19

- 989

- cr Cruz v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT
. C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ' S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F ED ERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION

" SUMMARY ORDER "). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL
. At a stated term of the United States Court of Appeals for the Second Circuit, he ld at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 11 th day of September , two thousand twenty

.
PRESENT: RALPH K. WINTER , REENA RAGGI , DENNY CHIN , Circuit Judges

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
LUIS NOEL CRUZ , AKA Noel , Petitioner

- Appellee ,

- v - 19

- 9 89

- cr
UNITED STATES OF AMERICA , Respondent

- Appellant

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
FOR PETITIONER

- APPELL EE : TADHG DOOLEY , Wiggin and Dana LLP , New Haven , Connecticut, and William T

. Koch, III, Niantic, Connecticut

.2 FOR RESPONDENT

- APPELL ANT : JOHN T. PIERPONT, JR. , Assistant United States Attorney ( Patricia Stolfi Collins, Sandra S. Glover, Assistant United States Attorneys, on the brief ), for John H. Durham , United States Attorney for the District of Connecticut , New Haven, Connecticut

.
FOR AMICUS CURIAE: John R. Mills, Phillips Black, Inc., Oakland, California. Appeal from the United States District Court for the District of

Connecticut ( Janet C. Hall , J. ).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the amended judgment of the district court is

VACATED and the c ase is REMANDED for the district court to reinstate the prior judgment and sentence.

The Government appeals from a n order of the district court, entered on
March 29, 2018 , granting petitioner

- appellee Luis Noel Cruz's successive petition brought under 28 U.S.C. § 2255 to vacate his sentence of four concurrent terms of mandatory life imprisonment and from its amended judgment, imposed on February
26, 2019 (and entered on the docket on March 18, 2019) , sentencing Cruz principally to a
total of thirty

- five years' imprisonment. On appeal, the Government maintains that , because Cruz was eighteen years and twenty weeks old when he and another member

of the Lat in Kings committed the homicide crimes of conviction , the district court erred

when it (1) held that Miller v. Alabama , 567 U.S. 460 (2012) , precluded the imposition of3 his mandatory life sentences and (2) failed to dismiss Cruz's successive petition for lack of jurisdiction

. We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal.

BACKGROUND On September 29, 1995, Cruz was convicted, following a jury trial, of two counts of murder in aid of racketeering, racketeering, conspiracy to commit a drug offense, and related crimes. On January 30, 1996, the district court sentenced Cruz to,

inter alia , four concurrent terms of life imprisonment. On June 25, 2013, Cruz sought permission to file a fifth successive petition
under 28 U.S.C. § 2255 to raise a proposed claim based on Miller

. See United States v.
Millet (Luis Noel Cruz) , No. 13

- 2457 (2d Ci r.) (Doc. No. 2). T his Court granted the
request on July 22, 2013. Id. (Doc. No. 25). In Miller , the Supreme Court held that the Eighth Amendment's prohibition on cruel and unusual punishment barred a mandatory life sentence without parole for an individual under the age of eighteen at

the time of his crime. See Miller , 567 U.S. at 4 65 ; see also Mo ntgomery v. Louisiana , 136

S. Ct. 718 , 734 (2016) (holding that Miller announced a new substantive constitutional
rule that was retroactive on collateral review).

Cruz filed the instant petition in the d istrict c ourt on August 19, 2014, and argued, inter alia , that Miller 's prohibition of mandatory life imprisonment for individuals younger than eighteen years old ( " juveniles " ) should also apply to those4 who were eighteen at the time of their offense

. During a two

- day evidentiary hearing , Cruz presented expert testimony to the effect that individuals aged eighteen to twenty

one are similar to juveniles with respect to brain development, impulse control, and susceptibility to peer influence.

The district court was persuaded , and, o n March 29, 2018 , it vacated

Cruz's life sentences . It reasoned that nothing in Miller limits its application to

defendants who were juveniles at the time of their offense , and that both scientific

evidence and a national consensus s upport s the conclusion that the Eighth Amendment forbids a mandatory life sentence for a defendant who was eighteen at the time of his

crime

. The district court subsequently resentenced Cruz to thirty

- five years'
imprisonment . T his appeal followed.

DISCUSSION

We review a district court ' s legal conclusions underlying a motion for
relief under 28 U.S.C. § 2255 de novo and its factual findings for clear error. See United

States v. Hoskins , 905 F.3d 97, 102 (2d Cir. 2018). We are obliged to identify legal error by our decision in United States v.

Sierra , 933 F.3d 95 (2d Cir. 2019), cert. denied sub nom. Beltran v. United States , 140 S. Ct.

2540 (Mar. 23, 2020), and cert. denied sub nom. Lopez

- Cabrera v. United States , 141 S. Ct.

2541 (Mar. 23, 2020). In that case, decided i n August 2019, a fter the district court
resentenced Cruz, this Court held that mandatory life sentences for individuals5 eighteen years old or older do not violate the Eighth Amendment. As Sierra observes , see id. at 97, the Supreme Court has repeatedly drawn a bright line at age eighteen for Eighth Amendment limitations on sentencing

. See Miller , 567 U.S. at 465, 4 7 9
("[M] andatory 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 ," because "[b] y making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment ."); Graham v. Florida , 560 U.S. 48, 74 (2010) (adopting a categorical rule at the age of eighteen to implement its holding that the Eighth

Amendment forbids the impositio n of a life sentence without parole for a juvenile
offender who did not commit homicide); Roper v. Simmons , 543 U.S. 551, 574, 578 (2005) (holding that "[ t ] he Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were und er the age of 18 when their crimes were committed"

because "[ t ] he age of 18 is the point where society draws the line for many purposes
between childhood and adulthood"). Consequently, because the Supreme Court has

" chosen to draw the constitutional line at the age of 18 for mandatory minimum life

sentences, " the imposition of such sentences for defendants between ages of eighteen

and twenty

- two do es not violate the Eighth Amendment. See Sierra , 933 F.3d at 97

. 1

1 Every Circuit to consider this issue has refused to extend Miller to defendants who were eighteen or older at the time of their offenses , albeit in circumstances distinct from those6 In light of our holding in Sierra, w e conclude that the district court erred

when it held that the Eighth Amendment forbids a mandatory life sentence for a

defendant who was eighteen at the time of his offense

. Like the defendants in Sierra ,
Cruz was convicted of murder s in aid of racketeering committed after he had turned eighteen, and he was subsequently sentenced to mandatory life term s
. See id

. A lthough

Cruz committed his offense only five months after his eighteenth birthday, we noted in

Sierra that the Supreme Court explicitly limited its holding in Miller to defendants "under the age of 18 , " 567 U.S. at 465 , and earlier Eighth Amendment jurisprudence also

drew a categorical line at age eighteen betwe en adults and juveniles , s ee Graham , 560

U.S. at 74 ; Roper , 543 U.S. at 57 4 (" Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that
distinguish juveniles from adults do not disappear when an individual turns 18



### . . . . [H]owever, a line must be drawn ."). Accordingly, the district court's decision to vacate

Cruz's life sentences on the grounds that the Eighth Amendment forbids such a

sentence for a defendant who is eighteen is inconsistent with both this Court's decision

in Sierra and Supreme Court pr ecedent

. 2

presented by this case

. See , e.g., Wright v. United States , 902 F.3d 868, 872 (8th Cir. 2018), cert. denied , 139 S. Ct. 1207 (2019); In re Frank , 690 F. App'x 146 (5th Cir. 2017); Melton v. Florida Dep’t of Corr. , 778 F.3d 1234, 1235, 1237 (11th Cir. 2015); United States v. Marshall , 736 F.3d 492, 500 (6th Cir. 2013); United States v. Dock , 541 Fed. Appx. 242, 245 (4th Cir. 2013).

2 B ecause we hold that Cruz's petition must be denied , we do not reach the Government's procedural argument that the district court erred when it failed to dismiss Cruz's successive petition for lack of jurisdiction under § 2255(h)

.7 * * * For the foregoing reasons, we VACATE the judgment of the district court

and REMAND for the district court to reinstate the prior judgment and sentence.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk