the question the court is called upon to address is whether the bright line categorical rule and militarist alabama which held that individuals younger than the age of eighteen cannot be subject to a mandatory sentence of life without possibility of parole applies to mr cruz who is eighteen years and twenty weeks old when he committed those executions the answer your honor is no and the district court should be reversed this court has already decided this issue and united states for sierra the material facts of sierra and the facts of this case are indistinguishable in both cases the defendants were older than the age of eighteen in both cases defendants were convicted of like our murder and face a mandatory life sentence and in both cases the defendants argued that miller applied to them because of scientific developments and brain science on these  court held that miller did not apply to the defendants in sierra this court characterized the rule in miller as a categorical one and drawing a supreme court precedent that acknowledged the difficulties with drawing a line at eighteen such as the fact that the qualities that distinguish juveniles from adults do not disappear when an individual turns eighteen nevertheless because the supreme court drew the line at eighteen the defendant's challenge had to fail so to hear mr cruz's challenge to his conviction had to fail as well your honour's by the way was that there was a petition for hearing on bonk that was filed in sierra and this court declined bonk and the supreme court did not grant her she or your honors it was decided consistent with binding and controlling precedent from the supreme court in miller the supreme court held that mandatory life without parole for those under the age of eighteen at the time of their crimes violated the th amendment a true heavily on prior supreme court precedent including roper b simon which categorically prohibited the death penalty for those under the age of eighteen and immoral for the supreme court talked about the difficulty of drawing lines and that language honors was reflected in this court's decision in sierra similarly it drew upon gra laura which categorically prohibited the sentence of life without parole for offenders younger than eighteen who did not commit homicide and again the supreme court and grammar of florida drew upon the language and roper discussing the difficulties with drawing bright line rules and the fact that it is a difficult situation for individuals can be on either side of the line what becomes or in this case failure to recognize that miller was not decided in a vacuum but in the context of decades of supreme court's precedent every other federal court in this country that the government has been able to identify reach a conclusion contrary to the district court no other federal court concluded that miller should be extended to individuals who committed murder when older than eighteen and your honour's the citations to those decisions can be found in the government's brief on pages fifteen to eighteen stated simply honors the defendant was on the wrong side of eighteen when he committed the double homicide in order to have miller applied to him and this court already reached that conclusion in sierr the sentencing practice that issue there's a statute there the statutory schemes twenty five states in the federal government that mandate life without the possibility of parole for individuals over eighteen who commit homicide especially if they're an aggravating that question reduces to whether or not the new rule of constitutional law in miller made retroactive to cases on collateral review applied to mr cruz and for the reasons identified previously it did not and your honor is unless the court has any question the government would reserve the balance of the time for a bottle i have a question for you likely from the twenty eight letters that have been filed on behalf of mr cruz that there is a suggestion that he was denied the opportunity to add a figure and to his sentence in any event because of the understanding of the  binding nature of the guidelines at the time of the sentence rather than try to anticipate what your response is could you tell me so your honor the twenty eight j letters there there was  there was well let me back up and maybe try to answer the nd part of what you asked st which is the guidelines were put to binding and mandatory at the time and so the question of whether whether or not miller prohibits the mandatory sentence  can still be asked by the defendant i would add your honor though that st of all the record makes clear that the district court back in one thousand nine hundred and six at the time of the sentencing was aware that the mandatory sentence was you've just made that it was always a degree of discretion even under the mandatory scheme but more to the point why did this argument had to be raced within a year book or not now i'm i am i missing something here from the government's perspective because then i'm going to ask the defense the same thing no your honor that certainly the government's perspective that this should have been an issue that could have been raised either on direct appeal or i guess it was more appropriately within defendant morning honor and they please the court this is tiger dooley on behalf of mr cruz i'd like to begin by highlighting something i didn't hear in the supreme pontiff argument just now or see in any of the government's briefings so far in this appeal and that's any argument that the thirty five year sentence that mr cruz is currently serving is unreasonable or insufficient to serve the purposes of sentencing the government elected not to appeal from the sentencing judgment itself and its briefing in this appeal from the twenty to fifty five seventeen year olds and eighteen year olds in terms of the brain development that the supreme court found relevant miller nor has the government contested or question the clear evidence that mr cruz is in judge paul's words exhibit a for the miller rationale that is he's demonstrated through his own complete rehabilitation that youthful offenders are not irreparably dupr even when they commit the worst crimes and the government and the problem is that then you can say that there's not much difference between sixteen and seventeen year olds there's not much difference between eighteen and nineteen year olds i mean that that's the problem i mean in the supreme court it's recognized that the your honor and as we've explained in our brain we think sierra is distinguishable and that everything that it said or anything that it said about eighteen year old offenders is dick definitional edict of because it was not essential to the holding in the case the defendant and sierra were proceeding on a direct appeal were between twenty and twenty two years old at the time their triggering offense is not eighteen the government continuously refers to them as eighteen to twenty two year old defendants but the youngest one was twenty years old at the time of the triggering draw that line at the age of eighteen which is the point where society draws the line for many purposes between childhood and adulthood that last part being a quote from roper how how do we construe that it's anything other than  the line at which now when in the most recent case cited in your in your twenty eight ladder series a constitutionally protected class on one side of that line and not on the other that line we can see that line exists in the capital context which is rover where roeper arose so and rover that's a death penalty case the court categorically prohibited capital punishment for offenders who are under age eighteen at the time of their offenses and that's where the court discuss the difficulties of drawing the line but that line is defensible in that context because in the capital context courts are already required to p birthday does not have the constitutional protections of roper but does have the constitutional protections of miller which might be viewed as somewhat different if not lesser and that serious that you would say there's a bright line for capital prep purposes but that we shouldn't assume that the line is so bright for for general sentencing purpose well i think it's it's an acceptable distinction your honor because defend an eighteen and some month old defendant in a capital case has a different constitutional right to have the mitigating circumstances that you've considered and that comes from w johnson in the non capital context that right doesn't exist because of harman and that's what the supreme court justice kagan was doing and miller was drawing on both these lines of precedent the one coming up in the context determinations of culpability in the death penalty i'm not sure why they do not have the right even in the non capital context i mean there's an argument that you have that right even under the mandatory guidelines but setting that aside once booker was decided if your client's complaint was nobody considered my youth that could have been raised within a year of book or all my missing something about that part of your pose we're not suggesting that that's an independent basis to talk but have relied on in the twenty dollars to fifty five dollars because as you pointed out it wasn't timely raised in booker in any event it's not retroactive but it is i think important to recognize the gravity of the government's position here where just judge hall has held a sentencing hearing has considered that three thousand five hundred and fifty three a factor is and has decided that a thirty five year sentence is sufficient but not greater than necessary to serve the purposes of punishment and the government hasn't appealed from that judgment and it hasn't challenged her determination of thirty five years is sufficient it wants however to vacate that judgment and reimpose a life sentence that it now concedes was never law as i understand it that a life sentence can only be imposed on someone under the age of eighteen in extraordinary circumstances and that the supreme court's you that's rare on the one hand there's the possibility of a categorical rule on the other hand you're saying well he's paid should have been considered which really seems to me to be more challenge to mandatory guidelines the argument is  rather i mean i think that's overstating our position on that i think the reason we bring that to the court's attention is because it's a very grave thing that the government isn't that something that can be raised on on remand in other words the the district court concluded that the th amendment forbids a mandatory life sentence for an eighteen year old and she did that without the benefit of sierra and that legal conclusion is incorrect in light of sierra but when you're so her ruling is vacated but then it goes back before her and it and i don't know can't you make some of these arguments  i think that depends on the mandate that issues here your honor but we would certainly welcome that opportunity and there is precedent for allowing a district court to resentence a defendant as he now stands before the court even when the basis for the original two thousand and fifty five judgment was vacated and that's been building a waiver and so of course we would welcome that opportunity if the court vacated this testament however i obviously disagree with you your honor that is controlling here and i think if i may just explain most precisely why doesn't control if this case that come up on appeal st if it was st in line and if this panel affirmed for the same reason a supreme court  a line must be drawn all right where would you draw the line so your honor again i don't think the supreme court has said a line must be drawn in this context that said a line must be drawn in the capital context however to answer your question i think that it goes in miller the court said that there's an unreasonable risk of disproportionate sentencing if juveniles are subject to mandatory life without individualized sentencing is that  risk is what work you should be concerned about and for those the scientific consensus now says all of those under nineteen including my client would fall into the category with seventeen year olds where there's a disproportionate excuse me an unreasonable risk of just proportionate sentencing given their psychological development it is possible you could make that argument for an older defendant but judge hall was looking at the record before her in the science the uncontested scientific evidence before her and she kept her ruling at eighteen i think there is some research now that would support a line into the earlier mid twenty's but that's right now there's less of a risk disproportionate sentencing for individuals over eighteen and there are for eighteen year olds and seventeen year olds and that really goes back to this distinction of sierra the difference between my client an eighteen year old and the two thousand and twenty two year old defendants and c r is meaningful because of the scientific evidence which was uncontested by the government so i think in closing that the government has not given you a reason to believe that you are bound by sierra or any supreme court precedent the supreme court precedent in fact weighs in favor of  friend and that sierra is distinguishable based on the ages of the defendant so you can affirm and i think you should affirm thank you thank you for hear the rebuttal from the government thank you your honor i pick up right where my age of eighteen it is certainly true that they were two hundred and two thousand one hundred and twenty two but the reason as explained in sierra that this court decided the way that they did was because they were over the age of eighteen and the same way here that mr cruz was over the age of eighteen and this is not your honour's reading between the lines this was explicit in the holding of sierra that the line had been drawn at the age of eighteen i would like to address a little bit about what i heard judge raji ask my colleague about which is about where the confusion as to whether there was a statutory sentence or guy might sentence the record below it's clear that  sentencing it is clear that he is following the guidelines as opposed to the statute i would close your honor with i what about the question what about on remand i mean is it the government's and the reason for that your honor is the entire challenge the entire premise that the permission that mr cruz received from this court the nd circuit an order to file his th successive petition based up was based upon the a of miller to him and thus your honor that decision that issue has been decided conclusively in sierra and so now that it has been decided in there is no alternative here except to correct your honor the the issue there had to do with as the government understands the paper the issue there was whether by joining the conspiracy under the age of eighteen miller would apply to him in that context there was not  the government's view of reading either his request or in the authorization provided by this court the question of whether miss apply to somebody over the age of eighteen finally honor's just in closing my colleague has said on a couple of occasion