15‐2220(L)
United States v. Sierra (Carlos Lopez)


                    United States Court of Appeals
                        for the Second Circuit
                                AUGUST TERM 2018
                   Nos. 15‐2220(L), 15‐2247(CON), 15‐2257(CON)



                             UNITED STATES OF AMERICA,
                                     Appellee,

                                         v.

 LEONIDES SIERRA, AKA SEALED DEFENDANT 1, AKA JUNITO, AKA JUNIOR, ET AL.,
                               Defendants,

CARLOS LOPEZ, AKA SEALED DEFENDANT 15, AKA CARLITO, LUIS BELTRAN, AKA
  SEALED DEFENDANT 26, AKA GUALEY, FELIX LOPEZ‐CABRERA, AKA SEALED
                    DEFENDANT 14, AKA SUZTANCIA,
                        Defendants‐Appellants.

                                ARGUED: MAY 6, 2019
                               DECIDED: AUGUST 1, 2019



Before:      NEWMAN, JACOBS, DRONEY, Circuit Judges.

      Carlos Lopez, Luis Beltran, and Felix Lopez‐Cabrera appeal from a
judgment of the United States District Court for the Southern District of New
York sentencing them, inter alia, to mandatory minimum terms of life
imprisonment applicable to convictions for murder in aid of racketeering. On
appeal, the defendants argue that because they were between 18 and 22 years old


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when the murders were committed, a mandatory life sentence is cruel and
unusual in violation of the Eighth Amendment. Lopez additionally argues that
his mandatory life sentence is cruel and unusual because he did not kill, attempt
to kill, or intend to kill the victims of his crimes.

      Affirmed.
                              ____________________

                         MATTHEW LAROCHE, Assistant United States
                         Attorney (Micah W.J. Smith, Margaret Garnett,
                         Assistant United States Attorneys, on the brief), United
                         States Attorney’s Office for the Southern District of
                         New York, New York, NY, for Appellee.

                         SUSAN GAIL KELLMAN, Law Offices of Susan G.
                         Kellman, Brooklyn, NY (Ezra Spilke, Law Offices of
                         Ezra Spilke PLLC, Brooklyn, NY, on the brief), for
                         Appellant Carlos Lopez.

                         DANIEL S. NOOTER (Lee Ginsberg, on the brief),
                         Freeman, Nooter & Ginsberg, New York, NY, for
                         Appellant Luis Beltran.*

                         JESSE M. SIEGEL, Law Office of Jesse M. Siegel, New
                         York, NY (Irving Cohen, Law Office of Irving Cohen,
                         New York, NY, on the brief), for Appellant Felix
                         Lopez‐Cabrera.




* In addition to the brief prepared by his counsel, appellant Beltran also
submitted a pro se brief.

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DENNIS JACOBS, Circuit Judge:

       Carlos Lopez, Luis Beltran, and Felix Lopez‐Cabrera (the “defendants”)
appeal from a judgment of the United States District Court for the Southern
District of New York (Engelmayer, J.) sentencing them, inter alia, to mandatory
minimum terms of life imprisonment applicable to convictions for murder in aid
of racketeering. On appeal, the defendants argue that because they were
between 18 and 22 years old when the murders were committed, a mandatory life
sentence is cruel and unusual in violation of the Eighth Amendment. Lopez
additionally argues that his mandatory life sentence is cruel and unusual because
he did not kill, attempt to kill, or intend to kill the victims of his crimes. The
defendants’ remaining arguments are adjudicated in a summary order filed
today.

      For the reasons explained below, the judgment of the district court is
affirmed.

                                BACKGROUND

      The February 2013 indictment charged Lopez, Beltran, Lopez‐Cabrera, and
36 co‐defendants with dozens of counts arising out of their membership in the
Bronx Trinitarios Gang, a racketeering enterprise engaged in drug trafficking and
violent crime. The jury convicted the defendants of charges including (as
relevant to this opinion) substantive and conspiracy counts of murder in aid of
racketeering in violation of 18 U.S.C. § 1959.

       Beltran and Lopez‐Cabrera were convicted of substantive and conspiracy
counts of murder of Raymond Casul in aid of racketeering. Trial evidence
established that in March 2009 Lopez‐Cabrera drove Beltran to an intersection in
the Bronx where Beltran shot and killed Casul in retaliation for an earlier
altercation between Casul and members of the Trinitarios. Lopez‐Cabrera
attempted to cover up the murder by, inter alia, hiding the murder weapon.

      Lopez‐Cabrera was convicted of murder of David Avila‐Gomez in aid of
racketeering. Trial evidence established that in September 2009 Lopez‐Cabrera

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led four fellow members of the Trinitarios in an attempt to rob Avila‐Gomez of
his cell phone while he was sitting on the steps of his home. When
Avila‐Gomez resisted, he was shot and killed by one of the Trinitarios.

       Lopez and Lopez‐Cabrera were convicted of conspiracy and substantive
counts of murder of Raffy Tavares and Irving Cruz in aid of racketeering. Trial
evidence established that in May 2010 Lopez and Lopez‐Cabrera encountered
Tavares and Cruz during a standoff between members of the Trinitarios and
individuals believed to be members of a rival chapter of the Trinitarios. Lopez
and Lopez‐Cabrera chased Tavares and Cruz while Lopez‐Cabrera fired shots
that struck and killed Tavares and Cruz.

     Finally, Lopez was convicted of conspiracy and substantive counts of
murder of Freddy Polanco in aid of racketeering. The evidence established that
in November 2010 Lopez agreed to retaliate against Polanco after he disrespected
members of the Trinitarios, and that when Lopez and fellow Trinitarios came
upon Polanco in the lobby of a building, one of the Trinitarios shot and killed
him.

       Prior to sentencing, the defendants submitted a joint motion arguing that it
would be cruel and unusual in violation of the Eighth Amendment to impose
mandatory minimum life sentences for the convictions for murder in aid of
racketeering. The district court denied the motion, and imposed sentences that
for each defendant included at least one mandatory minimum term of life
imprisonment applicable to convictions for murder in aid of racketeering under
18 U.S.C. § 1959(a)(1).

                                 DISCUSSION

A.    Age‐Based Arguments

      Each defendant was between 18 and 22 years old at the times of the
murders in aid of racketeering of which they were convicted. They argue on
appeal that the mandatory minimum life sentences imposed for those
convictions violate the Eighth Amendment, relying principally on Miller v.

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Alabama, 567 U.S. 460 (2012).

       Miller held “that mandatory life without parole for those under the age of
18 at the time of their crimes violates the Eighth Amendment’s prohibition on
‘cruel and unusual punishments,’” id. at 465, because “a judge or jury must have
the opportunity to consider mitigating circumstances before imposing the
harshest possible penalty for juveniles,” id. at 489.1 The defendants argue that
Miller’s holding should be extended to apply to them, because scientific research
purportedly shows that the biological factors that reduce children’s “moral
culpability” likewise affect individuals through their early 20s.

       The Supreme Court has acknowledged that “[d]rawing the line at 18 years
of age is subject, of course, to the objections always raised against categorical
rules,” such as that “[t]he qualities that distinguish juveniles from adults do not
disappear when an individual turns 18,” and that “[b]y the same token, some
under 18 have already attained a level of maturity some adults will never reach.”
Roper v. Simmons, 543 U.S. 551, 574 (2005). Nevertheless, “a line must be
drawn,” and the Supreme Court has repeatedly chosen in the Eighth
Amendment context to draw that line at the age of 18, which “is the point where
society draws the line for many purposes between childhood and adulthood.”
Id.; see also Graham v. Florida, 560 U.S. 48, 74‐75 (2010); United States v.
Reingold, 731 F.3d 204, 215 (2d Cir. 2013) (under Miller, courts may not
“substitute the defendant’s relative immaturity for the actual age of minority”).
Since the Supreme Court has chosen to draw the constitutional line at the age of
18 for mandatory minimum life sentences, Miller, 567 U.S. at 465, the defendants’
age‐based Eighth Amendment challenges to their sentences must fail.

B.    Lopez’s Lesser Role Argument

       The convictions for which Lopez was sentenced to a mandatory minimum
life sentence were premised on Pinkerton liability. See Pinkerton v. United

1 The life sentences in Miller were not subject to parole. See Miller, 567 U.S. at
466, 469. The defendants’ federal life sentences were also not subject to parole,
which was abolished by the Sentencing Reform Act of 1984, § 218(a)(5).

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States, 328 U.S. 640 (1946). Lopez argues that the sentence violates the Eighth
Amendment because he did not commit the murders directly. In support, he
relies on Enmund v. Florida, which held that the Eighth Amendment
categorically forbids “imposition of the death penalty on one . . . who aids and
abets a felony in the course of which a murder is committed by others but who
does not himself kill, attempt to kill, or intend that a killing take place.” 458
U.S. 782, 797 (1982).

       In challenging his mandatory minimum life sentence for murder imposed
on a Pinkerton theory, Lopez is combining two distinct arguments. One
argument, which is not based on Enmund, is that the sentence is unconstitutional
because it is mandatory. His point is that a sentence of such severity imposed
for Pinkerton liability is unconstitutional when it is made mandatory. His
second argument, which is based on Enmund, is that a sentence as severe as his
is unconstitutional when imposed for accessory liability.

       For different reasons, both arguments are foreclosed by Harmelin v.
Michigan, 501 U.S. 957 (1991). To the extent that Lopez is challenging the
mandatory nature of his sentence, Harmelin provides a complete answer: “There
can be no serious contention . . . that a sentence which is not otherwise cruel and
unusual becomes so simply because it is ‘mandatory.’” Id. at 995; see also
Miller, 567 U.S. at 480‐81. To the extent that Lopez seeks extension of Enmund
to his non‐capital life sentence, Harmelin also provides a complete answer when
it says that “death is different,” and that the Court’s death penalty jurisprudence
“will not [be] extend[ed] . . . further.” 501 U.S. at 994.

       But Lopez’s second argument is by no means frivolous. Harmelin was
premised on the fact that, as of 1991, the “cases creating and clarifying the
‘individualized capital sentencing doctrine’ . . . repeatedly suggested that there is
no comparable requirement outside the capital context, because of the qualitative
difference between death and all other penalties.” Id. at 995. We recognize that
recent cases have arguably “jettison[ed] Harmelin’s clear distinction between
capital and noncapital cases,” Miller, 567 U.S. at 508 (Thomas, J., dissenting): the
Court has concluded that life‐without‐parole sentences “share some
characteristics with death sentences that are shared by no other sentences,”

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Miller, 567 U.S. at 474 (quoting Graham, 560 U.S. at 69); and Graham’s holding
treated “juvenile life sentences as analogous to capital punishment,” Miller, 567
U.S. at 475 (quoting Graham, 560 U.S. at 89 (Roberts, Ch.J., concurring)).

       Moreover, Miller’s reliance on cases that categorically bar certain
punishments for juveniles on the basis of juveniles’ lesser culpability2 could, by
extension and analogy, support an individual sentencing requirement for adults
who are convicted of murder, who face life without parole, but who did not kill,
attempt to kill, or intend to kill. Enmund held (in the death penalty context) that
such defendants’ “culpability is plainly different from that of [defendants] who
killed.” 458 U.S. at 798. Miller’s concern that juvenile mandatory life sentences
“neglect[] the circumstances of the homicide offense, including the extent of [the
defendant’s] participation in the conduct,” Miller, 567 U.S. at 477, might likewise
bear upon sentencing for the class of defendants deemed less culpable under
Enmund.

      Nevertheless, despite the doubts expressed by the dissenting justices, the
Miller majority expressly stated that it was not overruling Harmelin. Id. at 482.
Lopez’s argument is therefore foreclosed by Supreme Court precedent.3

                                 CONCLUSION

       For the foregoing reasons, and for the reasons stated in the accompanying
summary order filed today, we hereby AFFIRM the judgment of the district
court.



2 The Court relied on Roper, 543 U.S. 551 (capital punishment for juveniles
violates Eighth Amendment), and Graham, 560 U.S. 48 (life without parole for
juveniles who commit non‐homicide offenses violates Eighth Amendment).
Miller, 567 U.S. at 477.

3 Accordingly, we need not address the government’s argument that the jury
verdict necessarily included a finding that Lopez intended that the murders be
done.

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