United States Court of Appeals

for the Fifth Circuit

No. 19-20643

United States of America, 

Plaintiff—Appellee,

versus

Jose Leonel Bonilla-Romero, also known as Jose Tupapa, 

Defendant—Appellant.

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:14-CR-245-3

Before Owen, Chief Judge, and Dennis and Haynes, Circuit Judges.

Haynes, Circuit Judge:

Appellant Jose Leonel Bonilla-Romero was involved in a gang-related 

murder when he was seventeen years old. He was charged with and pleaded 

guilty to first-degree murder under 18 U.S.C. § 1111(b). While a person 

convicted of first-degree murder under § 1111(b) “shall be punished by death 

or by imprisonment for life,” a defendant who was under the age of eighteen 

at the time of the offense, such as Bonilla-Romero, cannot be sentenced to 

death or mandatory life imprisonment, see Miller v. Alabama, 567 U.S. 460, 

479 (2012) (holding mandatory life without parole unconstitutional for 

juveniles); Roper v. Simmons, 543 U.S. 551, 575 (2005) (holding the same for 

United States Court of Appeals

Fifth Circuit

FILED

December 30, 2020

Lyle W. Cayce

Clerk

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No. 19-20643

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the death penalty). In order to resolve this constitutional defect, the district 

court severed § 1111(b)’s punishment provision for first-degree murder, 

determined that the statute-as-modified authorizes imprisonment “for any 

term of years or for life,” and accordingly sentenced Bonilla-Romero to a 

term of imprisonment of 460 months. For the reasons set forth below, we 

AFFIRM.

I. Background

As a teenager, Bonilla-Romero became involved with a gang. Related 

to their gang involvement, Bonilla-Romero and two other gang members 

“killed Josael Guevara by striking him with a bat and a machete.” At the time 

of the murder, Bonilla-Romero was seventeen years old—a minor. 

The Government filed proceedings against Bonilla-Romero under the 

Juvenile Justice and Delinquency Prevention Act, 18 U.S.C. §§ 5031–42. In 

a “Juvenile Information” charging document, the Government alleged that 

Bonilla-Romero killed Guevara “with premeditation and malice 

aforethought . . . which would have been a crime in violation of [18 U.S.C. § 

1111] if he had been an adult.” The Government moved to transfer the 

proceedings against Bonilla-Romero to adult criminal prosecution. The 

district court granted the motion and noted, among other factors warranting 

transfer, that Bonilla-Romero was only three months shy of his eighteenth 

birthday at the time of the offense, that the alleged murder “was particularly 

brutal,” and that Bonilla-Romero exhibited sufficient maturity to be tried as 

an adult.

Bonilla-Romero appealed the transfer of his case to adult proceedings. 

A previous panel of this court stayed the appeal “for the limited purpose of 

plea proceedings.” Back at the district court, Bonilla-Romero entered into a 

plea agreement with the Government that included a sentence of “no more 

than 30 years” of imprisonment and “a term of supervised release after 

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imprisonment of up to five years.” The district court, however, rejected the 

plea agreement. His plea agreement rejected, Bonilla-Romero withdrew his 

plea of guilty. But later, he again pleaded guilty. During the plea colloquy, 

the court asked Bonilla-Romero, “Have you talked with your lawyer . . . about 

what the maximum penalties are for the offense charged against you in the 

Superseding Indictment?” Bonilla-Romero answered affirmatively. The 

court also explained:

Now, under Section 1111 of Title 18, which is the federal 

murder statute, the offense of murder in the first degree, which 

is charged here, carries a maximum sentence of death and a 

minimum sentence of life in prison.

Because you had not quite attained the age of 18 when the 

crime was committed and are being tried as an adult, under the 

United States Constitution, you’re not eligible for the death 

penalty or for a mandatory sentence of life imprisonment.

Therefore, in reading the punishments prescribed for murder, 

in the murder statute, Section 1111(b), the Court must sever 

and omit those words in the punishment language. That would 

be unconstitutional, if applied to you, because of your age at the 

time of the crime. When the Court does that, the offense—the 

offense of murder in the first degree committed at the time—

committed by one who, at the time of the murder, had not 

attained 18 years of age and is tried as an adult, carries with it 

the following punishment: 

The sentence of imprisonment for any term of years or for life; 

a fine not to exceed $250,000; a term of not more than five 

years of supervised release; and a special assessment of $100.

Bonilla-Romero then pursued his interlocutory appeal. Sealed Appellee 

1 v. Sealed Juvenile 1, No. 15-20262, slip op. at 3 (5th Cir. Mar 9, 2018), cert. 

denied, 139 S. Ct. 1258 (2019). Another panel of this court dismissed the 

interlocutory appeal since sentencing had not yet occurred; in dismissing the 

appeal, the panel noted that Bonilla-Romero “raised an important 

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constitutional question that may deserve a thorough review when the 

appropriate time comes.” Id. at 5.

Prior to the sentencing hearing, as part of Bonilla-Romero’s 

presentence investigation report (“PSR”), the probation officer provided 

that the statutory provision allowed for “[a]ny term of years up to and 

including Life” and that Bonilla-Romero’s guideline range—based on an 

offense level of 43 and criminal history category of I—was life imprisonment. 

The probation officer recommended that, after applying a downward 

variance “given the defendant’s age at the time of the offense” and 

accounting for time served in custody, Bonilla-Romero be sentenced to 578 

months’ imprisonment. The Government filed a sentencing memorandum 

requesting that the district court “sentence Bonilla-Romero to 35 years or 

more of incarceration.”

Bonilla-Romero objected to the PSR’s determination that he was 

subject to a term of imprisonment up to and including life, noting that 18 

U.S.C. § 1111(b) allows for first-degree murder to be punished only with 

mandatory life imprisonment or death but that juveniles may not receive 

those sentences. At the sentencing hearing, the district court explained that 

“[t]he question is whether there is any valid portion of Section 1111(a) [that 

when] applied to juveniles . . . would function independently, and in a 

manner consistent with the intent of Congress.” In this case, because “the 

maximum penalty is authorized” by statute and no provision exists for “less 

than [a] life sentence,” a “gap” had been “left open.” The court further 

explained that “[i]n the absence of more specific and constitutional guidance 

from Congress,” a statute authorizing only a maximum penalty “provid[es] 

discretion to the sentencing judge to sentence anywhere between no penalty, 

and the maximum penalty.” For these reasons, the court overruled BonillaRomero’s objection.

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The district court ultimately sentenced Bonilla-Romero to 460 

months of imprisonment (thirty-eight years and four months), followed by 

five years of supervised release. Bonilla-Romero timely appealed the district 

court’s judgment.

II. Jurisdiction and Standard of Review

The district court had jurisdiction over this case under 18 U.S.C. 

§ 3231, and we have jurisdiction over Bonilla-Romero’s timely appeal under 

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review constitutional 

challenges de novo. United States v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir. 

2000). 

III. Discussion

On appeal, Bonilla-Romero raises two challenges to his conviction. 

First, he contends that the district court unconstitutionally fashioned a new 

punishment for first-degree murder committed by juveniles, violating the 

Due Process Clause’s notice requirement and separation-of-powers doctrine.

Second, he asserts that the district court violated the Due Process Clause and 

Federal Rule of Criminal Procedure 11 by failing to specify his potential 

sentencing range at his plea hearing. Neither of Bonilla-Romero’s challenges 

succeed. 

A. Punishment Provision Challenge

18 U.S.C. § 1111(a) creates two categories of murder. First-degree 

murder features an aggravating characteristic, such as being perpetrated “by 

poison, lying in wait, or any other kind of deliberate, malicious, and 

premediated killing.” 18 U.S.C. § 1111(a). Second-degree murder 

encompasses all murder not in the first degree. Id. Although § 1111(b)

authorizes a sentence of “imprison[ment] for any term of years or for life”

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for second-degree murder, §1111(b) sets forth a minimum and maximum 

sentence prescribing that first-degree murder “be punished by death or 

imprisonment for life.” Id. § 1111(b). As the Government concedes, as a 

result of the Court’s rulings in Miller and Roper, a death sentence is not 

available for juveniles. A mandatory life sentence without possibility of 

parole is also proscribed.

The Supreme Court recently restated that when a portion of a statute 

is unconstitutional, “the traditional rule is that the unconstitutional 

provision must be severed unless the statute created in its absence is 

legislation that Congress would not have enacted.” Seila Law LLC v. 

Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2209 (2020) (internal quotation 

marks and citation omitted). Nothing suggests that Congress would not have 

enacted a murder statute covering juveniles if it had foreseen the rulings in 

Miller and Roper. Thus, the focus here must be on the proper remedy. 

We conclude that it is appropriate to sever as necessary. The question 

then becomes which portions of § 1111 must be excised and which must be 

retained. United States v. Booker provides the framework: “we must retain 

those portions of [§ 1111] that are (1) constitutionally valid, (2) capable of 

functioning independently, and (3) consistent with Congress’ basic 

objectives in enacting the statute.” 543 U.S. 220, 258–59 (2005) (cleaned 

up). At the same time, “we must refrain from invalidating more of the statute 

than is necessary.” Id. at 258 (internal quotation marks and citation omitted). 

Roper requires that we strike § 1111(b)’s authorization of the death 

penalty for juveniles, and Miller requires that we do the same for its 

mandatory minimum of life imprisonment. Yet we need not go further; 

under Miller, juveniles may be sentenced to life imprisonment, provided that 

the sentencer adequately considers the offender’s youth. 567 U.S. at 479–80 

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(noting that “appropriate occasions for sentencing juveniles to this harshest 

penalty will be uncommon”). 

As currently drafted, § 1111(b) provides a statutory maximum of death 

for first-degree murder and a statutory minimum of life imprisonment

without parole.1 Under Roper, the death penalty must be discarded, leaving 

life imprisonment as both the statutory maximum and minimum. Because

Miller in turn prohibits mandatory life without parole sentences for juveniles, 

all that remains of the punishment provision is a statutory maximum of life 

imprisonment. Where Congress only provides a statutory maximum, the 

district court has discretion to impose no penalty or any penalty up to that 

maximum. Cf. United States v. Turner, 389 F.3d 111, 120 (4th Cir. 2004) 

(holding that when Congress fails to provide a statutory maximum, it “gives 

maximum discretion to the sentencing court,” such that “the maximum is 

life imprisonment”); United States v. Wright, 812 F.3d 27, 33 (1st Cir. 2016) 

(holding the same). Thus, excising the mandatory minimum nature of the 

life sentence is all that is needed to satisfy the constitutional issue for 

juveniles under § 1111.

Another way to address the issue is to substitute the punishment 

provision for second-degree murder in this case because, under § 1111’s 

scheme, all of the elements of second-degree murder must be met to be 

convicted of first-degree murder.2 Either approach yields the result reached 

1

 A federal life sentence is a sentence of life imprisonment without parole because 

parole is no longer available in the federal system. Richmond v. Polk, 375 F.3d 309, 316 (4th 

Cir. 2004) (citing the Sentencing Reform Act of 1984, Pub. L. No. 98-473, Title II, 98 Stat. 

1987). 

2 First-degree murder is a murder plus the heightened state-of-mind element 

(willfulness, deliberateness, maliciousness, or premeditation). See 18 U.S.C. § 1111(a). 

Second-degree murder is any other murder. Id. Therefore, any offense that satisfies the 

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by the district court: that Bonilla-Romero shall be punished by imprisonment 

“for any term of years or for life.”

The district court’s remedy complies with Roper and Miller, functions 

independently, and is consistent with Congress’s clear intent to criminalize 

“the unlawful killing of a human being with malice aforethought,” 18 U.S.C. 

§ 1111(a). Nevertheless, Bonilla-Romero contends that the district court’s 

solution is still unconstitutional, relying on United States v. Evans, 333 U.S. 

483 (1948), and United States v. Under Seal, 819 F.3d 715 (4th Cir. 2016), for 

the proposition that the Government cannot retroactively graft a lesser 

penalty onto an indicted charge. 

Evans presented “an unusual and a difficult problem”: the statute at 

issue criminalized both smuggling and harboring aliens, but it provided a 

punishment only for smuggling. 333 U.S. at 484. Because the statutory 

scheme resulted in doubt and ambiguity, the Supreme Court declined to 

apply the smuggling penalty to a harboring offense. Id. at 489, 495. Here, 

however, the statutory scheme is not ambiguous. The scheme makes clear 

that any killing of a human being with malice aforethought is illegal and 

punishable by a term of imprisonment; and if the offender’s conduct was 

willful, deliberate, malicious, or premediated, then an increased penalty 

applies. See 18 U.S.C. § 1111. Because the offenses and corresponding 

punishments are clear under the statutory scheme, the instant case does not 

raise the “unusual” problem that was at issue in Evans. 

In Under Seal, the district court denied the Government’s motion to 

try the defendant—a juvenile accused of murder in aid of racketeering—as 

an adult because the racketeering statute carried a mandatory penalty of 

elements for first degree murder necessarily satisfies those for second-degree murder as 

well.

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either life imprisonment or death. 819 F.3d at 717. The Fourth Circuit 

affirmed the district court’s decision because a “conviction would require 

the court to impose an unconstitutional sentence.” Id. at 728. The Fourth 

Circuit reasoned that, under the structure of the racketeering statute, there 

was no punishment that could be applicable to the juvenile. Id. The provision 

at issue, 18 U.S.C. § 1959(a)(1), contained one penalty for racketeeringrelated murder (life imprisonment or death), which could not be imposed on 

a juvenile, and another for racketeering-related kidnapping (imprisonment for 

any term of years or life). See id. at 723–24. The Fourth Circuit declined to 

“combine the penalty provisions for two distinct criminal acts.” Id. at 724. 

Therefore, “[t]he penalty enacted for the kidnapping-based offense [could 

not] simply be interchanged with and applied to the murder-based offense, as 

these . . . [have] distinct elements.” Id. Grafting the kidnapping penalty onto 

a murder offense would “run[] counter to the Constitution’s guarantee of 

due process” because the statute does not provide notice that any other 

penalty could be applicable for the murder. Id. at 726. 

Under Seal is also distinguishable from the instant case. As discussed 

above, an offense that meets the elements for first-degree murder would also 

satisfy the elements for second-degree murder. With that aspect of the 

statutory scheme in mind, the statute provides notice that the conduct of 

murder could result in a term of imprisonment for any term of years. See 18 

U.S.C. § 1111(b).

Bonilla-Romero also insists that the district court’s solution violates 

the separation-of-powers doctrine because it applies the penalty Congress 

intended for second-degree murder to first-degree murder. Yet by deleting

any penalty for juvenile first-degree murderers, Bonilla-Romero’s approach

would completely frustrate the will of Congress by placing juveniles who 

committed the most heinous murders in a better position than those who 

committed second-degree murder. Thus, we conclude that BonillaCase: 19-20643 Document: 00515689366 Page: 9 Date Filed: 12/30/2020
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Romero’s challenges to the district court’s construction of § 1111(b)’s 

punishment provision fail.

B. Plea Hearing Challenge

Bonilla-Romero also challenges the district court’s supposed failure 

to specify his sentencing range at his plea hearing. Under the Due Process 

Clause and Federal Rule of Criminal Procedure 11, when a guilty plea is 

accepted, the court must inform the defendant of the consequences of his 

plea, including the maximum possible penalty and any mandatory minimum 

sentence. See Fed. R. Crim. P. 11(c)(1); see also United States v. Pearson, 

910 F.2d 221, 222–23 (5th Cir. 1990). As long as a defendant is advised of 

and understands the consequences of his plea, the plea is knowing and 

voluntary. Pearson, 910 F.2d at 223.

At the plea hearing, the district court provided notice of BonillaRomero’s sentencing considerations in detail, as set forth above. It made 

clear that his offense typically resulted in a penalty of mandatory life 

imprisonment or death but that, because of his youth at the time of the 

offense, Bonilla-Romero would be eligible for a “sentence of imprisonment 

for any term of years or for life” and “a fine not to exceed $250,000.” Thus, 

Bonilla-Romero was informed of the maximum penalty that he faced. 

Moreover, no mandatory minimum applied. The transcript of BonillaRomero’s plea hearing demonstrates that the court properly notified him of 

the consequences of a guilty plea and, accordingly, that Bonilla-Romero’s 

plea was knowing and voluntary. Therefore, this challenge also fails.

Accordingly, we AFFIRM.

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