United States v. Grant

9 F.4th 186

UNITED STATES of America

v.Corey GRANT, Appellant

No. 16-3820

United States Court of Appeals, Third Circuit.

Argued October 26, 2017 Merits Panel

Argued February 20, 2019 En Banc

Filed August 16, 2021

Lawrence S. Lustberg [ARGUED], Avram D. Frey, Gibbons PC, One Gateway Center, Newark, NJ 07102, Counsel for Appellant Corey Grant

Marsha L. Levick [ARGUED], Juvenile Law Center of Philadelphia, 1800 John F. Kennedy Boulevard, Suite 1900B, Philadelphia, PA 19103, Counsel for Amicus Appellant Juvenile Law Center

Jon M. Greenbaum, Lawyers Committee for Civil Rights Under Law, 1500 K Street, N.W., Suite 900, Washington, D.C. 20005, Counsel for Amicus Appellant Lawyers Committee for Civil Rights Under Law

Elana Bildner, American Civil Liberties Union, 765 Asylum Avenue, 1st Floor, Hartford, CT 06105, Counsel for Amicus Appellant Juvenile Sentencing Project

Jennifer Merrigan, Phillips Black, 1901 South 9th Street, Suite 510, Philadelphia, PA 19148, Counsel for Amicus Appellants Alison Flaum, Shobha L. Mahadev, and Jenny Carroll

Bruce P. Keller [ARGUED], Mark E. Coyne, Office of the United States Attorney, 970 Broad Street, Room 700, Newark, NJ 07102, Counsel for Appellee United States of America

Before: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., KRAUSE, RESTREPO, BIBAS, and PORTER, Circuit Judges

OPINION OF THE COURT

SMITH, Chief Judge, with whom CHAGARES, JORDAN, HARDIMAN, KRAUSE, BIBAS, and PORTER, Circuit Judges, join. McKEE and AMBRO, Circuit Judges, join except with respect to Section III.B. GREENAWAY, JR., Circuit Judge, joins except with respect to Section III.A.

A federal court jury convicted Corey Grant in 1992 of homicide and other crimes that he had committed while he was a juvenile. The presiding judge sentenced Grant to life imprisonment under the then-mandatory U.S. Sentencing Guidelines. Parole is unavailable to those convicted of federal crimes,¹ so the sentence effectively condemned Grant to die in prison—with proof of circumstances warranting compassionate release his only hope.

In 2012, the Supreme Court of the United States decided Miller v . Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which held that the Eighth Amendment permits a life-without-parole ("LWOP") sentence for a juvenile homicide offender only if the sentencer could have imposed a lesser punishment based on the offender's youth at the time of the offense. Later, the Court made Miller retroactive to cases on collateral review. Montgomery v . Louisiana , 577 U.S. 190, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). Because Grant's LWOP sentence was imposed mandatorily, Miller entitled him to a new sentencing.

At resentencing, the District Judge noted Grant's minority at the time of his crimes and recognized that youth can impair judgment and thereby mitigate culpability. The Judge stated that a life sentence for Grant would be too harsh, given his juvenile offender status and individual circumstances, and instead sentenced Grant to a term of 60 years on his homicide-related convictions. Factoring in an undisturbed five-year consecutive sentence, Grant's total sentence was effectively reduced to 65 years.

Grant now argues that his 65-year sentence violates Miller because it incarcerates him to his life expectancy, thereby amounting to a de facto LWOP sentence. Grant contends that Miller forbids such a sentence for a juvenile homicide offender unless he or she is incorrigible, which Grant is not. But Miller only entitled Grant to a sentencing hearing at which the District Court had discretion to impose a sentence less than LWOP in view of Grant's youth at the time of his offenses. And that is what he received. So we will affirm Grant's 65-year sentence.²

In the alternative, Grant maintains that we should remand for yet another sentencing proceeding because vacatur of his LWOP sentence under Miller invalidated his lesser-included concurrent sentence on drug-trafficking counts. But Grant did not preserve this argument, and the District Court's failure to extend our sentencing-package doctrine beyond vacated convictions to vacated sentences was not plain error.

I. BACKGROUND

In March 1987, law enforcement officials in Elizabeth, New Jersey learned of gang activities emanating from a group known as the E-Port Posse. Led by an individual named Bilal Pretlow, the Posse operated a narcotics network that regularly bought multi-kilogram quantities of cocaine in New York City, cut and packaged the cocaine in stash houses, and sold it on the streets of Elizabeth. The Posse's members carried firearms, regularly assaulting and murdering to carry out its objectives.

Recruited by Pretlow, Grant joined the Posse in 1986 when he was 13 years old and went on to serve as one of its lead enforcers. At 15, Grant was twice apprehended by law enforcement in drug raids. As a juvenile, he also committed other offenses. After being detained on drug charges, he was released in April 1989 on 18 months’ probation.

Sixteen-year-old Grant was involved in the Posse's violent crimes, notably, its murders and attempted murders in the summer of 1989. In August, while delivering drugs, Grant encountered a group of rival drug dealers. Among them was a former Posse member, Dion Lee, suspected of selling drugs on his own. Grant warned him at gunpoint not to operate in Pretlow's territory unless he was working for Pretlow. When Lee refused, Grant struck him in the head with a gun while another member of the Posse assaulted him. Although Lee retreated, Grant and an associate shot at him. Lee survived, though a bullet pierced one of his pantlegs. Later that month, Grant encountered Lee's brother Mario—another independent drug dealer whom the Posse had warned not to operate in its territory. Grant tried to force Mario into a building, but Mario broke free and attempted to flee. Grant then ordered a Posse member to shoot the retreating Mario. Grant's associate fired two shots, one of which struck Mario in the neck and killed him.

In 1991, at the age of 17, Grant was indicted for conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO), in violation of 18 U.S.C. § 1962(d) (Count I); racketeering, in violation of 18 U.S.C. § 1962(c), including the murder of Mario Lee and two others as well as the attempted murder of Dion Lee and another person, as defined in N.J. Stat. Ann. § 2C:11-3 (Count II); conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846 (Count IV); possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Counts V and VI); and two counts of possession of a weapon in relation to a crime of violence or drug trafficking, in violation of 18 U.S.C. § 924(c) (Counts X and XI).

In February 1992, Grant proceeded to trial as an adult under 18 U.S.C. § 5032. The jury found him guilty of the RICO conspiracy, racketeering, and drug counts as well as one of the gun possession counts.³ As predicates for the RICO convictions, the jury found that Grant murdered Mario Lee and attempted to murder Dion Lee. The jury acquitted Grant of one of the charged RICO-predicate murders but could not reach a verdict on whether Grant committed the other murder or the other attempted murder.

Given Grant's homicide conviction, the Probation Office calculated his sentence under the then-mandatory U.S. Sentencing Guidelines as life imprisonment. At Grant's original sentencing, the District Court denied Grant's downward-departure motion and imposed the mandatory life sentence on the RICO and racketeering convictions (Counts I and II), a 40-year concurrent term of imprisonment on each of the drug-trafficking counts (Counts IV–VI), and a mandatory consecutive five-year sentence on the gun-possession conviction (Count XI). We affirmed Grant's convictions and sentence on direct appeal. United States v . Grant , 6 F.3d 780 (3d Cir. 1993) (unpublished table decision).

Twelve years later, Grant petitioned for a writ of habeas corpus under 28 U.S.C. § 2241. The District Court dismissed the petition for lack of jurisdiction, and we affirmed. Grant v. Williamson , 198 F. App'x 263 (3d Cir. 2006) (per curiam). Grant then filed a § 2255 motion, which was denied as untimely. See Grant v. United States , No. 2:06-cv-5952, slip op. at 4–7 (D.N.J. Feb. 8, 2008).

Then, in 2012, the Supreme Court decided Miller v. Alabama , which held that the Cruel and Unusual Punishments Clause of the Eighth Amendment prohibits mandatory life-without-parole sentences for juvenile homicide offenders. 567 U.S. at 479, 489, 132 S.Ct. 2455. Under Miller , someone under the age of 18 who commits a homicide may be sentenced to life without parole, but only if the sentence is not mandatory and the sentencer has discretion to impose a lesser punishment after considering the offender's youth and related characteristics in mitigation.

In light of Miller , Grant sought and received leave from this Court to file a second § 2255 motion. In re Pendleton , 732 F.3d 280, 281–82 (3d Cir. 2013) (per curiam). He argued that his mandatory sentence of life imprisonment was imposed without consideration of mitigating circumstances related to his age at the time of his crimes. The District Court agreed and ordered that Grant be resentenced. Grant v. United States , No. 2:12-cv-6844, slip. op. at 10–12 (D.N.J. Nov. 12, 2014). In 2016, the Supreme Court confirmed that Miller applies on collateral review to juvenile homicide offenders serving final sentences. Montgomery , 577 U.S. at 206, 212, 136 S.Ct. 718.

At resentencing, the District Court announced that it would limit the scope of its review to Grant's RICO conspiracy and racketeering convictions—the counts underlying his mandatory life sentence. Under the now-advisory Guidelines, Grant's recommended sentence on Counts I and II remained life imprisonment. But the District Court determined that Grant's upbringing, debilitating characteristics of youth, and post-conviction...