FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FREDDIE CRESPIN,

Petitioner-Appellee,

v.

CHARLES L. RYAN; Attorney General 

for the State of Arizona,

Respondents-Appellants.

No. 18-15073

D.C. No.

2:15-cv-00992-

SPL

OPINION

Appeal from the United States District Court

for the District of Arizona

Steven Paul Logan, District Judge, Presiding

Argued and Submitted February 6, 2019

Submission Vacated March 19, 2019

Resubmitted August 12, 2022

Phoenix, Arizona

Filed August 19, 2022

Before: Michael Daly Hawkins, Milan D. Smith, Jr., and 

Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Hurwitz
2 CRESPIN V. RYAN

SUMMARY*

Habeas Corpus

The panel affirmed the district court’s grant of a 

conditional writ of habeas corpus to Freddie Crespin, who in 

1995 was charged in Arizona with first-degree murder 

committed when he was sixteen years old. 

Because the Supreme Court had not yet held that the 

death penalty could not be imposed on defendants younger 

than eighteen when the crime occurred, Crespin faced a 

possible capital sentence if convicted. To avoid that 

possibility, he entered into a plea agreement under which he 

agreed to a sentence of life without the possibility of parole 

(LWOP). In Miller v. Alabama, 567 U.S. 460 (2012), the 

Supreme Court held that the imposition of LWOP for those 

convicted of a crime committed while under the age of 

eighteen violated the Eighth Amendment under some 

circumstances. Crespin unsuccessfully sought postconviction relief (PCR) in Arizona state court. He then filed 

a 28 U.S.C. § 2254 habeas corpus petition. While that 

petition was pending, the Supreme Court held in 

Montgomery v. Louisiana, 577 U.S. 190 (2016), that the 

Miller rule was retroactive. The district court then granted 

the conditional writ. 

The panel held that the plea agreement, in which Crespin 

waived the right to appeal “the judgment and sentence to a 

higher court,” did not waive Crespin’s right to pursue a PCR 

challenge of his sentence. Nor did Crespin’s guilty plea 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
CRESPIN V. RYAN 3 

waive his ability to collaterally attack the constitutionality of 

his LWOP sentence, as Crespin was unaware of the Eighth 

Amendment right announced in Miller when he entered into 

the plea agreement, let alone that he could not be sentenced 

to death under the not-yet announced rule in Roper v. 

Simmons, 543 U.S. 551 (2005). 

 The panel therefore turned to the merits of Crespin’s 

Miller claim. The Arizona Court of Appeals found that 

because the trial court had the discretion to reject the plea 

agreement if it found the stipulated sentence inappropriate, 

and the judge was aware of Crespin’s youth and the 

circumstances of the crime before accepting the agreement, 

Crespin’s Miller rights were not violated. The panel held 

that this was an unreasonable application of Miller. The

panel explained that under Miller, a sentencer must have 

discretion to impose a lesser sentence than LWOP. Here, the 

trial judge made it clear that he did not have this discretion. 

Because the judge correctly recognized that his only 

sentencing option was LWOP, Crespin’s sentencing violated 

the Eighth Amendment. The panel concluded that there was 

at least a reasonable possibility that a sentencing proceeding 

conducted in accordance with Miller’s requirements would 

result in a non-LWOP sentence.

COUNSEL

Terry M. Crist III (argued), Kristina Reeves, and Joshua C. 

Smith, Assistant Attorneys General; J.D. Nielsen, Habeas 

Unit Chief; Joseph T. Maziarz, Chief Counsel; Mark 

Brnovich, Attorney General; Office of the Attorney General, 

Phoenix, Arizona; for Respondents-Appellants.
4 CRESPIN V. RYAN

Molly Brizgys (argued), Mitchell Stein Carey Chapman PC, 

Phoenix, Arizona; Karen S. Smith, Arizona Justice Project, 

Phoenix, Arizona; for Petitioner-Appellee. 

OPINION

HURWITZ, Circuit Judge:

In 1995 Freddie Crespin was charged in Arizona with 

first-degree murder. The crime was committed when 

Crespin was sixteen years old, but because the Supreme 

Court had not yet held that the death penalty could not be 

imposed on defendants younger than eighteen when the 

crime occurred, see Roper v. Simmons, 543 U.S. 551 (2005), 

Crespin faced a possible capital sentence if convicted. To 

avoid that possibility, he entered into a plea agreement under 

which he agreed to a sentence of life without the possibility 

of parole (“LWOP”). After the Supreme Court decided in 

Miller v. Alabama, 567 U.S. 460 (2012), that the imposition 

of LWOP for those convicted of a crime committed while 

under the age of eighteen violated the Eighth Amendment 

under some circumstances, Crespin unsuccessfully sought 

post-conviction relief (“PCR”) in Arizona state court. He 

then filed a 28 U.S.C. § 2254 habeas corpus petition, and the 

district court granted a conditional writ. We affirm.

I.

Betty Janecke was murdered in Apache Junction, 

Arizona in 1995. Crespin was promptly arrested with 

several others and charged with numerous crimes, including 

first-degree murder. At the time, Arizona law provided three 

possible sentences for those convicted of first-degree 

murder: death, LWOP, or life with the possibility of release. 
CRESPIN V. RYAN 5

Ariz. Rev. Stat. § 13-703(A) (1998).1 To avoid the 

possibility of a death sentence, Crespin pleaded guilty to 

first-degree murder; the plea agreement required an LWOP 

sentence. The plea agreement waived Crespin’s “right to 

appeal the judgment and sentence to a higher court.”

The state trial judge twice accepted the plea agreement, 

first in March 1998 and again in September 1998.2 At the 

September hearing the judge stated that “the sentence that’s 

provided, no matter what testimony is presented on your 

behalf, and I know [your lawyer] wants your family 

members to talk to me, once I’ve accepted the plea 

agreement, you’ll receive a life sentence, which is natural 

life sentence with no possibility of parole, commutation of 

sentence, et cetera.” The court also emphasized that “there 

is no sentence to be given other than what’s called for in the 

plea agreement.”

The court then nonetheless allowed Crespin’s mother to 

speak. She stated that Crespin was a “wonderful son,” an 

1 Because Arizona had abolished parole, see State v. Vera, 334 P.3d 

754, 758–59 (Ariz. Ct. App. 2014), the only possibility of release for 

those sentenced to the third alternative was executive clemency, see State 

v. Wagner, 510 P.3d 1083, 1084 (Ariz. Ct. App. 2022). Arizona law was 

subsequently amended to make all defendants convicted of first-degree 

murders committed while under the age of eighteen previously sentenced 

to life with the possibility of release eligible for parole. Ariz. Rev. Stat. 

§ 13-716.

2 After the trial court accepted the plea agreement in March 1998, 

new counsel filed a motion to vacate that order, arguing it was the result 

of undue pressure from previous counsel. Crespin subsequently 

withdrew the motion to vacate and the trial court confirmed at the 

September hearing that Crespin wanted to go forward with it, had spoken 

to his attorney about his rights, and was aware of the agreed-upon 

sentence.
6 CRESPIN V. RYAN

“honor roll student,” “never a violent person,” and that he 

would have never committed the murder if he had not been 

“under the influence of Barry and under the influence of 

drugs.” In response, the court told Ms. Crespin that it had 

read letters that had been submitted on Crespin’s behalf, 

including one from his school principal, but reiterated that 

“there is no option on the nature of the sentence.” After 

asking counsel and the probation officer whether the 

imposition of LWOP was “justified,” the Court stated:

Mr. Crespin, what I’ve done is previously 

accepted your plea agreement and made a 

finding, which I’ll make again, that you are 

guilty of the offense of murder in the first 

degree, in violation of A.R.S. 13-1105, 13-

1101, 13-703, and 13-801, a class 1 

dangerous felony.

The punishment provided for that offense 

only consists of three alternative sentences. 

And pursuant to the recommendations of the 

presentence report, your plea agreement and 

my independent view of the underlying facts 

of this offense, which is set forth in the 

official version of the presentence report, and 

my independent review of the provisions of 

A.R.S. 13-703, including mitigating and 

aggravating factors, I’m not going to 

specifically list those here today, but I will 

find that the aggravating factor of the nature 

of this murder, that is that it was heinous and 

cruel, that effect in itself is reason for 

imposing the second highest of the three 

penalties allowed and that is provided in your 

plea agreement.
CRESPIN V. RYAN 7

So as punishment, sir, I am going to order that 

you serve a life term in the Arizona 

Department of Corrections with no 

possibility of parole or release until the 

completion of your natural life.

The court then confirmed that Crespin understood he could 

not “file a direct appeal to a higher Court,” but noted that 

Crespin had not given up his “right to file a petition for postconviction relief.”

After the Supreme Court decided Miller, Crespin filed a 

PCR petition in the Superior Court pursuant to Arizona Rule 

of Criminal Procedure 32, arguing that his LWOP sentence 

was unconstitutionally imposed. The Superior Court denied 

the petition. Crespin then filed a discretionary petition for 

review in the Arizona Court of Appeals. See Ariz. R. Crim. 

P. 32.16. That court granted review but denied relief in an 

unpublished memorandum. State v. Crespin, No. 2 CA-CR 

2014-0254-PR, 2014 WL 7345697, at *3 (Ariz. Ct. App. 

Dec. 26, 2014). In relevant part, the court held that the 

LWOP sentence was constitutional because it was “clear 

from the record the court not only understood there were 

multiple sentencing options for first-degree murder, but that 

it considered those options in the context of Crespin’s 

character, age and the nature of the offense before deciding 

if it would accept the plea agreement.” Id. Because the 

sentencing court “had the discretion to reject the plea 

agreement if it deemed the stipulated sentence 

inappropriate,” the Court of Appeals perceived no Miller

error. Id. The Arizona Supreme Court denied a petition for 

review.

In 2015, Crespin filed a 28 U.S.C. § 2254 habeas corpus

petition. While that petition was pending, the Supreme 
8 CRESPIN V. RYAN

Court held that the Miller rule was retroactive. Montgomery 

v. Louisiana, 577 U.S. 190 (2016). The district court then 

granted a conditional writ. See Crespin v. Ryan, No. CV-15-

00992-PHX-SPL (ESW), 2016 WL 10519137, at *9 

(D. Ariz. Oct. 21, 2016). This timely appeal followed.

We have jurisdiction under 28 U.S.C. §§ 1291 and 

2253(a). Because Crespin’s habeas corpus petition was filed 

after the effective date of the Anti-Terrorism and Effective 

Death Penalty Act of 1996 (“AEDPA”), we may grant relief 

only if the decision of the Arizona Court of Appeals was: 

(1) “contrary to, or involved an unreasonable application of, 

clearly established federal law, as determined by the 

Supreme Court of the United States;” or (2) “based on an 

unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.” 28 U.S.C. 

§ 2254(d).

II.

Miller held that sentencing schemes requiring LWOP 

sentences for juveniles convicted of homicide violate the 

Eighth Amendment. See 567 U.S. at 489. The Court did not 

outright “foreclose a sentencer’s ability to [impose LWOP 

on juveniles] in homicide cases,” but required that the 

sentencer be able to “take into account how children are 

different, and how those differences counsel against 

irrevocably sentencing them to a lifetime in prison.” Id.

at 480. The Court characterized this as an “individualized 

consideration” and stated that “appropriate occasions for 

sentencing juveniles to this harshest possible penalty will be 

uncommon.” Id. at 479–80.

In making the Miller rule retroactive, Montgomery

emphasized that it was not only procedural, but also 

substantive. See 577 U.S. at 209. Reinforcing the language 
CRESPIN V. RYAN 9

of Miller, the Court stated that LWOP is inappropriate “for 

all but the rarest of juvenile offenders.” Id. Montgomery

stressed that a sentencer must not only “consider a juvenile 

offender’s youth and attendant characteristics before 

determining that life without parole is a proportionate 

sentence,” id. at 209–10, but also the offender’s capacity for 

change, and that LWOP should only be imposed on an 

offender “whose crimes reflect permanent incorrigibility,”

id. at 209, not on “a child whose crime reflects unfortunate 

yet transient immaturity,” id. at 208 (cleaned up).

However, Jones v. Mississippi, 141 S. Ct. 1307, 1321 

(2021), while expressly disclaiming that it was overruling 

either Miller or Montgomery, narrowed the potential sweep 

of those decisions. The Court explained that under Miller, 

“an individual who commits a homicide when he or she is

under 18 may be sentenced to life without parole, but only if 

the sentence is not mandatory and the sentencer therefore has 

discretion to impose a lesser punishment.” Id. at 1311. The 

Court stressed that Miller “mandated only that a sentencer 

follow a certain process—considering an offender’s youth 

and attendant characteristics—before imposing” LWOP and 

did not require a factual finding that a defendant is 

permanently incorrigible or an “on-the-record sentencing 

explanation with an implicit finding that the defendant is 

permanently incorrigible.” Id. (cleaned up). The “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.

Since Jones, we have twice addressed juvenile LWOP 

sentences in published opinions. In United States v. Briones, 
10 CRESPIN V. RYAN

we affirmed an LWOP sentence imposed at a post-Miller

resentencing hearing. 35 F.4th 1150, 1153, 1159 (9th Cir. 

2021). We rejected the argument that Miller required a 

finding of incorrigibility before LWOP could be imposed, 

emphasizing that “a ‘discretionary sentencing system is both 

constitutionally necessary and constitutionally sufficient,’ 

because such discretion ‘suffices to ensure individualized 

consideration of a defendant’s youth.’” Id. at 1156 (quoting 

Jones, 141 S. Ct. at 1313, 1321). Briones’s hearing, at which 

the judge explained he considered the defendant’s youth, 

therefore was constitutional because “a sentencer with 

discretion to consider youth ‘necessarily will consider’ it, 

‘especially if,’—as here—‘defense counsel advance[d] an 

argument based on the defendant’s youth.’” Id. (quoting 

Jones, 141 S. Ct. at 1319). And in Jessup v. Shinn, we 

explained that 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.” 

31 F.4th 1262, 1266 (9th Cir. 2022). We held that Jessup’s 

sentencing hearing did not violate Miller because the 

sentencing judge considered the petitioner’s “age and other 

relevant considerations” before concluding that he did not 

warrant any form of release. Id. at 1267.

III.

The state first contends that Crespin’s plea agreement 

waived any habeas Miller challenge and that, in any event, 

Miller does not apply when a defendant chooses to forego 

the opportunity to argue that mitigating evidence requires a 

non-LWOP sentence by agreeing to a stipulated sentence. 

The Arizona Court of Appeals did not address waiver, so 

AEDPA deference does not apply to our analysis of this 
CRESPIN V. RYAN 11

issue. See Frantz v. Hazey, 533 F.3d 724 (9th Cir. 2008). 

We find no waiver.

The starting point is, of course, Crespin’s plea 

agreement. That agreement only waived the right to appeal 

“the judgment and sentence to a higher court.” As the trial 

court explained, this meant Crespin could not “file a direct 

appeal to a higher Court,” but had not given up his “right to 

file a petition for post-conviction relief.” Indeed, in so 

providing, the agreement simply echoed Arizona law. A 

defendant pleading guilty in a noncapital case in Arizona 

does not have the right to appeal a sentence or conviction. 

See Ariz. Rev. Stat. § 13-4033(B); Ariz. R. Crim. P. 17.1(e). 

Any such challenges must be instead pursued through an 

“of-right” PCR proceeding. See Ariz. R. Crim. P. 32.1; State 

v. Shrum, 203 P.3d 1175, 1177 (Ariz. 2009). That is what 

Crespin did here.

We have made “clear . . . that a waiver of collateral 

attack must be express, and that a plain waiver of appeal does 

not suffice.” Lemke v. Ryan, 719 F.3d 1093, 1096 (9th Cir. 

2013) (holding that a waiver that did “not mention collateral 

attack” did not bar a § 2254 petition). Moreover, a

waiver of the right to appeal a sentence does 

not apply if (1) the defendant raises a 

challenge that the sentence violates the 

Constitution; (2) the constitutional claim 

directly challenges the sentence itself; and 

(3) the constitutional challenge is not based 

on any underlying constitutional right that 

was expressly and specifically waived by the 

appeal waiver as part of a valid plea 

agreement.
12 CRESPIN V. RYAN

United States v. Wells, 29 F.4th 580, 587 (9th Cir. 2022). 

Thus, the plea agreement did not waive Crespin’s right to 

pursue a PCR challenge of his sentence.

Nor did Crespin’s guilty plea waive his ability to 

collaterally attack the constitutionality of his LWOP 

sentence. The general bar on collaterally attacking guilty 

pleas is “predicated on the idea that a valid guilty plea 

removes the issue of factual guilt from the case.” Lemke, 

719 F.3d at 1097 (cleaned up). But Crespin does not 

challenge his conviction, only his sentence. The cases the 

State relies upon, Brady v. United States, 397 U.S. 742, 752–

53 (1970), and Dingle v. Stevenson, 840 F.3d 171, 173 (4th 

Cir. 2016), involved challenges to unconstitutional 

convictions.

3

Moreover, a defendant cannot voluntarily and 

intelligently waive a constitutional right of which he is 

unaware. See Iowa v. Tovar, 541 U.S. 77, 81 (2004) 

(“Waiver . . . of constitutional rights in the criminal process 

generally, must be a knowing, intelligent act done with 

sufficient awareness of the relevant circumstances.”) 

(cleaned up); see also Johnson v. Zerbst, 304 U.S. 458, 464 

(1938) (stating that waiver is an “intentional relinquishment 

or abandonment of a known right or privilege”). Crespin 

was of course unaware of the Eighth Amendment right 

announced in Miller when he entered into the plea 

agreement, let alone that he could not be sentenced to death 

under the not-yet announced rule of Roper. See Stevens v. 

3 United States v. Abarca, 985 F.2d 1012 (9th Cir. 1993), also cited 

by the State, is not to the contrary. Abarca waived an appeal of his 

federal conviction on the condition he receive a Guidelines sentence and 

then argued on habeas that he should have received a lesser one. Id. 

at 1013–14. In federal court, unlike Arizona, a defendant may directly 

appeal a sentence. See 18 U.S.C. § 3742.
CRESPIN V. RYAN 13

State, 422 P.3d 741, 748 (Okla. Crim. App. 2018) (stating 

that the petitioner “could not have been aware that he had the 

right to an individualized sentencing hearing because this 

right was not recognized until the Supreme Court announced 

it in Miller”), overruled on other grounds by White v. State, 

499 P.3d 762 (Okla. Crim. App. 2021).

The Fourth Circuit has declined to find waiver under 

identical circumstances. See Malvo v. Mathena, 893 F.3d 

265, 277 (4th Cir. 2018), abrogated on other grounds by 

Jones, 141 S. Ct. at 1313. Malvo had entered into a plea 

agreement with a stipulated LWOP sentence that waived his 

right to “appeal any decisions made by” the trial court. Id.

at 270. The Fourth Circuit noted that there was no “express 

waiver of Malvo’s right to challenge the constitutionality of 

his sentence in a collateral proceeding in light of future 

Supreme Court holdings.” Id. at 277. The court also 

“decline[d] to hold that Malvo implicitly waived his right to 

argue, based on intervening Supreme Court holdings, that his 

sentences were ones that the State could not constitutionally 

impose on him.” Id. (citing Class v. United States, 138 S. 

Ct. 798, 804–05 (2018)). We find no reason to reach a 

different conclusion here and therefore turn to the merits of 

Crespin’s Miller claim.4

4 We question whether an express waiver of Miller rights would be

enforceable. See Malvo, 893 F.3d at 276 (“[I]t is far from clear that a 

broad waiver of a substantive constitutional right . . . would even be 

enforceable.”); Stevens, 422 P.3d at 747 (reasoning that, even when a 

defendant pleads guilty, “after Miller, a court is without the power to 

sentence a juvenile offender to life without the possibility of parole 

without the benefit of an individualized sentencing hearing”). But we 

need not today decide the issue.
14 CRESPIN V. RYAN

IV.

“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. The hearing 

does not replace but rather gives effect to Miller’s 

substantive holding.” Montgomery, 577 U.S. at 210 (citation 

omitted). As Jones emphasized, a sentencer must “follow a 

certain process—considering an offender’s youth and 

attendant characteristics—before imposing” an LWOP 

sentence. 141 S. Ct. at 1311.

Crespin’s sentencing did not comply with these critical 

requirements. Indeed, the sentencing judge recognized as 

much. He repeatedly stated that because he had previously 

approved a plea agreement providing for LWOP, nothing 

presented at the sentencing hearing could affect Crespin’s 

sentence. The judge recognized that accepting the plea 

agreement automatically determined the sentence, no matter 

what Crespin’s “attendant characteristics” might be.

The Arizona Court of Appeals nonetheless found that 

because the trial court had the discretion to reject the plea 

agreement if it found the stipulated sentence inappropriate, 

and the judge was aware of Crespin’s youth and the 

circumstances of the crime before accepting the agreement, 

Crespin’s Miller rights were not violated. This was an 

unreasonable application of Miller.

The sentencing judge of course had the discretion under 

Arizona law to either accept or reject the plea agreement. 

See Ariz. R. Crim. P. 17.4(d); Espinoza v. Martin, 894 P.2d 

688, 690 (Ariz. 1995) (requiring a judge to “consider the 

merits of [a plea] agreement in light of the circumstances of 

the case” and “exercise his or her discretion with regard to 
CRESPIN V. RYAN 15

that agreement”); State v. Superior Ct., 611 P.2d 928, 930 

(Ariz. 1980) (explaining that a court must “review the plea 

agreement to see if the ends of justice and the protection of 

the public are being served by such agreement”). The issue 

before us, however, is not whether the trial judge complied 

with state law, but rather whether the procedural and 

substantive requirements of Miller were satisfied.

They were not. The trial judge simply considered 

whether the stipulated LWOP sentence could be “justified.” 

Miller requires more. Under Miller, a sentencer must also 

have the discretion to impose a lesser sentence than LWOP. 

Jones, 141 S. Ct. at 1311. The trial judge made it clear that 

he did not have this discretion, warning Crespin that it did 

not matter what testimony was presented on his behalf and 

telling Crespin’s mother that no matter what she might say, 

there was “no sentence to be given other than what’s called 

for the in the plea agreement.” Although the judge had the 

discretion to determine whether this was a plea agreement 

that he could accept, he did not have the discretion to choose 

which sentence he felt was best for Crespin. See Malvo, 

893 F.3d at 276 (granting habeas relief despite state court’s 

power to accept or reject the plea agreement). Indeed, if the 

judge rejected the agreement, he could not have given 

Crespin a non-LWOP sentence; the most he could have done 

without the consent of the parties was reject the guilty plea 

and proceed to trial. See State v. Oatley, 847 P.2d 625, 626–

27 (Ariz. Ct. App. 1993). Because the judge quite correctly 

recognized that his only sentencing option was LWOP, 

Crespin’s sentencing violated the Eighth Amendment.

C.

To warrant habeas relief, the constitutional error must 

have “had a substantial and injurious effect or influence” on 

Crespin’s sentence. Brecht v. Abrahamson, 507 U.S. 619, 
16 CRESPIN V. RYAN

637 (1993) (cleaned up). “There must be more than a 

‘reasonable possibility’ that the error was harmful.” Davis 

v. Ayala, 576 U.S. 257, 268 (2015) (quoting Brecht, 507 U.S. 

at 637).

The State argues that Crespin cannot show the required 

prejudice because of the serious nature of his crime, his lack 

of remorse, and findings of psychologists that he would 

likely murder again if given the opportunity. But, because 

of the plea agreement, Crespin had no reason to present 

evidence arguing for a lesser sentence, particularly because 

rejection of the agreement would have put him in jeopardy 

of a death sentence. And, even on the thin record of this 

case, there was evidence that might have supported a lesser 

sentence. Crespin was only 16 when the crime was 

committed. His mother testified that Crespin had 

succumbed to negative peer influences, and his principal 

explained that Crespin was an “adolescent rebel” with 

“tremendous potential.” The trial judge, however, was not 

free to give weight to these facts and others under the plea 

agreement. There is thus at least a “reasonable possibility” 

that a sentencing proceeding conducted in accordance with 

Miller’s requirements would result in a non-LWOP 

sentence.

AFFIRMED.