occupy the authorities; planning a shooting; covering
up a separate drive-by shooting; assaulting a gang member who knew
about the Subway murder; and discussing plans to blow up the Salt River
Police Department and kill a tribal judge, federal prosecutors, and Salt
River Police investigators. Briones has served all of the prison time
imposed for his non-homicide crimes; the only sentence remaining is the
LWOP sentence for the Subway robbery.
8                    UNITED STATES V. BRIONES

“mandatory life sentence [was] constitutionally flawed[,]”2
and the district court granted Briones’s motion.

    Before Briones was resentenced, the Supreme Court
issued Montgomery v. Louisiana, 136 S. Ct. 718 (2016),
establishing that Miller’s substantive rule is to be given
retroactive effect. Id. at 736. Montgomery also provided
additional guidance about the proper application of Miller
and specified that a sentence of life without the possibility
of parole is constitutionally permissible only for “the
rarest of juvenile offenders”—specifically, those whose
“crimes reflect permanent incorrigibility” and “irreparable
corruption.” Montgomery, 136 S. Ct. at 734.

    By the time the district court resentenced Briones in
March 2016, he was almost forty years old and he had served
nearly eighteen years in prison without a single infraction of
prison rules. In addition to maintaining a perfect disciplinary
record, Briones held a job in food service; volunteered to
speak with young inmates about how to change their lives;
completed his GED; and, in 1999 (sixteen years before his
resentencing), married Carmelita, the woman he had been
dating since high school and with whom he had a daughter.
By all accounts, and as even the government conceded,
Briones had been a model inmate.

    Briones cited Miller extensively in the memorandum he
filed in anticipation of the resentencing hearing, and he asked
the district court to impose a sentence of 360 months in
accordance with the factors identified in Miller and his
extensive history of rehabilitative efforts. In his testimony at
the resentencing hearing, Briones expressed “[g]rief, regret,

    2
        Briones v. United States, No. 13-71056, Dkt. No. 11, at 2.
                UNITED STATES V. BRIONES                     9

sorrow, pain, sufferings” for his crimes and for Lindsey’s
death. He described how he was haunted by his actions, and
he apologized to his own family and to the victim’s family.
Briones’s counsel argued that a life sentence would be
“unconstitutional in violation of Graham and Miller,” and
that the presumption in Briones’s case should be against a life
sentence because Miller requires that LWOP be the exception
rather than the rule. The government contended that Briones
had not accepted responsibility because, when he was
interviewed in advance of the second sentencing hearing,
Briones contested some aspects of the PSR’s description of
his responsibilities in the gang. But Briones did not dispute
the role he played in the Subway robbery and murder, even
saying at one point in his testimony that it was “probably
[his] fault” that the robbery was not called off.

     The district court’s sentencing remarks were quite brief;
its justification for reimposing LWOP comprised less than
two pages of transcript. The court considered the PSR and
letters written on Briones’s behalf, the parties’ sentencing
memoranda, the transcript of the previous sentencing hearing,
and the victim questionnaire. The court began with the
Sentencing Guidelines calculation—which yielded a life
sentence—and then stated: “in mitigation I do consider the
history of the abusive father, the defendant’s youth,
immaturity, his adolescent brain at the time, and the fact that
it was impacted by regular and constant abuse of alcohol and
other drugs, and he’s been a model inmate up to now.” The
district court acknowledged that “[a]ll indications are that
defendant was bright and articulate” and that “he has
improved himself while he’s been in prison,” but the court
described Briones’s role in the Subway robbery as “be[ing]
the pillar of strength for the people involved to make sure
they executed the plan.” The court stated that “some
10               UNITED STATES V. BRIONES

decisions have lifelong consequences” and reimposed a life
sentence. Because there is no parole in the federal system,
the parties agree that Briones’s life sentence is effectively
LWOP. See Sentencing Reform Act of 1984, Pub. L. No. 98-
473, tit. II, §§ 218(a)(5), 235(a)(1), 98 Stat 1837, 2027, 2031.

                II. Miller and Montgomery

    The Supreme Court held in Miller “that the Eighth
Amendment forbids a sentencing scheme that mandates life
in prison without possibility of parole for juvenile offenders.”
567 U.S. at 479. Miller built on the Court’s decisions in
Roper v. Simmons, 543 U.S. 551, 568–69 (2005), and
Graham v. Florida, 560 U.S. 48, 75 (2010), which established
that juvenile offenders are not eligible for capital sentences
and that the Eighth Amendment precludes LWOP sentences
for juveniles who commit non-homicide crimes. Miller,
567 U.S. at 470. These decisions reflect the understanding
that “children are constitutionally different from adults for
purposes of sentencing.” Id. at 471.

    Miller further develops these constitutional principles,
requiring that, even when terribly serious and depraved
crimes are at issue, courts “take into account how children are
different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.” Id. at
480. Miller identified several characteristics of youth:
(1) difficulty appreciating risks; (2) inability to escape
dysfunctional home environments; (3) susceptibility to
familial and peer pressure; (4) inability to deal competently
with law enforcement or the justice system; and (5) potential
for rehabilitation. Id. at 477–78. The Court held that these
factors must be considered to determine whether a juvenile
offender may be sentenced to LWOP. See id. at 480 (“[W]e
                 UNITED STATES V. BRIONES                     11

require [the sentencing court] to take into account how
children are different . . . .” (emphasis added)).

    Miller explains why these factors change the sentencing
calculation for juveniles. Youth lack maturity, and their
underdeveloped sense of responsibility “lead[s] to
recklessness, impulsivity, and heedless risk-taking”; juveniles
are particularly vulnerable “‘to negative influences and
outside pressures,’ including from their family and peers”;
and youth “is a moment and ‘condition of life when a person
may be most susceptible to influence and to psychological
damage.’” Id. at 471, 476 (quoting Roper, 543 U.S. at 569,
and Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)). The
Eighth Amendment also requires consideration of the reality
that some juveniles become trapped in particularly “brutal or
dysfunctional” family situations over which they have no
control, and that juveniles struggle to competently deal with
the criminal justice system. Id. at 477–78. By virtue of their
youth, juveniles also harbor greater rehabilitative potential.
Id. at 478; see also id. at 471 (“[A] child’s character is not as
well formed as an adult’s; his traits are less fixed and his
actions less likely to be evidence of irretrievable depravity.”
(internal quotation marks and brackets omitted)).

    These factors erode the justification for imposing LWOP
sentences, even when juveniles commit terrible crimes. Id.
at 472. The characteristics of youth lessen moral culpability
and thereby reduce the rationale for retribution. Id. The
same characteristics that render juveniles less culpable than
adults also make them less likely to be dissuaded by potential
punishment, thereby minimizing the potential deterrent effect
of a life sentence. Id. And permanent incapacitation is less
likely to be required to protect society because juvenile
offenders are more likely to shed the problematic attributes of
12                  UNITED STATES V. BRIONES

youth as a result of ongoing neurological development. Id.
at 472–73.3 The characteristics of an individual juvenile
offender will determine whether a crime reflects “transient
immaturity” (in which case, an LWOP sentence for a juvenile
is impermissible) or “irreparable corruption” (in which case
an LWOP sentence for a juvenile is constitutionally
permitted). Id. at 479–80 (emphasis added). As a result, the
Court cautioned, “appropriate occasions for sentencing
juveniles to this harshest possible penalty will be
uncommon.” Id. at 479.

    In Montgomery, the Supreme Court held that the rule
announced in Miller is a substantive constitutional limitation
on life sentences for crimes committed by juveniles, as well
as a procedural requirement. 136 S. Ct. at 736. Miller’s
“substantive holding” was that “life without parole is an
excessive sentence for children whose crimes reflect transient
immaturity,” and its procedural component implementing the
substantive rule requires “[a] hearing where ‘youth and its
attendant characteristics’ are considered as sentencing
factors” in order to “separate those juveniles who may be
sentenced to life without parole from those who may not.”
Id. at 735 (quoting Miller, 567 U.S. at 465). It is not enough
for sentencing courts to consider a juvenile offender’s age
before imposing life without parole. The Eighth Amendment
dictates that “sentencing a child to life without parole is
excessive for all but ‘the rare juvenile offender whose crime
reflects irreparable corruption . . . .’” Id. (quoting Miller,


     3
      The Court reaffirmed in Miller what it had previously observed in
Graham, 560 U.S. at 68: there are physiological differences between
adults and juveniles in the regions of the brain related to “impulse control,
planning ahead, and risk avoidance[.]” Miller, 567 U.S. at 472 n.5
(internal quotation marks omitted).
                UNITED STATES V. BRIONES                    13

567 U.S. at 479–80). Montgomery made clear that, after
Miller, juvenile defendants who are not permanently
incorrigible or irreparably corrupt are constitutionally
ineligible for a sentence of life without parole. See id.
(“Miller . . . rendered life without parole an unconstitutional
penalty for . . . juvenile offenders whose crimes reflect the
transient immaturity of youth.”).

    Miller and Montgomery are fairly recent decisions, and
there is relatively little case law addressing how to evaluate
the post-incarceration conduct of juvenile offenders for
purposes of Miller. Our decision in United States v. Pete,
819 F.3d 1121 (9th Cir. 2016), did provide some guidance,
though we recognize it was not issued until after Briones’s
resentencing. In Pete, a juvenile offender who had been
sentenced to LWOP was granted resentencing in light of
Miller. Id. at 1126. To prepare for resentencing, the
defendant sought funding to obtain a neuropsychological
evaluation. Id. The district court concluded that the
evaluation was unnecessary because the defendant had
undergone a psychiatric evaluation ten years earlier, when he
was originally sentenced. Id. at 1127. We held that the
district court abused its discretion by denying the funding
request because “the critical question under Miller was [the
defendant’s] capacity to change after he committed the
crimes at the age of 16.” Id. at 1133. A new evaluation may
reflect changes in the defendant’s maturity or emotional
health, and “whether [the defendant] has changed in some
fundamental way since that time, and in what respects, is
surely key evidence.” Id.

    Taken together, Miller, Montgomery, and Pete make clear
that a juvenile defendant who is capable of change or
rehabilitation is not permanently incorrigible or irreparably
14                  UNITED STATES V. BRIONES

corrupt; that a juvenile who is not permanently incorrigible or
irreparably corrupt is constitutionally ineligible for an LWOP
sentence; and that a juvenile’s conduct after being convicted
and incarcerated is a critical component of the resentencing
court’s analysis.

                   III. Briones’s Resentencing

    We review the district court’s factual findings for clear
error, but “review de novo a claim that a sentence violates a
defendant’s constitutional rights.” United States v. Hunt,
656 F.3d 906, 911 (9th Cir. 2011) (citing United States v.
Raygosa-Esparza, 566 F.3d 852, 854 (9th Cir. 2009)).
District courts’ sentencing decisions are entitled to deference,
see, e.g., United States v. Martinez-Lopez, 864 F.3d 1034,
1043 (9th Cir.) (en banc), cert. denied, 138 S. Ct. 523 (2017),
but this deference is not absolute.4

    Here, the district court properly began by calculating
Briones’s Sentencing Guidelines range, which yielded a
sentence of life without parole. District courts must begin
with the Guidelines calculation,5 but they “may not presume

     4
       See Martinez-Lopez, 864 F.3d at 1043 (reversal of sentence is
appropriate “if the [district] court applied an incorrect legal rule”); United
States v. Meredith, 685 F.3d 814, 818, 826–27 (9th Cir. 2012) (partially
vacating a sentence because the district court failed to consider evidence
presented at sentencing); United States v. Staten, 466 F.3d 708, 715–17
(9th Cir. 2006) (remanding for consideration of certain statutory factors
and factual elements).
     5
       We reject the suggestion advanced by Briones and certain amici that
district courts should no longer begin with the Sentencing Guidelines in
juvenile cases because doing so creates a presumption (or at least
momentum) in favor of LWOP sentences that should be “rare” and
“uncommon” after Miller. The Supreme Court has long required that “a
                    UNITED STATES V. BRIONES                              15

that the Guidelines range is reasonable.” United States v.
Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc). After
calculating the Guidelines range, sentencing courts next turn
to the factors and considerations identified in 18 U.S.C.
§ 3553(a). Id. If LWOP is a possible sentence for a juvenile
offender, then the totality of the evidence and the § 3553(a)
factors inform Miller’s central inquiry: whether the defendant
is one of the rare juvenile offenders who is irredeemable, or
whether the defendant is capable of change. Montgomery,
136 S. Ct. at 734–36. We recognize that some tension exists
between Miller’s mandate and the Sentencing Guidelines,6
but Miller imposes a constitutional requirement. So where
Miller is applicable, the Guidelines must be applied
consistently with Miller’s rule.

    We agree with the government that the severity of a
defendant’s crime is indisputably an important consideration


district court should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range.” Gall v. United States,
552 U.S. 38, 49 (2007).
    6
       Briones’s counsel argues that the Guidelines “generally forbid”
consideration of several factors that may bear on a Miller analysis, such
as U.S.S.G. § 5H1.1 (defendant’s age), § 5H1.2 (education and vocational
skills), § 5H1.3 (mental and emotional conditions), § 5H1.4 (physical
condition), § 5H1.5 (employment record), § 5H1.6 (family ties and
responsibilities), and § 5H1.10 (race, sex, national origin, creed, religion,
and socio-economic status). But with the exception of § 5H1.10—which
bars consideration of factors like race, sex, and national origin that are not
relevant to Miller’s inquiry—the Guidelines actually provide that the
factors Briones’s counsel identified “may be relevant” or otherwise are
simply “not ordinarily relevant.” U.S.S.G. §§ 5H1.1–1.6 (emphasis
added). Thus, the Guidelines are entirely compatible with Miller’s
directive that courts consider a juvenile offender’s youthful characteristics
before taking the rare step of imposing an LWOP sentence.
16               UNITED STATES V. BRIONES

in any sentencing decision. The severity of the crime is
reflected in the Guidelines sentencing range calculation,
which incorporates the nature of the offense, and in § 3553,
which expressly includes consideration of the offense
characteristics. 18 U.S.C. § 3553(a)(1)–(2). Nothing about
Miller and Montgomery’s Eighth Amendment analysis
minimizes the gravity of a juvenile defendant’s criminal
conduct; indeed, Miller and Montgomery also involved
horrible crimes. See Miller, 567 U.S. at 465–68 (one
petitioner participated in the murder of a video store clerk,
and the other burned a neighbor’s trailer with the neighbor
inside); Montgomery, 136 S. Ct. at 725–26 (petitioner shot
and killed a deputy sheriff).

    Despite the harm caused by juveniles’ criminal acts,
Miller requires a sentencing analysis that accounts for the
characteristics of youth that undermine the penological
justification for lifelong punishment. Miller, 567 U.S. at 472;
see also Graham, 560 U.S. at 68. This diminished
justification for lifelong punishment is why LWOP sentences
are “disproportionate for all but the rarest” juvenile offenders,
Montgomery, 136 S. Ct. at 726, “even when they commit
terrible crimes.” Miller, 567 U.S. at 472. Accordingly, when
courts consider Miller’s central inquiry, they must reorient
the sentencing analysis to a forward-looking assessment of
the defendant’s capacity for change or propensity for
incorrigibility, rather than a backward-focused review of the
defendant’s criminal history.

    Based on the district court’s articulated reasoning at
Briones’s resentencing, we cannot tell whether the district
court appropriately considered the relevant evidence of
Briones’s youth or the evidence of his post-incarceration
efforts at rehabilitation. The district court described
                    UNITED STATES V. BRIONES                           17

Briones’s crime and his history of gang-related violence,
identified certain factors it considered “in mitigation,” and
stated that “some decisions have lifelong consequences.” In
this way, the district court’s sentencing remarks focused on
the punishment warranted by the terrible crime Briones
participated in, rather than whether Briones was
irredeemable. The district court’s statement that it considered
some factors in “mitigation” suggests that the district court
applied the Guidelines and began with a presumption that
LWOP would be appropriate. As we have explained,
however, a sentencing court may not presume the propriety
of a Guidelines sentence, see Carty, 520 F.3d at 991,
particularly in juvenile LWOP cases after Miller. Rather, the
Constitution requires that the court consider a juvenile
offender’s youthful characteristics before taking the rare step
of imposing an LWOP sentence.

    Briones provided evidence related to a number of the
Miller factors at the resentencing hearing, including his
abusive upbringing,7 his extensive exposure to drugs and
alcohol beginning when he was only eleven years old,8 his
difficulty finding acceptance at his local high school because




    7
      Despite his devotion to his father, Briones acknowledged during his
resentencing testimony that his father beat him and whipped him when he
was a child. On one occasion, he went to school with blood seeping
through his shirt because of his father’s abuse.
    8
       The PSR recounted that Briones was drinking hard liquor on the
weekends by the time he was eleven years old. Briones and his wife both
testified that he consumed a substantial amount of alcohol on a daily basis
as a child, and that even when Briones was young, his parents drank
heavily and generally acceded to Briones’s own heavy drinking.
18                  UNITED STATES V. BRIONES

of his Native American traditions,9 and his father’s
inexplicable insistence that he reject the government’s
favorable plea offer even though Briones faced a mandatory
LWOP sentence if convicted. Briones’s lawyer also argued
that Briones was somewhat less culpable because he was the
getaway driver, not the shooter. Id. at 478. Most significant,
Briones offered abundant evidence on the critical issue: that
he was not irreparably corrupt or irredeemable because he
had done what he could to improve himself within the
confines of incarceration.

    The eighteen years that passed between the original
sentencing hearing and the resentencing hearing provide a
compelling reason to credit the sincerity of Briones’s efforts
to rehabilitate himself. Briones was sentenced in 1997;
Miller was not issued until 2012. Thus, for the first fifteen
years of Briones’s incarceration, his LWOP sentence left no
hope that he would ever be released, so the only plausible
motivation for his spotless prison record was improvement
for improvement’s sake. This is precisely the sort of
evidence of capacity for change that is key to determining
whether a defendant is permanently incorrigible, yet the
record does not show that the district court considered it.
This alone requires remand. See Pete, 819 F.3d at 1133.

    The district court may have hesitated to fully consider
Briones’s post-incarceration conduct because we had not yet
issued our decision in Pete, and because the government


     9
       Briones’s father told him of a distant relative who was “the last man
to have his hair long[.]” Briones was moved by that account and let his
hair grow long to “express his Native American identity.” But when he
tried out for the high school football team, the coach told him he could not
be on the team unless he cut his hair.
                 UNITED STATES V. BRIONES                      19

argued that the court had to “make some guesses as to what
Judge Broomfield would have done back [at Briones’s
original sentencing] had Judge Broomfield had the option of
something other than a life sentence available to him.” On
this point, the government’s argument missed the mark. Pete
explained that “whether [the juvenile offender] has changed
in some fundamental way since [the original sentencing], and
in what respects, is surely key evidence.” 819 F.3d at 1133.
We reaffirm that when a substantial delay occurs between a
defendant’s initial crime and later sentencing, the defendant’s
post-incarceration conduct is especially pertinent to a Miller
analysis. See id.; see also Montgomery, 136 S. Ct. at 736
(“The petitioner’s submissions [of his reformation while in
prison] are relevant . . . as an example of one kind of evidence
that prisoners might use to demonstrate rehabilitation.”). The
key question is whether the defendant is capable of change.
See Pete, 819 F.3d at 1133. If subsequent events effectively
show that the defendant has changed or is capable of
changing, LWOP is not an option.

       The district court’s heavy emphasis on the nature of
Briones’s crime, coupled with Briones’s evidence that his is
not one of those rare and uncommon cases for which LWOP
is a constitutionally acceptable sentence, requires remand.
We do not suggest the district court erred simply by failing to
use any specific words, see Montgomery, 136 S. Ct. at 735,
but the district court must explain its sentence sufficiently to
permit meaningful review. See Carty, 520 F.3d at 992
(“Once the sentence is selected, the district court must
explain it sufficiently to permit meaningful appellate review
. . . . What constitutes a sufficient explanation will necessarily
vary depending upon the complexity of the particular case
. . . .”). When a district court sentences a juvenile offender in
a case in which an LWOP sentence is possible, the record
20                 UNITED STATES V. BRIONES

must reflect that the court meaningfully engaged in Miller’s
central inquiry.

                          IV. Conclusion

    We vacate Briones’s sentence and remand for
consideration of the entirety of Briones’s sentencing
evidence.

     VACATED and REMANDED.



BENNETT, Circuit Judge, with whom IKUTA, Circuit Judge,
joins, dissenting:

   I respectfully dissent. The district court did not commit
any constitutional error in imposing a life sentence, and I
would therefore affirm.

                                    I.

    Riley Briones, Jr. was a founder and leader of a vicious
gang called the Eastside Crips Rolling 30’s. Briones helped
plan and carry out a series of violent crimes committed by the
gang on the Salt River Indian Reservation in 1994 and 1995.
Briones’s most serious crime, committed less than one month
before his eighteenth birthday, was the planned robbery and
murder of a Subway employee.1



     1
     As the district judge stated at the sentencing at issue in this case:
“The murder of the [Subway] clerk was planned. It wasn’t an accident, it
wasn’t unexpected.”
                   UNITED STATES V. BRIONES                           21

    On May 15, 1994, Briones drove four other gang
members, one armed with a gun, to the Subway restaurant
and waited in the vehicle while the others entered the
restaurant. Prior to the murder, the gunman returned to the
car and conferred with Briones, then returned to the restaurant
and shot the employee in the face, and then shot him several
more times as he lay injured or dying on the floor.2 The
conspirators stole a bank bag containing $100 (plus the food
that they had ordered). One testified that after they returned
to the car with the proceeds, Briones instructed another to
grab a rifle from the backseat and shoot a maintenance
worker who had been working in front of the Subway when
they arrived. Though they searched for the worker to kill him
as Briones had instructed, fortunately they did not find him.

    Three weeks later—one day before Briones’s eighteenth
birthday—he and other gang members conspired to burn
down the family residence of a rival gang member. Briones
personally constructed the Molotov cocktails that another
gang member used to firebomb the house. Luckily, the
family inside—including a ten-year-old asleep on a
couch—was not harmed.

     Briones (now having reached the age of majority) and
other gang members again decided to burn down the same
rival gang member’s home. Concerned that the fire
department could thwart their plans, this time they decided to
first start diversionary fires to lower the risk that the blaze at




    2
      The district judge stated at sentencing: “I don’t know what other
conclusion can be drawn than that the defendant was involved in the final
decision and encouraged the shooter to pull the trigger.”
22                  UNITED STATES V. BRIONES

the targeted home would be prematurely contained.3 Briones
drove other gang members to two abandoned buildings,
where they started the diversionary fires. With the first step
of their scheme completed, Briones then drove his co-
conspirators to their rival’s home, which had survived the
first firebombing. Briones personally constructed the five
Molotov cocktails that were used to start one of the
diversionary fires and to firebomb the home, and he also
provided the gasoline used to start the second diversionary
fire. Many people, of course, could have been killed,
including two children inside the firebombed home. Again,
thankfully, no one was killed.

    Attempt two having failed, Briones moved on to attempt
three about a month later. Briones helped plan a drive-by
shooting of the same home. Though Briones was neither the
driver nor the shooter, he and another gang member went to
Briones’s home to pick up the assault rifle used in the
shooting. Afterward, Briones wiped the fingerprints off the
assault rifle and directed other gang members to discard the
shell casings and drop off the stolen car used in the shooting
in an isolated place. Again, those inside the home during the
shooting were unharmed, though not due to any lack of trying
by Briones.

    In 1995, Briones violently assaulted a member of his gang
in order to stop him from speaking to law enforcement about
the Subway murder. Briones broke a beer bottle on the
victim’s face and pistol-whipped his head. The victim


     3
      There is no evidence in the record that Briones or his co-conspirators
were targeting the many families in nearby houses—their actual target
lived in the firebombed home. Neighbors were merely potential collateral
damage.
                  UNITED STATES V. BRIONES                        23

testified at trial that Briones knocked him unconscious, and
when he regained consciousness, he overheard Briones and
others discussing “how they [were] going to dispose of
[him].” That victim escaped and eventually cooperated.

    At trial, the government presented evidence that the gang
planned to blow up the Salt River Police Department and kill
a tribal judge, federal prosecutors, and Salt River Police
investigators. Briones and two others followed one
investigator to lunch but did not shoot him because there were
too many witnesses. The government also received
information that at Briones’s direction gang members
practiced shooting at objects from a hilltop to simulate
shooting from the roofs of buildings near the federal building.
The government received information that while in jail,
Briones carved gang graffiti into the door of a jail cell and
discussed plans to escape.

    Briones was convicted of all charged offenses, including
felony murder, arson, assault, and witness tampering. At his
original sentencing in July 1997, almost three years after the
Subway murder, Briones continued to deny responsibility for
his crimes. The district court sentenced Briones to the then-
mandatory guidelines sentence of life imprisonment without
parole on the felony murder count.4

    Briones’s original sentence was vacated in light of Miller
v. Alabama, 567 U.S. 460 (2012). During resentencing,
Briones argued that the sentencing guidelines, which
recommend a life sentence in his case, should be set aside
under Miller. He also argued that an appropriate sentence

    4
      As noted by the majority, the only issue before us is Briones’s
sentence for his felony murder conviction. Maj. at 7 n.1.
24                  UNITED STATES V. BRIONES

would be 360 months “based on the evidence in mitigation”
he would present, including relating to the “hallmarks of
youth” identified by Miller.5

    The resentencing record before the district court was
comprehensive. It included the transcript of Briones’s
original sentencing, resentencing memoranda submitted by
the parties, testimony from Briones and his wife at the
resentencing hearing, arguments from counsel during the
resentencing hearing, the presentence report (PSR)—which
had been revised to include new information since Briones’s
incarceration—and letters on behalf of Briones and the victim
questionnaires that were attached to the PSR. The district
court adopted the findings in the PSR, and Briones made no
objections to the PSR.

    After considering all of the information in the record, the
district court determined that a life without parole sentence
was appropriate.

             [I]n mitigation I do consider the history of
         the abusive father, the defendant’s youth,
         immaturity, his adolescent brain at the time,
         and the fact that it was impacted by regular
         and constant abuse of alcohol and other drugs,
         and he’s been a model inmate up to now.




     5
       I question whether Briones appropriately raised the specific
argument below that he now raises on appeal—that it would be
constitutional error for the court to impose a life without parole sentence
because his crimes do not reflect “permanent incorrigibility.” I would
affirm regardless.
        UNITED STATES V. BRIONES                  25

    However, some decisions have lifelong
consequences. This robbery was planned,
maybe not by the defendant but he took over
and was all in once the plan was developed.
He drove everybody there. He appeared to be
the pillar of strength for the people involved
to make sure they executed the plan. The
murder of the clerk was planned. It wasn’t an
accident, it wasn’t unexpected. Although the
defendant did not pull the trigger, he was in
the middle of the whole thing. He stayed in
the car, apparently, to avoid responsibility.

    And circumstantially, at least, it appears
that defendant was involved in the final
decision to kill the young clerk. Eschief came
out to the car and spoke to him and walked
right back in and shot him in the head. He
spoke to the defendant right before he pulled
the trigger. I don’t know what other
conclusion can be drawn than that the
defendant was involved in the final decision
and encouraged the shooter to pull the trigger.

    All indications are that defendant was
bright and articulate, he has improved himself
while he’s been in prison, but he was the
leader of a gang that terrorized the Salt River
Reservation community and surrounding area
for several years. The gang was violent and
cold-blooded.

    Having considered those things and all the
evidence I’ve heard today and everything I’ve
26                   UNITED STATES V. BRIONES

          read, . . . it’s the judgment of the Court that
          [Briones] is hereby committed to the Bureau
          of Prisons for a sentence of life.

                                      II.

                                      A.

    Briones argues that, under Miller, the district court
committed constitutional error by imposing a life without
parole sentence. We normally review “de novo the
constitutionality of a sentence.” United States v. Estrada-
Plata, 57 F.3d 757, 762 (9th Cir. 1995).6 Assuming de novo
review applies, I conclude that the district court did not
commit any constitutional error and imposed a permissible
sentence supported by the record.

                                      B.

    The district court fully complied with the requirements in
Miller. The Court in Miller held that “the Eighth Amendment
forbids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders.”
567 U.S. at 479. After analyzing its precedent, the Court
determined that a sentencer “must have the opportunity to
consider mitigating circumstances before imposing the

     6
        If Briones failed to properly raise the specific constitutional
argument that he asserts on appeal, we would apply plain error review.
See United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en
banc) (plain error review applies where an individual fails to raise the
constitutional error in the district court). “Plain error is ‘(1) error, (2) that
is plain, and (3) that affects substantial rights.’” Id. (quoting United States
v. Cotton, 535 U.S. 625, 631 (2002)). Because the district court did not
err at all, it obviously did not plainly err.
                 UNITED STATES V. BRIONES                    27

harshest possible penalty for juveniles.” Id. at 489 (emphasis
added). The Court then concluded that “[b]y requiring that
all children convicted of homicide receive lifetime
incarceration without possibility of parole, regardless of their
age and age-related characteristics and the nature of their
crimes, the mandatory-sentencing schemes . . . violate this
principle of proportionality, and so the Eighth Amendment’s
ban on cruel and unusual punishment.” Id.

    The Court noted, however, that a life sentence without the
possibility of parole for juveniles in homicide cases is a
permissible sentence. Id. at 480. And the Court offered
explicit guidance on what is required to properly impose life
sentences for juveniles: The Court’s decision “mandates only
that a sentencer follow a certain process—considering an
offender’s youth and attendant characteristics—before
imposing a particular penalty.” Id. at 483 (emphases added).

    Consequently, Miller does not require a sentencer to make
any explicit findings before imposing a life sentence on a
defendant who was a juvenile at the time of the offense.
Miller requires a sentencer to “consider,” “examine,” or “take
into account how children are different.” Id. at 480, 483, 489.
The Court makes clear throughout its opinion that nothing
more is required. See, e.g., id. at 478–80 (explaining that “a
sentencer should look at such facts,” “a sentencer needed to
examine all these circumstances,” and “we require [a
sentencer] to take into account how children are different”
(emphases added)).

    In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the
Court clarified the requirements under Miller. There, the
Court determined that “Miller did bar life without parole . . .
for all but the rarest of juvenile offenders, those whose crimes
28              UNITED STATES V. BRIONES

reflect permanent incorrigibility.” Id. at 734. The Court
ultimately held that “Miller announced a substantive rule that
is retroactive in cases on collateral review.” Id. at 732. But
Montgomery did not bar life without parole sentences in
murder cases and did not change what a sentencer must do
before imposing such a sentence on a defendant who
committed the murder as a juvenile. Indeed, Montgomery
confirmed that there is no factfinding requirement before
imposing such a sentence. Id. at 734–35.

     In sum, Miller, as clarified by Montgomery, requires a
sentencer “to consider a juvenile offender’s youth and
attendant characteristics before determining that life without
parole is a proportionate sentence,” 136 S. Ct. at 734, and, if
life without parole is imposed, it must be proportionate. That
is, the circumstances must support that the juvenile offender’s
“crimes reflect permanent incorrigibility,” id., not “transient
immaturity,” id. at 735. Importantly, Miller does not require
a sentencer to make findings that a juvenile offender is
permanently incorrigible before imposing a life sentence
without parole.

    The district court here complied with Miller. First, there
is no doubt that the district court was fully aware of Miller’s
requirements. Indeed, Miller was the sole reason Briones was
resentenced.      The parties’ memoranda cited Miller
throughout. Briones’s memorandum explicitly set forth the
“hallmarks of youth” that the court must consider before
imposing a life without parole sentence, and the
government’s memorandum, quoting Miller, highlighted that
the court’s task was to consider whether Briones’s crimes
reflect “unfortunate yet transient immaturity” or “irreparable
corruption.” And during the resentencing hearing, counsel
                    UNITED STATES V. BRIONES                            29

for both parties focused their arguments on Miller’s
requirements.

    With the correct standards in mind, the district court did
exactly what Miller requires—it considered Briones’s “youth
and attendant characteristics.” 567 U.S. at 483. We know
this because the district court explicitly stated that it
considered Briones’s “youth, immaturity, [and] adolescent
brain at the time,” and other evidence attendant to his youth,
including “the history of [his] abusive father” and Briones’s
“constant abuse of alcohol and other drugs.” We also know
that the district court considered Briones’s post-incarceration
efforts at rehabilitation because the court expressly stated that
Briones has “been a model inmate up to now” and “[Briones]
has improved himself while he’s been in prison.” The district
court further stated that it adopted the findings in the PSR,
which contained information about Briones’s youth and post-
incarceration rehabilitation efforts. Thus, contrary to the
majority’s opinion, the district court very clearly considered
Briones’s youth, youth-related characteristics, and post-
incarceration rehabilitation efforts.7

    7
       The majority criticizes the sentencing judge’s remarks about
Briones’s crime and history of gang-related violence and his statement that
“some decisions have lifelong consequences.” Maj. at 16–17. The
majority claims that these remarks demonstrate that the district court
“focused on the punishment warranted by the terrible crime . . . rather than
whether Briones was irredeemable.” Maj. at 17. But the majority’s
conclusion completely ignores the sentencing judge’s express statements
that demonstrate he did in fact consider Briones’s post-incarceration
efforts at rehabilitation. The majority also criticizes the sentencing
judge’s remarks about factors he considered in mitigation. Maj. at 17.
But the remarks made by the district court that the majority criticizes
actually demonstrate that the district court considered proper information.
See Miller, 567 U.S. at 489 (“[A] judge or jury must have the opportunity
to consider mitigating circumstances before imposing the harshest
30                 UNITED STATES V. BRIONES

    The district court therefore was aware of and applied the
appropriate standards announced in Miller. The record also
supports that the district court imposed a permissible
sentence. The district court found that Briones was a
founding member and leader of an extraordinarily violent
gang.8 The robbery and murder of the Subway employee was
planned and brutal. Although Briones did not pull the trigger,
as the district court found, he “was involved in the final
decision [to kill the employee] and encouraged the shooter to
pull the trigger.” Moreover, he was only twenty-three days
shy of his eighteenth birthday when he participated in the
murder and instructed his subordinates to murder a witness.
And the day before his eighteenth birthday he firebombed a
home without any regard for the death and damage it might
cause. Even after he reached the age of majority, he risked
wide-scale death and destruction through another


possible penalty for juveniles.”) (emphasis added); 18 U.S.C. § 3553(a)
(“The court, in determining the particular sentence to be imposed, shall
consider . . . the nature and circumstances of the offense and the history
and characteristics of the defendant[.]”). Further, the district court’s
statement that “some decisions have lifelong consequences” is entirely
consistent with and necessarily follows from Miller, as Miller recognized
that life without parole remains a permissible sentence for some juvenile
offenders. 567 U.S. at 480. Thus, some crimes committed by some
juveniles will have lifelong consequences.
     8
      The district court described the gang as “violent and cold-blooded.”
Several of Briones’s co-defendants were convicted of conspiracy to
participate in a racketeering enterprise, i.e., the Eastside Crips Rolling
30’s gang. The indictment described the gang as a “criminal
organization” that “engaged in acts of violence, including murder,
attempted murder, assault, arson, robbery, and intimidation of witnesses.”
Prospective gang members had to “carry out a violent act to prove [their]
worth,” and there was a group within the gang known as the “Skins
Killing Slobs” or “Dark Army,” whose job was to “assassinate anyone
who posed a risk” to the gang.
                UNITED STATES V. BRIONES                   31

firebombing, a drive-by shooting, and gang leadership. Many
could have died from his actions—only one was proven to
have.

    Though Briones had the opportunity to express remorse
at his original sentencing three years after the murder, he
continued to deny responsibility for his crimes. During the
resentencing hearing, government counsel stated that he had
met with Briones the day before the hearing—almost twenty-
two years after the murder—and even then Briones failed to
accept responsibility and minimized his role in the murder
and within the gang. When Briones testified at his
resentencing hearing, he still maintained that he was
“surprised” when he heard the gunshots that killed the
Subway employee, and still denied that he was a leader in the
gang. The district court’s factual findings to the contrary
were not clearly erroneous. When deciding to impose a
sentence of life without parole, the district court expressly
stated that it considered this information:           “Having
considered . . . all the evidence I’ve heard today [during the
resentencing hearing] and everything I’ve read . . . [Briones]
is hereby committed to the Bureau of Prisons for a sentence
of life.” As there is no requirement under Miller that the
district court make any specific findings before imposing a
life without parole sentence, there is no error
here—constitutional, plain, or otherwise.

    Thus, despite evidence of Briones’s rehabilitation, youth
when the heinous crimes were committed, and youth-related
characteristics, the record supports that Briones’s crimes
reflect permanent incorrigibility, as opposed to transient
immaturity.      The district court therefore imposed a
permissible sentence. Notably, the majority does not
conclude that a life without parole sentence is impermissible
32              UNITED STATES V. BRIONES

in this case. Instead, although the majority claims otherwise,
the majority’s opinion vacates the district court’s sentence
because the district court failed to find that Briones was
permanently incorrigible. But as discussed above, there is no
requirement for the district court to make any specific
findings before imposing a life without parole sentence. In
short, the majority, citing Montgomery, states that it “do[es]
not suggest the district court erred simply by failing to use
any specific words,” Maj. at 19. But in clear contravention of
Montgomery, that is precisely why it has reversed. We
remand for the district court to do again what it has already
done.

    Because the district court complied with Miller’s
requirements and imposed a permissible sentence supported
by the record, I would affirm.
