issues that this court in the supreme court have been dealing with for the last decade or more and the real question here is in in an odd sense many fold my client ages one issue and the mandatory imposition of this imposition of a mandatory sentence on a young person and the implications of what that youth represents all present the court with an interesting and check interesting challenge of the science and i won't bore the court with the science because i know that the court is is i'm sure up to date with it but for sure there is a general consensus in the scientific community that youth is something in adolescence is something that is sort of a moving target it's not a set set of years but that young people in that in that category i'm still have problems with impulse control of vulnerable to peer pressure and not fully developed in terms of their ability to know are reoccurring in young people these are characteristics that most people not all but most people outgrow or learn to cope with one of the real issues and i think iran is wise to raise this one of the real issues then is for a twenty year old who sentenced to mandatory life for the same crime that someone who's fifty five year old gets sentenced to the mandatory sentence my client is going to do seventy is in prison or sixty years in prison and the other individual is going to do twenty my client is barely an accomplice in this case in the first in the blank america he goes along for a ride after he said no i'm not i'm not going to go i'm going home to sleep and then he decides to go along and then they get out of the car there's not even agreement as to what's going to happen when they get there he wasn't involved in any planning he wasn't even involved in the underlying a for hackers that gave rise to the anger among the people he wasn't even involved with he gets in the car they  for a ride mr blanco gets killed inside this apartment building but the cooperators can't even agree as to whether my client's in the building one of the cooperated says he's standing outside so one else as he held the door someone else as he was in the lobby they were all there at the same matter of a minute and nobody can even agree as to whether my client was there but the one thing everybody agrees on is he played no role but that office factors have nothing to do with his age or is maturity right those those factors are present in many murders some point what we do in that language and that decision that kind of started this whole thing well i think judge that maybe the answer down the road is that there is no bright line maybe the answer down the road is that judges ought to be able to have the ability to determine in a case by case basis there should be any mandatory minimums on this basis i think that there shouldn't be and and i do what i mean is that it's not a basis that the basis for us deciding this that all mandatory minimums shouldn't exist because to doesn't take into consideration involved individual characteristics of the well i think the court can find its own balance in terms of deciding where when the quite can't i mean the candid answer for me is i think judges should have the ability judges  people who have an individual standing in front of them judges are in the best position to understand what the full circumstances of the situation are and for the judge to say i'm sorry my hands are tied i think you did very little but you got convicted so spend the next seventy years in jail to me that seems unconscious want to be unconstitutional and want to be unconstitutional to try a judge's hands and say you know well the facts you've heard all the evidence you've heard the witnesses but you can't make any decisions and i think it poses a real problem for the court in these particular cases we have young defendants and so maybe the quote gets to take into consideration maybe the answer is that there should be hearings whenever there is a young and young defendant and that hearing should determine whether or not this scientific reason to think that that person is old enough to to be sentenced to a mandatory minimum something that creates a framework within the within which the court can can abetted and then the other one his brother begins to or the codefendant begins to shoot as soon as the taxicab doors open my client's barely out of the car there is a finding of intent on the charge of conspiracy to commit murder and in aid of racketeering there's no question your honor that my client was as it was a member of the conspiracy had joined the conspiracy when he was fourteen years old to hold them responsible and in fact there was evidence that he had moved away from the from the conspiracy hadn't attended meetings he joined a church which was apparently a taboo if you joined the church you couldn't be in the conspiracy anymore you couldn't be in the designated organization anymore so there was evidence that suggested that he wasn't even a member anymore obviously the jury rejected that but it just seems to me that i mean maybe i have more confidence in our judges than the congress does  individual didn't have an opportunity to hear anything about who my client was he didn't get to know who my point was he only got to hear what the cooperate is had to say about him but there's no realistic sentencing proceeding maybe a psychiatrist  testified as to the development of his brain and to where he was the kinds of things that the supreme court has said they can that that the judges can look at when someone's fourteen fifteen sixteen seventeen and up to eighteen this court will have before and i think some of my colleagues will speak to it in the in the not so distant future case united states versus cruz which was recently decided in the connecticut district by judge paul and in that case the defendant is eighteen years old and twenty weeks so do we draw the line at eighteen weeks in the years you know if you if you're born in august you're in trouble but if you're not in trouble but if you're born in february your life is over it just seems to me that this is an opportunity for the court to really look at this issue and say what makes sense here we know so much more about science today than we did then and how do we ignore it you reserved couple minutes for yes i have to thank you we will hear you th transfer have to a couple of questions that you asked counsel for my codefendant regarding your question your honor about well what about fifty year olds i would suggest that there are other lines of cases can view arizona for example cases that really go to the question of whether someone who is older maybe has enough mental incapacitation or brain damage or other issues severe enough to maybe raise other eighth amendment question so i would suggest that maybe for defendants situated in those settings there is another line that they can pursue so i'm not sure that that that issue  is implicated here as it might be and in in response to the question about roper and the bright line i would suggest two things one is that this court and all courts the supreme court has frequently dealt with a situation where there's a bright line that goes one way miranda is an obvious example where if you don't have the miranda warnings then then that's a bright line but if you do have the miranda warnings you still have an opportunity to rebut the presumption that the statement made during custodial interrogation was was not coerced and i think when you look at the language in montgomery the reason why we can't just take this this bright line is because montgomery miller then did more than require a sentence or to consider a juvenile offenders youth before imposing life without parole it established that the penal logical justifications for life without parole collapse in light of the distinctive attributes of youth so it's going fundamentally to the penal logical objectives which are no longer sustainable when and it's not that they become sustainable when you're a day or two order eighteen i would i would suggest i think you need to have an opportunity to to see to consider whether the proportionality principle is going to apply in an individual case but turning to the one nine hundred fifty nine issue is i know there will be a lot more to be said on miller increase a standing within racketeering enterprise and this court has ruled that mere guesswork is not sufficient to establish that so where do you draw the line between what's mere guesswork and what is a reasonable inference for a jury and with this court when you look at the cases the cases cited you know in the briefs here and there in lots of cases on the matter what all the cases that uphold the the finding of the specific intent element have its some evidence direct evidence involving the specific individual often that specific individual has been given orders by superior for example to go out and and murder someone for here your client  was accompanied on this trip by four or five other people several of whom were offices of this organization well they were other members that's true of the organization they were also his his friends and associates they were the people that he knew i mean there's no evidence that he didn't mr beltran said you know what i really need to go out and find other members of the p t g so that they can accompany me in fact the uncontroverted evidence is that there was no green light that you know there's been so much that the government says about the testimony from someone who said he was supposed to get the green light but he neglected to well there was the testimony was a little bit back and forth on that but what he said was he didn't iran and i yeah well to be honest the testimony itself was it was a little bit contradictory but but that's the same witness who repeatedly said that this was just a personal matter and what he said and i think i quoted in context right in the back that this was a cruiser talking yes he said both things he said at one point he said it was personal and other points he said it was retribution by the gang so we'll isn't that enough i mean i've got the what do you believe the bad boys would look for rep it retaliation he has because we were attacked it goes on to say more about the retaliation by the by the gang is the jury entitled to rely on or because it was counted contradicted by other testimony by him it was personal is is that not something the jury could rely that's a fair question your honor i would i would  advise the court to look at the bruno case which is cited in the brief and for the principal the facts are quite different but for the principle that this court has while they obviously give and are required to give in deference to the jury are going to be willing to look beyond the jury to its decision to find out is this actually a rational interpretation of the facts and what was clear is t not relevant as to whether it was part of the gang's work or solely personal well i don't think so your honor and again i'd in this case i would cite the the farmer case which both parties cited in their briefs for the point that it's not what happens afterward whether or not you in fact gain any benefit or not and in fact i think there was even a point at sidebar in which usa smith admitted that he had not in fact gained any formal increase in his standing but what matters is your motive at the time that you committed you know the the offense not anything that may or may not happen later and i would note and you know i did not actually mention this in the brief but if you look at the sentencing transcript when the government is in fact describing to the district court what this what this crime was all about there's no mention whatsoever of this key specific content and this is what the usa ortiz says it's page two thirteen to revenge he thought about how to get that revenge he recruited his fellow gang members including his brother he meticulously loaded a gun and set out to find raymond that night when he did find to be shot of notwithstanding the fact that raymond was with his own brother on that street corner and several other females who  he did this because he felt disrespected and he knew that it was it was required of him as a member if disrespected to to to tell the the other side of that question would be what would he do to his standing if he was punched in the face and he didn't do anything about it and i think the best answer to that your honor is that when the court looks to what evidence is what a fair inference is versus guesswork they say well well we need some evidence of that so so the evidence in most of these cases for example in the james case that the government cites stands apart for the principle that you can have more than one motive you can want personal revenge and you can also be doing this because it's required by the game but in that case and i would say and i think in all these other cases there's also an order from the superior in fact informing the defendant in fact you have to do this on behalf of the gang and there was an order from the superior in james and here there is no order from a superior to give us the jury the evidence the reasonable basis to find and that's the difference between evidence and evidence based inference versus just a guesswork and and i would suggest your honor that nine hundred fifty nine requires that there be an evidence based inference rather than merely this sort of generalized in the air parole for four terrible crimes he committed when he was eighteen nineteen and just eight days past his twentieth birthday as things currently stand he will die in prison we've raised two groups of  issues one group has to do our due to my related arguments and with regard to those i would simply like to point out that right now there is pending before the supreme  court the case united states versus davis out of the fifth circuit that is going to dispose of some of those issues it will sort of address the issues underlying this court's decision in u s b barrett unless the court has any more about the one twenty four c for one question that is in buried we how we could take a can conduct specific up roach to applying the risk of violence clause right it's and and in that we concluded that hartley even though the jury didn't make a finding on that there was harmless error because there was so much evidence of violence isn't isn't that the case here too though is it can we pursue that aspect of barrett in this case because of the amount of violence  that was before the jury and it wasn't objected to as it as a jury question but that was the same approach taken by our panel and in bericht well i think it's two separate questions first of all yes if controlling if barrett is not overturned by davis before the supreme court that will dispose of our arguments here but under the risk of force clause i think the issue is different and i think gary i want to focusing on the risk of force that came up and barrett to whom we said that that could be adjourned jury determination right so risk of force that that satisfies all the supreme court decisions but it wasn't a jury issue in that case the jury determined we just said well but based on the evidence and the fact there was no objection to this that there could be the jury would have to have concluded it was the risk of violence to satisfy nine twenty four c how is that different from here is my question well i think that  there's a very narrow argument that's presented here the underlying crime that is related to the one twenty four c is intentional murder under new york penal law and as we have argued intentional murder under new the new york penal law is not in fact does not qualify as a crime of violence because murder can be committed in new york by omission which makes it a totally different analysis but that's one of the elements clause it's not the risk of force clause that's true you've raised that to i'm not quarreling with you about that i'm just saying on the risk of force cause how do you get by a harmless  you ok so to jump right in this is the question of the bright line and i think the the the way i would suggest looking at that is that where should the one of the issues is where should the bright line be drawn if there should be a bright line so the supreme court in miller says there's a bright line or there's that defendants who commit their crimes at the younger than eighteen can't be sentenced to life without parole mandatory mandatorily in montgomery they take it forward a step and they say well not only is this a procedural question about whether or not it's mandatory but in point of fact miller announced a substantive rule saying that people who commit their crimes and are younger than eighteen can't be sentenced to life without parole except if they are irreparably corrupt or permanently incorrigible so the argument here specifically with regard to mr lopez cabrera is that he was eighteen nineteen and just barely past twenty that the same rule should apply to him that he cannot be sentenced to life without parole without a finding that he is irreparably corrupt and permanently incorrigible so management question is the same whether a judge on his own or her own picks the sentence of mandatory life without life without parole or whether the congress requires is that the same eighth amendment question or are they different i think it's the same it's the same argument and so judge  in the cruise case out of the district of connecticut was dealing with this is the exact same issue she was she looked at the question of whether a defendant who committed his crime when he was eighteen years and bright that miller in finding that a defendant who was younger than eighteen years old could not face mandatory life imprisonment didn't mean that it was constitutional therefore to sentence everybody over the age of eighteen it was again i think as my colleague as has described it it was a line that went one way and not the other and that's pretty much what judge  question in her decision and as a fact which she said is that there are different types of bright lines and she looked at some of the supreme court's jurisprudence regarding imposition of the death penalty and she noted that in the thompson case the supreme court had said that the death penalty was unconstitutional for people under the age of sixteen and then in the stanford case the supreme court found that the death penalty was not on constitutional for people between the ages of sixteen and eighteen then that was followed up very quickly by the the rober case when the supreme court said no we're disagreeing with that the death is unconstitutional for anyone under the age of eighteen but that in the roper case the supreme court felt it was stated that it was overturning stanford which had specifically addressed the question  of people between the ages of sixteen and eighteen but didn't say that it was overturning thompson indeed hating again that the thompson line had not implied that the death penalty was ok for people over the sixty ages sixteen is i have to confess judges don't know the answer the question unless there's anything further you'll have  good morning please the court my name is matthew laroche represent the government on this appeal and i represent of the government and some of the proceedings below i'm going to start where mr siegel left off which is on the miller argument and specifically a case that hasn't been mentioned yet which is supreme court's decision and harmaline that case stands for the proposition that mandatory minimum sentences of life life in prison are constitutional miller did not change that at all all miller said was that under the  is a bright line that any individual below that age cannot be subject to the mandatory minimum of life imprisonment and the reason why that is significant is because in miller the court specifically said they are not overturning harmala in those circumstances the resolution of the miller issue is straightforward harmaline remains good law and individuals eighteen or older can be subject to a mandatory minimum sentence of life imprisonment now this is also definitively not the case in which the court should consider reevaluating miller and applying it to individuals who are over the age of seventeen the reason for that is three four one is that judge has already  said that at least with respect to lopez and lopez cabrera that a reasonable sentence and the sentence he would have imposed would have been life imprisonment regardless of the mandatory minimum and in fact with respect to look he said it was the only reasonable sentence for lopez cabrera second it is not this case is not like the cruz case which was cited in the twenty eight day letter of defense if the court is considering something on a mandatory basis and the court is not going to consider or even entertain evidence that would justify a lessons so to say i would do it anyway and impose the same sentence even if i heard evidence i have heard it doesn't make a great deal sense you're i think judging them are did go through the thirty five fifty three factors and did make an effort to determine regardless of the mandatory minimum what the sentence would have been and i think the sentencing transcript plays that out but there are additional reasons why i think in this case in particular reevaluating miller harlan despite being we believe just contrary to direct supreme court precedent would this would not be the case to do it in addition to what judge look at the ages of these individuals at the time of the murders so beltran was twenty one years old at the time of the murder at the time of the fourth murder the lopez cabrera committed he was twenty years old and at the time of the third murder that lopez committed he was twenty two years old so this is significantly different than the circumstance presented in the cruise case where the individual is eighteen years and i believe several weeks old and the last reason that this shouldn't be a case to re evaluate miller in terms of individuals holder is because miller was dealing with two fourteen year olds and it was citing circumstances in their youth in terms of their ability to be influenced in not understanding the consequences of what they did which are simply not the case here these are not isolated incidents these individuals were founding members of the bad boy and over a period of years and gauged the numerous acts of violence not just these four murders but numerous other shootings stabbings and assault honor what was proven at trial it was not just simply this murder he was involved in other shootings he was involved in an incident with mr lopez where he chased a blood with a machete towards mr lopez who shot at him there were numerous other incidences involving the three here i might not have given a life sentence to who we were we always do with that's correct your honor and then then you're back to what is the law based on supreme court precedent and the law is very specific and clear which is that mandatory minimum sentences for individuals eighteen years or older are coming constitutional under the eighth amendment now as a policy matter maybe the legislature should evaluate whether that should in fact be the case but that's not the question for the court the question for the court is whether under the eight whether the eighth a member who is more it doesn't it just simply doesn't based on clear supreme court precedent harlan which is reaffirmed in miller which explicitly says we're not overruling with respect to the sufficiency challenge for m the if we go back to the sensing for a moment am i correct that all of the all of the offenses for which mr lopez was sentenced to mandatory  life without parole were any and abetting he was yesterday he was not the shooter what i would say is is just just and would seem to suggest that that that's at least dubious is running the floor was understood your honor and i think that is why in miller the courts they were applying that line of precedent that death is different to individuals below eighteen and they said that there was a lot of presidents saying when it is you're that young the reason they're extending that death penalty jurisprudence is because if you are someone who is seventeen or sixteen or fourteen and you get a life sentence that is essentially a death sentence that was the reasoning in miller now again question though is whether miller opened the door to people eighteen and above and they simply did not because in a roper the court set the age at eighteen and of course there are going to be circumstances where that is over inclusive or maybe under inclusive but that is the rule that is the line and the question is whether that is constitutional under the eighth amendment and harmaline makes clear the mandatory minimum sentences of life in prison that are with respect to the sufficien challenge i submit that the evidence here is overwhelming and i point to the court's other decisions addressing sufficiency challenges for murder and of racketeering particularly concepcion farmer and  three cases i think there are common strains in those cases about what the court saw with respect to the evidence and that is did the enterprise have any rules or norms with respect to retaliate or whether engaging in acts of violence would raise someone status second prior to the killing did individuals in the enterprise know about it were they involved in it and third after the killing did the individual who committed the killing brag about it or talk about it to other members of the enterprise here you have all of those things and more there was significant testimony that the rules and norms of the trinitarians gang was that if you were attacked by a rival you seek vengeance you retaliate there is significant evidence that engaging in acts of violence  would boost your reputation it is a way for a transitory to make a name for himself now if you look at specifically what happened with respect to remain cool mr beltran he was attacked by an individual he understood to be a blood he decided he decided to seek retaliation for that and he didn't do that on his own he went back to the trying to torrijos to the leaders of the bad boys mr cruz one of the cooperators was the leader of the bad boys he was involved in the murder  blood he decided to retaliate after the murder there is additional evidence that as strongly referenced that the gang helps protect him they funded his escape they helped him hide out and there was also evidence that mr  beltran admitted to another cooperating witness mr belin into that he killed the blood so the blood wouldn't be able to put his hands on anyone else all of those circumstances together are more than sufficient evidence for a rational tr right one was that the jury got all of that evidence and there was significant arguments about how to interpret that evidence the government made numerous arguments that on redirect cruise explained exactly what he meant which was that although he was tacked personally that the rules and norms would be that you retaliate and that's exactly what happened the jury was capable and entitled to take that evidence and accept it or reject it had nothing to do with the truth and that's true is that right nothing to do with the truth or exactly that's really contradictory on cross examination i agree roger that is obviously not the best testimony for the government but i think the redirect there is where the government specifically asked what did you mean by it being personal when he said it was he was attacked first he then went through why would he understand that the bad boys would retaliate and that's because the bad boys were disrespected and again we make this  if the jury completely accepted that testimony there was other there was significant other testimony in the record to show that this was a retaliation in retaliation for bloods attacking him and it can also be the case that it can be personal and also still be in aid of racketeering so the fact that he someone else other than beltran might have thought it was personal doesn't necessarily mean that it's not is not a murder as i suppose that one of the things that i would propose the court to consider would be the notion that given where brain science the way the brain science is it is evolving and advancing as quickly as it is that perhaps the bright line that was once fourteen or fifteen or some numerical some of the miracle concept maybe the bright line definition has to change and has to be defined by conduct and by one's actions and not by one's age if you shoot someone then there's a bright line but in this particular case the judge the district court judge has no ability to consider the fact that my client wasn't the shooter is age that was standing he wasn't the shooter he didn't plan any of these these murders he he wasn't present at the time of one of the murders and even his presence in the in the double homicide which began to occur the minute a car taxi door opened and somebody started firing it was my client the court doesn't have the ability to take into consideration again separate and apart from age the fact that somebody who doesn't go someplace with the intent to kill and doesn't participate in the killing  is also subject to what do what do we do with what seems to be the fact that no intent was shown with respect to the offenses which your client was sentenced to life without parole but the intent was necessarily shown again his role in that shooting again is something that i think the court could take into consideration as whether or not it warrants a mandatory sentence but he can't but the court can you take that into consider aeration obviously when  when when there's a mandatory sentence and i think that the notion of taking away from the court the ability to judge all of the circumstances i just want to if i can impose on him and speak to judge johnny's point about judging a liar because that is  you know that statement by the court i respect tremendously has bothered me since the day said it and i'd like to think that if i had the opportunity to advocate and he had the opportunity to do something differently that i might have been able to change our position but obviously you approach a sentencing is defensible and you approach a sentencing very differently if you know that the outcome you can affect the outcome as opposed to bringing in psychologists or mitigation experts or people who could educate the judge as to who the individual before him is before sentences imposed so i submit that given the science that the court think about being in the second circuit any circuit can do it it's the second circuit that you would go back to the judge to decide that he could then give a life sentence but he would do it without the force of the congressional mandate yes your honor but he could give a life sentence yes your honor without parole i  think any time a judge has the discretion and has the ability to consider all the individual circumstances that is what we aim for all of us the ability for the court to impose a fair sentence and i would just as the court again to look at and which neuter thank you can your honor i just want to quickly address a some of the facts in the law that the government mentioned on the nine hundred fifty nine jose cruz it's true has the most powerful statement of repeatedly saying that the murder had nothing to do with the  cruz it's cruz it's pioneer it's jose marma laos it's wendy to virus it's even alternately as i read earlier the government's own summary of the offense at sentencing it's not just one thing that the government that  ut we're asking the jury to overlook its its entire set of facts saying that this was a personal rather than trinitarians matter and this matters and this really dove tails with the other issue because whether or not this specific intent element exists or not makes the difference between whether or not someone is going to have a mandate gauri life sentence at least under the current law or not it makes a difference as to whether there's even federal jurisdiction over this matter you know because it's the tethering to rico that provides the subject matter jurisdiction so this isn't just sort of an ancillary matter to the question it's the key question the bigger act itself is is there was some but the but the beneficial evidence to the government is all this sort of post hoc stuff and it's in the post tucker go procter hoc argument is exactly what farmer rejects in saying you can't look at what happened afterward and what the actual effect is you need to look at what you need to look at it at the moment that the crime is being committed and and so i would suggest that while there was that other evidence it's not relevant to the correct legal question as farmer sets out the government look at the whitten case but the wooden case was another case where there was a direct order from a superior to the defendant to go out and kill the the other gang member and the government doesn't tell you to look at the tyco case but i ask you to look at the thai case because that's a question that's a case where where there was the same notion of animists against another group there against asians here it's against the bloods and the court says look to just find  sentially no more that because this happened to be a very violent crime was a bombing in fact by this group against asians because they're targeting asians that we can infer that this is the that this is going to advance the enterprise is it's guesswork that was the case where the where this guesswork language comes from it was guesswork in time to say well there asians and we know we need to we have this animas against asians and i i offer your honor and and that's enough for you to find you know under these sort of generalized norms about not wanting to be disrespecting the underlying disputed territory well i think i think the underlying dispute was my client was assaulted and punched in the face by ray mccool that day is the reason they were both there wasn't because there was it there was a territorial rival the murder happens that same day thank you the government brings up the case of harmala and hormones and one nine hundred ninety one case which is fourteen years before roper it is twenty one years before miller and something more than that before montgomery the supreme court has not yet had the occasion to revisit it in light of its decisions in miller and montgomery and especially in light of the developments in the science if if we the cruise case speak was it's it it's at least implicitly overruled or certainly inconsistent with the logic in miller in montgomery and the progression of  the science the neuro science that underlie it's those cases which i think is another thing the government doesn't mention at all they don't disagree with the neuro science that shows that that the development of the adolescent brain continues into the mid twenty's they simply are reduced to arguing in favor of a bright line rule in fact in the cruise case once again which will be is being appealed i don't think it has been briefed yet but it is being appealed by the government in the groups case the court took testimony from dr lawrence steinberg  also in miller and he explained as described in the crew's decision that at the time roper was decided which was two thousand and five there had been very little research into the development of the adolescent brain beyond the age of eighteen and that really that type of research didn't start to take to a gather steam and accumulate until around two thousand and nine or two thousand and ten and that it's really been since that point that there's been like that accumulation of research as to how the brain develops past eighteen particularly he describes the late adolescence as being from eighteen to twenty one and you know he's asked for some conclusions and he says he has absolutely no doubt that what he had written about the brain brains of people younger than eighteen that was relied upon and roper would equally apply now to people you know during what he calls the sleep adolescent period thank you thank you we will reserve decision