NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TONATIHU AGUILAR, 

Petitioner-Appellant, 

 v. 

CHARLES L. RYAN; ATTORNEY 

GENERAL FOR THE STATE OF 

ARIZONA, 

Respondents-Appellees.

No. 17-16013 

D.C. No. 2:14-cv-02513-DJH 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Diane J. Humetewa, District Judge, Presiding

Argued and Submitted February 6, 2019

Submission Vacated March 19, 2019

Resubmitted August 12, 2022

Phoenix, Arizona

Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.

Tonatihu Aguilar was convicted of two first-degree murders in Arizona state 

court. Aguilar was sixteen at the time of each crime. For the first conviction, Aguilar 

was sentenced to life without the possibility of parole (“LWOP”), and for the second, 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

AUG 19 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 

he was resentenced to LWOP after his death sentence was vacated in light of Roper 

v. Simmons, 543 U.S. 551 (2005). Arguing that the LWOP sentences violated the 

Eighth Amendment’s prohibition against cruel and unusual punishment because of 

his age at the time of the murders, Aguilar unsuccessfully sought post-conviction 

relief in state court. Aguilar’s 28 U.S.C. § 2254 habeas corpus petition was then 

denied by the district court, which granted a certificate of appealability. We affirm.

1. Aguilar contends that his LWOP sentences were unconstitutional under the 

Supreme Court’s decisions in Miller v. Alabama, 567 U.S. 460 (2012), and 

Montgomery v. Louisiana, 577 U.S. 190 (2016), because neither sentencing judge 

made an express nor an implicit finding of incorrigibility. Although that argument 

finds some facial support in the language of those two cases, it is foreclosed by the 

Supreme Court’s later decision in Jones v. Mississippi, in which certiorari was 

granted for the express purpose of explaining “how to interpret Miller and 

Montgomery.” 141 S. Ct. 1307, 1313 (2021). Jones clarified that the Eighth 

Amendment categorically forbade mandatory sentencing schemes and required 

“only that a sentencer follow a certain process—considering an offender’s youth and 

attendant characteristics—before imposing” LWOP. Id. at 1311 (quoting Miller, 

567 U.S. at 483). The Court stressed that “a separate factual finding of permanent 

incorrigibility is not required,” id. at 1318, nor is an “on-the-record sentencing 

explanation with an implicit finding of permanent incorrigibility,” id. at 1320. The 
3 

“key assumption of both Miller and Montgomery,” the Court explained, “was 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; see 

also Jessup v. Shinn, 31 F.4th 1262, 1266 (9th Cir. 2022) (“Miller requires, for a 

juvenile offender, an individualized sentencing hearing during which the sentencing 

judge assesses whether the juvenile defendant warrants a sentence of life with the 

possibility of parole.”).

2. Both of Aguilar’s sentencing hearings complied with the rule announced 

in Jones. Arizona law at the time of these sentencings did not require that LWOP 

be imposed “automatically, with no individualized sentencing considerations 

whatsoever.” Id. at 1267; see Ariz. Rev. Stat. § 13-703(A) (2001). In the first 

sentencing, the judge referred to age as a mitigating factor and in the second case the 

judge heard extensive argument about why Aguilar’s age supported a lesser 

sentence. As Jones held, the Eighth Amendment requires no more.

3. Aguilar also argues that his sentences were unconstitutional because the 

Arizona legislature had in 1993 eliminated parole for crimes committed in 1994 or 

later, and replaced parole with a credit system for early release, see Jessup, 31 F.4th

at 1266–67, and that statutory scheme was not amended until after the Supreme 

Court’s decision in Miller to allow life sentences with the possibility of parole for 
4 

juvenile offenders convicted of first-degree murder, see State v. Randles, 334 P.3d 

730, 732 (Ariz. Ct. App. 2014). However, in Jessup, we found that habeas relief 

was not warranted in these circumstances because in imposing an LWOP sentence, 

the sentencing judge considered the defendant’s “age and other relevant 

considerations” before concluding that no possibility of release was warranted. 31 

F.4th at 1267. We also noted that nothing “in the record suggests that the precise 

form of potential release at issue had any effect on the sentencing judge’s exercise 

of discretion. Much to the contrary, the record makes clear that the sentencing judge 

(and everyone else involved) genuinely, if mistakenly, thought that he was 

considering a sentence of life with the possibility of parole.” Id. The same is true 

here.

4. Finally, Aguilar contends that Arizona law at the time of his sentencings 

did not afford the judge the discretion Miller requires because age did not 

automatically justify a sentence other than death and because Arizona had a causalnexus requirement for mitigating evidence in death penalty cases. Even assuming 

that these arguments were exhausted in the state court, they fail. Even before Roper

held that a death sentence could not be imposed on a defendant less than eighteen

years of age, 543 U.S. at 568, Arizona law did not foreclose age from being a 

substantial, or even dispositive, mitigating factor in capital sentencing decisions, see 

State v. Jackson, 918 P.2d 1038, 1048 (Ariz. 1996); State v. Jimenez, 799 P.2d 785, 
5 

797 (Ariz. 1990). Any causal-nexus requirement had been abandoned by the 

Arizona Supreme Court by the time of Aguilar’s resentencing in the second case. 

See State v. Anderson, 111 P.3d 369, 391–92 (Ariz. 2005). And, the record in the 

first case does not suggest that any absence of a causal nexus prevented the judge

from considering Aguilar’s youth before imposing LWOP; indeed, as noted above, 

the judge expressly noted age as a mitigating factor.

1

AFFIRMED.

1

 Aguilar’s motion for judicial notice is denied.