15

- 1453 United States v. Delgado
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

____________________ August Term, 201 9 (Argued: April 2 8 , 20 20 Decided: August 18, 2020 )
Docket No. 15

- 1453

____________________ U NITED STATES OF AMERICA, Appellee ,

v. JONATHAN DELGADO Defendan t

- Appellant

. 1

____________________ Before: JACOBS , POOLER, and CARNEY , Circuit Judges

. Appeal from the judgment of conviction entered in the United States
District Court f or the Western District of New York ( Richard J. Arcara , J .) , convicting Jonathan Delgado, after a jury trial, for conspiracy to violate the

1 The Clerk of Court is directed to amend the caption as above.2 Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d), as well as narcotics

- conspiracy and firearm

- possession charges in connection with Delgado’s membership in the 10 th Street Gang of Buffalo, New York. The underlying racketeering activity included Delgado’s participation in
the double murder of Brandon MacD onald and Darinell Young in 2006. Delgado, who was seventeen years old when he participated in the murders, was sentenced to life imprisonment. Delgado argues on appeal that the district court erred by (1) permitting the government to introduce into eviden ce a gun it seized from his home in 2012 ; (2) denying his motion for a mistrial based on an apparent Bruton violation ; (3) denying defendants’ joint Batson challenge; (4) denying his requests for certain jury charges; and (5) failing to consider his age at the time of the MacDonald and Young murders. We reject his first four challenges but agree with the fifth. The district court imposed Delgado’s sentence without explicitly considering his age at the time of the murders. In doing so, it violated the principle recognized by the Supreme Court in Miller v. Alabama that “children are constitutionally different from adults for purposes of sen tencing.” 567 U.S. 460,
471 (2012) . Those under the age of eighteen are different, Miller instructs, because3 the “distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when t hey commit
terrible crimes.” Id. at 472. Accordingly, although we affirm Delgado’s conviction, we vacate his sentence and remand for resentencing, with
instructions to consider the mitigating factors of youth as required by Miller

. Delgado was convicted alongside defendants

- appellants Domenico Anastasio, Ismael Lopez, and Matthew Smith. We decide the appeal of Anastasio by separate opinion and the appeals of Smith and Lopez by summary order

. Affirmed in part, vacate d and remanded in part

.

____________________ SCOTT M. GREEN , Rochester , NY, for Defendant

Appellant Jonathan Delgado

. MONICA J. RICHARDS , Assistant United States Attorney , for James P. Kennedy, Jr. , United States Attorney for the Western District of New York, Buffalo , NY, for Appellee

. P OOLER, Circuit Judge : Jonathan Delgado a ppeal s from the March 25, 2015 judgment of conviction
entered in the United States District Court f or the Western District of New York ( Richard J. Arcara , J .) , convicting him , after a jury trial, of conspiracy to violate4 the Racketeer Influenced and Corrupt Organizations Act (“RICO”) , 18 U.S.C. § 1962(d), as well as narcotics

- conspiracy and firearm

- possession charges in connection with Delgado’s membership in t he 10 th Street Gang of Buffalo, New
York. The underlying racketeering activity included Delgado ’s participation in
the double murder of Brandon MacDonald and Darinell Young in 2006. Delgado argues on appeal that the district court erred by (1) permitting the government to introduce into evidence a gun it seized from his home in 2012 ; (2) denying his motion for a mistrial based on an apparent Bruton violation ; (3) denying defendants’ joint Batson challenge; (4) denying his requests for certain ju ry charges; and (5) failing to consider his age at the time of the MacDonald and Young murders. We reject his first four challenges but agree with the fifth. Delgado, who was seventeen years old when he participated in the murders, was sentenced to life i mprisonment. The district court imposed Delgado’s sentence without explicitly considering his age at the time of the
murders . In doing so, it violated the principle recognized by the Supreme Court
in Miller v. Alabama that “children are constitutionally different from adults for purposes of sentencing.” 567 U.S. 460, 471 (2012)

. Those under the age of eighteen are different, Miller instruct s , because the “distinctive attributes of5 youth diminish the penological justification s for imposing the harshest sentence s on juvenile offenders, even when they commit terrible crimes.” Id. at 472. Accordingly, although we affirm Delgado’s conviction, we vacate his sentence and remand for resentencing , with instructions to consider the mitigating factor s of youth as required by Miller

. Delgado was convicted alongside defendants

- appellants Domenico Anastasio, Ismael Lopez, and Matthew Smith. We decide the appeal of Anastasio by separate opinion and the appeals of Smith and Lopez by summary order

. BACKGROUND
I. Factual Background
The 10th Street Gang has existed in some form on Buffalo’s West Side since
the 1980s

. Like other street gangs, 10 th Street enforced its narcotics enterprise through violence

. Members regularly planned and carried out shootings in response to actual, or perceived, disrespect. Other gangs operated near and sometimes within the 10th Street Gang territory , including the 7th Street Gang , a rival

— and the Zolo Boys, a n ally

. The re was a semblance of hierarchy to the 10th Street organization . Senior
members were considered “ shooters ” who protected the territory and retaliated6 against the encroachment of rival gangs. Newer members , some as young as thirteen years old , were expected to “put in work , ” meaning they had to perform
certain criminal

— and often violent

— acts to increase their status

. On the afternoon of April 16, 2006, a car with 7 th Street Gang members drove up to and shot at Robert Sanabria , a 10 th Street member and Delgado’s younger brother , while he was out walking to a neighborhood cookout with a large group of 10th Street members

. A bullet landed in Sanabria’s stomach and
left him injured on the sidewalk before he was taken away in an ambulance (he survived)

. Delgado soon arrived on the scene before checking in on Sanabria at the hospital. Meanwhile, a group of 10th Street members had congregated in an open area of the park next to where Sanabria was shot

. As emotions heated up , the
group decided that retaliation was in order. The tensions escalated when the group confronted a young man and woman passing by

. When someone
commented that the couple was affiliated with 7th Street , a few gang members ran up to them and started beating on the man, continuing to kick and punch him after he fell to the ground. The woman tried to provide cover as the gang
members delivered additional blows.7 Later that night, about a dozen 10th Street members moved from the park
to a nearby apartment

. There, Delgado announced that the plan was to “shoot at [7th Street Gang members] because they had shot his brother,” and he told those present that they needed to find guns. Smith App’x at 2906. Several of those at the apartment then left to gather firearms . U pon returning , they piled guns on top of a bed. Delgado brought two handguns: a .44 caliber and a .380 caliber

. Another gang member brought a s awed

- down .22 rifle

. Members of the Zolo Boys also showed up , bringing two more shotguns

. At some point, a senior 10 th Street member dispatched a younger member
to search the neighborhood for those affiliated with 7th Street. The reconnoitering member reported back that he saw 7th Street

- affiliated people outside a home on 155 Pennsylvania Street. Back at the apartment , the eventual
shooters took their preferred weapons

. Delgado selected the .380 caliber handgun

. Two cars, one with four armed 10 th Street members and the other with the Zolo Boys, drove toward the target home

. The 10 th Street driver did not want anyone shooting from his car, lest someone shoot at it, so the gunmen instead assembled in an alley where they covered their faces with bandanas and8 discussed how to carry out the shooting. One of the gunmen suggested that they pose as drug dealers , but Delgado insisted on a direct approach.
The shooters ran up on 155 Pennsylvania and opened fire, spraying more
than 50 bullets at the people gathered on and near the porch. Delgado killed
Brandon MacDonald

. Darinell Young was also killed , and four others were
wounded

. As it turned out, the casualties were innocent bystanders . The shooters absconded, eventually making their way back to the original apartment

. Continued bloodshed between the two gangs prompted a joint investigation between the FBI and local authorities . The investigation encompassed physical surveillance, more than seven search warrants, video surveillance, controlled evidence purchases, and intelligence provided by
confidential informa nts , who later played a prominent role in the government’s case against Delgado and the other codefendants

. Law enforcement eventually obtained m edical and ballistics evidence linking MacDonald’s death to the bullet discharged from Delgado’s .380 caliber9 handgun

. 2 On February 3, 2012, the FBI arrested Delgado at his home, seizing a small amount of marijuana and a n AR

- 15 .223 Bushmaster rifle (“AR

- 15”)

. II. Procedural History
A federal grand jury sitting in the United States District Court for the Western District of New York returned a fourth superseding indictment charging Delgado and twenty

- eight others with RICO conspiracy in the form of drug trafficking, assault, murder, in timidation , and weapons possession related to
their membership in the 10 th Street Gang. The indictment identified 124 overt acts committed in furtherance of the RICO conspiracy. Delgado specifically was charged with : one count of conspiracy to violate RICO , in violation of 18 U.S.C. §§ 1962(d) and 1963(d); one count of conspiracy to possess controlled substances with intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), and 841(b)(1)(D); and one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924 (c)(1)(A)(i) and 2

. Delgado

was also charged under one of the special sentencing factors of the RICO conspiracy with second

- degree murder under New York stat e law for the

2 Unlike his other codefendants, Delgado does not argue on appeal that there was insufficient evidence to support his convictions.10 MacDonald and Young killings. The vast majority of the charged defendants entered guilty pleas. Delgado and three other codefendants proceeded to trial. On July 25, 2014, Delgado filed a motion in limine to preclude the government from introducing testimony concerning the AR

- 15 that was seized
from his home at the time of his arrest

. Delgado argue d that the AR

- 15 was
irrelevant to the RICO conspiracy because ATF records demonstrated it was lawfully purcha sed in March 2011 and it was not seized by law enforcement until Delgado’s arrest in 2012. The district court denied the motion, reasoning that Delgado’s purchase and possession of the AR

- 15 was relevant to the charged RICO conspiracy because “[g]uns are p art of what’s been alleged here.” App’x at
314

. During jury selection, the government moved to strike two of the three Hispanic Americans among the prospective jurors . The district court considered

a joint Batson challenge from defendants but ultimately concluded that the government’s race

- neutral basis for its use of preemptory strikes was credible

. On July 30, 2014, Delgado’s trial began

. The government called fifty

- five
witnesses

. As relevant to this appeal, Joshua Keats, a New York Sta te Police Investigator, testified as to his post

- arrest interview of one of Delgado’s11 co defendant s, Anastasio. Keats testified that Anastasio told him he witnessed the shooting of Sanabria and was present at the apartment where the retaliation was planned . Keats also testified that Anastasio told him that at the apartment

“ everyone was talking about retaliating for what happened to [Sanabria] , ” and
that Anastasio said “he knew something was going to happen because of the way everyone was talking; th at they had to do something about [Sanabria] getting shot in front of Sam’s store earlier in the day.” App’x at 324

. At a break in the proceedings, Delgado moved for a mistrial based on this testimony

. He objected to Keats ’s use of “everyone , ” when it was apparent that Delgado was
one of the people at the apartment. The district court summarily denied the
motion

. At the close of the government’s proof, Delgado moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29 (a) based, in part, on a claim that the government had not demonstrated that the gun possession charge
was committed within the five

- year statute of limitations

. The district court denied the motion

. Later, at the jury charge confer ence, Delgado again requeste d, without success, a n instruction on the statute of limitations for the gun12 possession. The district court noted that it had already rejected the statute of limitations defense when it denied Delgado’s Rule 29 motion

. Subsequently, Delgado requested that the district court instruct the jury on the affirmative defense of extreme emotional disturbance , which , in some
circumstances , is available to those accused of second

- degree murder under New
York state law

. The distric t court declined to give this charge

. After a f ive

- week long trial , the jury returned guilty verdicts on all counts
for the four co defendants

. On March 25, 2015, Delgado appeared for his sentencing. Based on its calculation under the Sentencing Guidelines, the Probation Office recommended that Delgado serve a custodial term of life imprisonment

. Before announcing Delgado’s sentence, the district court
discussed its view that the gang’s violent activities had destroyed Buffalo’s West
Side community : I'm glad I had a chance to hear the evidence in the trial because it really clearly gave me a picture of what was going on. Many times, when we are involved in sentencing people, the judge hears maybe a plea or a limited information about a particular criminal activity, but here, I had the first h and view of what went on there and how horrible those events were for a long period of time; that went on for such a long time it's hard to believe that it was allowed to go on as long as it was.13 One of the most difficult things a judge does is imposing sentences on individuals. It's certainly something I don't enjoy and if there ever comes a point where I do enjoy it, I think that's the day that I'll resign as a judge. It's a difficult part of being a judge is to impose severe sentences or any sentences. But in this situation, obviously, the sentencing range that the guidelines have calculated is the most severe. App’x at 446

- 47

. The district court then recounted the events that led up to the MacDonald and Young murders and described other violent crimes attributed to Delgado in the P resentence Investigation Report

. The court stated that it had reviewed the submissions and considered the sentencing facto rs set forth in 18 U.S.C. § 3553(a). With respect to Delgado’s character, the district court explained :
D efendant appears to be undeterred by the sentence of probation he receive [d] in 2005 and continued his participation into the criminal behavior. He sold drugs, possessed multiple firearms and I don't feel he had any comprehension of the long

- term impact and the collateral damage that these crimes have and will continue to have on the community, the families. The social implications of vio lence are certainly complex and represented a major concern of the citizens. I feel the sentence imposed under these circumstances is a fair and reasonable sentence. App’x at 451

- 52.14 Ultimately , the district court sentenced Delgado to concurrent terms o f life imprisonment on the RICO conspiracy and narcotics

- conspiracy count s . 3 This appeal timely followed.
DISCUSSION Delgado argues that (1) the AR

- 15 was inadmissible because there was no evidence that he used it in furtherance of the charged conspiracies; (2) the district
court violated Bruton by admitting his codefendant’s statement to police that “everyone” at the ap artment was “talking” about retaliation; (3) the government impermissibly struck a Hispanic member of the jury pool on the basis of race; (4) the jury should have been instructed on the defense of extreme emotional
disturbance and the statute of limitation s for the Section 924(c) charge; and (5) the district court violated the Eighth Amendment by failing to consider his age before imposing a life sentence.

3 The court also imposed a consecutive five

- year sentence for the weapons

possession conviction.15 I. Admission of the AR
- 15
We review a district court’s decision to admit evidence for abuse of discretion, “ recognizing that district courts enjoy broad discretion over the
admission of evidence.” United States v. Barret , 848 F.3d 524, 531 (2d Cir. 2017) ( internal quotation marks, bracket s , and citation omitted ). “Irrelevant evidence is not admissible.” Fed. R. Evid. 402. A district court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needless ly presenting cumulative evidence.” Fed. R. Evid. 403. A district court's decision to admit evidence is subject to harmless error analysis. Fed. R.
Crim. P. 52(a) ; United States v. Madori, 419 F.3d 159, 168 (2d Cir. 2005)

. Delgado argues that the district court abused its discretion in admitt ing
the AR

- 15 because there was no other evidence establishing that Delgado used
the assault rifle in furtherance of the charged conspiracies , making its possession
irrelevant

. Delgado also argues that any possible probity was outweighed by undue prejudice under Rule 403 because the admission of a lawfully purchased
assault rifle without a connection to the charged conspiracies “ leaves a high probability that the jury would misuse its admission to bolster th e testimonies of16 cooperating witnesses , ” who testified about Delgado’s possession of other guns. Appellant’s Br. at 28. We disagree that the AR

- 15 was offered for an improper purpose

. 4 In
context, Delgado’s purchase and possession of an assault rifle was , at the very
least , relevant to the RICO conspiracy count. The fourth superseding indictme nt charge s in its general allegations that “ [i] n order to enforce the authority of the gang, 10th Street gang members maintained a ready supply of firearms, including handguns, shotguns , and semi

- automatic rifles. Weapons were to be sold to others, or otherwise discarded, after having been used to commit acts of violence on behalf of the organization. ” App’x at 67. The government introduced
evidence at trial and argued in its theory of the case that 10th Street members kept a ready stock of guns as part of the security function of the enterprise.
W itnesses testified that members routinely gave firearms to one another by hiding guns in a communal stash at the park and had knowledge of other
members’ firearms. There was testimony demonstrating that other gang

4 Because we conclude that the testimony was offered for a proper purpose, we reject Delgado’s argument that the testimony was only offered to show criminal propensity in violation of Federal Rule 404(b) of Evidence.17 members were aware that Delgado purchased and owned the AR

- 15. Delgado’s possession of the assault rifle w as relevant to the allegations of the RICO conspiracy that charged defendants with using , brandishing , and exchanging
firearms as part of the illicit enterprise

. We also disagree with Delgado’s argument that his possession of the AR

15 had no connection to the charged conspiracy because “[t]h ere was no testimony presented at trial to indicate [Delgado] participated in the conspiracies contained in the Indictment after June, 2007.” Appellant’s Reply. Br. at 2. As alleged in Count 1 of the indictment , “beginning in or about 2000 and continuing

t o in or about 2011,” Delgado was part of a gang that sold narcotics and protecte d its territory by using, carrying, and possessing firearms. App’x at 299

. Delgado’s argument fails because there was no evidence that he ever withdrew
from the conspiracy and ATF records confirm that he purchased the AR

- 15 in early 2011, which, as a temporal matter, was within the time period of the alleged RICO conspiracy.
We find no abuse of discretion in the district court’s determination that the probative va lue of this evidence is high and that it tends to illuminate the issues in the case rather than mislead the jury. As noted above, a Rule 403 challenge is18 “highly deferential” to the district court. United States v. Coppola , 671 F.3d 220, 244 (2d Cir. 2012). There was nothing unduly prejudicial about the AR

- 15 simply
because it also happened to bolster witnesses’ testimon y about other firearms. Delgado does not cite to any authority that supports excluding evidence on this ground.
Even assuming arguendo there was error, it would be harmless

. We consider several factors in determining whether an evidentiary error is not
harmless and thus requiring a new trial: In assessing the wrongly admitted testimony's importance, we consider such factors as whether the testimony bore on an issue that is plainly critical to the jury's decision, whether that testimony was material to th e establishment of the critical fact or whether it was instead corroborated and cumulative, and whether the wrongly admitted evidence was emphasized in arguments to the jury. Wray v. Johnson , 202 F.3d 515, 526 (2d Cir. 2000) (citations and internal quotat ion marks omitted). In light of the strength of the government’s case, our review of the record
demonstrates that the AR

- 15 was “unimportant in relation to everything else the jury considered on the issue [s] in question.” Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir. 2010) ( internal quotation marks and citation omitted ). In its summation, the government argued (1) that Delgado’s possession of the AR

- 1519 was evidence , on its own, that that he was guilty of the Section 924(c) charge ; and (2) that it was probative of his guilt concerning the narcotics conspiracy and RICO conspiracy offenses , because there was testimony that he displayed the
firearm to other gang members

. Delgado’s possession of the assault rifle was plainly not essential to either
of the conspiracy counts, which charged a broader scheme. Delgado’s only colorable argument for a new trial is if the AR

- 15 was used by the jury as the sole basis for its guilty verdict on the Section 924(c ) charge . But the AR

- 15 evidence
was not critical to the Section 924(c) count either. In the few instances when the government referenced the AR

- 15 in its summation, it did so in the context of Delgado possessing other firearms

— at one point arguing that the jury “heard at least about half a dozen guns possessed by Delgado, himself, to include the [AR

15]. ” Smith App’x at 4990

. A raft of government witnesses placed a gun in Delgado’s hands during the conspiracy

— including during the murders of MacDonald and Young

— any of which could have formed the basis of the jury’s guilty verdict on the Section 924(c) count. See United States v. McCallum , 584 F.3d 471, 478 (2009) (“We have repeatedly held that the strength of the government’s case is the most critical20 factor in assessing whether e rror was harmless.”). In sum, vacatur would not be warranted even if the district court erred because there was overwhelming evidence presented at trial concerning Delgado’s possession of firearms.
II. Bruton
In Bruton v. United States , 391 U.S. 123 (1968), the Supreme Court held that a defendant is deprived of his rights under the Confrontation Clause when a
codefendant’s confession implicating the defendant is admitted at their joint trial, irrespective of whether the court instructs the jury that the confession can only be used against the defendant who made it. Our Court later held that a
“defendant's Bruton rights [are] violated . . . only if the statement, standing alone, would clearly inculpate him without [the] introduction of fu rther independent
evidence.” United States v. Wilkinson , 754 F.2d 1427, 1435 (2d Cir. 1985). That principle was enunciated by the Supreme Court in Richardson v. Marsh , which
also held that Bruton can be complied with by redacting the statement so that it does not expressly implicate the codefendant as an accomplice. 481 U.S. 200, 209 (1987). Delgado argues that New York State Police Investigator Keats’ s testimony
about his post

- arrest interview of Anastasio impermissibly inculpated Delgado,21 thereby denying his S ixth A mendment right to confront the witnesses against
him because Anastasio was a nontestifying codefendant

. Delgado’s reliance on Bruton is inapt

. Anastasio neither confess ed to a
crime nor named anyone as a participant in a crime

. The statement that

“ everyone was talking about retaliating for what happened to [Sanabria]” was not a confession , nor did it, by itself, implicate any of the codefendants in a
crime . App’x at 324. The statemen t s required further evidence to link Delgado ’s
involvement to the murders . T here was nothing facially incriminating with gang members merely “talking” about retaliation at the apartment , which Delgado’s
counsel essentially acknowledged when he moved for the mistrial on the grounds that these statements “couple[d] . . . with the testimony” that was anticipated in the case would inculpate Delgado

. See App’x at 326. Finally, the statements were already generalized and thus did not require redaction. For
these reasons , we conclude that Delgado’s right to confrontation was not jeopardized by Keats’s testimony

. III. Batson Challenge
In Batson v. Kentucky, 476 U.S. 79 (1986) , the Supreme Court fashioned a
three

- part test that trial courts are to use when considering whether a22 peremptory strike of a jury panelist is based on an impermissibly discriminatory
motive. A trial court must: (1) decide whether the defendant has made a prima facie showing that the prosecutor has exercised a peremptory strike on the basis of race; (2) if so, decide whether the prosecutor has satisfied the burden of coming forward with a race neutral explanation for striking the potential juror; and, if so, then must (3) make a determination whether the defendant has carried his burden of proving purposeful discrimination. Jordan v. Lefevre , 206 F.3d 196, 200 (2d Cir. 2000)

. Ordinarily, at th e third step , “the decisive question will be whether counsel ’ s race - neutral explanation for a peremptory challenge should be believed.” McKinney v. Artuz , 326 F.3d 87, 98 (2d
Cir. 2003) (internal quotation marks and citation omitted)

. Deference will be given to the trial court findings on the issue of discriminatory intent and will be set aside only if the determination is clearly erroneous. Hernandez v. New York , 500 U.S. 352, 365 (1991). The prosecutor struck prospective juror # 41 , who is Hispanic, on the grounds that she did not like to read the news because of its ugliness, and that she was heavily involved with her church. Delgado argues that this justification was pretextual because other jurors said the same thing and were not stricken.23 Assuming, as the district court did, that Delgado made a prima facie case
at the first step, the court did not clearly err in rejecting the Batson claim. Delgado’s argument is belied by the record; the prosecutor struck other potential jurors who claimed to not read the news. Moreover, none of them described their

news - avoidance in quite the same way as the stricken juror , who said she did not
read the news “because there [is] too much ugliness in the now

- a - day world.” Smith App’x at 1490. In the context of a criminal trial involving multiple murders, shootings, rob beries and drug sales, excluding a juror on this basis does
not seem so far

- fetched

. And, as the government points out, one of the other Hispanic American s in the venire eventually served on the jury panel

. On this
record and considering the deference we a ccord to the district court in credibility
determinations , we conclude that the court did not clearly err in rejecting defendants’ joint Batson claim

. IV. Jury Charges
We review jury instructions de novo but reverse only if we determine that the instructions, taken as a whole, prejudiced the defendant. United States v. Finazzo , 850 F.3d 94, 105 (2d Cir. 2017) . “The defendant bears the burden of showing that the requested instruction accurately represented the law in every24 respect and that, viewing as a whole the charge actually given, he was prejudiced.” United States v. Rutigliano , 790 F.3d 389, 401 (2d Cir. 2015) (internal quotation marks and citation omitted)

. A. Extreme Emotional Disturbance Delgado argues that the district court erred by refusing his request to charge the jury with the defense of extreme emotional disturbance

. Under New York law, extreme emotional disturbance is a partial affirmative defense to murder in the second degree. Se e N.Y. Penal Law § 125.25(1) (a)(i). It is
available whe n “[t]he defendant acted under the influence
of extreme emotional disturbance for which there was a reasonable explanation
or excuse.” Id.; see also People v. White, 79 N.Y.2d 900 , 902

- 04 (1992)

. It requires evidence that the defendant suffered from “a mental infirmity not rising to the level of insanity at the time of the homicide, typically manifested by a loss of self

control.” People v. Roche, 98 N.Y.2d 70 , 7 5 (2002). Delgado argues that the emotional trauma he suffered from learning that
his younger brother was shot supported such a jury instruction. According to Delgado, he “ came to the scene of the shooting and learned that his brother was
shot by rival gang members. Throughout the day and into the evening, the25 Defendant was with individuals who demanded retaliation for his brother's shooting. ” Appell ant ’s Br. at 3 9

- 40

. This, in turn, made him “ angry ” and he

“ cried and sought revenge

. ” Id.
Yet D elgado has failed to summon any evidence that lends support for the
instruction besides the bare assertion that he was angry and vengeful following the shooting of his brother

. See Roche , 98 N.Y.2d at 76 (“ In the absence of the requisite proof, an extreme emotional disturbance charge should not be given because it would invite the jury to engage in impermissible speculation concerning defendant's state of mind at the time of the homicide.”)

. New York law is clear that anger alone does not amount to a mental infirmity or the loss of
self

- control associated with the defense of extreme emotional disturbance

. People

v. Walker, 64 N.Y.2d 741, 743 (1984)

. Accordingly, we conclude that the district court was correct to reject the requested jury charge.

B. Statute of Limitations Delgado also argues that the district court erred by denying his request to “charge the jury regarding Statute of Limitations and/or to make a finding26 concerning when the jury believed the Defendant was last in possession of a
firearm in furtherance of drug trafficking.” Appellant’s Br. at 40. Since the federal criminal code provides a five

- year statute of limitations for noncapital offenses , Delgado argues that the district court should have given a statute

- of

- l imitations
instruction for the firearm possession count under Section 924(c)

. See 18 U.S.C. § 3282(a). As noted above, the court summarily denied Delgado’s request for the jury charge , citing to its earlier Rule 29 ruling that there was sufficient evidence for the jury to find that Delgado violated Section 924(c) within the five

- year
statute

- of

- limitations. See Fed. R. Crim. P. 29(a) (providing that “ the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.”)

. The court thus mistakenly borrow ed that stringent standard for use in Delgado’s request for a particular jury charge , which in part may be justified “on any defense theory for which a foundation existed in the record.” United States v. Caplan , 703, F.3d 46, 87 (2d Cir. 2012). In other words, that the jury could find that Delgado violated Section 924(c) within the statute

- of

- limitations period did not
foreclose the opposite finding.27 In any event , the outcome was correct, albeit for a different reason. There was no way for the jury to convict Delgado on the Section 924(c) count based on
conduct outside the statute of limitations under our Court’s precedent

. Even if we were to assume that the jury believed Delgado’s argument that his possession
of the AR

- 15 occurred outside the temporal scope of the conspiracy , and v oted to
convict , for example, based only on his 2006 role in the MacDonald and Young
murders , that violation of Section 924(c) was a “continuing offense” that “continued through the life” of the 10th Street Gang’s RICO conspiracy

. United
States v. Payne , 591 F.3d 46, 69 (2d Cir. 2010) (“Conspiracy is a continuing offense.
. . . When a defendant is convicted of violating § 924(c)(1)(A) for using or carrying a firearm during and in relation to a crime that is a continuing offense, the § 924(c)(1) crim e itself is a continuing offense.”). Delgado cites United States v. Praddy , which carves out an exception to the
rule that possession is presumed to continue until the underlying conspiracy
runs its course. 725 F.3d 147, 157

- 59 (2d Cir. 2013) . But hi s reliance on Praddy is misplaced. In that case, law enforcement had actually seized the weapon in question six years before the defendant was charged with its possession. See Praddy , 72 5 F.3d at 159 (stating “ it would defy all reason to give effect to that28 presumption after such time as the gun has in fact been seized by law enforcement authorities.”). That factual distinction is not present here : law enforcement did not seize any of Delgado’s weapons outside the statute of
limitations. And , crucially, as noted above, there was no evidence showing that Delgado ever withdrew from the conspiracy , so his participation is presumed to extend through 2011

. See United States v. Yannotti , 541 F.3d 112 , 123 (2d Cir. 2008) (“[O]nce the government meets its burden of proof to establish a RICO conspiracy, it is entitled to a presumption that the conspiracy continued until the defendant demonstrates otherwise.” ( internal quotation marks, brackets, and
citation om itted) ). Accordingly, the jury could not have found that any violation
of Section 924(c) ceased in 2006, obviating the need for the statute

- of

- limitations
instruction.
V. Delgado’s Sentencing Delgado, who was seventeen at the time of the MacDonald and Young

m urders, argues that the district court violated the Eighth Amendment by failing to give the requisite weight to his youth before sentencing him to life imprisonment. In 2012, the Supreme Court held that mandatory life

- without

parole sentences for juvenile offenders categorically violate d the Eighth29 Amendment’s prohibition on cruel and unusual punishment. Miller v. Alabama , 567 U.S. 460, 465 (2012)

. Mille r advanced the principle that “children are constitutionally different from adults for purposes of sentencing

. ” I d

. at 471

. But contrary to the government’s argument on appeal , Miller is not limited to mandatory sentenc ing schemes

. Although Miller focused on state statutory schemes that prescribed mandatory life sentences for juveniles , it recognized
that “about 15% of all juvenile life

- without

- parole sentences [then being served]” were nonmandatory sentences imposed at the discretion of a judge or jury. Id

. at 483 n.10. Rather than include those sentences in the broader categorical ban, the Court concluded only “that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles

. ” Id

. at 489

. 5

5 Miller listed some of the “hallmark features” of juvenile defendants, including: (1) a lack of maturity that l eads to, among other things, “heedless risk

- taking ; ” (2) a lack of “ability to extricate from horrific

- crime producing settings;” (3) an incompetence of youth in dealing with law enforcement; and ( 4 ) a juvenile’s potential for rehabilitation. Id

. at 477

– 78. These “distinctive attributes of youth diminish the pe nological justification for imposing the harshest sentence s on juvenile offenders, even when they commit terrible crimes.” Id. at 472.30 In 2016, after Delgado ’s sentencing , the Supreme Court issued Montgomery

v. Louisiana , 136 S. Ct. 718 (2016 ), which provided additional guidance about the proper application of Miller

. Montgomery explain s that Miller ha s both
substantive and procedural components. As a matter of substantive constitutional law, Montgomery describe s the pre - Miller world as a place where

“ every juvenile convicted of a homicide offense could be sentenced to life without parole. ” Id. at 734. But , after Miller , the Court noted that “it will be the rare juvenile offender who can receive that same sentence.” Id. Montgomery
stresse s that a life

- without

- parole sentence is permissible only for “the rarest of juvenile offenders”

— specifically, “ those whose crimes reflect permanent incorrigibility” and “irreparable corruption.” Id. Montgomery also discusse s Miller ’s “procedural component”

— in that Miller requires the trial court “ to consider a juvenile offender's youth and attendant
characteristics before determining that life without parole is a proportionate
sentence.” Id. A sentencing court’s consideration of these factors , according to Montgomery , “gives effect to Miller ’s substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity.” Id. at 735.31 Since there is no parole in the federal system, Delgado’s sentence is effectively the same as a life

- without

- parole sentence in state court systems

. S ee Romano v. Luther , 816 F.2d 832, 837 (2d Cir. 1987) ( noting that the Sentencing
Reform Act of 1984 eliminated parole )

. And , under Supreme Court precedent, Delga do could be sentenced to life

- without

- parole as a juvenile only based on his participation in the MacDonald and Young murders under the RICO conspiracy
count , and not on the narcotics conspiracy count alone

. See Graham v. Florida , 560 U.S. 48, 75 (2010) (holding that life

- without

- parole sentences for juveniles
convicted of nonhomicide offenses are unconstitutional).
While Delgado’s sentence was not mandatory 6 and thus does not fall
under the categorical ban of Miller , his sentence was nonetheless improper. Th e district court did not reference Delgado’s age at all , much less grapple with it. Even though the district court noted that it considered all of the Section 3553(a)

6 Unlike the other codefendants, Delgado was not charged with the murders pursuant to the Violent Crimes in Aid of Racketeering (“VCAR”) statute . VCAR prohibits the commission of certain violent crimes “in violation of the laws of any State or the United St ates,” including murder, “for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity.” 18 U.S.C. § 1959(a)

. VCAR

- murder carrie s a mandatory life sentence. 18 U.S.C. § 1959(a)(1).32 factors, which includes age in one of its policy statements , see U.S.S.G. § 5H1.1 , a

mere passing reference to Section 3553(a) is not enough to satisfy Miller ’s
constitutional mandate that reaches beyond what is set out in the Sentencing
Guidelines

. Delgado’s sentencing hearing does not indicate that there was deliberate
consideration o f his character as a juvenile , a constitutionally distinct class of
defendants

. Miller requires the district court to undertake additional reflection on the special social , psychological, and biological factors attributable to youth , and
such reflection is absent from Delgado’s sentencing hearing transcript

. To be sure, we have no doubt that Judge Arcara knew the ages of the defendants when he sentenced them, along with much else that commands the attention of a sentencing judge. The sentencing transcript here is thorough and thoughtful; but Miller requires a more s pecific consideration in this case; and on resentencing, the court will have an opportunity to consider subsequent events, which may or may not counsel a lesser sentence, but that may be of considerable impact given the five years intervening since the ori ginal sentencing. Accordingly, we vacate and remand for resentencing. On remand, the district court must consider the mitigating factors of youth as required by Miller33 before it can determine that the most severe sentence for juvenile defendants

— life imprisonment without the possibility of parole

— is a proportionate sentence

. CONCLUSION For the foregoing reasons, we affirm Delgado’s conviction but vacate and remand for resentencing consistent with this opinion.