United States v. Grant

• Decision Date: 09 April 2018
• Docket Number: No. 16-3820,16-3820
• Citation: 887 F.3d 131
• Parties: UNITED STATES of America v. Corey GRANT, Appellant
• Court: U.S. Court of Appeals — Third Circuit

887 F.3d 131

UNITED STATES of America
v.
Corey GRANT, Appellant

No. 16-3820

United States Court of Appeals, Third Circuit.

Argued October 26, 2017
Opinion Filed: April 9, 2018

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

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

Before: GREENAWAY, JR., COWEN, Circuit Judges and PADOVA,¹ District Judge.

OPINION

GREENAWAY, JR., Circuit Judge.

Corey Grant was sixteen years old when he committed various crimes that led to his ultimate incarceration. He was convicted in 1992 of conspiracy and racketeering under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), as well as of various drug trafficking charges and a gun charge. At sentencing, the District Court determined that Grant would never be fit to reenter society and sentenced him to life in prison without the possibility of parole ("LWOP") for the RICO conspiracy and racketeering convictions. He received a concurrent forty-year term for the drug convictions and a mandatory consecutive five-year term for the gun conviction.

In 2012, the Supreme Court decided Miller v. Alabama , which held, inter alia , that only incorrigible juvenile homicide offenders who have no capacity to reform may be sentenced to LWOP. 567 U.S. 460, 479-80, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). It also extended the Court's earlier holding in Graham v. Florida , 560 U.S. 48, 75, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) —that juvenile non-homicide offenders are entitled to a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation"—to all non-incorrigible juvenile homicide offenders. 567 U.S. at 479, 132 S.Ct. 2455 (quoting

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Graham , 560 U.S. at 75, 130 S.Ct. 2011 ); see also id. at 473, 132 S.Ct. 2455 ; Graham , 560 U.S. at 82, 130 S.Ct. 2011. In light of Miller , the District Court granted Grant's 28 U.S.C. § 2255 motion. At resentencing, the District Court determined that Grant's upbringing, debilitating characteristics of youth, and post-conviction record demonstrated that he had the capacity to reform and that a LWOP sentence was therefore inappropriate under Miller . Instead, the District Court sentenced Grant to a term of sixty-five years without parole.

On appeal, Grant challenges the constitutionality of his new sentence. He contends that he will be released at age seventy-two at the earliest, which he purports to be the same age as his life expectancy. In Grant's estimation, his sentence violates the Eighth Amendment to the Constitution of the United States because it constitutes de facto LWOP and therefore fails to account for his capacity for reform and to afford him a meaningful opportunity for release.

This case presents several difficult challenges for this Court. It calls upon us to decide a novel issue of constitutional law: whether the Eighth Amendment prohibits a term-of-years sentence for the duration of a juvenile homicide offender's life expectancy (i.e. , "de facto LWOP") when the defendant's "crimes reflect transient immaturity [and not] ... irreparable corruption." Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 734, 193 L.Ed.2d 599 (2016). Next, if we find that it does, then we must decide what framework will properly effectuate the Supreme Court's determination that the Eighth Amendment affords non-incorrigible juvenile offenders a right to a meaningful opportunity for release. Furthermore, we must take great pains throughout our discussion to account for the substantive distinction that the Supreme Court has made between incorrigible and non-incorrigible juvenile offenders in order to ensure that the latter is not subjected to "a punishment that the law cannot impose upon [them]." Id . (quoting Schriro v. Summerlin , 542 U.S. 348, 352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) ).

Our decision today therefore represents an incremental step in the constitutional discourse over the unique protections that the Eighth Amendment affords to juvenile homicide offenders.

I. FACTS AND PROCEDURAL HISTORY

In March 1987, local law enforcement authorities in Elizabeth, New Jersey became aware of an organized gang of teenagers called the E-Port Posse, led by Bilal Pretlow. The Posse operated a narcotics network that would regularly buy multi-kilogram amounts of cocaine in New York City, cut and package the cocaine in stash houses, and sell it on the streets of Elizabeth. Its members had access to firearms and they regularly used threats, physical violence and murder to carry out their objectives. Appellant Corey Grant—who was thirteen when he joined the Posse in 1986—was employed as one of the Posse's main enforcers.

On January 25, 1991, a superseding indictment charged Grant with RICO conspiracy (Count 1), in violation of 18 U.S.C. § 1962(d) ; racketeering (Count 2), in violation of 18 U.S.C. § 1962(c) ; conspiracy to possess with the intent to distribute cocaine (Count 4), in violation of 21 U.S.C. § 846 ; two counts of possession with the intent to distribute cocaine (Counts 5 and 6), in violation of 21 U.S.C. § 841(a)(1) ; 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 10 and 11), one of which

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was dismissed prior to the return of a verdict.²

Grant, who was below the age of eighteen during his tenure with the Posse, proceeded to trial as an adult in February 1992. The jury returned a partial verdict finding him guilty of the RICO conspiracy, racketeering, and drug and gun possession counts (Counts 1, 2, 4, 5, 6, and 11), and—as predicates for the racketeering charge—found that he murdered Mario Lee and attempted to murder Dion Lee.

Dion Lee was a former member of the E-Port Posse who continued to individually sell drugs after leaving the gang. In August 1989, Grant, who was sixteen years old at the time, encountered a group of rival drug dealers while delivering drugs for Pretlow, including Lee. Grant warned Lee at gunpoint not to be in Pretlow's territory unless he was working for Pretlow. Lee refused, and Grant struck him in the head with a gun while another Posse member assaulted him. When Lee retreated, Grant and an associate shot him in the leg. Lee ultimately survived.

Later that month, Grant encountered Dion's brother, Mario Lee, another independent drug dealer who was warned by the Posse not to operate within its territory. Grant confronted Lee in an apartment courtyard where drugs were commonly sold and tried to force Lee into the building. Lee broke free and began to retreat, but Grant ordered his associate to shoot Lee to prevent any escape. The associate killed Lee.

At sentencing, the District Court denied Grant's departure motion and imposed a sentence within the then-mandatory Sentencing Guidelines of LWOP on the two RICO counts, a concurrent forty-year term of imprisonment on the drug-trafficking counts, and a five-year consecutive term of imprisonment on the gun possession count. The convictions and sentence were affirmed on direct appeal. United States v. Grant , 6 F.3d 780 (3d Cir. 1993) (unpublished table decision), cert. denied , 510 U.S. 1061, 114 S.Ct. 732, 126 L.Ed.2d 696 (1994).

Twelve years later, Grant sought a writ of habeas corpus pursuant to 28 U.S.C. § 2241, which was dismissed for lack of jurisdiction. We affirmed. Grant v. Williamson , 198 Fed.Appx. 263, 264 (3d Cir. 2006). Grant then filed a § 2255 motion, which was dismissed as untimely. Grant v. United States , No. CIV. A. 06-5952 HAA, 2008 WL 360982 (D.N.J. Feb. 8, 2008).

In 2012, the Supreme Court decided Miller , which held that mandatory LWOP sentences for juvenile homicide offenders violated the Eighth Amendment. 567 U.S. at 479, 132 S.Ct. 2455. Grant subsequently sought and received leave from this Court to file a second § 2255 motion. In re Pendleton , 732 F.3d 280, 282 (3d Cir. 2013) (per curiam). He argued that his LWOP sentence 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. CIV. A. 12-6844 JLL, slip. op. at 7, 2014 WL 5843847 (D.N.J. Nov. 12, 2014).

At resentencing, the District Court limited the scope of its review to the RICO conspiracy and racketeering counts, the charges for which Grant received a mandatory life sentence, thereby leaving in place the forty-year sentence for drug crimes and the mandatory consecutive five-year sentence for illegal gun possession. It determined that Grant's upbringing, debilitating characteristics of youth, and post-conviction

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record sufficiently evidenced that he was not incorrigible and that an LWOP sentence was therefore inappropriate under Miller . However, the District Court also emphasized that it would issue a sentence that "promote[s] respect for the law," "provide[s] just punishment," and "protect[s] the public." App. 154-55. It then imposed a term of sixty-years' imprisonment on Counts 1 and 2 to run concurrently with...