PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_______________________

No. 16-3820

_______________________

UNITED STATES OF AMERICA

v.

COREY GRANT,

Appellant

_______________________

On Appeal from the United States District Court 

for the District of New Jersey

(D.C. No. 2:90-cr-00328-009)

District Judge: The Honorable Jose L. Linares

__________________________

Argued October 26, 2017 (Merits Panel)

Argued February 20, 2019 (En Banc)

Before: SMITH, Chief Judge, McKEE, AMBRO, 

CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., 

KRAUSE, RESTREPO, BIBAS, and PORTER, Circuit 

Judges

(Filed August 16, 2021)
2

Lawrence S. Lustberg [ARGUED]

Avram D. Frey

GIBBONS PC

One Gateway Center 

Newark, NJ 07102

Counsel for Appellant Corey Grant

Marsha L. Levick [ARGUED]

JUVENILE LAW CENTER OF PHILADELPHIA

1800 John F. Kennedy Boulevard, Suite 1900B

Philadelphia, PA 19103

Counsel for Amicus Appellant Juvenile Law Center

Jon M. Greenbaum

LAWYERS COMMITTEE FOR CIVIL RIGHTS UNDER LAW

1500 K Street, N.W., Suite 900

Washington, D.C. 20005

Counsel for Amicus Appellant Lawyers Committee for 

Civil Rights Under Law

Elana Bildner

AMERICAN CIVIL LIBERTIES UNION

765 Asylum Avenue, 1st Floor

Hartford, CT 06105

Counsel for Amicus Appellant Juvenile Sentencing 

Project

Jennifer Merrigan

PHILLIPS BLACK

1901 South 9th Street, Suite 510

Philadelphia, PA 19148

Counsel for Amicus Appellants Alison Flaum, Shobha 

L. Mahadev, and Jenny Carroll
3

Bruce P. Keller [ARGUED]

Mark E. Coyne

OFFICE OF THE UNITED STATES ATTORNEY

970 Broad Street, Room 700

Newark, NJ 07102

Counsel for Appellee United States of America

________________

OPINION OF THE COURT

________________

SMITH, Chief Judge, with whom CHAGARES, JORDAN, 

HARDIMAN, KRAUSE, BIBAS, and PORTER, Circuit 

Judges, join. McKEE and AMBRO, Circuit Judges, join 

except with respect to Section III.B. GREENAWAY, JR., 

Circuit Judge, joins except with respect to Section III.A.

A federal court jury convicted Corey Grant in 1992 of

homicide and other crimes that he had committed while he was 

a juvenile. The presiding judge sentenced Grant to life imprisonment under the then-mandatory U.S. Sentencing Guidelines. 

Parole is unavailable to those convicted of federal crimes,1so 

the sentence effectively condemned Grant to die in prison—

with proof of circumstances warranting compassionate release

his only hope. 

1 The Sentencing Reform Act of 1984, Pub. L. No. 98-473, 

§218(a)(5), 98 Stat. 1987, 2027 (repealing 18 U.S.C. §§4201–

18), abolished parole for federal inmates.
4

In 2012, the Supreme Court of the United States decided 

Miller v. Alabama, 567 U.S. 460, which held that the Eighth 

Amendment permits a life-without-parole (“LWOP”) sentence 

for a juvenile homicide offender only if the sentencer could

have imposed a lesser punishment based on the offender’s 

youth at the time of the offense. Later, the Court made Miller 

retroactive to cases on collateral review. Montgomery v.

Louisiana, 577 U.S. 190 (2016). Because Grant’s LWOP sentence was imposed mandatorily, Miller entitled him to a new 

sentencing.

At resentencing, the District Judge noted Grant’s minority at the time of his crimes and recognized that youth can 

impair judgment and thereby mitigate culpability. The Judge 

stated that a life sentence for Grant would be too harsh, given 

his juvenile offender status and individual circumstances, and 

instead sentenced Grant to a term of 60 years on his homiciderelated convictions. Factoring in an undisturbed five-year 

consecutive sentence, Grant’s total sentence was effectively 

reduced to 65 years. 

Grant now argues that his 65-year sentence violates 

Miller because it incarcerates him to his life expectancy, 

thereby amounting to a de facto LWOP sentence. Grant contends that Miller forbids such a sentence for a juvenile homicide offender unless he or she is incorrigible, which Grant is 

not. But Miller only entitled Grant to a sentencing hearing at 

which the District Court had discretion to impose a sentence 

less than LWOP in view of Grant’s youth at the time of his 
5

offenses. And that is what he received. So we will affirm 

Grant’s 65-year sentence.

2

In the alternative, Grant maintains that we should 

remand for yet another sentencing proceeding because vacatur 

of his LWOP sentence under Miller invalidated his lesserincluded concurrent sentence on drug-trafficking counts. But 

Grant did not preserve this argument, and the District Court’s 

failure to extend our sentencing-package doctrine beyond 

vacated convictions to vacated sentences was not plain error. 

I. BACKGROUND

In March 1987, law enforcement officials in Elizabeth, 

New Jersey learned of gang activities emanating from a group 

known as the E-Port Posse. Led by an individual named Bilal 

Pretlow, the Posse operated a narcotics network that regularly 

bought multi-kilogram quantities of cocaine in New York City, 

cut and packaged the cocaine in stash houses, and sold it on the 

streets of Elizabeth. The Posse’s members carried firearms, 

regularly assaulting and murdering to carry out its objectives.

Recruited by Pretlow, Grant joined the Posse in 1986 

when he was 13 years old and went on to serve as one of its 

lead enforcers. At 15, Grant was twice apprehended by law 

enforcement in drug raids. As a juvenile, he also committed 

other offenses. After being detained on drug charges, he was 

released in April 1989 on 18 months’ probation.

2 We will vacate and remand Grant’s sentence only on one 

drug-trafficking count so that the District Court may correct a 

mistaken enhancement of his concurrent sentence on that 

count.
6

Sixteen-year-old Grant was involved in the Posse’s 

violent crimes, notably, its murders and attempted murders in 

the summer of 1989. In August, while delivering drugs, Grant

encountered a group of rival drug dealers. Among them was a 

former Posse member, Dion Lee, suspected of selling drugs on 

his own. Grant warned him at gunpoint not to operate in 

Pretlow’s territory unless he was working for Pretlow. When 

Lee refused, Grant struck him in the head with a gun while 

another member of the Posse assaulted him. Although Lee 

retreated, Grant and an associate shot at him. Lee survived, 

though a bullet pierced one of his pantlegs. Later that month, 

Grant encountered Lee’s brother Mario—another independent 

drug dealer whom the Posse had warned not to operate in its 

territory. Grant tried to force Mario into a building, but Mario 

broke free and attempted to flee. Grant then ordered a Posse 

member to shoot the retreating Mario. Grant’s associate fired 

two shots, one of which struck Mario in the neck and killed 

him. 

 

In 1991, at the age of 17, Grant was indicted for conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO), in violation of 18 U.S.C. §1962(d) (Count 

I); racketeering, in violation of 18 U.S.C. §1962(c), including 

the murder of Mario Lee and two others as well as the 

attempted murder of Dion Lee and another person, as defined 

in N.J. Stat. Ann. §2C:11-3 (Count II); conspiracy to possess 

with intent to distribute cocaine, in violation of 21 U.S.C. §846 

(Count IV); possession with intent to distribute cocaine, in 

violation of 21 U.S.C. §§841(a)(1) and (b)(1)(B) (Counts V 

and VI); and two counts of possession of a weapon in relation 

to a crime of violence or drug trafficking, in violation of 18 

U.S.C. §924(c) (Counts X and XI).
7

In February 1992, Grant proceeded to trial as an adult 

under 18 U.S.C. §5032. The jury found him guilty of the RICO 

conspiracy, racketeering, and drug counts as well as one of the 

gun possession counts.3 As predicates for the RICO convictions, the jury found that Grant murdered Mario Lee and 

attempted to murder Dion Lee. The jury acquitted Grant of one 

of the charged RICO-predicate murders but could not reach a 

verdict on whether Grant committed the other murder or the 

other attempted murder. 

Given Grant’s homicide conviction, the Probation 

Office calculated his sentence under the then-mandatory U.S. 

Sentencing Guidelines as life imprisonment. At Grant’s original sentencing, the District Court denied Grant’s downwarddeparture motion and imposed the mandatory life sentence on 

the RICO and racketeering convictions (Counts I and II), a 40-

year concurrent term of imprisonment on each of the drugtrafficking counts (Counts IV–VI), and a mandatory consecutive five-year sentence on the gun-possession conviction

(Count XI). We affirmed Grant’s convictions and sentence on 

direct appeal. United States v. Grant, 6 F.3d 780 (3d Cir. 1993) 

(unpublished table decision).

Twelve years later, Grant petitioned for a writ of habeas 

corpus under 28 U.S.C. §2241. The District Court dismissed 

the petition for lack of jurisdiction, and we affirmed. Grant v.

Williamson, 198 F. App’x 263 (3d Cir. 2006) (per curiam). 

Grant then filed a §2255 motion, which was denied as 

untimely. See Grant v. United States, No. 2:06-cv-5952, slip 

op. at 4–7 (D.N.J. Feb. 8, 2008). 

3 The other gun-possession charge was dismissed as against 

Grant before the return of a verdict.
8

Then, in 2012, the Supreme Court decided Miller v.

Alabama, which held that the Cruel and Unusual Punishments 

Clause of the Eighth Amendment prohibits mandatory lifewithout-parole sentences for juvenile homicide offenders. 567 

U.S. at 479, 489. Under Miller, someone under the age of 18 

who commits a homicide may be sentenced to life without 

parole, but only if the sentence is not mandatory and the sentencer has discretion to impose a lesser punishment after considering the offender’s youth and related characteristics in mitigation. 

In light of Miller, Grant sought and received leave from 

this Court to file a second §2255 motion. In re Pendleton, 732 

F.3d 280, 281–82 (3d Cir. 2013) (per curiam). He argued that

his mandatory sentence of life imprisonment was imposed 

without consideration of mitigating circumstances related to 

his age at the time of his crimes. The District Court agreed and 

ordered that Grant be resentenced. Grant v. United States, No. 

2:12-cv-6844, slip. op. at 10–12 (D.N.J. Nov. 12, 2014). In 

2016, the Supreme Court confirmed that Miller applies on collateral review to juvenile homicide offenders serving final sentences. Montgomery, 577 U.S. at 206, 212. 

At resentencing, the District Court announced that it 

would limit the scope of its review to Grant’s RICO conspiracy 

and racketeering convictions—the counts underlying his mandatory life sentence. Under the now-advisory Guidelines, 

Grant’s recommended sentence on Counts I and II remained

life imprisonment. But the District Court determined that 

Grant’s upbringing, debilitating characteristics of youth, and 

post-conviction record showed that he was “not that rarest [] 

exception referenced in Miller, where the lifetime without 
9

parole is appropriate.” A150–51.4 So the District Court

imposed a sentence of 60 years’ imprisonment on Counts I and 

II, effectively reducing his life sentence to a total term of 65 

years after factoring in his undisturbed five-year consecutive 

sentence on his firearms-possession conviction. (The District 

Court also, apparently inadvertently, increased Grant’s concurrent sentence on one of his drug-trafficking convictions, Count 

IV, from 40 to 60 years.) Assuming he accumulates good-time 

credits, see 18 U.S.C. §3624(b)(1), Grant will be released at 

age 72, which he contends is his life expectancy. 

Grant appealed his new 65-year sentence, arguing that 

it amounts to de facto LWOP imposed in violation of Miller. 

A panel of this Court agreed, holding that a term-of-years sentence that incarcerates a non-incorrigible juvenile homicide 

offender until the national age of retirement is a de facto

LWOP sentence that presumptively violates Miller. United 

States v. Grant, 887 F.3d 131, 143–53 (3d Cir. 2018). The 

panel thus vacated Grant’s sentence and remanded the case to 

the District Court for resentencing on his RICO conspiracy and 

racketeering counts as well as for correction of the mistakenly 

increased Count IV sentence. Id. at 155. 

We decided to hear the case en banc and therefore 

vacated the panel decision. United States v. Grant, 905 F.3d 

285 (mem.) (3d Cir. 2018). We will now affirm Grant’s sentence on all counts in the judgment of conviction except for 

Count IV, which we will vacate with instructions that, upon 

remand, the District Court reinstate the original 40-year concurrent sentence.

4 Citations preceded by “A” refer to Appellant Corey Grant’s

Appendix submitted on appeal.
10

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 18 U.S.C. 

§3231, and we have jurisdiction under 28 U.S.C. §1291 and 18 

U.S.C. §3742(a). 

For standard-of-review purposes, we construe Grant’s 

challenge to his 65-year sentence as a substantive Eighth 

Amendment appeal entitled to plenary review. See United 

States v. Miknevich, 638 F.3d 178, 185 (3d Cir. 2011). 

As we explain below, Grant did not preserve his alternative argument that the sentencing-package doctrine required 

a resentencing on all counts of conviction. So we review that 

aspect of Grant’s appeal under a plain-error standard. See, e.g.,

United States v. Price, 458 F.3d 202, 206 (3d Cir. 2006) (“We 

apply plain error review when an issue was not brought to the 

attention of the district court.”).

III. DISCUSSION

A. Grant’s Miller Challenge to His Sentence Fails.

Concessions by both sides cabin our review. For his 

part, Grant does not challenge the Eighth Amendment reasonableness or proportionality of his 65-year sentence. And the 

Government, in turn, concedes that a term-of-years sentence 

may be so long that it amounts—in our parole-shorn federal 

justice system—to de facto LWOP. Nor does the Government 

challenge the District Court’s finding that Grant was not, at the 

time of his resentencing, so intractably corrupt as to warrant a

determinate life sentence.
11

Hence the narrow question before us: Does Grant’s

lengthy sentence for a homicide that he committed as a juvenile 

violate Miller? We conclude that it does not, even if it amounts 

to de facto LWOP. The Miller bar on mandatory LWOP sentencing regimes is a prophylactic that entitles a juvenile homicide offender to a certain sentencing process, but not a particular sentencing outcome—a result that follows from the 

Supreme Court’s decision in Jones v. Mississippi, 593 U.S. --, 

141 S. Ct. 1307 (2021). 

1. Miller banned mandatory LWOP sentencing 

schemes for juveniles. Our natural starting point is how the 

Miller Court framed its decision. The Court stated its holding

narrowly: “mandatory life without parole for those under the 

age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” 567 

U.S. at 465; see also id. at 474 (“But the mandatory penalty 

schemes at issue here prevent the sentencer from taking 

account of these central considerations [regarding an 

offender’s youth]. . . . And Graham [v. Florida, 560 U.S. 48

(2010)] makes plain these mandatory schemes’ defects . . . .”). 

“[S]ufficient to decide the[] case[],” the Court wrote, was its 

“holding” that such mandatory LWOP sentencing “scheme[s]

pose[] too great a risk of disproportionate punishment” because 

they “mak[e] youth (and all that accompanies it) irrelevant to 

imposition of that harshest prison sentence.” Id. at 479. 

“[C]hildren are different,” id. at 480, so sentencing “schemes” 

that preclude consideration of that fact by mandating LWOP 

for juveniles don’t pass Eighth Amendment muster. Id. at 489. 

Miller took pains to preserve LWOP for certain juvenile 

homicide offenders. Such a sentence may be appropriate, for 

example, in the “uncommon” case when crime and criminal 
12

reflect “irreparable corruption.” Id. at 479–80 (citing Roper v. 

Simmons, 543 U.S. 551, 573 (2005); Graham, 560 U.S. at 68). 

Indeed, the Court 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. Miller, 567 U.S. at 484 n.10. Though it gestured once to 

Graham’s holding that “incorrigibility is inconsistent with 

youth,” id. at 472–73 (quoting Graham, 560 U.S. at 72–73), 

the Miller Court did not otherwise discuss incorrigibility. And 

it used the phrase “meaningful opportunity to obtain release” 

only once—in a quoting parenthetical following a “cf.” or 

“compare” citation to Graham, id. at 479 (quoting Graham, 

560 U.S. at 75)—after unequivocally stating: “We therefore 

hold that the Eighth Amendment forbids a sentencing scheme 

that mandates life in prison without possibility of parole for 

juvenile offenders.” Id. (citing Graham, 560 U.S. at 75). 

In short, the Court in Miller held that penal regimes 

under which a juvenile homicide offender must be sentenced

to LWOP violate the Eighth Amendment because they foreclose consideration of the offender’s youth at the time of the 

offense. 

Miller’s context discourages any attempt to extend its 

holding to discretionary sentences. Indeed, seven years earlier, 

the Roper Court—after holding that the Eighth Amendment 

barred execution of persons who were under 18 at the time of 

their capital crimes—affirmed a discretionary sentence of 

LWOP for a juvenile homicide offender. See 543 U.S. at 560, 

578–79; see also id. at 572 (stating that LWOP sentences could 

deter juveniles to same extent as now-outlawed death sentences). Along with Graham, which categorically prohibited 

LWOP for juvenile non-homicide offenders, Roper formed the 
13

foundation of the Miller Court’s analysis. See, e.g., Miller, 567 

U.S. at 471–72. But unlike those cases, the Court in Miller 

“d[id] not categorically bar a penalty for a class of offenders or 

type of crime.” Id. at 483. Instead, Miller “mandate[d] only 

that a sentencer follow a certain process—considering an 

offender’s youth and attendant characteristics—before imposing a particular penalty.” Id. (emphasis added). Consider also 

that Miller and the petitioner in his companion case, Jackson, 

both were serving mandatory life sentences. See id. at 466, 

469. Whatever conclusions one might, in a vacuum, draw from 

some of Miller’s language, deciding the proper contours of discretionary LWOP sentences would not have benefited either 

Miller or Jackson. See, e.g., Cal. v. San Pablo & T. R. Co., 149 

U.S. 308, 314 (1893) (“[T]he [Supreme] [C]ourt is not empowered to . . . declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing 

in issue in the case before it.”). We thus appropriately construe

Miller’s holding and regard any of its statements that might 

read on discretionary sentences as no more than dicta. 

2. Montgomery did not and could not expand Miller’s 

guarantee. But what of Montgomery? There, the Court made 

Miller retroactive to cases on collateral review. 577 U.S. at 

206, 212. Possibly to help cast Miller as creating a new substantive right retroactive for habeas petitioners, see, e.g.,

Schriro v. Summerlin, 542 U.S. 348, 351–54 (2004), the Montgomery Court at times described Miller as sweeping broadly. 

For example, the Court wrote that “Miller did bar life without 

parole . . . for all but the rarest of juvenile offenders, those 

whose crimes reflect permanent incorrigibility.” 577 U.S. at 

209; see also id. at 208 (“[Miller] rendered life without parole 

an unconstitutional penalty for ‘a class of defendants because 

of their status’—that is, juvenile offenders whose crimes 
14

reflect the transient immaturity of youth.” (quoting Penry v. 

Lynaugh, 492 U.S. 302, 330 (1989)). Three dissenting justices 

believed that these characterizations of Miller did not reflect its 

holding. See, e.g., Montgomery, 577 U.S. at 224–25 (Scalia, 

J., dissenting) (“[T]he majority is not applying Miller, but 

rewriting it.”). And, in fact, the Montgomery majority prefaced 

its more expansive accounts of Miller with language emphasizing that Miller’s holding was limited to “mandatory lifewithout-parole sentences.” See, e.g., id. at 206 (“Miller’s prohibition on mandatory life without parole for juvenile offenders”), 208 (“the Court’s holding in Miller that mandatory lifewithout-parole sentences for children pose too great a risk of 

disproportionate punishment” (cleaned up)). All the same, the

Montgomery Court never referred to the “meaningful opportunity to obtain release” that Graham required states to afford 

juvenile non-homicide offenders. 

So the question we must resolve is whether Montgomery expanded Miller’s prohibition to LWOP that a sentencer 

elects to impose after considering a juvenile homicide 

offender’s youth in mitigation. The answer is simply “No.”

For starters, expanding Miller to discretionary sentences 

would not have benefitted Montgomery himself. Like Miller 

and Jackson, Montgomery was serving a mandatory LWOP 

sentence. Montgomery, 577 U.S. at 194, 196. The Supreme 

Court cannot render advisory opinions. See, e.g., Clinton v. 

Jones, 520 U.S. 681, 700 & n.33 (1997); San Pablo, 149 U.S. 

at 314. And the words of its decisions “are to be read in the 

light of the facts of the case under discussion.” Armour & Co. 

v. Wantock, 323 U.S. 126, 132–33 (1944). Before the Court in 

Montgomery was Miller’s retroactivity, and nothing more: The 

question presented was “whether Miller adopts a new substan-
15

tive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison.” Montgomery, 

577 U.S. at 197 (quoting certiorari petition). And before 

deciding whether to establish a new Miller-derived rule, the 

Montgomery Court presumably “ask[ed] whether such a rule 

would be applied retroactively to the case at issue.” Teague v.

Lane, 489 U.S. 288, 300–01 (1989) (plurality opinion) (emphasis added). Because Montgomery was subject to a mandatory 

LWOP sentence, proscriptions on discretionary LWOP sentencing regimes would not have applied retroactively to him. 

Moreover, as a retroactivity case decided on collateral 

review from a final state conviction, Montgomery would not 

have created new rights for those sentenced discretionarily. 

The Supreme Court does not “ordinarily make retroactivity 

judgments at the time a new right is recognized.” Dodd v. 

United States, 545 U.S. 353, 364 (2005) (Stevens, J., dissenting) (citing Ring v. Arizona, 536 U.S. 584 (2002) (applying 

Apprendi v. New Jersey, 530 U.S. 466 (2000), to determinations of death-penalty eligibility); Schriro, supra (concluding 

that Ring was not retroactive)); accord, e.g., Edwards v. 

Vannoy, 593 U.S. --, 141 S. Ct. 1547, 1551–52 (2021) (deciding that jury unanimity criminal procedure rule newly 

announced in Ramos v. Louisiana, 590 U.S. --, 140 S. Ct. 1390 

(2020), did not apply retroactively on collateral review). 

Instead, the Court addresses rights and retroactivity in separate 

cases, per Teague, see 489 U.S. at 306–10, “to ensure that gradual developments in the law over which reasonable jurists may 

disagree are not later used to upset the finality of state convictions valid when entered.” Sawyer v. Smith, 497 U.S. 227, 234 

(1990). The Montgomery Court even framed the “effect” of its 

decision in terms of whether States would be “require[d] . . . to 

relitigate sentences . . . in every case where a juvenile offender 
16

received mandatory life without parole.” 577 U.S. at 212. 

Because “Miller announced a substantive rule of constitutional 

law,” id., and Montgomery applied it retroactively, any language in Montgomery pertaining to discretionary LWOP sentencing regimes is not binding.

3. Jones confirms that Miller requires only discretionary sentencing, not particular findings or outcomes. To 

be sure, the District Court found at Grant’s resentencing that 

he did not deserve LWOP. But that finding cannot breathe life 

into Grant’s appeal. In Jones v. Mississippi, the Supreme Court

concluded that the juvenile homicide offender’s LWOP sentence was constitutional because “the sentence was not mandatory and the trial judge had discretion to impose a lesser punishment in light of Jones’s youth.” 141 S. Ct. at 1322. In “a 

case involving an individual who was under 18 when he or she 

committed a homicide, a State’s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient” under Miller and Montgomery. Id. at 1313 (emphasis 

added). Unlike “sanity or a lack of intellectual disability,” id. 

at 1315, “incorrigibility is not an eligibility criterion.” Id. 

(likening youth to mitigating circumstance in capital case). 

And Miller did not “impose a categorical bar against life without parole for murderers under 18.” Id. at 1316 (citing Miller, 

567 U.S. at 483). Instead, Miller cited Roper and Graham for 

the proposition that “[y]outh matters in sentencing,” which 

requires “that a sentencer [] have discretion to consider youth 

before imposing a life-without-parole sentence.” Id. 

The Jones Court, consistent with our narrow reading, 

confirmed that “Montgomery did not . . . add to Miller’s 

requirements.” Id. at 1316–17 (“the Court granted certiorari 

[in Montgomery] not to consider whether the rule announced 
17

in Miller should be expanded, but rather simply to decide 

whether Miller[]” applies to cases on collateral review). Both 

cases rested on the “key assumption” that “discretionary sentencing allows the sentencer to consider the defendant’s youth, 

and thereby helps ensure that life-without-parole sentences are 

imposed only in cases where that sentence is appropriate in 

light of the defendant’s age.” Id. at 1318 (emphasis added). 

The Court’s precedents only “require a discretionary sentencing procedure,” which itself “has indeed helped make lifewithout-parole sentences for offenders under 18 relatively 

rare.” Id. at 1322 (emphasis added) (cleaned up); see also 

Miller, 567 U.S. at 483 (mandating “only that a sentencer follow a certain process”).

All of which is to say that the Court has guaranteed to 

juvenile homicide offenders only a sentencing procedure in 

which the sentencer must weigh youth as a mitigating factor. 

The Court has not guaranteed particular outcomes for either 

corrigible or incorrigible juvenile homicide offenders. If a sentencer imposes de jure or de facto LWOP after finding—

gratuitously—that a defendant is corrigible, the vehicle for 

challenging the sentence is an as-applied Eighth Amendment 

claim based on disproportionality of the punishment to the 

crime and criminal. Cf. Jones, 141 S. Ct. at 1322 (“[T]his case 

does not properly present—and thus we do not consider—any 

as-applied Eighth Amendment claim of disproportionality . . . .”). Grant pursues no such challenge here. That a 

sentence both procedurally and substantively reasonable may 

yet motivate an appeal goes to show the unfortunate extent to 

which the Supreme Court’s Eighth Amendment jurisprudence 

has abjured constitutional interpretation in favor of challenges 

based on Court-created prophylactic rules. See, e.g., John F. 

Stinneford, The Illusory Eighth Amendment, 63 AM. U. L.REV.
18

437, 440 (2013) (lamenting Supreme Court’s choice, seemingly motivated by error-cost minimization, to use “implementation rules as a substitute for constitutional interpretation” of 

Eighth Amendment issues). 

Affirming what was implicit in Miller and Montgomery, 

the Jones Court held that the Eighth Amendment does not categorically prohibit sentencing any juvenile homicide offender 

to LWOP, so long as the sentencer has considered the 

offender’s youth in mitigation. And “a discretionary sentencing procedure suffices to ensure individualized consideration 

of a defendant’s youth.” Jones, 141 S. Ct. at 1321. Such individualized consideration is all that Miller requires. 

4. Grant received the required Miller procedure. 

Even if, as Grant argues, his 65-year sentence amounts to de 

facto LWOP, there is no Miller problem here. When a sentencer has discretion to impose a sentence of less than LWOP 

on a juvenile homicide offender, and exercises that discretion 

by considering the offender’s youth, “we should not now add 

still more procedural requirements.” Id. Grant, in fact, 

received the constitutionally required procedure, and that is 

clear from the transcript of his resentencing hearing. 

The District Court imposed sentence after considering

Grant’s youth at the time of the offense as well as its attendant 

characteristics. For example, the district judge “look[ed] at the 

circumstances of this case in the light of what the defendant 

was at the time of the commission of his offense, and by that I 

mean he was a minor.” A150. Continuing, the District Court 

recalled that “[h]e was a juvenile, 16 years old. He was a teenager.” Id. “When one looks at his upbringing, the debilitating 

characteristics of youth, inherent in being a young person and 
19

the limited decision-making abilities of a minor, it is clear to 

this Court that . . . Mr. Grant is not that rarest [] exception referenced in Miller, where the lifetime without parole is appropriate.” A150–51. Further accounting for “the nature . . . of 

the defendant,” the District Court “look[ed] specifically at the 

age that [Grant] had at the beginning of his involvement with 

this gang” and “at the fact that because of his youth, he did 

have some limitation in decision-making.” A154. Only after 

giving such regard to Grant’s youth at the time of his homicide 

offense did the judge sentence him to 65 years’—rather than 

de jure life—imprisonment. 

 

Even so, Grant contends that the District Court improperly strayed from the “so-called Miller factors” by failing to 

articulate Grant’s “[c]hronological age and its hallmark features,” his “family and home environment,” “the circumstances 

of the homicide offense,” the possibility “that he might have 

been charged and convicted of a lesser offense if not for 

incompetencies associated with youth,” and “the possibility of 

rehabilitation.” Appellant’s Br. 31–47 (quoting 567 U.S. at 

477–78). But the Miller Court’s recitation of these considerations occurred in its discussion of why mandatory LWOP sentencing “misses too much.” 567 U.S. at 477. It was not a rigid 

procedural script for discretionary state regimes, let alone for 

federal sentences imposed—as Grant’s was—after consideration of the §3553(a) factors. Compare, e.g., id. at 478–79 (discussing what facts Jackson’s sentencer “should look at” and 

what Miller’s “sentencer needed to examine” before imposing 

LWOP). 

Just as Miller does not require an incorrigibility finding

but preserves “States’ sovereign administration of their criminal justice systems,” Montgomery, 577 U.S. at 211 (citing Ford 
20

v. Wainwright, 477 U.S. 399, 416–17 (1986)), it mandates only 

“that a judge or jury . . . have the opportunity to consider mitigating circumstances before imposing” LWOP. Miller, 567 

U.S. at 489; accord Jones, 141 S. Ct. at 1321 (“[A]n on-therecord sentencing explanation with an implicit finding of permanent incorrigibility is not dictated by any historical or contemporary sentencing practice . . . .”). This obligation jibes

with the general latitude afforded sentencing courts. They 

need not explain their decisions in endless detail. It suffices 

that a district judge first calculate the Guidelines range and then 

state reasons, “even if brief,” for imposing the sentence. Rita 

v. United States, 551 U.S. 338, 356–58 (2007) (instructing that 

sentencing judge need only “set forth enough to satisfy the 

appellate court that he has considered the parties’ arguments 

and has a reasoned basis for exercising his own legal decisionmaking authority”); see also Jones, 141 S. Ct. at 1321 

(“Even when state law requires a sentencer to supply reasons, 

many States do not impose a formulaic checklist of topics or a 

magic-words requirement with respect to particular mitigating 

circumstances.”).

Because the District Court imposed Grant’s sentence 

after considering his youth at the time of the offense and related 

factors in mitigation, no Miller violation occurred. The District 

Court did not need to make any specific findings or incant any 

particular words en route to imposing that sentence. That it 

made a gratuitous corrigibility finding does not invalidate 

Grant’s sentence—even if, as he claims, it amounts to de facto 

LWOP. Incorrigibility is not a sentence eligibility criterion. 

Jones, 141 S. Ct. at 1315. We will affirm Grant’s 60-year sentence on Counts I and II. 
21

B. Grant Did Not Preserve His Sentencing-Package 

Argument, and Limiting His Resentencing to Counts 

I and II Was Not Plain Error.

The District Court limited Grant’s resentencing to 

Counts I and II: the RICO counts involving the homicide for 

which Grant was mandatorily sentenced to life imprisonment. 

Grant contends that he was entitled to a plenary sentencing on 

all his counts of conviction. He urges us to extend our Court’s 

sentencing-package doctrine and vacate his 40-year concurrent 

sentences for the drug convictions. 

The sentencing-package doctrine recognizes “a strong 

likelihood that the district court will craft a disposition in 

which the sentences on the various counts form part of an overall plan.” United States v. Davis, 112 F.3d 118, 122 (3d Cir. 

1997) (quotation omitted). Thus, “[w]hen a conviction on one 

or more of the component counts is vacated, common sense 

dictates that the judge should be free to review the efficacy of 

what remains in light of the original plan, and to reconstruct 

the sentencing architecture upon remand.” Id. (emphasis 

added) (quotation omitted). The district judge’s goal in revisiting the overall sentencing plan after vacatur of a conviction 

is “to ensure that the punishment still fits both crime and criminal.” Id. (quotation omitted).

Although Miller required vacatur of Grant’s mandatory 

LWOP sentence imposed on Counts I and II, his convictions

on those counts were not vacated. Still, Grant contends that he 

was entitled to a fresh sentencing on his drug-trafficking counts 

because the 40-year concurrent sentences originally imposed 

for those convictions were merely symbolic given his thenmandatory life sentence. To be sure, some statements in 
22

Grant’s 1992 sentencing transcript could be read to suggest

that, in fact, the district judge sought “to send a message” by 

imposing long concurrent sentences for the drug-related 

offenses. A451. The problem lies not in the factual support 

for Grant’s position but in defense counsel’s failure to preserve 

this argument and, in turn, the lack of precedent applying the 

sentencing-package doctrine when only a sentence is vacated. 

Grant concedes that his counsel did not explicitly raise 

a sentencing-package argument at resentencing. That forfeiture would normally limit us to reviewing for plain error. See, 

e.g., Price, 458 F.3d at 206. But Grant seeks de novo review 

because his counsel repeatedly argued to the District Court that 

he should be resentenced on all his counts of conviction. 

Before the District Court, the closest defense counsel 

came to raising Grant’s sentencing-package argument was asking for a full resentencing because Grant’s sentences across the 

multiple counts were “all part and parcel of one sentence [of 

life without parole].” Appellant’s Reply Br. 22 (quoting A40). 

But rather than cite any sentencing-package case law, defense 

counsel invoked “the spirit of Miller” in arguing for this full 

and fresh resentencing, A43, and claimed that letting the 40-

year drug-trafficking sentence stand “is not really consistent 

with what Miller is talking about.” A85. Small wonder, then, 

that the District Court understood counsel to be arguing that 

“the sentence as a whole was offensive to the Miller concept.” 

A44. 

Articulated as a Miller adjunct, defense counsel’s argument for a full resentencing did not suffice to put the District 

Court or the Government on notice that what Grant really 

sought was an extension of our Court’s sentencing-package 
23

doctrine to vacated sentences. Such a change in our sentencing 

paradigm would entail nothing unique to juvenile offenders; it 

would seemingly obtain when any multi-conviction defendant’s life or lengthy term-of-years sentence is vacated while 

lesser sentences remain intact. To preserve an argument for 

appeal, a party “must have raised the same argument in the 

District Court—merely raising an issue that encompasses the 

appellate argument is not enough.” United States v. Joseph, 

730 F.3d 336, 337 (3d Cir. 2013); see also Doe v. Mercy Cath.

Med. Ctr., 850 F.3d 545, 558 (3d Cir. 2017) (“Theories not 

raised squarely [before the District Court] cannot be surfaced 

for the first time on appeal.”). With only the semantic similarity between “package” and “part and parcel,” defense counsel’s 

advocacy was, at best, a “vague allusion” to the key sentencing-package issue that does “not suffice to preserve it for 

appeal.” United States v. Dupree, 617 F.3d 724, 728 (3d Cir. 

2010) (quoting In re Ins. Brokerage Antitrust Litig., 579 F.3d 

241, 262 (3d Cir. 2009)). 

Left with plain-error review, Grant cannot prevail. 

Recall: The sentencing-package doctrine provides a basis for a 

de novo resentencing when “a conviction on one or more of the 

component counts is vacated.” Davis, 112 F.3d at 122

(emphasis added) (quotation omitted); see also Dean v. United 

States, 137 S. Ct. 1170, 1176 (2017) (explaining that 

sentencing-package cases “typically involve . . . a successful 

attack by a defendant on some but not all of the counts of conviction” (emphasis added) (quoting Greenlaw v. United States, 

554 U.S. 237, 253 (2008))). The doctrine has been applied in 

our precedential opinions only to vacated convictions—not 
24

vacated sentences.

5

 But Grant’s convictions have never been 

disturbed. While one of our sister circuits has applied the 

judge-made doctrine to a vacated sentence, see United States 

v. Catrell, 774 F.3d 666, 670 (10th Cir. 2014), our precedent 

does not extend that far. And the District Court’s failure to

broaden the doctrine was not a “clearly erroneous application 

of statutory law.” United States v. Cole, 567 F.3d 110, 117 (3d 

Cir. 2009) (quotation omitted). So any error in limiting Grant’s 

resentencing to Counts I and II was not plain because it was 

not “clear under current law.” United States v. Olano, 507 U.S. 

725, 734 (1993).

6

5

In two non-precedential opinions, we have applied the sentencing-package doctrine to vacated sentences. See United 

States v. Fumo, 513 F. App’x 215 (3d Cir. 2013); United States 

v. Brown, 385 F. App’x 147 (3d Cir. 2010). Given those decisions’ lack of precedential status, we cannot rely on them. See 

Internal Operating Procedures of the United States Court of 

Appeals for the Third Circuit, 5.7 (January 2017) (“The court 

by tradition does not cite to its not precedential opinions as 

authority.”). And we did not adopt the sentencing-package 

doctrine until 1997, see Davis, 112 F.3d at 122, ten years after 

issuing the precedential opinion that Grant cites for the notion 

that the doctrine applies when a sentence alone is vacated, 

United States v. Guevremont, 829 F.2d 423 (3d Cir. 1987).

6 We exempt from this holding the District Court’s imposition 

of a 60-year concurrent sentence for Grant’s conviction on 

Count IV. The Court decided to limit resentencing to Counts I 

and II but then increased Grant’s Count IV sentence from 40 

to 60 years. We will vacate this portion of the District Court’s 

judgment and remand with instructions for the Court to correct 

its inadvertent sentencing error. 
25

IV. CONCLUSION 

What matters for Miller purposes is whether the sentencer considered a juvenile homicide offender’s youth and 

attendant characteristics before sentencing him or her to 

LWOP. The District Court did so at resentencing, repeatedly 

stressing Grant’s status as a juvenile offender, his young age 

when he first became involved with the E-Port Posse, and his

limited decision-making abilities as a minor. Regardless of 

whether it yields an aggregate sentence of de facto LWOP, we 

will affirm Grant’s 60-year sentence on Counts I and II because 

he received all that he was entitled to under Miller. We will 

vacate and remand for the sole purpose of allowing the District 

Court to correct its erroneous increase of Grant’s concurrent 

sentence on Count IV from 40 to 60 years. Finally, whatever 

the merits of extending our sentencing-package doctrine 

beyond vacated convictions to vacated sentences, Grant’s 

counsel forfeited that argument before the District Court—and 

it was not plain error to limit Grant’s Miller resentencing to his 

homicide-related counts. 
1

HARDIMAN, Circuit Judge, concurring, with whom 

JORDAN, BIBAS, and PORTER, Circuit Judges join:

I agree with the majority and join its opinion in full. I 

write separately to expand on the Court’s astute observation 

that “the Supreme Court’s Eighth Amendment jurisprudence 

has abjured constitutional interpretation in favor of challenges 

based on Court-created prophylactic rules.”1

In Miller v. Alabama, the Supreme Court held 

unconstitutional mandatory life sentences without the 

possibility of parole for juvenile offenders.

2

In doing so, the 

Court applied “the evolving standards of decency.”3 That 

approach displaces the text of the Eighth Amendment in favor 

of a nebulous test. And it requires courts to divine the 

prevailing moral sentiment at the time of sentencing, which has 

led to the different approaches to the Eighth Amendment issue 

in this case. I hope to explain how that confusion made its way 

into our caselaw—and why it leaves courts without adequate 

guidance. The majority opinion is based on a careful—and in 

my view accurate—recapitulation of Supreme Court 

precedent. But Judge Greenaway’s concurrence has a point: the

“meaningful opportunity for release” principle finds support in 

the caselaw and could fit naturally within the Supreme Court’s 

“evolving standards of decency” test. But that test has two 

serious problems: its provenance is illegitimate, and its 

1 Maj. Op. at 17.

2 567 U.S. 460, 489 (2012).

3

Id. at 469–70 (quoting Estelle v. Gamble, 429 U.S. 97, 102 

(1976)).
2

application empowers judges to exercise unbounded 

discretion.

I

A

The “evolving standards of decency” first appeared in 

Trop v. Dulles,

4

a 1958 decision offering an especially weak 

justification for the Court to abandon the Eighth Amendment’s 

text. A careful examination of Trop shows that “the evolving 

standards of decency” test is “bad wine of recent vintage.”

5

In 1944, American Private Albert Trop escaped from 

the stockade while deployed abroad, but the United States 

Army quickly captured him.6 A court martial convicted Trop 

of desertion, dishonorably discharged him, and sentenced him 

to three years’ hard labor and salary forfeiture. Eight years 

later, Trop was denied a United States passport because, by 

statute, desertion forfeited his citizenship.7

Trop sued, and the district court entered judgment 

against him.8 The Second Circuit, with Judge Learned Hand 

writing, affirmed the district court. Chief Judge Clark 

dissented, contending that Trop’s Eighth Amendment right to 

4 See 356 U.S. 86 (1958) (plurality opinion).

5 Cf. TRW Inc. v. Andrews, 534 U.S. 19, 37 (2001) (Scalia, J., 

concurring in judgment).

6 Trop, 356 U.S. at 87.

7

Id. at 88.

8

Id.
3

be free from cruel and unusual punishment was violated.9In 

the majority opinion, Judge Hand explicitly refused to address 

the Eighth Amendment argument for four reasons. It was not 

pleaded in the complaint, argued on summary judgment, cited 

by the district judge, or mentioned at argument before the 

Second Circuit.10 According to Judge Hand, the closest Trop 

came to arguing the point was a passing reference that 

expatriation violates due process.11

Chief Judge Clark’s dissent was just two paragraphs. In 

lieu of judicial reasoning, he “merely incorporate[d] by 

reference” a law review comment because he “doubt[ed] if [he]

c[ould] add to the persuasive arguments there made.”12 The 

comment argued that expatriation constituted cruel and 

unusual punishment, and Chief Judge Clark apparently found 

the argument so persuasive that a mere citation sufficed to 

justify his dissent.13

Trop appealed. In a 4-1-4 decision, the Supreme Court 

reversed the Second Circuit.14 Writing for a plurality, Chief 

Justice Earl Warren began by referencing a companion case, 

9 Trop v. Dulles, 239 F.2d 527 (2d Cir. 1956).

10 Id. at 529–30.

11 Id. at 530.

12 Id. (Clark, C.J., dissenting) (citing Comment, The 

Expatriation Act of 1954, 64 YALE L.J. 1164, 1189–99 

(1955)).

13 See id.; see also The Expatriation Act of 1954, supra note 

12, at 1178–82.

14 Trop, 356 U.S. at 91.
4

Perez v. Brownell,

15 and stated that the principles espoused 

there essentially decided Trop.

16 The Chief Justice explained

that the national government lacks the power to deprive 

Americans of citizenship involuntarily, though citizens may 

expatriate themselves voluntarily.

17 After just three 

paragraphs, Chief Justice Warren concluded: “On this ground 

alone the judgment in this case should be reversed.”18 Though 

that was enough to decide the case, he did not end his opinion 

there. Instead, he turned to the unrelated Eighth Amendment 

question. In doing so, Chief Justice Warren waxed historical: 

“The Court recognized in [Weems v. United States, 217 U.S. 

349 (1910)] that the words of the Amendment are not precise,

and that their scope is not static. The Amendment must draw 

its meaning from the evolving standards of decency that mark 

the progress of a maturing society.”19 With this dictum—

involving an issue the Second Circuit explicitly refused to 

address and that was unnecessary to the decision in Trop—the 

Supreme Court planted a seed that has sprouted into controlling 

Eighth Amendment law some sixty years later and will 

continue to vex the inferior federal courts in cases like Corey 

Grant’s. 

The “evolving standards of decency” became the law of 

the land against substantial odds. The phrase went 

unmentioned in the Supreme Court for ten years after Trop, 

15 356 U.S. 44 (1958).

16 Trop, 356 U.S. at 91–92.

17 Id. at 92–93.

18 Id. at 93.

19 Id. at 100–01 (emphasis added).
5

until it surfaced in a footnote in a death-penalty case.

20 And it 

was then quoted only in passing in seven death-penalty cases 

in the 1970s.21

B

Nearly two decades after its introduction in Trop, the 

phrase was mentioned for the first time in a non-capital case, 

Estelle v. Gamble.

22 There, Gamble claimed the prison failed 

to provide him adequate medical care in violation of the Eighth 

Amendment.23 The district court dismissed the case for failure 

to state a claim, but the Fifth Circuit reversed.24 The Supreme 

Court reversed the Fifth Circuit and ruled against Gamble on 

the facts as pleaded.25 Yet Justice Thurgood Marshall, writing 

for the Court, discussed the evolving constitutional law in this 

area and wrote: “we have held repugnant to the Eighth 

Amendment punishments which are incompatible with ‘the 

20 Witherspoon v. Illinois, 391 U.S. 510, 519 n.15 (1968).

21 McGautha v. California, 402 U.S. 183, 202 (1971); 

Furman v. Georgia, 408 U.S. 238, 242 (1972) (Douglas, J., 

concurring); McLamore v. South Carolina, 409 U.S. 934, 936 

(1972) (Douglas, J., dissenting from denial of ceriorari); 

Sellars v. Beto, 409 U.S. 968, 970–71 (1972) (Douglas, J., 

dissenting); Gregg v. Georgia, 428 U.S. 153, 173 (1976)

(plurality opinion); Woodson v. North Carolina, 428 U.S. 

280, 301 (1976) (plurality opinion); Roberts v. Louisiana, 

428 U.S. 325, 336 (1976) (plurality opinion).

22 429 U.S. 97, 102 (1976).

23 Id. at 101–02.

24 Gamble v. Estelle, 516 F.2d 937 (5th Cir. 1975).

25 Gamble, 429 U.S. at 107–08. 
6

evolving standards of decency that mark the progress of a 

maturing society.’”26 With that statement, the Court first 

established the evolving standards of decency as a 

constitutional test.

While Justice Marshall accurately quoted Trop, it was 

not, as he suggested, the Court’s holding. Recall that Chief 

Justice Warren stated that the Eighth Amendment must “draw 

its meaning” from the evolving standards of decency—he did 

not establish a new, “evolving” constitutional test.27 So the 

Court in Estelle v. Gamble made an unwarranted promotion 

from Trop’s dicta to a constitutional test.

The test lay dormant for years, until it reappeared as a 

standard bearer for the view that the Constitution’s meaning 

changes over time. That process began during the 1980s. The 

test was first mentioned in several dissents in death penalty 

cases before it appeared in a 1987 majority opinion written by 

Justice Powell.28 Two years later, Justice O’Connor’s majority 

opinion in Penry v. Lynaugh used the standard again, but there 

the Court held that executing a man with mental disabilities did 

not violate the Eighth Amendment.29 Penry was overruled in 

2002 in Atkins v. Virginia, which held there was a national 

consensus against executing the mentally disabled.30 Writing 

26 Id. at 102 (quoting Trop, 356 U.S. at 101).

27 Trop, 356 U.S. at 100–03.

28 McCleskey v. Kemp, 481 U.S. 279, 300 (1987).

29 Penry v. Lynaugh, 492 U.S. 302, 330–31, 340 (1989).

30 Atkins v. Virginia, 536 U.S. 304, 316–17 (2002).
7

for the Court in Atkins, Justice Stevens cited Trop and the 

evolving standards of decency.31 

In 2005, the Court decided Roper v. Simmons, where a 

5-4 decision effectively overruled a 1989 decision (Stanford v. 

Kentucky), which had rejected the proposition that the 

Constitution bars capital punishment for juvenile offenders.32

In Roper, 17-year-old Christopher Simmons said he and his coconspirators could “get away with” murder because they were 

minors.33 The Supreme Court, Justice Kennedy writing, 

reasoned that Thompson v. Oklahoma’s logic, proscribing the 

death penalty for those younger than 16, applied with equal 

force to those under 18.34 Justice Kennedy also noted that the 

United States was the only country that permitted juvenile 

executions.

35 Justice Stevens (joined by Justice Ginsburg) 

concurred, venturing that our Constitution changes 

sometimes.

36

Justice O’Connor dissented. As did Justice Scalia, who 

was joined by Chief Justice Rehnquist and Justice Thomas. 

31 Id. at 311–12. In his Atkins dissent, Justice Scalia cited 

Trop’s language not because he believed it was a proper 

analytical tool, but to argue that even applying that standard, 

there was no consensus against the practice because 18 states 

(or 47% of the death penalty states) permitted the execution 

of the mentally disabled. Id. at 341–43 (Scalia, J., dissenting).

32 543 U.S. 551 (2005).

33 Id. at 556.

34 Id. at 570–71.

35 Id. at 575.

36 Id. at 587 (Stevens, J., concurring).
8

Significant for our purposes, Justice O’Connor accepted the 

premise that the Eighth Amendment is not static and must draw 

its meaning from the evolving standards of decency.37 Justice 

Scalia rejected that premise. Instead, he cited Federalist 78 and 

wrote: “What a mockery today’s opinion makes of Hamilton’s 

expectation, announcing the Court’s conclusion that the 

meaning of our Constitution has changed over the past 15 

years—not, mind you, that this Court’s decision 15 years ago 

was wrong, but that the Constitution has changed.”38

C

With this evolving understanding in mind, the Court

applied the test in earnest. In 2008, in a 5-4 decision, the Court 

decided Kennedy v. Louisiana, which held unconstitutional a 

Louisiana statute that provided for the death penalty for a 

defendant who rapes a child when the crime neither resulted in, 

nor was intended to result in death.39 Writing for the Court, 

Justice Kennedy started with the proportionality principle 

mentioned by the Court in its 1910 decision in Weems.

40 He 

then cited Trop for the proposition that the Eighth Amendment 

draws meaning from the evolving standards of decency and 

37 See id. at 594, 604 (O’Connor, J., dissenting). In Roper, 

Justice O’Connor also criticized the Missouri Supreme 

Court’s failure to follow Stanford, which she called clear 

error. Id. at 593–94. She also noted that since Stanford, six 

states had executed people under 18. Id. at 595. And there 

was no genuine national consensus on this matter as there 

were over 70 juveniles on death row in 12 states. Id. at 596. 

38 Id. at 608 (Scalia, J., dissenting).

39 554 U.S. 407 (2008).

40 Id. at 419.
9

noted that social standards embody variable moral 

judgments.41

In 2010, the Court held unconstitutional a life-withoutparole sentence for a man who committed armed burglary five 

weeks before his eighteenth birthday.42 Justice Kennedy began 

his legal analysis by quoting Trop’s evolving standards of 

decency.43

In 2012, the Court issued yet another 5-4 opinion, this 

time with Justice Kagan writing. In Miller v. Alabama, the 

Court held that mandatory life sentences without the possibility 

of parole violated the Eighth Amendment rights of two 14-

year-old offenders whom the states had tried as adults and 

convicted of murder.44 Justice Kagan began her legal analysis 

by quoting Trop, and she reiterated the primacy of the evolving 

standards of decency that mark the progress of a maturing 

society.45 She reasoned that the case implicated two strands of 

41 Id. 

42 Graham v. Florida, 560 U.S. 48 (2010).

43 Id. at 58.

44 Miller v. Alabama, 567 U.S. 460, 465–66, 468 (2012). In 

Miller, one murder involved the shooting of a video store 

proprietor during a robbery in which defendant Jackson was a 

co-conspirator. Id. at 465–66. The second murder was 

particularly heinous, with Miller beating a man with a 

baseball bat while proclaiming: “I am God, I’ve come to take 

your life.” Id. at 468. Miller and his co-conspirators returned 

to burn down the victim’s trailer. Id.

45 Id. at 469.
10

precedent about “proportionate punishment.”46 The confluence 

of those two lines suggested that mandatory life without the 

possibility of parole for juveniles violated the Eighth 

Amendment.47 But she concluded, as the majority opinion 

rightly notes in the case before us, that the Court’s decision 

mandated only a certain process (i.e., consider the offender’s 

youth) before imposing a particular penalty.48

And in 2014, the Court issued another 5-4 Eighth 

Amendment decision in Hall v. Florida.

49 In his opinion for the 

Court, Justice Kennedy again began by referencing the 

evolving standards of decency.50 The opinion focused on IQscore social science. Among other considerations, it

emphasized that experts recognize the test’s imprecision.

Noting that intellectual disability is a condition, not a number, 

Justice Kennedy wrote that “[a] State that ignores the inherent 

imprecision of these tests risks executing a person who suffers 

from intellectual disability.”51

Such is the history of the evolving standards of decency 

test. It is marked by an illegitimate pedigree and the 

46 Id. at 470.

47 Id. 

48 Id. at 483.

49 572 U.S. 701 (2014).

50 Id. at 708; see also id. at 708–09 (discussing policy 

rationales). 

51 Id. at 723.
11

substitution of judicial preferences about penological policy 

for the will of the People.52

II

The cases just discussed produced vigorous dissents. 

And those dissents highlight why the caselaw provides 

insufficient guidance. 

For example, consider the dissents in Miller. Chief 

Justice Roberts noted that although the case presented “grave 

and challenging questions of morality and social policy,” the 

majority did not characterize life without the possibility of 

parole for juveniles as “unusual.”53 He then observed that some 

2,500 prisoners were serving life without parole for murders 

committed before age 18.54 Noting that it was not unusual for 

murderers to receive that sentence,55 the Chief Justice wrote: 

“[D]ecency is not the same as leniency. A decent society 

protects the innocent from violence.”56 And “[t]o say that a 

sentence may be considered unusual because so many 

legislatures approve it stands precedent on its head.”57 He 

criticized the majority for invalidating laws of dozens of state 

legislatures and Congress.58 Finally, he argued that Roper and 

52 E.g., Graham, 560 U.S. at 67.

53 Miller, 567 U.S. at 493 (Roberts, C.J., dissenting).

54 Id. at 493–94.

55 Id. at 494.

56 Id. at 495.

57 Id. at 497.

58 Id. at 498.
12

Graham did not compel the Court’s decision.59 Graham said 

that “there is a line between homicide and other serious violent 

offenses.”60 And Roper said the death penalty for juveniles was 

unnecessary precisely because life without parole is 

available.61 He concluded with a warning: “This process has no 

discernible end point.”62

In a separate dissent joined by Justice Scalia, Justice 

Thomas wrote that neither line of precedent that the majority 

relied on adhered to the original understanding of the Cruel and 

Unusual Punishments Clause.63 Based on that understanding, 

the Clause does not have a proportionality principle.64 Justice 

Thomas concluded by explaining the Court was trying to shift

from “‘merely’ divining the societal consensus of today to 

shaping the societal consensus of tomorrow.”65

Justice Alito also dissented, joined by Justice Scalia. He 

quoted Trop’s evolving language and argued that it was 

59 Id. at 499.

60 Id. (internal quotation marks and citation omitted).

61 Id. at 500.

62 Id. at 501.

63 Id. at 502 (Thomas, J., dissenting).

64 Id. at 503–04. As Justice Thomas recognized in dissent, id. 

at 507, the Court had declined extending the individualized 

sentencing rule beyond the death penalty context some twenty 

years prior: “There can be no serious contention . . . that a 

sentence which is not otherwise cruel and unusual becomes so 

simply because it is ‘mandatory,’” Harmelin v. Michigan, 

501 U.S. 957, 995 (1991).

65 Miller, 567 U.S. at 509.
13

problematic from the start.66 Justice Alito asked: “Is it true that 

our society is inexorably evolving in the direction of greater

and greater decency? Who says so . . . ?”67 He concluded by 

stating the Court’s “Eighth Amendment cases are no longer 

tied to any objective indicia of society’s standards.”68

Justice Alito also dissented in Hall, mentioning the 

evolving standards language. In his view: “[W]hen the Court 

referred to the evolving standards of a maturing ‘society,’ the 

Court meant the standards of American society as a whole. 

Now, however, the Court strikes down a state law based on the 

evolving standards of professional societies.”69 He also noted 

“the Court has long held that laws enacted by state legislatures 

provide the clearest and most reliable objective evidence of 

contemporary values.”70 Justice Alito criticized the Court for

tying its decision to the opinions of “a small professional 

elite.”

71 And “because the views of professional associations 

66 Id. at 510 (Alito, J., dissenting).

67 Id.

68 Id. at 514.

69 Hall, 572 U.S at 725 (Alito, J., dissenting) (emphasis 

omitted).

70 Id. at 726 (cleaned up). Justice Alito found no consensus 

among states about how to define “intellectually disabled.” 

Id. at 726–27. And he claimed the Court should not count 

states that have abolished the death penalty because, “[t]he 

fact that a State has abolished the death penalty says nothing 

about how that State would resolve the evidentiary problem 

of identifying defendants who are intellectually disabled.” Id. 

at 729–30.

71 Id. at 731.
14

often change, tying Eighth Amendment law to these views will 

lead to instability and continue to fuel protracted litigation.”72

In sum, these dissents highlight that the Court has 

strayed far from the text and original meaning of the Eighth 

Amendment. And they also show that the Court has applied the 

evolving standards of decency inconsistently.

73

* * *

The story of the evolving standards of decency test—

from its questionable creation in Trop v. Dulles, through a 

decade of dormancy, its recurrence in death penalty cases, and 

its recent transformation into the law of the land—has created 

more problems than it has solved. Its inscrutable standards 

require judges to eschew the law as written in favor of moral 

sentiment. The only constant is that more and more laws 

adopted by the People’s representatives have been nullified.

And the People have no practical way to reverse this contrived 

ratchet.

This Court, relying on a careful review of the Supreme 

Court’s Eighth Amendment precedents, reaches the right 

conclusion for the right reason. But if the Supreme Court 

continues to apply “the evolving standards of decency” test, I 

wonder what will be the next stop on this runaway train of 

72 Id. at 731–32 (footnote omitted).

73 See, e.g., John F. Stinneford, Evolving Away from Evolving 

Standards of Decency, 23 FED. SENT’G REP. 87, 88–89 (2010)

(delineating the current test’s erosion); id. at 89–90 (applying 

the original meaning to come to consistent results with a 

stable test).
15

elastic constitutionalism? As Chief Justice Roberts cautioned 

nine years ago: there is “no discernable end point.”74

74 Miller, 567 U.S. at 501 (Roberts, C.J., dissenting).
1

GREENAWAY, JR., Circuit Judge, concurring. RESTREPO, 

Circuit Judge, joins. KRAUSE, Circuit Judge, joins Section 

II.

When the Supreme Court teaches, we are bound to 

listen. When the Court speaks a phrase, a sentence, or a 100-

page opinion, we as lower courts must heed.

I disagree with the Majority’s position that Jones v. 

Mississippi, 141 S. Ct. 1307 (2021) controls this case. Instead, 

I believe it is controlled by the Supreme Court’s binding case 

law concerning corrigible youth. The Supreme Court’s 

determination in Miller v. Alabama that the Eighth 

Amendment requires sentencing courts to afford nonincorrigible juvenile homicide offenders a “meaningful 

opportunity to obtain release based on demonstrated maturity 

and rehabilitation” plays no role in my colleagues’ writing. 

567 U.S. 460, 479 (2012) (quoting Graham v. Florida, 560 

U.S. 48, 75 (2010)). Thus, I only concur in the judgment as to 

Section III.A of the majority opinion. I join Section III.B of 

the majority opinion in toto.

I.

In my view, Jones does not impact the ultimate 

resolution of the case before us. Under Jones, a sentencing 

court need not make a finding of permanent incorrigibility 

before sentencing a juvenile homicide offender to life without 

parole. Jones, 141 S. Ct. at 1321. Jones provides that such a 

sentence complies with the Eighth Amendment so long as the 

sentence is discretionary and the sentencing court considered 

youth as a mitigating factor. Id. at 1313. 
2

I appreciate that my colleagues in the majority believe 

that the effect of Jones on Miller (and on the matter before us) 

is that of its holdings regarding constitutionality and remedy—

that is, whether the sentencing court must consider youth as a 

mitigating factor and make a corrigibility finding—are 

necessarily dispositive at the initial stage of the sentencing 

process. But here, the facts implicate a point in the sentencing

court’s decision-making process that is outside the ambit of 

Jones. 

The question before us is not whether a finding of 

permanent incorrigibility is necessary pursuant to Miller. That 

question became moot when the District Court made its on-therecord finding that Corey Grant is capable of reform. See App. 

at 151 (“Mr. Grant is not that rarest of exception[s] referenced 

in Miller, where the lifetime without parole is appropriate.”). 

Instead, the question before us—which Jones does not 

resolve—is whether a defendant already found to be corrigible 

may benefit from Miller’s holding that non-incorrigible 

juvenile homicide offenders are entitled to a “meaningful 

opportunity to obtain release based on demonstrated maturity 

and rehabilitation.” Miller, 567 U.S. at 479 (quoting Graham, 

560 U.S. at 75).

1

 

Jones does not eviscerate Miller. See Jones, 141 S. Ct. 

at 1321 (Jones “does not overrule Miller or Montgomery”); see 

1 Consistent with this pronouncement in Graham, the 

Court also noted in Miller that “[l]ife without parole . . . [is] at 

odds with a child’s capacity for change.” 567 U.S. at 473. That 

Miller did not categorically prohibit LWOP altogether does not 

mean that it permits LWOP sentences for juvenile homicide 

offenders who are not incorrigible.
3

also id. at 1337 (“For present purposes, sentencers should hold 

this Court to its word: Miller and Montgomery are still good 

law. . . . Sentencers are thus bound to continue applying those 

decisions faithfully.”) (Sotomayor, J., dissenting). As Justice 

Kavanaugh highlighted: “[o]n the question of what Miller 

required, Montgomery was clear: ‘A hearing where youth and 

its attendant characteristics are considered as sentencing 

factors is necessary to separate those juveniles who may be 

sentenced to life without parole from those who may not.’” Id.

at 1317-18 (quoting Montgomery v. Louisiana, 577 U.S. 190, 

210 (2016)). If Miller and Montgomery are not overturned, as 

the Jones Court made clear, then courts are still bound by the 

holdings of those cases. See Montgomery, 577 U.S. at 209

(“Miller did bar life without parole . . . for all but the rarest of 

juvenile offenders, those whose crimes reflect permanent 

incorrigibility.”). If Miller and Montgomery have no continued 

vitality beyond their narrowest holdings, the Jones Court easily 

could have said so.

Indeed, Jones enlivens both Miller and Montgomery by 

creating a framework of analysis for the key questions in this 

area, which are: (1) whether youth is to be considered as a 

mitigating factor, and (2) whether life without parole 

(“LWOP”) can be mandatory. As stated above, Jones 

determines the question of whether a juvenile homicide 

offender is entitled to a hearing to determine permanent 

incorrigibility. But it does not resolve the question of what 

happens when an affirmative finding of corrigibility has been 

made. And in Jones, the Supreme Court specifically 

contemplated that there may be state regimes in which the 

sentencer must make a finding as to the defendant’s 

corrigibility. See Jones, 141 S. Ct. at 1323 (“States may 

require sentencers to make extra factual findings before 
4

sentencing an offender under 18 to life without parole.”). If 

Miller’s requirement that a non-incorrigible juvenile homicide 

offender be afforded a “meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation” 

does not remain, then what is the purpose of Jones’s 

unequivocal assertion that Miller and Montgomery have 

continued vitality?

My colleagues in the majority note that the Miller Court 

“used the phrase ‘meaningful opportunity to obtain release’ 

only once—in a quoting parenthetical following a ‘cf.’ or 

‘compare’ citation to Graham.” Majority Op. at 12. 

“[M]eaningful opportunity to obtain release” has been a 

consistent theme in three Supreme Court cases: Graham, 560 

U.S. at 82 (“A State need not guarantee the offender eventual 

release, but if it imposes a sentence of life it must provide him 

or her with some realistic opportunity to obtain release before 

the end of that term.”), Miller, 567 U.S. at 479 (state must 

provide “some meaningful opportunity to obtain release based 

on demonstrated maturity and rehabilitation”) (quoting 

Graham, 560 U.S. at 75), and Montgomery, 577 U.S. at 212

(“The opportunity for release will be afforded to those who 

demonstrate the truth of Miller’s central intuition—that 

children who commit even heinous crimes are capable of 

change.”). Jones’s predecessors instruct us what the 

Constitution requires when a corrigibility finding has been 

made.

Graham teaches that a sentence that does not meet 

penological objectives is “by its nature disproportionate to the 

offense” and therefore constitutionally infirm, and that juvenile 

LWOP is only penologically justified for the incorrigible. 560 

U.S. at 71, 72–73. Graham formed the “foundation stone” of 

Miller’s analysis, Miller, 567 U.S. at 470 n.4, and subsequent
5

decisions underscore Graham’s lessons. Montgomery affirms 

that Miller “established that the penological justifications for 

life without parole collapse in light of ‘the distinctive attributes 

of youth.’” 577 U.S. at 208 (quoting Miller, 567 U.S. at 472). 

Further, Montgomery explains that Miller drew a constitutional 

“line between children whose crimes reflect transient 

immaturity and those rare children whose crimes reflect 

irreparable corruption.” Id. at 209.2 The Montgomery Court 

2 As is true with any finding of corrigibility, youth must 

be taken to account. The Miller Court requires that the 

sentencing court “take into account how children are different, 

and how those differences counsel against irrevocably 

sentencing them to a lifetime in prison” before imposing 

LWOP. 567 U.S. at 480. Thus, the Miller Court enumerated 

various considerations that can be used to determine whether a 

juvenile offender is incorrigible:

• “[C]hronological age and its hallmark features—among 

them, immaturity, impetuosity, and failure to appreciate risks 

and consequences.” Id. at 477.

• “[T]he family and home environment that surrounds 

[the juvenile offender]—and from which he cannot usually 

extricate himself—no matter how brutal or dysfunctional.” Id. 

• “[T]he circumstances of the homicide offense, 

including the extent of his participation in the conduct and the 

way familial and peer pressures may have affected him.” Id.

• “[T]hat he might have been charged and convicted of a 

lesser offense if not for incompetencies associated with 

youth—for example, his inability to deal with police officers 
6

held that Miller announced a substantive rule of constitutional 

law because “juvenile offenders whose crimes reflect the 

transient immaturity of youth” constitute a class of defendants 

upon whom LWOP cannot be imposed. Id. at 208. Thus, 

Miller instructs that such a defendant should have a meaningful 

opportunity to obtain release. 

II.3

However one reads Jones, neither it nor today’s 

Majority changes what the meaningful opportunity standard 

requires. To determine what constitutes a meaningful 

opportunity to obtain release, we look to the Supreme Court’s 

original diagnosis of the constitutional infirmity that plagues 

juvenile LWOP. See Casey v. Planned Parenthood of Se. Pa., 

14 F.3d 848, 857 (3d Cir. 1994) (“We must look to the 

language of the Supreme Court’s opinion to see what it 

or prosecutors (including on a plea agreement) or his 

incapacity to assist his own attorneys.” Id. at 477–78.

• “[T]he possibility of rehabilitation . . . .” Id. at 478.

3 Even if one interprets Jones as the Majority does, the 

meaningful opportunity standard continues to govern in cases 

involving juvenile non-homicide offenders. See Jones, 141 S. 

Ct. at 1314; Graham, 560 U.S. at 75. The discussion that 

follows thus provides guidance to district courts confronting 

Eighth Amendment claims brought by such offenders.
7

intend[s] . . . .”).4In holding that juvenile LWOP is not an 

appropriate sentence for non-homicide offenders in light of an 

offender’s capacity for change and limited culpability, the

Court viewed the problem with the punishment as more 

profound than just denial of release:

[A] categorical rule [barring LWOP] gives all 

juvenile nonhomicide offenders a chance to 

demonstrate maturity and reform. The juvenile 

should not be deprived of the opportunity to 

achieve maturity of judgment and selfrecognition of human worth and potential . . . . 

Life in prison without the possibility of parole 

gives no chance for fulfillment outside prison 

walls, no chance for reconciliation with society, 

no hope.

4 Whether “meaningful opportunity to obtain release” 

evolves from the Supreme Court’s application of “the evolving 

standards of decency” is of no moment. Miller, 567 U.S. at 

479; Concurring Op. at 1. Judge Hardiman’s objections to 

decades of Supreme Court case law do not aid district courts in 

the difficult task of determining what is a just sentence given a 

horrible crime committed by a juvenile whose youth is a 

mitigating factor. Further, our explication of Graham, Miller, 

and Montgomery does not represent an extension of the 

holdings pronounced in those cases. Lastly, Jones accords 

unfettered discretion to any sentencing court to mete out a 

sentence of any term of years or life without parole if youth is 

considered and a discretionary sentencing scheme is invoked. 

A consideration of meaningful opportunity to obtain release 

does nothing to impede the exercise of that discretion. 
8

Graham, 560 U.S. at 79; see also id. at 69-70 (“[LWOP] 

deprives the convict of . . . hope of restoration”); id. at 73 (“A 

life without parole sentence improperly denies the juvenile 

offender a chance to demonstrate growth and maturity.”). 

This passage conveys the essence of what a 

“meaningful opportunity to obtain release” is: a nonincorrigible juvenile offender must be afforded an opportunity

for release at a point in his or her life that still affords 

“fulfillment outside prison walls,” “reconciliation with 

society,” “hope,” and “the opportunity to achieve maturity of 

judgment and self-recognition of human worth and potential.” 

Id. at 79. That is, the requirement encompasses more than mere 

physical release at a point just before a juvenile offender’s life 

is expected to end.

The contours of the meaningful opportunity to obtain

release requirement are also informed by the Court’s concern 

that “defendants serving life without parole sentences are often 

denied access to vocational training and other rehabilitative 

services that are available to other inmates.” Id. at 74; see also 

id. at 79 (“[I]t is the policy in some prisons to withhold 

counseling, education, and rehabilitation programs for those 

who are ineligible for parole consideration.”).5 This view 

illustrates the Court’s belief that—in order to afford “hope” 

and a chance for “fulfillment outside prison walls,”

5 This same concern—lack of vocational training—also 

animated the Court to adopt a categorical rule in Graham, 

rather than a case-by-case approach, in order to “avoid[] the 

perverse consequence in which the lack of maturity that led to 

an offender’s crime is reinforced by the prison term.” Graham, 

560 U.S. at 79.
9

“reconciliation with society,” and “self-recognition of human 

worth and potential,” consistent with the Eighth Amendment,

id. at 79—the State must give non-incorrigible juvenile 

offenders the opportunity to meaningfully reenter society upon 

their release. See id. at 75 (“[The Eighth Amendment] 

prohibit[s] States from making the judgment at the outset that 

those offenders never will be fit to reenter society.”); see also

id. at 74 (stating that it is “not appropriate” for sentencing 

courts to “deny[] the [non-incorrigible juvenile] defendant the

right to reenter the community” in light of his or her “capacity 

for change and limited moral culpability” (emphasis added)).6

The Supreme Court indicated in Graham, Miller, and 

Montgomery that a constitutionally sufficient release 

mechanism must: (1) enable the decision-maker to consider the 

offender’s “maturity and rehabilitation,” Graham, 560 U.S. at 

75, (2) limit the decision-maker’s discretion to deny relief, id. 

at 77, and (3) create a “realistic” chance of obtaining release, 

id. at 82. 

As for the first requirement, the Supreme Court has 

explained that in providing juvenile non-homicide offenders 

6 The Government in its submissions is not reluctant to 

embrace the notion that a corrigible juvenile homicide offender 

is entitled to a meaningful opportunity to obtain release. But 

the Government’s “hope for some years of life outside prison 

walls” standard is too narrow in light of the Court’s statements 

that the Eighth Amendment requires mitigating the pernicious 

long-term effects that LWOP has on juvenile offenders who 

still have the capacity to reform. Appellee’s Br. 29.
10

who receive life sentences “some meaningful opportunity to 

obtain release,” it sought to preserve their “incentive to become 

. . . responsible individual[s],” reward “good behavior and 

character improvement,” and avoid “the perverse consequence 

in which the lack of maturity that led to an offender’s crime is 

reinforced by the prison term.” Id. at 70, 79. If a decisionmaker cannot consider maturity and rehabilitation, then a 

release mechanism fails to accomplish these purposes. 

Second, when Graham, Miller, and Montgomery apply, 

a release mechanism cannot accomplish those cases’ purposes 

if it authorizes the denial of relief “for any reason whatsoever.” 

Virginia v. LeBlanc, 137 S. Ct. 1726, 1730 (2017) (Ginsburg, 

J., concurring in the judgment).7

Third, a release mechanism must provide juvenile 

offenders who fall within Graham, Miller, and Montgomery’s 

purview with a “realistic” rather than a “remote” opportunity 

of obtaining release. Graham, 560 U.S. at 82. Though the 

Supreme Court has never outlined a test for distinguishing a 

7 Perhaps the best illustration of this requirement comes 

from the Supreme Court’s jurisprudence contrasting clemency 

and parole. In most cases, a governor or president may 

“commute a sentence at any time for any reason without 

reference to any standards.” Solem v. Helm, 463 U.S. 277, 301 

(1983). Because inmates cannot predict when they will be 

considered for relief, what factors will influence release 

decisions, or how likely they are to win a reprieve, clemency 

creates little incentive for “good behavior and character 

improvement.” Graham, 560 U.S. at 70. 
11

realistic opportunity from a remote one, several of its decisions 

provide useful benchmarks. On one side of the spectrum, a 

release mechanism that fails to result in the release of any 

offender “in over eight years” cannot cure the Eighth 

Amendment concerns associated with a life sentence. Solem v. 

Helm, 463 U.S. 277, 302 (1983). On the other side of the 

spectrum, the Court has acknowledged that “[a] State may 

remedy a Miller violation by permitting juvenile homicide 

offenders to be considered for parole.” Montgomery, 577 U.S. 

at 212.

III.

Here, the District Court found Grant to be corrigible. In 

my view, for those juvenile homicide offenders who fall within 

this parameter,8the sentencing court must consider whether 

there is a meaningful opportunity to obtain release. If a 

corrigibility finding is made, any sentence imposed must 

contemplate a meaningful opportunity to obtain release. Our

colleagues’ decision forgoes the teaching of Graham, Miller, 

and Montgomery. It essentially abdicates their duty to consider 

whether, after a corrigibility finding has been made, a juvenile 

homicide offender has a meaningful opportunity for release. 

In this case, evidence presented at Grant’s resentencing 

hearing shows that he has a meaningful opportunity to obtain 

release from prison. That is all the Constitution requires. 

I thus concur in the judgment as to Section III.A of the 

majority opinion and in toto as to Section III.B.

8 This will be a vast majority of juvenile offenders. See 

Montgomery, 577 U.S. at 209.
AMBRO, Circuit Judge, concurring in part and dissenting in 

part, with whom MCKEE, Circuit Judge, joins. 

RESTREPO, Circuit Judge, joins except with respect to Part I. 

I.

I join in the unanimous judgment of the Court with 

respect to the Eighth Amendment issue in this case, but I do 

not join the entirety of my colleagues’ reasoning. Like Judge 

Greenaway, and unlike the majority, I believe that Miller and 

Montgomery, on their face, were best read to guarantee a 

meaningful opportunity for release for juvenile offenders who, 

like Grant, were found to be capable of reform (i.e., are not 

incorrigible). Compare Concurring Op. at 5 with Maj. Op. at 

12–14. The problem is that unlike Judge Greenaway, I believe 

that Jones effectively overruled those portions of Miller and 

Montgomery, and therefore the majority’s reasoning is more 

aligned with the current state of the law. Compare Maj. Op. at 

10, with Concurring Op. at 1; see also Jones v. Mississippi, 141 

S. Ct. 1307, 1315 (2021) (holding that “permanent 

incorrigibility is not an eligibility criterion” for sentences of 

life without parole); id. at 1328 (Thomas, J., concurring) 

(observing that “though the Court purports to leave 

Montgomery’s holding intact, it recognizes that Montgomery’s 

analysis is untenable and not to be repeated”); id. at 1328 

(Sotomayor, J., dissenting) (observing that the majority 

opinion “guts Miller . . . and Montgomery”). Still, as my 

colleagues have written well and exhaustively on the nuances 

of the Eighth Amendment issue in this case and my slight 

difference in reasoning will not affect the ultimate judgment, I 

do not grapple with this issue any further.
2

II.

Instead, I write separately primarily to express my 

disagreement with Section III.B of the majority opinion, which 

disposes of Grant’s sentencing package doctrine argument on 

plain error review. Because preservation could hardly be 

clearer here, I would have reached and considered the 

substantial arguments that the majority avoids.

The sentencing package doctrine makes formal a 

“common sense” proposition: When one or more 

interdependent counts of a multicount conviction are vacated, 

the judge should take a fresh look at what remains at 

resentencing. United States v. Davis, 112 F.3d 118, 122 (3d 

Cir. 1997) (quoting United States v. Pimienta-Redondo, 874 

F.2d 9, 14 (1st Cir. 1989)); see also United States v. Ciavarella, 

716 F.3d 705, 734 (3d Cir. 2013) (“District courts should 

resentence de novo when an interdependent count of an 

aggregate sentence is vacated.”). This logic applies both when 

a conviction is vacated on appeal and when a conviction is 

vacated by a district court on collateral review. See United 

States v. Miller, 594 F.3d 172, 180 (3d Cir. 2010); Davis, 112 

F.3d at 122. The question Grant places before us is a 

straightforward clarification: Does this doctrine apply to 

vacated sentences as well as vacated convictions? 

1. Grant Sufficiently Preserved his Sentencing 

Package Doctrine Argument.

Grant concedes that his counsel did not explicitly raise 

in so many words the sentencing package doctrine argument 

before the District Court. Appellant’s Reply Br. at 22. The 

majority seizes on this concession to conclude that the 
3

argument was unpreserved. Maj. Op. at 22–23. But in doing 

so, it holds counsel to too high a standard. A party preserves 

an argument by raising it with “sufficient specificity to alert the 

district court.” Brennan v. Norton, 350 F.3d 399, 418 (3d Cir. 

2003) (internal quotation marks and citation omitted). It need 

only be made in substance; magic words are not needed. See 

United States v. Miller, 833 F.3d 274, 283–84 (3d Cir. 2016). 

Counsel for Grant clearly urged the District Court to consider 

his existing sentence—life imprisonment on two RICO counts, 

forty years on three drug charges, and five years on a gun 

charge—as one cohesive package. 

At resentencing Grant’s attorney told the District Court 

that Grant’s multiple sentences were “all part and parcel of one 

sentence,” explaining that he did not “think anybody looked 

upon this as somehow a breakdown of you got 40 on this, you 

got 40 on that and five on that. This was a life sentence.” App. 

at 40. He repeated that same comment three more timesshortly 

afterward. Id. at 42–44. And he later made the more specific 

argument that “it should be clear that really it is a whole new 

sentencing. Everything was part and parcel of imposing a 

sentence that the Court thought was the correct sentence.” Id.

at 85. While Grant’s counsel did not use the term “sentencing 

packaging doctrine,” there is no question that he alerted the 

Court to its substance: when part of the whole falls away, 

reassess and resentence what is left. And there is no question 

the Court understood that argument as being presented, 

recognizing “[a]n argument has been made here that this is an 

entirely new sentence.” Id. at 151. Thus it “should look at this 

as one cohesive sentence of life and treat it that way in 

determining what is an appropriate total sentence.” Id. at 42. 

This is enough to preserve the point, and we should have 
4

considered it anew without the constraints of plain-error 

review.

2. The Sentencing Package Doctrine Should Apply to 

Vacated Sentences.

We have not yet addressed the application of the 

sentencing package doctrine to vacated sentences in a 

precedential opinion.1 In his concurring and dissenting opinion 

to the initial panel decision in this case, Judge Cowen 

considered this question in depth and concluded that the 

sentencing packaging doctrine should apply to vacated 

sentences. United States v. Grant, 887 F.3d 131, 155–160 (3d 

1

I note that panels of our Court have applied the sentencing 

package doctrine to vacated sentences in not-precedential 

opinions. See United States v. Fumo, 513 F. App’x 215, 218 

(3d Cir. 2013) (“The District Court also appropriately turned 

to the well-established ‘sentencing package’ doctrine to 

support its approach to the restitution amounts on remand.”); 

United States v. Brown, 385 F. App’x 147, 148 (3d Cir. 2010) 

(citing Davis to justify a District Court’s decision to increase 

the sentence on one count on resentencing after a sentence on 

another count was challenged on appeal). And within our 

Circuit Chief Judge Hornak of the Western District of 

Pennsylvania has twice followed suit. See United States v.

Green, No. 2:04-cr-00233, 2020 WL 4034834, at *7 (W.D. Pa. 

July 17, 2020) (applying the doctrine to a vacated sentence and 

citing Fumo and Brown for support); United States v. Black, 

No. 2:11-cr-00045-4, 2019 WL 211086, at *9 (W.D. Pa. Jan. 

16, 2019) (same).
5

Cir. 2018) (Cowen, J., concurring in part and dissenting in 

part), vacated, 905 F.3d 285 (3d Cir. 2018) (mem.). In my 

view, Judge Cowen got the law right, and I will not rehash all 

of his well-reasoned arguments. Instead, I write briefly to 

explain why this application of the sentencing package 

doctrine is both important and proper. 

The strongest argument is the simplest one: I cannot 

think of any convincing reason to distinguish between vacated 

convictions and vacated sentences in this context. The 

sentencing package doctrine reflects that “when a defendant is 

found guilty on a multicount indictment, there is a strong 

likelihood that the district court will craft a disposition in 

which the sentences on the various counts form part of an 

overall plan.” Davis, 112 F.3d at 122 (citation omitted). 

Therefore, when multiple sentences are interdependent (one 

ties in with the others) and one piece of the sentencing plan is 

disturbed, “common sense dictates that the judge should be 

free to review the efficacy of what remains in light of the 

original plan . . . in order to ensure that the punishment still fits 

both crime and criminal.” Id. The Reader’s Digest version: A

district court’s sentence on count B may be set with an eye 

toward the sentence set on count A, with an overall goal of 

achieving some aggregate result. Thus, if the conviction for 

count A is vacated, the remaining sentence for count B may not 

be what the court would have wanted if only count B was in 

dispute. To this end, it makes little difference whether the 

conviction for count A is vacated or only its sentence. Either 

way, the assumption on which the court relied to craft its 

sentence on count B no longer holds.

This concern is particularly pronounced when one of the 

counts carries a life sentence without the possibility of parole. 
6

In that case, a judge can set the sentence on the other counts 

knowing that the stakes for the defendant are essentially zero: 

He will die in jail on count A no matter what the judge does 

with count B. The judge might therefore choose to give only a 

trivial sentence on count B, knowing that it doesn’t matter, or 

instead give an inordinately high sentence on count B, using it 

as a costless outlet to send a message and promote deterrence. 

State supreme courts across the country have been quick to 

recognize this reality. See People v. Turner, 936 N.W.2d 827, 

827 (Mich. 2020) (mem.) (holding that “a concurrent sentence 

for a lesser offense is invalid if there is reason to believe that it 

was based on a legal misconception that the defendant was 

required to serve a mandatory sentence of life without parole 

on the greater offense”); Commonwealth v. Costa, 33 N.E.3d 

412, 417 (Mass. 2015) (holding that the decisions that led to 

vacating a juvenile offender’s life sentence “transformed a 

choice [to impose consecutive versus concurrent sentences] 

that could be regarded as somewhat symbolic into one of some 

consequence” (internal quotation marks omitted)); Bear Cloud 

v. State, 334 P.3d 132, 143 (Wyo. 2014) (concluding that, “[o]n 

remand, the district court should weigh the entire sentencing 

package” of a juvenile, rather than simply the one count 

carrying a life sentence); Sen v. State, 301 P.3d 106, 127 (Wyo. 

2013) (holding that “because Sen's sentence of life without the 

possibility of parole may have impacted the sentencing 

decisions with respect to [other counts], . . . the appropriate 

course is to vacate those sentences and remand for resentencing 

on all counts”).

This conclusion is not revolutionary. In fact, we have 

already affirmed de novo resentencing when only a sentence 

was vacated. See, e.g., United States v. Guevremont, 829 F.2d 

423, 428 (3d Cir. 1987). While the majority notes that this case 
7

was decided prior to the creation of our formal sentencing 

package doctrine, Maj. Op. at 23 n.4, Guevremont is at least 

compelling authority, and we should affirm that its reasoning 

still applies. And while it is true that recent decisions generally 

describe the sentencing package doctrine as applying when a 

“conviction has been vacated, as opposed to just a sentence,” 

that language “is best viewed as descriptive rather than 

prescriptive.” United States v. Catrell, 774 F.3d 666, 670 (10th 

Cir. 2014) (emphases in original). We should join the Tenth 

Circuit—the only one of our sister circuits to consider this 

issue squarely—and hold that the sentencing package doctrine 

applies to vacated sentences. Id.

3. The Sentencing Package Doctrine Entitles Grant to 

a De Novo Resentencing, But It Is Unclear Whether 

He Was Provided That Opportunity.

Grant’s case demonstrates the need for the sentencing 

package doctrine to apply to vacated sentences. As illustrated 

in the below table, the record shows interdependence among 

different parts of Grant’s overall sentence, both in the initial 

1992 sentence by Judge Ackerman and the 2016 resentencing 

by Judge Linares. 

Table Comparing Grant’s Sentence in 1992 with his 

Revised Sentence in 2016
8

Count(s)

Imprisonment Supervised Release

1992 2016 1992 2016

I and II

RICO (including 

murder and 

attempted murder

predicates)

Life

60 years

5 years on 

all counts to 

run 

concurrently

5 years, 

concurrent 

with other 

counts

IV

Conspiracy to 

possess with 

intent to 

distribute cocaine

40 years, 

concurrent 

with life 

sentence

Life

V and VI

Possession with 

intent to 

distribute cocaine

40 years, 

concurrent 

with 60-

year 

sentence

XI

Gun possession

5 years, 

consecutive 

to other 

counts

5 years, 

consecutive 

to other 

counts

5 years, 

concurrent 

with other 

counts

Shaded cells indicate a change in Grant’s sentence between the 1992 and 

2016 sentencings.

Nearly three decades ago, Judge Ackerman sentenced 

Grant to life imprisonment for the racketeering counts under 

the then-mandatory Sentencing Guidelines. With that life 

sentence in place, it is quite plausible that Judge Ackerman 

viewed his sentence on the drug counts as simply symbolic. In 

particular, he preceded his sentence by stating that there was a 

“plague in this land . . . in the form of drugs.” App. 450. And 

he went further, emphasizing that he had a “responsibility . . . 

to send a message to those who violate the laws of this land in 

such a violent and extensive manner, involving the pollution of 

our community, the destruction of our children, and, in this 

case, the murder of an individual.” App. 451. In addition to a 
9

five-year mandatory minimum sentence on the gun count, he 

ultimately sentenced Grant to forty years on the drug counts 

(well above the mandatory minimum) to run concurrently with

the life sentence.

Decades later, after the Supreme Court prohibited lifewithout-parole sentences for non-incorrigible juveniles, Grant 

became eligible to have his life sentence adjusted. For all the 

reasons stated above, he deserved to have a fresh sentencing. 

But it is unclear whether he was provided that opportunity. The 

Government argues that Judge Linares actually provided Grant 

a full resentencing, pointing out that Judge Linares modified a 

component of the sentence on the drug counts—increasing the 

term of supervised release for Counts IV–VI from five years to 

life.2 Gov’t’s Second Supp. Br. 1–2. 

At the same time, however, the language that Judge 

Linares used during the resentencing suggested that he was not 

really considering anew the appropriate sentence on Counts 

IV–VI and XI, but rather deferring to Judge Ackerman’s 

choices (at least with respect to the terms of imprisonment).3 

2

Judge Linares also increased Grant’s term of imprisonment 

for the drug conspiracy charge (Count IV) from 40 to 60 years. 

While this could have been an intentional change if Judge 

Linares viewed himself as engaging in de novo resentencing, 

the majority concludes that this was simply an “inadvertent 

sentencing error.” Maj. Op. at 24 n.5. The majority does not 

address whether it also views the increased term of supervised 

release on Counts IV–VI as another inadvertent error.

3 The majority has similarly concluded that “[t]he Court 

decided to limit resentencing to Counts I and II.” Maj. Op. at 

24 n.5.
10

To do otherwise, he believed, would “be almost unfair to the 

system and unfair to Judge Ackerman all of these years later.” 

App. at 152. This would have the effect of setting a floor of 45 

years on Grant’s sentence and could easily have affected the 

ultimate 65-year sentence. As the Government pointed out at 

resentencing, “45 years . . . , other than the fact of the gun 

count, doesn’t really account for the murders . . . .” App. at 

128. That is, if Judge Linares wanted to impose an incremental 

punishment for the murder and attempted murder (included in 

RICO Counts I and II), he would need to go above the floor of 

45 years for the drug and gun counts. And he did—sentencing 

Grant to 60 years on the RICO counts. This suggests that an 

isolated piece of Judge Ackerman’s old sentencing plan 

(imprisonment on Counts IV–VI and XI) may have been the 

tail that wagged the dog at Grant’s resentencing rather than the 

sentencing plan being refashioned from scratch.

* * * * *

Everyone agrees that Grant’s crimes are gravely 

serious, and I do not suggest that a lower sentence is 

necessarily warranted. But, at a minimum, the sentencing 

package doctrine should apply here, Grant properly invoked it, 

and he is entitled to a full resentencing. Because the record is 

unclear whether he actually received the full resentencing 

opportunity he is due, I would have remanded more broadly to 

the District Court either to (1) engage in a truly de novo

resentencing, or (2) explain why its sentence was in fact the 

product of de novo consideration. See Bear Cloud, 334 P.3d at 

143 n.11 (concluding that a trial court’s “cursory 

consideration” of other counts in the sentencing package in its 

resentencing was insufficient). For these reasons, I dissent 

from Section III.B of the majority’s opinion.