                     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 August 15, 2017
                 San Francisco, California

                       Filed May 16, 2018

    Before: Diarmuid F. O’Scannlain and Johnnie B.
  Rawlinson, Circuit Judges, and David A. Ezra,* District
                         Judge.

                 Opinion by Judge Rawlinson;
          Partial Concurrence and Partial Dissent by
                      Judge O’Scannlain

    *
      The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
2                   UNITED STATES V. BRIONES

                            SUMMARY**


                            Criminal Law

    The panel affirmed a life sentence imposed on a juvenile
offender.

    The defendant, a juvenile at the time he committed the
offenses, was convicted of felony murder and other crimes
and was sentenced to life imprisonment without parole on the
felony murder count under the then-mandatory United States
Sentencing Guidelines. Following Miller v. Alabama, 567
U.S. 460 (2012) (holding that the Eighth Amendment forbids
a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders), the district court
granted the defendant’s motion under 28 U.S.C. § 2255 to
vacate his original mandatory life sentence. At resentencing,
the district court imposed a new life sentence.

    The panel held that, at resentencing, the district court did
not err by first calculating and using the sentencing guideline
range of life imprisonment.

    The panel held that under Miller and Montgomery v.
Louisiana, 136 S. Ct. 718 (2016), the district court was
required to consider the “hallmark features” of youth before
imposing a sentence of life without parole on a juvenile
offender. The panel also held that, as part of the district
court’s inquiry into whether the defendant was a member of
the class of permanently incorrigible juvenile offenders, the

    **
       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

court had to take into account evidence of the defendant’s
rehabilitation. Reviewing for plain error and abuse of
discretion, the panel held that the district court met these
requirements.

    Concurring in part and dissenting in part, Judge
O’Scannlain agreed with the majority that the defendant was
not categorically ineligible for a life sentence simply because
he was a juvenile who did not pull the trigger, and that the
district court was correct to begin its sentencing process by
calculating the Sentencing Guidelines range. Dissenting from
Part II.B of the opinion, Judge O’Scannlain disagreed with
the majority’s holding that the district court sufficiently
considered the defendant’s claim that he was not in that class
of rare juvenile individuals constitutionally eligible for a life-
without-parole sentence. Judge O’Scannlain wrote that he
would remand for the limited purpose of permitting the
district court properly to perform the analysis required by
Miller and Montgomery.


                          COUNSEL

Vikki M. Liles (argued), Phoenix, Arizona, for Defendant-
Appellant.

Patrick J. Schneider (argued), Assistant United States
Attorney; Krissa M. Lanham, Deputy Appellate Chief;
Elizabeth A. Strange, First Assistant United States Attorney;
United States Attorney’s Office, Flagstaff, Arizona; for
Plaintiff-Appellee.
4               UNITED STATES V. BRIONES

                         OPINION

RAWLINSON, Circuit Judge:

    We must decide whether the district court appropriately
rejected a juvenile offender’s argument that he should not
receive a sentence of life without parole.

                              I

                              A

    Riley Briones, Jr. was a founder and leader of a gang
styled the “Eastside Crips Rolling 30’s.” Briones was
involved in and helped to plan a series of violent crimes
committed by the gang on the Salt River Indian Reservation.
As a result of these crimes, on October 23, 1996, Briones and
four other members of the gang were indicted on federal
charges including felony murder, arson, assault, and witness
tampering.

    The most serious of the crimes was a murder committed
on May 15, 1994, when Briones was seventeen. According
to evidence presented at trial, Briones and fellow gang
members planned to rob a Subway restaurant knowing that
there would be only one employee present. Briones drove
four other gang members to the restaurant, including one
armed with a gun, and parked his car outside while the other
four went in to rob the store. They ordered food from the
lone employee, and while it was being prepared, the gunman
returned to the car to speak with Briones, then went back into
the restaurant, shot the clerk in the face, and then shot him
several more times on the floor. With the cash register
locked, the gang members were able to steal only a bag with
                 UNITED STATES V. BRIONES                      5

$100 and the food they had ordered. One of the gang
members, who eventually cooperated with the government,
testified that after they got back in the car, Briones looked for
a maintenance man whom he thought had seen them.
According to the cooperating witness, Briones instructed the
other gang members to shoot the maintenance man.

     Three weeks later, Briones helped plan to firebomb a rival
gang member’s home and prepared the Molotov cocktails to
be used. Although Briones was not the one to throw them, a
fellow gang member did, setting fire to a house with a family
inside, including an eleven-year-old girl. Fortunately, the
child was not harmed. Several months later, the gang decided
to try firebombing the same home again. Briones once more
provided Molotov cocktails and drove other gang members to
a kindergarten and an abandoned trailer house to set
diversionary fires. Briones then drove them to the rival gang
member’s home, which they firebombed. Again, fortunately,
the family was unharmed. Another month later, Briones
helped plan a drive-by shooting of the same home, although
he was neither the driver nor the shooter.

    Over the next year, Briones continued to participate in
gang-related crimes. He pistol whipped a member of his
gang who revealed he knew about the Subway murder. That
gang member managed to escape and eventually cooperated
with authorities. When other gang members committed
another drive-by shooting of a home with a mother and child
inside, Briones made sure the culprits disposed of their
clothes and accounted for the shell casings. At trial, the
government also presented evidence that Briones discussed
escaping from custody, that he carved gang graffiti into the
door of a jail cell, and that he discussed plans to blow up the
6                UNITED STATES V. BRIONES

Salt River Police Department and to kill a tribal judge, federal
prosecutors, and Salt River Police investigators.

     Briones was arrested on December 21, 1995. He was one
of five co-defendants, each of whom was made a plea offer of
twenty years in prison. Briones declined the offer, in part
because his father (one of the co-defendants) would not take
the deal. Ultimately, Briones was convicted of all charged
offenses. At the original sentencing in July, 1997, Briones
continued to deny responsibility for the crimes. As part of its
sentencing determination, the district court found that Briones
was the leader of the gang, and imposed the then-mandatory
guidelines sentence of life imprisonment without parole on
the felony murder count. Briones was also sentenced to ten
and twenty years, respectively, to run concurrently on the
non-homicide counts, which he has since served.

                               B

    Fifteen years after Briones’s original sentencing, the
Supreme Court held in Miller v. Alabama that “the Eighth
Amendment forbids a sentencing scheme that mandates life
in prison without possibility of parole for juvenile offenders.”
567 U.S. 460, 479 (2012) (citation omitted). In light of that
holding, a sentencing judge is required “to take into account
how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.”
Id. at 480 (footnote reference omitted). On the basis of
Miller, Briones filed a motion under 28 U.S.C. § 2255 to
vacate his original mandatory life sentence, which the district
court granted in July, 2014.

   At his resentencing, Briones requested a sentence of
360 months’ imprisonment rather than a life sentence. He
                 UNITED STATES V. BRIONES                       7

argued that the sentencing guidelines, which recommend a
life sentence in his case, should be set aside in light of Miller.
Invoking the “hallmarks of youth” identified by Miller,
Briones argued that a life sentence was inappropriate in his
case. He argued that his gang participation was a product of
youthful immaturity and a desire to have a “feeling of
banding together.” He pointed to a dysfunctional childhood
environment, including parental drug and alcohol abuse, a
history of family criminality (both his father and brother were
also in the gang and were co-defendants), dropping out of
school in the tenth grade, and difficulties as a Native
American attending school off the reservation. He said that
he was poorly situated to aid in his own defense or to
contradict his father when he refused to take a plea deal that
would have resulted in a much lower sentence. To mitigate
his culpability in the crime, he observed that the robbery
scheme was not his idea and that he was not the shooter.
Finally, he pointed to evidence of rehabilitation, including
that in all his time in prison he had not been written up once
for a disciplinary infraction, that he had no gang involvement,
that he had been working continuously, and that he married
his girlfriend with whom he has a now-adult child, and that he
sees his wife regularly.

    Both Briones and his wife testified at the resentencing
hearing and discussed the difficulties of his childhood.
Briones testified that he started drinking around age 12 and as
a teenager was regularly drunk in addition to using cocaine
and LSD. He wrote a letter to express “[g]rief, regret,
sorrow, pain.” He stated:

        I don’t know how but I know I have to
        apologize for everything and I apologize all
        the time to my family because they’re there,
8                  UNITED STATES V. BRIONES

         and my apology goes out to also to the
         [victim’s] family and to all the families, not
         just for what happened but for the other
         changes that occurred in my life.

    Although Briones told the court that he “want[ed] to
express remorse” and “want[ed] to express grief,” he never
actually took responsibility for any of the crimes of which he
was convicted.1

    The government countered that Briones deserved a life
sentence. The government acknowledged that under Miller,
“a life sentence for a juvenile is inappropriate in all but the
most egregious cases,” but argued that “this is the most
egregious case.” Despite recognizing that Briones was
“really doing well in prison,” the government noted that
Briones expressed remorse, but failed to accept responsibility,
and continued to minimize his role in the murder and in the
gang. Specifically, the government contended that it was not
credible that Briones was unaware of the gang members’
intention to murder the Subway clerk, and circumstantial
evidence suggested Briones himself may have ordered the
murder, because the gunman shot the clerk immediately upon
reentering the restaurant after speaking with Briones outside.
The prosecutor described Briones’s gang as “the most violent
gang that I have ever been involved in prosecuting,”
including the Hells Angels. Finally, the government pointed
out that although Briones was a juvenile, he was only
barely—he was over seventeen years and eleven months old
when the murder occurred—and he continued to commit


    1
      The dissent’s statement that Briones “expressed remorse repeatedly
and at length,” Dissenting Opinion, p. 30, is simply not supported by the
record.
                 UNITED STATES V. BRIONES                     9

violent crimes for another year and a half, stopping only
when he was arrested.

    After hearing from the parties, and “[u]sing the guidelines
as a starting point,” the district court calculated a sentencing
range of life imprisonment for Briones’s felony murder
conviction without objection from counsel. The court noted
that, “in addition to the presentence report, I’ve considered
the Government’s sentencing memorandum, the defendant’s
sentencing memorandum[,] . . . the transcript of the [original]
sentencing[,] . . . the victim questionnaire and the letters on
behalf of the defendant.” The court found that “[a]ll
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.” Briones “appeared to be the
pillar of strength for the people involved to make sure they
executed the plan [to murder the victim],” and he “was
involved in the final decision to kill the young clerk.” The
court expressed that “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. However, some
decisions have lifelong consequences.”

    Ultimately, the district court announced that, “[h]aving
considered those things and all the evidence I’ve heard today
and everything I’ve read . . . it’s the judgment of the Court
that Riley Briones, Jr. is hereby committed to the Bureau of
Prisons for a sentence of life.”
10               UNITED STATES V. BRIONES

    Because the federal system does not permit parole or
early release from life sentences, see 18 U.S.C. § 3624,
Briones’s sentence is effectively for life without the
possibility of parole. See United States v. Pete, 819 F.3d
1121, 1126, 1132 (9th Cir. 2016).

     Briones timely appealed.

                                II

    The district court’s sentencing decision is reviewed for
abuse of discretion, and “only a procedurally erroneous or
substantively unreasonable sentence will be set aside.”
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc) (citing Rita v. United States, 551 U.S. 338, 341 (2007)).
The factual findings underlying the sentence are reviewed for
clear error. United States v. Stoterau, 524 F.3d 988, 997 (9th
Cir. 2008). “When a defendant does not raise an objection to
his sentence before the district court, we apply plain error
review. . . .” United States v. Hammons, 558 F.3d 1100,
1103 (9th Cir. 2009) (citation omitted).

                                A

    Briones first contends that the district court erred by
calculating and using the sentencing guideline range. He
argues that, in light of Miller, “a court should no longer start
with a life sentence and work down, which is precisely what
the district court did here.” Instead, says Briones, “a court
must start from the presumption that a life sentence should be
uncommon” so that using the guidelines as “the starting point
was error that entitled Mr. Briones to a new sentencing.”
                 UNITED STATES V. BRIONES                      11

    As the Supreme Court has repeatedly held, however, “a
district court should begin all sentencing proceedings by
correctly calculating the applicable Guidelines range,” and
“[a]s a matter of administration and to secure nationwide
consistency, the Guidelines should be the starting point and
the initial benchmark.” Gall v. United States, 552 U.S. 38, 49
(2007) (emphasis added) (citing Rita v. United States,
551 U.S. 338, 347–48 (2007)). Although “[t]he Guidelines
are not the only consideration,” and a sentencing court “may
not presume that the Guidelines range is reasonable,” the
district court’s “individualized assessment based on the facts
presented” must follow a correct guidelines calculation.

    Briones can point to no language in Miller or subsequent
case law that overrules those clear instructions. We therefore
see no error in the district court following the sentencing
process prescribed by the Supreme Court. See Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)
(holding that precedent is controlling unless subsequent
authority has “undercut the theory or reasoning underlying
the prior . . . precedent in such a way that the cases are clearly
irreconcilable.”).

                                B

    Briones next argues that the district court erred by failing
to “appropriately consider the[] factors” identified in Miller
for sentencing juvenile offenders. He asserts that the district
court “merely recite[d] ‘youth’ as a mitigating circumstance”
when it was in fact required substantively to “consider the
mitigating quality of youth.” He argues that the court failed
to give the evidence of his rehabilitation “the weight Miller
requires” and instead “focused on the facts of the case.”
Briones contends that “[t]he critical question should have
12              UNITED STATES V. BRIONES

been whether Mr. Briones had the capacity to change” and
that the district court gave “short shrift” to “the evidence of
[his] maturation and change in demeanor.” He also points to
evidence he presented of his immaturity, dysfunctional family
environment, and inability to aid in his own defense, which
he says the district court “failed to properly assess” in
evaluating “the hallmarks of youth that must be considered
before sentencing a juvenile to spend the rest of his life in
prison.”

    In Miller, the Supreme Court held unconstitutional
mandatory life-without-parole sentences for juvenile
offenders and, in so doing, enumerated a series of factors
sentencing courts should consider:

       Mandatory life without parole for a juvenile
       precludes consideration of his chronological
       age and its hallmark features—among them,
       immaturity, impetuosity, and failure to
       appreciate risks and consequences.            It
       prevents taking into account the family and
       home environment that surrounds him—and
       from which he cannot usually extricate
       himself—no matter how brutal or
       dysfunctional. It neglects the circumstances
       of the homicide offense, including the extent
       of his participation in the conduct and the way
       familial and peer pressures may have affected
       him. Indeed, it ignores that he might have
       been charged and convicted of a lesser offense
       if not for incompetencies associated with
       you—for example, his inability to deal with
       police officers or prosecutors (including on a
                 UNITED STATES V. BRIONES                     13

        plea agreement) or his incapacity to assist his
        own attorneys.

567 U.S. at 477–78.

     In Montgomery v. Louisiana, the Supreme Court
elaborated upon the Miller holding to clarify that it “did more
than require a sentencer to consider a juvenile offender’s
youth before imposing life without parole; it established that
the penological justifications for life without parole collapse
in light of ‘the distinctive attributes of you.’” 136 S. Ct. 718,
734 (2016) (quoting Miller, 567 U.S. at 472). Therefore,
“[e]ven if a court considers a child’s age before sentencing
him or her to a lifetime in prison, that sentence still violates
the Eighth Amendment for a child whose crime reflects
unfortunate yet transient immaturity.” Id. (citation and
internal quotation marks omitted). The Court concluded that
“sentencing a child to life without parole is excessive for all
but the rare juvenile offender whose crime reflects
irreparable corruption” and that Miller “bar[s] life without
parole . . . for all but the rarest of juvenile offenders, those
whose crimes reflect permanent incorrigibility.” Id. (citation
and internal quotation marks omitted). “Miller made clear
that ‘appropriate occasions for sentencing juveniles to this
harshest possible penalty will be uncommon.’” Id. at 733–34
(quoting Miller, 567 U.S. at 479).

    In light of Miller and Montgomery, we agree with Briones
that the district court had to consider the “hallmark features”
of youth before imposing a sentence of life without parole on
a juvenile offender. We also agree that, as part of its inquiry
into whether Briones was a member of the class of
permanently incorrigible juvenile offenders, it had to take
14                 UNITED STATES V. BRIONES

into account evidence of his rehabilitation. However, we
disagree that the district court failed to do so.

    We resolve these issues through the lenses of plain error
and abuse of discretion review—plain error review because
Briones failed to object at sentencing, and review for abuse
of discretion because of the “significant deference” we afford
district courts’ sentencing determinations. United States v.
Martinez-Lopez, 864 F.3d 1034, 1043 (9th Cir. 2017)
(citation omitted). Nothing in Miller or Montgomery altered
these longstanding principles.

    In order for a decision to constitute plain error, the error
must be so obvious that a district court judge should be able
to avoid the error without the benefit of an objection. See
United States v. Klinger, 128 F.3d 705, 712 (9th Cir. 1997).

     In the sentencing context, a district court judge abuses his
discretion “only if the court applied an incorrect legal rule or
if the sentence was illogical, implausible, or without support
in inferences that may be drawn from facts in the record.”
Martinez-Lopez, 864 F.3d at 1043 (citation omitted).
Briones’ claim cannot survive this double layer of deferential
review.2

    The gist of Briones’s appeal is that the district court failed
to make an explicit finding that Briones was “incorrigible,”
that the district court failed to adequately consider the
“hallmarks of youth” discussed in Miller, and that the district



     2
      Our colleague in dissent criticizes the majority for following this
rule. See Dissenting Opinion, p. 30 (objecting to the reference to
reasonable inferences from the record).
                UNITED STATES V. BRIONES                    15

court did not adequately consider Briones’s rehabilitation.
We are not persuaded.

    There is no doubt that the “hallmarks of youth,” as they
related to Briones, were considered by the court because the
record is replete with references to those hallmarks, reflected
in the following statements from Briones’s counsel, and
encompassing rehabilitation:

       •   [If] we look at the Miller hallmarks of
           youth, . . . Briones . . . showed immaturity
           ...

       •   So what we have here is classic
           immaturity, the feeling of banding
           together to–with his friends to form a
           gang is–. . . something that happens to
           especially young guys when they are 15,
           16, 17 years old, and that is a toxic thing
           when you deal with impetuosity and the
           failure to appreciate risk and
           consequences.

                             ...

           This is a hallmark of youth, the decision to
           join a gang, to go along with your buddies
           ...

       •   And what is one of the hallmarks of . . .
           young guys as they start to mature . . . is
           the finding of your place in the world, and
           not only that finding, your identity . . .
           [H]e was already struggling with his
16             UNITED STATES V. BRIONES

          identity as a Native American and how
          that fit beautifully on to the reservation
          and not so well on to the Mesa school
          system.

      •   And so part of this hallmark of youth . . .
          is something that either he–was not
          explained properly or he didn’t understand
          it, which indicates that–an inability to deal
          with the case.

                            ...

          So he was making bad choices because he
          was a teenager who didn’t understand the
          risks and consequences of his behavior.

                            ...

          [F]inally the Miller hallmark of youth is
          that a mandatory life sentence disregards
          the potential for rehabilitation.

                            ...

          So in a sense prison has been good to
          Riley Briones because it has changed him,
          allowed him to change himself, but he
          does not need to die in prison, Judge. He
          has rehabilitated himself.

(Emphases added).
                 UNITED STATES V. BRIONES                    17

   Defense counsel also emphasized to the court that Briones
had no write-ups in prison, and had become a family man.

    The government acknowledged that Briones was “doing
well in prison,” but expressed disappointment that Briones
had never accepted responsibility. From the government’s
perspective, Briones minimized both his role in the Subway
murder and his role in the gang. The government recounted
in detail testimony from co-defendants explaining that
Briones was a leader of the gang, and instructed them to find
and kill a potential witness to the Subway murder.

    The government also pointed out that Briones was only
twenty-two days shy of his eighteenth birthday when the
Subway murder was committed, that Briones continued his
crime spree for another eighteen months, and that Briones
scratched gang graffiti into his cell door three years after the
Subway murder. According to the government, Briones’s
actions were “not indicative of an individual who is so
immature that he didn’t know what he was doing.” The
government argued that Briones’s conduct was not
sufficiently mitigating to warrant a change in Briones’s
sentence.

    After hearing from defense counsel and the government,
the court demonstrated that it had heard and considered all the
information presented and remarks made during the
sentencing hearing, stating:

       Well, 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
18                  UNITED STATES V. BRIONES

         and constant abuse of alcohol and other drugs,
         and he’s been a model inmate up to now.3

     Nevertheless, the judge determined that after considering
“all the evidence . . . and everything the judge had read,” a
life sentence for Briones was warranted.

    Admittedly, the district court did not explain at length
why consideration of Briones’s youth failed to persuade the
court to impose a sentence of less than life imprisonment.
But he was not required to do so. Nothing in the Miller case
suggests that the sentencing judge use any particular verbiage
or recite any magic phrase. See Montgomery, 136 S. Ct. at
735 (noting that Miller did not require trial courts to make a
finding of fact regarding a child’s incorrigibility). Rather, in
the Supreme Court’s own words, the sentencing judge is
“require[d] to take into account how children are different,
and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.” Miller, 567 U.S. at
480. We can rest assured that the district court judge
followed this mandate because he said so on the record—that
he had considered everything he heard and read in
conjunction with the sentencing hearing, including counsel’s
impassioned arguments regarding how the “hallmarks of




     3
       These detailed arguments definitely rebut the dissent’s “suggestion”
that the “district court may have misunderstood the nature of the inquiry
Briones was asking it to make.” Dissenting Opinion, p. 29. Our colleague
would have preferred different phrasing from the district court, see id.,
pp. 29–30, but no such requirement can be gleaned from Miller or
Montgomery.
                    UNITED STATES V. BRIONES                             19

youth” particular to Briones counseled against imposition of
a life sentence.4

    Fairly read, Briones’s statements could reasonably be
interpreted as not taking responsibility for his prior criminal
activity, in contravention of one of the basic tenets of
rehabilitation. See, e.g., In re Arrotta, 208 Ariz. 509, 515
(2004) (en banc) (“Accepting responsibility for past misdeeds
constitutes an important element of rehabilitation. . . .”). As
we explained in United States v. Carty, 520 F.3d 984, 995
(9th Cir. 2008) (en banc), when the district court has listened
to and considered all the evidence presented, the district court
is not required to engage in a soliloquy explaining the
sentence imposed.

    In Rita, 551 U.S. at 358, the Supreme Court, also
recognized that brevity does not equal error in the sentencing
context. Upholding a sentence against a challenge that the
judge’s statement of reasons was too brief, the Supreme Court
observed:

         In the present case the sentencing judge’s
         statement of reasons was brief but legally
         sufficient. . . . The record makes clear that the
         sentencing judge listened to each argument.
         The judge considered the supporting evidence
         [and] simply found these circumstances


    4
      Our colleague in dissent would have the district court expound more
on its reasoning, to the extent of remanding for the district court to do so.
See Dissenting Opinion, pp. 31–32. Tellingly, no case authority is cited
to support this proposition. Indeed, Miller and Montgomery stand for the
exact opposite premise. See Montgomery, 136 S. Ct. at 735 (noting that
Miller imposed no factfinding requirement).
20                 UNITED STATES V. BRIONES

          insufficient to warrant a [lower sentence]. . . .
          He must have believed that there was not
          much more to say.

Id.

    The Supreme Court “acknowledge[d] that the judge might
have said more” but explained that where “the record makes
clear that the sentencing judge considered the evidence and
arguments, we do not believe the law requires the judge to
write more extensively.” Id. at 359.

    Reviewing for plain error, we conclude that the
sentencing remarks in this case fell well within the contours
articulated by the Supreme Court in Rita, reflecting the
judge’s consideration of and reliance upon the record. See id.
at 358–59; see also United States v. Kleinman, 880 F.3d
1020, 1041 (9th Cir. 2018), as amended (“A sentencing
judges does not abuse its discretion when it listens to the
defendant’s arguments and then simply finds the
circumstances insufficient to warrant a [lower sentence]. The
court listened to [defendant’s] arguments, stated that it
reviewed the statutory sentencing criteria, and imposed a
within-Guidelines sentence; failure to do more does not
constitute plain error.”)5 (citations and internal quotation
marks omitted).




      5
       This authority negates the dissent’s argument that the sentencing
judge “failed to provide an adequate explanation of its sentence under the
same standard that would apply to any sentencing.” Dissenting Opinion,
p. 35. Under the applicable standard, the sentencing judge’s remarks were
adequate. See Kleinman, 880 F.3d at 1041.
                     UNITED STATES V. BRIONES                              21

    On this record, we cannot honestly say that the district
court’s imposition of a sentence of life imprisonment was
“illogical, implausible, or without support in inferences that
may be drawn from facts in the record.” Martinez-Lopez, 864
F.3d at 1043 (citation omitted). In other words, no error
occurred and without error there can be no plain error. See
Puckett v. United States, 556 U.S. 129, 135 (2009)
(explaining that “there must be an error” before plain error
review is invoked).

    Perhaps the outcome of this appeal would be different if
we were reviewing de novo. But we are not reviewing de
novo. We are reviewing through the doubly deferential
prisms of abuse of discretion and plain error standards of
review.6 With those standards of review firmly in mind, we
conclude that the district court’s pronouncement of sentence
was adequate.7 See Rita, 551 U.S. at 358; see also Carty,
520 F.3d at 995; Kleinman, 880 F.3d at 1041.




    6
       Our colleague in dissent seeks to avoid plain error review despite a
clear record showing a lack of objection from Briones in the district court
to the asserted lack of an adequate statement of fact of incorrigibility from
the sentencing judge. See Dissenting Opinion, pp. 33–34 & n.2. We are
not persuaded. See Hammons, 558 F.3d at 1103 (applying plain error
review when no objection was raised).
    7
       Our colleague in dissent remarks that “we are ill-suited as an
appellate court to say that a finding of incorrigibility is the only reasonable
one.” Dissenting Opinion, p. 33. However, it is not our role to say
whether the district court’s finding was “the only reasonable one.” Rather,
our sole role is to determine whether the district court’s finding was a
reasonable one. See Martinez-Lopez, 864 F. 3d at 1043 (noting that a
district court abuses its discretion if it imposes a sentence that is
“illogical” or “implausible.”)
22              UNITED STATES V. BRIONES

    Our colleague in dissent relies upon the unpublished
disposition of United States v. Orsinger, 698 F.App’x 527
(9th Cir. 2017) to support the argument that the district court
should have said more. Not only is this case non-precedential
and non-binding, it is not even persuasive. In Orsinger, we
affirmed a sentence for the same reason we should affirm the
sentence in this case—because of the deference we afford
sentencing courts under the abuse of discretion standard of
review. See id. at 527 (referencing the judge’s choice
between “two permissible views of the evidence”); see also
Gall v. United States, 522 U.S. 38, 51 (2007) (discussing the
deference due to a district court’s sentencing decision).

    Ultimately, the majority is of the view that affirming the
sentence imposed by the district court conforms to our
precedent and that of the United States Supreme Court. In the
cogent words of our esteemed colleague Judge Farris, “[m]y
[colleague] and I differ on what is the appropriate appellate
function. He would retry. I am content to review.” Li v.
Ashcroft, 378 F.3d 959, 964 n.1 (9th Cir. 2004).

                              III

    Briones makes two further arguments that he is
categorically ineligible for a life-without-parole sentence,
implying that we should instruct the district court on remand
that he may not receive that sentence under any review of the
record. First, he argues that a life sentence may not be
imposed “on a juvenile offender who did not actually kill,” so
he may not receive that sentence because he was not the
gunman. Second, he argues that the Eighth Amendment
prohibits life sentences for juvenile offenders entirely.
                 UNITED STATES V. BRIONES                    23

      Both arguments are foreclosed by Miller and
Montgomery. Montgomery specifically observed that “Miller
. . . did not bar a punishment for all juvenile offenders,” and
that although life without parole is now limited to “the rare
juvenile offender,” those rare offenders “can receive that . . .
sentence.” Montgomery, 136 S. Ct. at 734. Miller itself
involved a defendant who did not fire the bullet that killed”
the victim. Miller, 567 U.S. at 478. The Supreme Court did
not say that he could not be sentenced to life without parole,
but only that “a sentencer should look at” mitigating facts of
youth “before depriving [the defendant] of any prospect of
release from prison.” Id. Given that Miller and Montgomery
expressly envision that some juveniles may be sentenced to
life without parole, including those who did not actually “fire
the bullet,” the district court could still constitutionally
sentence Briones to life in prison.

   AFFIRMED.




O’SCANNLAIN, Circuit Judge, concurring in part and
dissenting in part:

    As the majority opinion’s detailed recitation of the facts
makes clear, Riley Briones, Jr., participated in a cold-blooded
murder and was a leader in a vicious gang, see Majority Op.
Part I.A, so it is not difficult to understand why the district
court considered a severe sentence appropriate.
Notwithstanding the grievous nature of the crimes, however,
the court was required to follow the Supreme Court’s holding
that the Eighth Amendment bars life-without-parole sentences
24              UNITED STATES V. BRIONES

“for all but the rarest of juvenile offenders, those whose
crimes reflect permanent incorrigibility.” Montgomery v.
Louisiana, 136 S. Ct. 718, 734 (2016) (citing Miller v.
Alabama, 567 U.S. 460 (2012)).

     I agree with the majority that nothing in Montgomery or
Miller indicates that Briones is categorically ineligible for a
life sentence simply because he is a juvenile who did not pull
the trigger, see Majority Op. Part III, and I agree that the
district court was correct to begin its sentencing process by
calculating the Sentencing Guidelines range, see id. Part II.A.
I cannot agree, however, with the majority’s holding that the
district court sufficiently considered Briones’s claim that he
was not in that class of rare juvenile individuals
constitutionally eligible for a life-without-parole sentence.
See id. Part II.B.

    The majority reads too much into the district court’s
cursory explanation of its sentence, and it divines that the
district court must have adopted the rationale for its sentence
suggested by the government on appeal. Although a
sentencing court need not pedantically recite every fact and
legal conclusion supporting its sentence, it must provide
enough explanation for a court of appeals to evaluate whether
or not the decision to reject a defendant’s argument is
consistent with law. The sparse reasoning of the district court
in this case gives me no such assurance.

    I respectfully dissent from Part II.B of the opinion and
would remand for the limited purpose of permitting the
district court properly to perform the analysis required by
Miller and Montgomery.
                 UNITED STATES V. BRIONES                    25

                               I

    The difficult question raised in this case is whether
Briones is in fact one of those “rarest of juvenile
offenders . . . whose crimes reflect permanent incorrigibility.”
Montgomery, 136 S. Ct. at 734. Without any evident ruling
on that question, the district court imposed a life sentence on
Briones. As the majority indicates, because there is no parole
in the federal system, that “sentence is effectively for life
without the possibility of parole.” Majority Op. at 10.

                               A

    The majority is comfortable deferring to the district
court’s sentence because the court considered some of the
“hallmark features” of youth identified by the Supreme Court
in Miller. 567 U.S. at 477; see Majority Op. at 13–15. I
agree that the court did so, which we know because it
expressly said it considered “the defendant’s youth,
immaturity, [and] his adolescent brain at the time [of the
crime].”

    But to leave the analysis at that is to misunderstand the
nature of Briones’s challenge to a life sentence and the
importance of Montgomery’s clarification of Miller. In
Miller, the Supreme Court held that “the Eighth Amendment
forbids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders,”
explaining that a sentencing court must “take into account
how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.”
567 U.S. at 479–80. Left at that, Miller could be understood
merely as a procedural requirement, mandating that
sentencing courts must consider certain hallmark
26               UNITED STATES V. BRIONES

characteristics of youth and that they must be permitted to
impose a sentence less than life. If that were all Miller
meant, the district court likely would have complied with its
dictates.

    But the Supreme Court made clear in Montgomery that
Miller stood for more. Beyond procedural boxes to check,
Miller recognized a substantive limitation on who could
receive a life sentence:

       Miller . . . did more than require a sentencer to
       consider a juvenile offender’s youth before
       imposing life without parole; it established
       that the penological justifications for life
       without parole collapse in light of the
       distinctive attributes of youth. Even if a court
       considers a child’s age before sentencing him
       or her to a lifetime in prison, that sentence
       still violates the Eighth Amendment for a child
       whose crime reflects unfortunate yet transient
       immaturity.

Montgomery, 136 S. Ct. at 734 (emphasis added) (internal
quotation marks and citation omitted).               In light of
Montgomery, we know that “sentencing a child to life without
parole is excessive for all but the rare juvenile offender whose
crime reflects irreparable corruption” and that Miller “bar[s]
life without parole . . . for all but the rarest of juvenile
offenders, those whose crimes reflect permanent
                   UNITED STATES V. BRIONES                          27

incorrigibility.” Id. (emphasis added) (internal quotation
marks omitted).1

    The heart of Briones’s argument before the district court
was that he could not be sentenced to life because he is not
irreparably corrupt or permanently incorrigible. The “critical
question” before the district court, then, was whether Briones
had the “capacity to change after he committed the crimes.”
United States v. Pete, 819 F.3d 1121, 1133 (9th Cir. 2016).

                                   B

    Unfortunately, we cannot know whether the district court
answered that question because there is nothing in the record
that allows us to confirm that the court even considered it.

    A sentencing court must, “at the time of sentencing, . . .
state in open court the reasons for its imposition of the
particular sentence.” 18 U.S.C. § 3553(c). In elaborating on
that statutory command, the Supreme Court has explained
that “[t]he sentencing judge should set forth enough to satisfy
the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own
legal decisionmaking authority.” Rita v. United States,
551 U.S. 338, 356 (2007). “[W]here the defendant or
prosecutor presents nonfrivolous reasons for imposing a [non-
Guidelines] sentence, . . . the judge will normally . . . explain


    1
      Montgomery was decided only two months before the district court
resentenced Briones, and so Briones’s arguments were framed in terms of
Miller. That said, Montgomery was raised indirectly by Briones’s counsel
at sentencing, and Briones’s interpretation of Miller as a substantive
prohibition on life imprisonment for most juvenile offenders is the one
that Montgomery confirmed to be correct.
28               UNITED STATES V. BRIONES

why he has rejected those arguments.” Id. at 357; see also
United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en
banc) (“A within-Guidelines sentence ordinarily needs little
explanation unless a party has . . . argued that a different
sentence is otherwise warranted.” (emphasis added)).

                               1

   Unlike the majority, I am not satisfied that the district
court “set forth enough to satisfy the appellate court that he
has considered the parties’ arguments.” Rita, 551 U.S. at
356. If anything, the record suggests that the district court
misunderstood the applicable legal rule of Miller.

    In explaining its decision to impose a life sentence, the
district court indicated that it had “consider[ed] the history of
[Briones’s] abusive father, [Briones’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
that he’s been a model inmate up to now.” The court
seemingly found those facts—which it considered to be
“mitigation”—outweighed by the awfulness of the murder,
Briones’s role in it, and his leadership in a “violent and cold-
blooded” gang. “Having considered those things,” the district
court imposed a “sentence of life.”

    All of those considerations are indeed relevant to
selecting a proper sentence based on the sentencing factors of
18 U.S.C. § 3553(a). But they are not directly responsive to
Briones’s argument arising out of Miller that he is not within
the class of the rare juvenile offenders who are permanently
incorrigible and hence constitutionally eligible for a life
sentence. The question is not merely whether Briones’s
crime was heinous, nor whether his difficult upbringing
                UNITED STATES V. BRIONES                    29

mitigated his culpability. It is whether Briones has
demonstrated “irreparable corruption,” Montgomery, 136 S.
Ct. at 734 (quoting Miller, 567 U.S. at 479–80), which
requires a prospective analysis of whether Briones has the
“capacity to change after he committed the crimes,” Pete,
819 F.3d at 1133.

    Nothing in the district court’s explanation of its sentence
bears directly on the question of whether Briones is
irreparably corrupt. If anything, the sentencing transcript
reveals factual findings that suggest Briones has
demonstrated a capacity to change. The district court
observed that Briones has “been a model inmate” and that he
“has improved himself while he’s been in prison.” Perhaps,
despite that promising behavior, the district court could have
determined that countervailing evidence indicated that
Briones is permanently incorrigible. But the transcript does
not indicate that the district court made such determination.

    More troubling, the transcript suggests that the district
court may have misunderstood the nature of the inquiry
Briones was asking it to make. Miller “rendered life without
parole an unconstitutional penalty for . . . juvenile offenders
whose crimes reflect the transient immaturity of youth,”
which the Supreme Court has instructed includes “the vast
majority of juvenile offenders.” Montgomery, 136 S. Ct. at
734. Yet the district court only considered the Miller
hallmarks of youth as “mitigation,” suggesting that it started
from the inverted assumption that most juvenile offenders are
eligible for life sentences and that Briones’s evidence could
only mitigate from that. If the district court fully grappled
with Miller’s rule, one would think it would have spoken of
“aggravating” evidence rather than “mitigation.” Moreover,
in explaining that Briones’s crime justified a life sentence
30               UNITED STATES V. BRIONES

because “some decisions have lifelong consequences,” the
district court suggested it misunderstood Miller entirely. The
point of Miller is that “juveniles have diminished culpability
and greater prospects for reform.” 567 U.S. at 471. That is
why the sentencing analysis must be forward-looking and
address the “capacity to change,” Pete, 819 F.3d at 1133, not
the static characteristics of the juvenile defendant at the
moment of his criminal decisions. In fact, there are no
forward-looking statements at all from the district court in its
sentencing colloquy; the stated basis for the sentence was
entirely retrospective.

                               2

    To cure the deficiencies in the district court’s explanation
of the sentence imposed, the government asks us to infer that
the district court must have found Briones incorrigible based
on a lack of candor when he testified at the resentencing
hearing. The majority jumps at this invitation, adopting the
government’s position to observe that “Briones’ statements
could reasonably be interpreted as not taking responsibility
for his prior criminal activity, in contravention of one of the
basic tenets of rehabilitation.” Majority Op. at 19 (emphasis
added).

     The equivocal nature of the majority’s statement is
telling. Perhaps the district court could have thought that
Briones failed to take responsibility for his actions, but
nowhere in the district’s court’s statement of reasons for the
sentence did it say as much. Although the government and
the majority offer one plausible interpretation of Briones’s
testimony, it is hardly the only one. In fact, when I read the
transcript, I see much that could support a contrary finding
that Briones expressed remorse repeatedly and at length.
                UNITED STATES V. BRIONES                    31

    Briones expressed regret for his actions. He admitted the
key facts of the murder and subsequent crimes and admitted
that “it’s probably my fault when I thought about it.” He
explained that he regularly asks himself “why didn’t I do
something at that time, why . . . didn’t I stop myself way
before that, why didn’t I do something at the court?” He
explained that “the thing that haunted me so much about just
living in prison was that” the murder victim was “a young
Christian man,” and that it “haunts me to have that on my
hands.” And he said, “I want to express remorse, I want to
express grief.”

    Briones also expressed sympathy for those he had
harmed. For instance, he explained that he did not believe the
victim’s family could ever forgive him because he was
responsible for “a great offense that . . . is unrepaired.” He
explained that “now that I’m older . . . I witness not just in
my own life people murdered and their killers get to go
home,” and he can “see[] people in pain when they’ve gone
through their loss, [and] all of this had made me not only
sympathize but to empathize with all of it.” He said, “I know
I have to apologize for everything and I apologize all the time
to my family . . . , and my apology goes out . . . to the
[victim’s] family.”

    I do acknowledge that there are portions of the transcript
from which one could infer a lack of candor. It is true that
Briones’s testimony was not crisp and eloquent. And it is
true that he continued to say that he “didn’t think myself a
leader” in the gang and that he continued to deny that the plan
from the beginning was to murder the Subway clerk.

   Perhaps, hearing all the testimony and weighing the
countervailing inferences, the district judge could have
32               UNITED STATES V. BRIONES

concluded that Briones was insufficiently honest or that he
failed to take responsibility for his crimes. Perhaps those
findings could be evidence of incorrigibility.

    But the district court never said any of that. All the
reasons that it did give for the sentence were about the nature
of the crime, not the subsequent lack of remorse or
acceptance of responsibility. Reading a cold transcript, the
majority is willing to conclude that Briones “never actually
took responsibility for any of the crimes of which he was
convicted.” Majority Op. at 8. I am not willing to reach such
a critical factual conclusion based on an ambiguous
transcript, especially when the district court made no such
factual finding.

    The majority accuses me of retrying Briones’s case rather
than reviewing it as an appellate court should. See Majority
Op. at 22. But it is the majority that has invented a basis for
the sentence which cannot be found in the record. The reason
courts of appeals accord great deference to a district court’s
sentencing decision is that “[t]he sentencing judge has access
to, and greater familiarity with, the individual case and the
individual defendant before him than . . . the appeals court.”
Rita, 551 U.S. at 357–58. Unlike the majority, I would take
advantage of that expertise by remanding for an actual
determination of Briones’s incorrigibility rather than
attempting to divine one by reading a transcript through
squinted eyes.

                               C

    Another aspect of this case that gives me pause is that it
is not obvious whether or not Briones fits within the class of
juvenile offenders constitutionally eligible for a life sentence.
                 UNITED STATES V. BRIONES                      33

If the only plausible reading of the record were that Briones
is incorrigible, I could more easily assure myself that the
district court reached that conclusion even though it did not
specifically respond to the Miller argument. Looking at the
record holistically, however, I cannot say that it necessarily
betrays permanent corruption.

    After Graham v. Florida, 560 U.S. 48 (2010), the only
juvenile offenders eligible for a life sentence are those who
committed a homicide. Criminal homicides will invariably
be odious crimes, but the Supreme Court nonetheless
instructed that only “the rarest of juvenile offenders” may
receive a life sentence under the Eighth Amendment.
Montgomery, 136 S. Ct. at 734. Here, we have a juvenile
felony murder offender who helped to plan a robbery-murder,
who drove the getaway car, and who then was a leader in a
series of subsequent violent crimes. But like one of the
defendants in Miller itself, Briones “did not fire the bullet that
killed” the victim; and like the other defendant in Miller,
although he was involved in “a vicious murder,” Briones had
a difficult upbringing replete with substance abuse. 567 U.S.
at 478–79. Moreover, in this instance, we have a defendant
whom even the district court called a “model inmate,” which
surely goes to the question of “whether [the defendant] has
changed in some fundamental way since” the crime. Pete,
819 F.3d at 1133. The evidence on incorrigibility is therefore
mixed, and we are ill-suited as an appellate court to say that
a finding of incorrigibility is the only reasonable one.

                               D

    As a secondary basis for affirming, the majority leans
heavily on the highly deferential plain error standard of
review. See Majority Op. at 20. In arguing that such review
34                  UNITED STATES V. BRIONES

should apply to this case, the majority analogizes to cases
involving defendants making purely procedural arguments on
appeal that district courts insufficiently explained otherwise
permissible sentences.2

     But here, Briones is not objecting merely to a deficient
explanation. Rather, his claim is substantive: that he is
constitutionally ineligible for a particular sentence under
Miller, a claim he did squarely argue before the district court,
at length. The court’s failure properly to explain its sentence
requires remand not because it was procedural error, but
rather because such failure prevents us from being able
properly to review Briones’s substantive claim. As the
majority acknowledges, a district court’s sentence is invalid
“if the court applied an incorrect legal rule.” United States v.
Martinez-Lopez, 864 F.3d 1034, 1043 (9th Cir. 2017) (en
banc); see Majority Op. at 14. Because the record does not
allow us to determine whether the court did apply the correct
legal rule, we should remand for that limited purpose.




     2
      Even if Briones were making a purely procedural objection based on
the sufficiency of the district court’s explanation of how it weighed the
18 U.S.C. § 3553(a) sentencing factors, our case law is not clear regarding
what the proper standard of review would be. As the majority contends,
in some of those cases, we have reviewed for plain error. See, e.g., United
States v. Kleinman, 880 F.3d 1020, 1040–41 (9th Cir. 2017); United States
v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). As happens
too often, however, our court has not been consistent. See, e.g., United
States v. Trujillo, 713 F.3d 1003, 1008–11 & n.3 (not applying plain error
review in a case where “[t]he district court did not address” the
defendant’s sentencing arguments). Because these cases are not relevant
to considering Briones’s substantive claim, however, we need not resolve
this potential intra-circuit split.
                UNITED STATES V. BRIONES                    35

                              II

                              A

    I share the majority’s concern that we ought not to
conjure procedural sentencing hurdles unsupported by law.
I am especially cognizant of this concern because other courts
have read Miller and Montgomery to impose special
procedural requirements well beyond what those opinions
actually require. E.g., Commonwealth v. Batts, 163 A.3d 410,
415–16 (Pa. 2017) (“recogniz[ing] a presumption against
the imposition of a sentence of life without parole for a
juvenile offender” that may be rebutted only if the
government proves, “beyond a reasonable doubt, that the
juvenile offender is incapable of rehabilitation”).

    But the district court’s explanation of the sentence may be
faulty without requiring that it utter any “magic phrase” to
justify its sentence, Majority Op. at 18, and we need impose
no special procedures simply because Briones was a juvenile
when he committed the murder. Instead, I would simply
enforce the requirements of 18 U.S.C. § 3553(c) so that we
may properly evaluate Briones’s Miller claim on appeal.

    The error here was not that the district court failed to
apply some procedure special to juvenile offenders. Rather,
the court failed to provide an adequate explanation of its
sentence under the same standard that would apply to any
sentencing. It erred because Briones argued that he could not
constitutionally be given a life sentence, his arguments were
“not frivolous,” and the court did not squarely “address any
of them, even to dismiss them in shorthand.” United States
v. Trujillo, 713 F.3d 1003, 1010 (9th Cir. 2013). Remanding
for a new sentencing here would have no bearing on a case in
36              UNITED STATES V. BRIONES

which the defendant does not present a credible argument
under Miller or one in which the district court explicitly
confronted a Miller argument about the defendant’s
incorrigibility.

                              B

    Comparing this case to another illustrates that we can
reasonably expect more of the district court at sentencing
without our being overly pedantic. In another case raising a
Miller claim, submitted to our panel the same day that
Briones’s case was argued, the defendant-appellant had
committed four murders as a juvenile—including two while
facing trial—and in the process had disfigured or
dismembered and then buried the victims’ bodies. See United
States v. Orsinger, 698 F. App’x 527, 527 (9th Cir. 2017)
(unpublished). Two of the victims were a 63-year-old
grandmother and her nine-year-old granddaughter, and the
defendant had killed the little girl by hand, crushing her head
with rocks. We affirmed the life sentence because the district
court made clear it had grappled with the Miller claim. See
id.

    The fact that another defendant committed even more
monstrous crimes than did Briones does not ameliorate the
tragedy of an innocent clerk’s death or the terror that
Briones’s gang inflicted on his community. But in that
second case with four gruesome murders, and where the
defendant had continued to exhibit violence while
incarcerated, the sentencing judge nevertheless properly
evaluated the objection to a life sentence under Miller. That
judge “recognize[d] that Miller permits life sentences for
juvenile offenders only in ‘uncommon’ cases” and “made a
finding that [the defendant] did indeed fit within that
                UNITED STATES V. BRIONES                    37

‘uncommon’ class of juvenile offenders” to justify imposition
of a life sentence. Id. (quoting Miller, 567 U.S. at 479).

    That is not to suggest that the district judge in Briones’s
case could not justifiably impose the same sentence. It only
demonstrates that—even in a case that much more obviously
compels a conclusion that the defendant is incorrigible—a
district judge can properly address a Miller claim without
invoking any magic phrase. I would require the same of the
district court in this case.

                              III

    Although I concur in Parts I, II.A, and III of the majority
opinion, I must respectfully dissent from Part II.B and the
ultimate judgment. I would vacate the judgment of the
district court and remand for resentencing.
