United States Court of Appeals

For the Eighth Circuit

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No. 17-3242

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Steve L. Wright, Jr.

lllllllllllllllllllllPetitioner - Appellant

v.

United States of America

lllllllllllllllllllllRespondent - Appellee

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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Submitted: April 11, 2018

Filed: September 5, 2018

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Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

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LOKEN, Circuit Judge.

In 2006, a jury convicted Steve L. Wright, Jr., of fourteen federal offenses. A

number of the crimes took place when Wright was a juvenile; others occurred after

he reached age eighteen. Count 1, the offense of conspiring to distribute 50 grams

or more of cocaine base and other controlled substances, encompassed conduct

undertaken both before and after Wright’s eighteenth birthday. In February 2007, the
district court sentenced Wright to life in prison plus 110 years. This appeal requires 1

us to apply recent Supreme Court cases addressing the constitutionality of life

sentences for juveniles -- Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama,

567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016) -- to

Wright’s claims for successive post-conviction relief from his sentence. 

At sentencing, the district court imposed the statutory mandatory minimum

sentence of life imprisonment for Count 7, the offense of aiding and abetting the

murder of a witness. See 18 U.S.C. § 1512(a)(1)(C), (2), (3)(A). For sentencing

purposes the district court grouped all the drug offenses (Counts 1, 2, 3, 5, 8, 12, 13,

and 14) and imposed the advisory guidelines sentence of life imprisonment. Count

1 was the only conviction in this group for which a life sentence was statutorily

authorized. For the firearm offenses, as mandated by statute, the court imposed a

consecutive sentence of ten years for Wright’s first conviction under 18 U.S.C.

§ 924(c) (Count 4), and additional consecutive twenty-five-year sentences for each

subsequent § 924(c) conviction (Counts 6, 9, 11, and 15). Wright committed the

offenses in Counts 4, 6, and 9 before his eighteenth birthday.

We affirmed Wright’s sentence on direct appeal. United States v. Wright, 536

F.3d 819 (8th Cir. 2008), cert. denied, 556 U.S. 1144 (2009). In May 2010, the

district court denied his 28 U.S.C. § 2255 motion to vacate or correct the sentence;

Wright appealed and we denied a certificate of appealability. In June 2013, Wright

filed a successive § 2255 motion based on Graham, Miller, and Montgomery. We

granted authorization to file the motion. Wright v. United States, No. 13-1638 (8th

Cir. Feb. 5, 2014); see §§ 2244(b)(3), 2255(h). 

The Honorable Fernando J. Gaitan, Jr., United States District Judge for the

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Western District of Missouri.

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In Graham, the Supreme Court held that a juvenile who has not committed

homicide may not be sentenced to life without parole; he must instead have “some

meaningful opportunity to obtain release based on demonstrated maturity and

rehabilitation.” 560 U.S. at 74-75. In Miller, the Court held that a juvenile who has

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committed homicide may be sentenced to life without parole but the sentence must

be based on individualized factors, including “a juvenile’s ‘lessened culpability’ and

greater ‘capacity for change.’” 567 U.S. at 465 (quoting Graham, 560 U.S. at 68, 74). 

In Montgomery, the Court held that Miller’s holding, like Graham’s, isretroactive on

collateral review because it established a substantive rule. 136 S. Ct. at 732-34. 

In the district court, the government conceded that Wright’s mandatory life

sentence for Count 7 violated the Eighth Amendment as construed in Miller because

the underlying murder occurred when Wright was a juvenile. The district court

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vacated the life sentence, imposed a sentence of fifteen years on Count 7, and denied

all other relief. Wright appeals, arguing (i) he should be resentenced on Counts 1, 4,

6, and 9 because some or all of the criminal activity giving rise to those convictions

occurred before his eighteenth birthday; and (ii) the district court erred in denying a

comprehensive resentencing hearing because his entire sentence was tainted by

Eighth Amendment violations. Reviewing the constitutionality of his sentencing de

novo, we affirm. United States v. Jefferson, 816 F.3d 1016, 1018 (8th Cir. 2016)

(standard of review).

As Congress abolished parole for federal offenders in 1984, a federal life 2

sentence is a sentence of life without parole. Graham, 560 U.S. at 109 (Thomas, J.,

dissenting). 

The Honorable Howard F. Sachs, United States DistrictJudge for the Western 3

District of Missouri.

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I.

A. Wright first argues he is entitled to resentencing on Count 1 under Graham

and Miller because many conspirator acts in furtherance of the conspiracy occurred

before his eighteenth birthday. Even if the conspiracy continued past his eighteenth

birthday and permitted him to be tried as an adult, Wright argues, “a sentencing court

should be permitted to consider whether a life sentence is appropriate for his role in

the conspiracy based upon the recent Supreme Court jurisprudence recognizing that

juveniles should be treated differently.” But Miller and Graham held only “that the

Eighth Amendment forbids a sentencing scheme that mandateslife in prison without

possibility of parole for juvenile offenders.” Miller, 567 U.S. at 479 (emphasis

added). Wright acknowledges that the life sentence imposed for Count 1 was not

mandated by statute. However, he argues, sentencing enhancementsin the guidelines

then in effect “required [the district court] to impose a mandatory life sentence . . .

without being allowed to consider Mr. Wright’s age at the time the offense began and

the other mitigating qualities of youth.” 

This contention is simply wrong. Wright was sentenced in 2007, when the

Sentencing Guidelines were advisory. The district court did not vary downward from

the advisory guidelines range of life plus 110 years in prison, but it was authorized

to do so. Montgomery held that the decision in Miller is retroactive because 4

mandatory life without parole is a substantive rule, unlike a non-retroactive

procedural rule that “regulates only the manner of determining the defendant’s

culpability.” 136 S. Ct. at 733 (emphasis omitted). Wright is arguing the district

By contrast, in United States v. Jefferson, 816 F.3d 1016 (8th Cir. 2016), the

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defendant was sentenced to 600 months in prison under then-mandatory guidelines

for murder and drug offenses committed while he was a juvenile. Applying

Montgomery, the district court resentenced the defendant to 600 months “under nowadvisory federal guidelines after a hearing in which the district court carefully and

thoroughly applied the teaching of . . . Miller.” Id. at 1019.

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court should have taken his youth into account under Miller in sentencing him under

Count 1. This appears to be an argument for a non-retroactive procedural rule

regulating the manner of determining culpability. The issue is not that simple,

however, because in banning mandatory life without parole for juveniles who commit

homicide offenses, Miller prescribed a hearing procedure needed to separate those

who may be sentenced to life without parole -- “the rarest of juvenile offenders, those

whose crimes reflect permanent incorrigibility” -- and the Court in Montgomery

described this as “a procedural requirement necessary to implement [Miller’s

retroactive] substantive guarantee.” 136 S. Ct. at 734. But we conclude Wright’s

argument does not fall within this substantive guarantee. Wright was not sentenced

on Count 1 as a juvenile offender. He was sentenced for conspiratorial conduct that

extended well into his adult years under an advisory guidelines regime that allowed

the district court to consider his early participation as a juvenile, as well as other

relevant mitigating factors. Thus, the procedural element of the new substantive rule

of constitutional law made retroactive in Montgomery does not apply, and successive

habeas relief on this claim was properly denied. See 28 U.S.C. § 2244(b)(2)(A).5

B. Wright further argues that the consecutive mandatory term-of-years

sentences imposed on Counts 4, 6, and 9 (totaling sixty years) violated the Eighth

Amendment as construed in Graham because they were an “effective life sentence,”

and Wright was a juvenile when he committed the underlying non-homicide crimes. 

As Judge Colloton noted, concurring in the grant of authorization to file the

Wright was tried and punished as an adult because he participated in the

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conspiracy after reaching the age of majority. See, e.g., United States v. Gjonaj, 861

F.2d 143, 144 (6th Cir. 1988). The Eighth Amendment does not prohibit sentence

enhancements based on crimes committed when an adult offender was a juvenile. 

United States v. Scott, 610 F.3d 1009, 1018 (8th Cir. 2010). Tellingly, the Supreme

Court in Graham neither discussed nor presented statistics dealing with life-withoutparole sentencesimposed for non-homicide conspiracyoffenses beginning before and

extending after a conspirator’s eighteenth birthday. 

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successive § 2255 motion, “[i]t is an open question whether Graham should be

extended to prohibit the imposition of a lengthy term of years on a juvenile who did

not commit homicide.” Wright, No. 13-1638, Judgment at 4, citing Graham, 560 U.S.

at 124 (Alito, J., dissenting). Thus, the government argues that Wright is not entitled

to successive habeas relief on this claim because it is outside the Supreme Court’s

decision in Graham, as the Sixth Circuit held in Bunch v. Smith, 685 F.3d 546, 551-

53 (6th Cir. 2012). The Supreme Court’s discussion of retroactivity in the more

recent Montgomery decision may alter the required analysis, but we need not decide

the issue in this case because any error was harmless. We have denied Wright

successive habeas relief from the life sentence imposed on Count 1, and federal

sentences of life and life plus 60 years “come to the same thing.’” United States v.

Bour, 804 F.3d 880, 886 (7th Cir. 2015) (citation omitted).

II.

Wright argues that, because the Eighth Amendment required resentencing on

Count 7, and because he alleged Eighth Amendment errors in the sentences imposed

on Counts 1, 4, 6, and 9, the district court erred in not granting him a “comprehensive

resentencing hearing.” After we authorized this successive § 2255 motion, the

district court entered an order vacating the sentence on Count 7. The court noted

Eighth Circuit decisions recognizing a district court’s authority to re-evaluate a

“sentence package” when one or more counts must be resentenced and stated that the

scope of Wright’s resentencing would be determined at a resentencing hearing. The

partiesthen briefed whether Wright was entitled to resentencing on any other counts. 

After considering these submissions, the district court ruled that Wright was only

entitled to resentencing on Count 7 and denied further relief without a hearing. 

Wright cites no authority in support of this claim. In so-called “sentencing

package cases,” where the defendant successfully challenges one count of a multicount conviction, “trial courts have imposed a sentence on the remaining counts

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longer than the sentence originally imposed on those particular counts, but yielding

an aggregate sentence no longer than the aggregate sentence initially imposed.”

Greenlaw v. United States, 554 U.S. 237, 253 (2008); see United States v. McArthur,

850 F.3d 925, 942-43 (8th Cir. 2017). That dynamic is obviously inapplicable here. 

Another situation in which the multi-count resentencing issue arises is illustrated by

United States v. Greene, 995 F.2d 793, 801 (8th Cir. 1993), where we reversed one

count of conviction and remanded for resentencing on all counts because “it[was] not

impossible that the trial court might have sentenced Mr. Greene at a different point

in the applicable [mandatory guidelines] range had it not considered the [reversed]

conviction.” But here, we have upheld the district court’s determination that the

sentence of life plus 60 years imposed on Counts 1, 4, 6, and 9 did not violate the

Eighth Amendment. In these circumstances, the district court did not abuse its

procedural discretion in denying a more “comprehensive” resentencing hearing, nor

its substantive discretion in denying further successive § 2255 relief after vacating the

mandatory life sentence on Count 7 and resentencing Wright to a 15-year term of

imprisonment on that Count.

Following submission of this appeal, Wright filed a pro se motion for leave to

file a supplemental brief addressing three issues. One was addressed in the brief filed

by his counsel on appeal; the other two present new argumentsthat would not provide

a basis for successive habeas relief. Accordingly, we deny the pro se motion and

affirm the judgment of the district court.

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