19-2158-cr United States of America v. Portillo

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2020

Submitted: August 17, 2020 Decided: November 24, 2020

Docket No. 19-2158

------------------------------------------ UNITED STATES OF AMERICA,

APPELLEE,

V.

JOSUE PORTILLO,

DEFENDANT - APPELLANT. ------------------------------------------

Before: NEWMAN, POOLER, Circuit Judges. 1

Appeal from a judgment of the District Court for the Eastern District of New

York (Joseph F. Bianco, then-District Judge) imposing a sentence of fifty-five years

on a juvenile fifteen years of age at the time of an offense involving four murders.

Judgment affirmed.

1Circuit Judge Peter W. Hall, originally a member of the panel, is currently unavailable. The appeal is being decided by the remaining members of the panel, who are in agreement. See 2d Cir. IOP E(b).

1 Joseph W. Ryan, Jr., Melville Law Center, Melville, NY, for Defendant-Appellant Josue Portillo.

Paul G. Scotti, Asst. U.S. Atty., Brooklyn, NY (Richard P. Donoghue, U.S. Atty. for the Eastern District of New York, David C. James, John J. Durham, Asst. U.S. Attys., Brooklyn, NY, on the brief), for Appellee United States of America.

JON O. NEWMAN, Circuit Judge:

This appeal, challenging as unreasonably severe a sentence of fifty-five years

imposed on a defendant who was fifteen years old at the time of the offense,

presents the legal issue of the lawfulness of the sentence and also serves as a classic

illustration of the unfortunate consequences of the congressional decision to

eliminate parole in the Sentencing Reform Act of 1984.2 Defendant-Appellant Josue

Portillo appeals from the July 12, 2019, judgment entered in the United States

District Court for the Eastern District of New York (Joseph F. Bianco, then-District

Judge). Pursuant to a guilty plea, Portillo was convicted of participating in a pattern

of racketeering activity evidenced by his role in the murder of four teenagers, in

violation of

(c).

2 Comprehensive Crime Control Act of 1984,

tit. II, § 218(a)(5),

, 2027 (repealing

). 2 On appeal, Portillo makes two arguments. First, he urges an extension of the

Supreme Court’s decision in Miller v. Alabama,

(2012), that would

require the District Court at sentencing in this case to consider the factors that Miller

ruled must be considered in sentencing a juvenile to life imprisonment without the

possibility of parole. Second, he contends that his sentence was substantively

“unreasonable,” the standard the Supreme Court instructed federal appellate courts

to use on review of sentences, see United States v. Booker,

(2005),

after the Court determined in 2005 that the federal Sentencing Guidelines, which

had become effective in 1987, were no longer mandatory, see

.

We conclude that the challenged sentence was lawfully imposed and

therefore affirm the judgment. We also add some observations on the relationship

between this sentence and the unavailability of parole.

Background

The crime. In April of 2017, Portillo was fifteen years and eleven months old

and a member of the MS-13 gang when he participated in the execution-style

murders of four members of a rival gang. The original plan was to kill a person

identified as “Witness 1,” with whom Portillo had had a previous altercation.

Portillo and other MS-13 members instructed two females to invite Witness 1 to a

3 public park in Central Islip, New York, to smoke marijuana. After learning that

Witness 1 had invited four others to accompany him, Portillo and members of his

gang decided to kill all five, believing that all of them were members of the rival

gang.

Portillo sought and obtained a gang leader’s approval to commit the murders.

He, along with several gang members, surrounded the suspected rival gang

members and, after Witness 1 escaped, killed the remaining four, using machetes,

an ax, knives, and tree limbs. Portillo wielded a machete.

Litigation procedure. The Government initially filed a juvenile information,

charging Portillo with conspiracy to murder and the substantive offense of murder,

in violation of

(c), and several related offenses. The Government

then moved to transfer Portillo to adult status, pursuant to

. At a

hearing on that motion, the District Judge considered reports from a forensic

psychiatrist and a rehabilitation program to which Portillo had been referred after

the murders, and also heard testimony from the psychiatrist. The reports and

testimony informed the District Judge of Portillo’s troubled home life and his

association with MS-13 one month after arriving in the United States from El

4 Salvador. The District Court granted the Government’s motion. See United States v.

Juvenile Male,

(E.D.N.Y. 2018).

Portillo waived indictment and pled guilty to a superseding information

charging him with a substantive violation of section 1962(c), based on the four

murders. The Probation Department’s presentence report calculated a Sentencing

Guidelines range of life imprisonment and recommended that sentence. The

Government recommended a sentence of sixty years.

The District Court sentenced Portillo to a term of fifty-five years, using the

post-Booker discretion to impose a nonGuidelines sentence. Judge Bianco provided

an extensive explanation of his reasons.

The District Judge also provided a comprehensive explanation for the

sentence in his written Statement of Reasons.

Discussion

I. Lawfulness of the Sentence

Application of Miller. In Miller, the Supreme Court considered two cases

presenting Eighth Amendment challenges to mandatory sentences of life

imprisonment without the possibility of parole, imposed on defendants who were

fourteen years old at the time of their crimes. Each was convicted under statutes

5 punishing those responsible for a murder. The Court stated: “We . . . hold that

mandatory 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.’” Id. at 465. The reason the mandatory nature of the sentence violated

the Eighth Amendment, the Court explained, was that it precluded the sentencing

judge’s consideration of several factors (“Miller factors”): the juvenile’s

“chronological age and its hallmark features‒among them, immaturity,

impetuosity, and failure to appreciate consequence”; “the family and home

environment that surrounds” the juvenile; “the circumstances of the homicide

offense, including the extent of his participation in the conduct”; “the way familial

and peer pressures may have affected him”; and “the possibility of rehabilitation.”

Id. at 477. Four years later, in Montgomery v. Louisiana,

(2016), in

deciding whether Miller must be applied retroactively, the Court stated: “In Miller,

the Court held that a juvenile convicted of a homicide offense could not be

sentenced to life in prison without parole absent consideration of the juvenile’s

special circumstances in light of the principles and purposes of juvenile sentencing.”

. The Court also stated, “Miller requires that before sentencing a juvenile to

life without parole, the sentencing judge take into account ‘how children are

6 different, and how those differences counsel against irrevocably sentencing them to

a lifetime in prison.’”

at 733 (quoting Miller,

).

In the pending appeal, the sentence, although severe, is not life imprisonment

and was not required to be imposed. Nevertheless, Portillo contends that Miller

should be extended to require that a judge, exercising discretion to impose on a

juvenile a sentence of such severity as fifty-five years without the possibility of

parole, must consider the factors identified in Miller.

We will assume, for purposes of this appeal, that the District Court was

required to consider the Miller factors in determining that a sentence of fifty-five

years, not subject to parole, was warranted for a defendant fifteen years old at the

time of the homicide crimes. Even with this assumption, we are satisfied that Judge

Bianco, perhaps anticipating the possible application of the Miller factors to the

sentencing task before him, gave thoughtful consideration to all of these factors.

Noting that he had reread the Miller opinion, he noted at the sentencing hearing

what he understood were his obligations:

“[T]he court should consider, among other factors, the defendant’s chronological age and characteristics, including any immaturity, impetuosity and failure to appreciate the risks and consequences. The court should consider the family and home environment that surround the defendant. The court should consider the circumstances of the offense including the extent of the juvenile’s participation and the

7 conduct and the way familial and peer pressures may have affected him and the possibility of rehabilitation.”

A 245-46

Portillo contends that the District Judge “rejected” the Miller factors. Br. for

Appellant 11. On the contrary, as both the sentencing transcript and the District

Court’s written Statement of Reasons make clear, Judge Bianco recognized the

relevance of these factors, and departed downward from the Guidelines in part

because of Portillo’s age, but reasonably concluded, after considering the Miller

factors, that a further departure was not warranted.

Substantive reasonableness. We review a district court’s sentence under a

“deferential abuse-of-discretion standard,” United States v. Cavera,

(2d Cir. 2008) (en banc) (internal quotation marks and citation omitted), and

“our review of a sentence for substantive reasonableness is particularly deferential,”

United States v. Broxmeyer,

(2d Cir. 2012). We have

analogized substantive unreasonableness to the “manifest injustice” and

“shocks the conscience” standards applicable in other contexts. United States

v. Rigas,

(2d Cir. 2009).

A sentence of fifty-five years is unquestionably severe. And it is fairly

deemed especially harsh for a defendant fifteen years of age at the time of the

8 crime. At the same time, the offense for which this sentence was imposed is

heinous, indeed, especially heinous. Four people were murdered, the killing

was brutally accomplished, and the defendant not only actively participated

in the murders but planned the crime in retaliation for a petty grievance.

Acknowledging the broad scope of a sentencing judge’s discretion and taking

into account the care taken by Judge Bianco in exercising that discretion, we

conclude that the sentence is not unreasonable in any legally cognizable

sense.

II. Unavailability of Parole

We now consider the significance of the unavailability of parole with respect

to Portillo’s case and begin with an account of how that unavailability came about.

Parole is the release of a sentenced prisoner before the completion of a

sentence. Although those sentenced for committing crimes sometimes have their

sentences reduced to a limited extent by good behavior during confinement, 3 parole

can reduce the duration of imprisonment by a substantial amount and reflects an

3 Federal prisoners sentenced to a term exceeding one year can earn so-called “good-time credits” of up to fifty-four days for each year of the sentence for “exemplary compliance with institutional disciplinary regulations.”

(b). Good time credits were first authorized for federal prisoners in 1875, and were set at ten days per months from 1910 until the Sentencing Reform Act reduced the rate to fifty-four days per year. See

(1982) (repealed effective 1987); see also Kate Stith & Steven Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines,

, 226, n.10 (1993). 9 aggregate assessment of not only the prisoner’s conduct in prison but also his or her

prospects for leading a law-abiding life upon release.

In the federal criminal justice system, the use of parole began in 1910,4 when

parole boards were established at three federal penitentiaries.5 The United States

Board of Parole, renamed the United States Parole Commission in 1976,6 began

making parole release decisions in 1930. 7 In 1986, the year before the Sentencing

Reform Act became effective, 8 8,749 federally sentenced defendants were paroled. 9

Two types of parole eligibility were available. Typically, a federal prisoner,

sentenced to more than one year, was eligible for parole after serving one-third of

the sentence. 10 Alternatively, a sentencing judge had the discretion to make such a

federal prisoner eligible for parole at any time.11

4 Act of June 25, 1910, ch. 387, 61st Cong., 2d Sess., § 1,

. 5 Peter B. Hoffman, History of the Federal Parole System 1 (May 2003), http://www.fedcure.org/information/TheHistoryOfTheFederalParoleSystem-2003.pdf. 6 See Parole Commission and Reorganization Act,

,

(1976)

(codified at

) (repealed effective 1987). 7 Hoffman, supra, n.4, at 1.

8 Sentencing Reform Act § 235(a)(1).

9 See U.S. Dept. of Justice, Bureau of Justice Statistics Bulletin, Probation and Parole 1986,

Table 2, Entries, 1986 (Dec. 1987), bjs.gov/index.cfm?ty=pbdetail&iid=3623. 10 See

(a) (repealed effective 1987). A prisoner serving a life sentence or any

sentence longer than thirty years was eligible for parole after ten years. See

11 See 18 U.S.C. 4205(b)(2) (repealed effective 1987). Some judges imposed a long sentence

with the expectation that public awareness of its length would have a deterrent effect on potential law violators and at the same time invoked subsection 4205(b)(2) so that the defendant could be released before the one-third point, an event unlikely to attract public attention. 10 In the years leading up to 1987, a combination of reform-minded legislators

and criminal law scholars advocated sentencing reform, primarily to lessen sentence

disparity, and incidentally to abolish parole.12 Although some of them had come to

doubt that rehabilitation was occurring during imprisonment with sufficient

frequency to justify a system of early release on parole, their principal reason for

eliminating parole was to achieve what was called “truth in sentencing.” 13 They

wanted a thirty-year sentence to mean thirty years (less the slight reduction for good

time credits), not the ten-year term that would result from release at the one-third

point.

Those advocating what was considered sentencing reform joined forces with

those favoring increased severity of sentences, 14 and both sides found common

ground in the concept of a system of sentencing guidelines, designed to reduce

sentencing disparity. Their joint efforts produced the Sentencing Reform Act, 15

which became effective on October 1, 1987. 16

See Michael Tonry, Federal Sentencing “Reform” since 1984: The Awful as Enemy of the Good, 12

44 Crime & Just. 99, 105-06 (2015); Kate Stith & José A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 38-48 (1998). 13 Tonry, supra n.12, at 152.

14 Some evidence of the differing views of those leading the legislative effort is the fact that

Senator Edward M. Kennedy and Senator J. Strom Thurmond, Sr. were the co-sponsors of the bill that was a precursor of the Sentencing Reform Act. See S. 1630, 97th Cong., 1st Sess. (1981). 15 Comprehensive Crime Control Act of 1984,

tit. II,

(1984).

16 Sentencing Reform Act § 235(a)(1).

11 Our concern is the consequences of the provision of the Sentencing Reform

Act that eliminated parole.17 First, we note that ending parole did not achieve the

expected “truth in sentencing.” The reason is that federal court criminal cases are

less than one percent of state court criminal cases,18 and, although some states have

ended or curtailed parole, many have retained it, and the American public

frequently reads, hears, or sees reports of state prisoners released on parole. Such

reports gain notoriety if the paroled prisoner commits another crime. The

prevalence of parole in state criminal justice systems has substantially diminished

the possibility that the public would understand that federal sentences will be

served in full.

Second, the elimination of parole contributed significantly to achieving one

objective of many of the proponents of the Sentencing Reform Act, the substantial

17 Id. § 218(a)(5). Parole was not entirely eliminated. It remains available for prisoners sentenced before Oct. 1, 1987. Even without parole, a federal prisoner can be released at an early date if a President exercises an aspect of the constitutional pardon power by commuting a sentence, i.e., reducing its length. “The President . . . shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” U.S. Const., art II, § 2. Presidential commutation of a federal sentence, occurs infrequently, however, averaging fifty-six a year since 1900. See Office of the Pardon Attorney, Clemency Statistics, https://www.justice.gov/pardon/clemency-statistics. 18 Comparing the 87,149 federal criminal cases filed in 2018, see U.S. District Courts--Judicial

Business 2018, U.S. Cts., https://www.uscourts.gov/statistics-reports/us-district-courts-judicial- business-2018, with the approximately 17,000,000 state court criminal cases filed in 2018, see Court Statistics Project, Nat’l Ctr. for State Courts, State Court Caseload Digest 2018 Data 3, https://www.courtstatistics.org/data/assets/pdf_file/0014/40820/2018-Digest.pdf yields a percentage of .005. 12 lengthening of the time served by federal prisoners. The average time served by all

federal prisoners in 1986, the year before the repeal of parole became effective, was

14.6 months;19 in 2012, it was 37.5 months.20

Third, and of particular pertinence to a case like Portillo’s, the elimination of

parole means that this defendant, now nineteen years old, will serve his fifty-five

year sentence until he is seventy-one years old (or slightly younger depending on

the good time credits he earns in prison).21 We have ruled that the seriousness of his

crime, considered along with his age and personal circumstances, permits that

result. But if parole were available, there would be two consequences worth

considering. On the one hand, Portillo’s custodians would have an effective means

of encouraging his observance of prison regulations, resulting from his awareness

that misconduct would jeopardize any hope of parole. On the other hand, Portillo

19 See U.S. Dept. of Justice, Bureau of Justice Statistics, Federal Criminal Case Processing, 1982- 93, Table 18 (May 1996), bjs.gov/content/pub/pdf/Fcc93.pdf. In addition to the abolition of parole, a major cause of the increase in time served by federal prisoners, also resulting from the Sentencing Reform Act, was mandatory minimum sentences. See, e.g.,

(c) (five year mandatory sentence enhancement for using or carrying a gun during a crime of violence or a drug crime), § 924(e) (mandatory fifteen-year sentence for possession of a firearm by a person with three state or federal convictions for a violent felony or a serious drug offense). 20 See U.S. Dept. of Justice, Bureau of Justice Statistics, Federal Justice Statistics, 2012-Statistical

Tables, Table 7.11 (Jan. 2015), bjs.gov/content/pub/pdf/fjs12st.pdf. 21 Portillo has been in custody since his arrest in 2017, and thus has fifty-two years remaining

on his sentence. He estimates a release date in 2064 when he will be sixty-three, apparently assuming that his prison conduct will be unblemished, entitling him to a reduction for the maximum possible number of days of good time credits. 13 would have an incentive to obtain an education, participate in rehabilitative

programs, and just possibly demonstrate, at some point in the future, that he has

matured beyond the seemingly incorrigible person of his youth to become an adult

whom parole authorities might reasonably think should be permitted to rejoin

society.22

Portillo’s sentence illustrates the unfortunate consequences of eliminating

parole. Nevertheless, it is a sentence that a conscientious District Judge concluded

was appropriate, and one that, upon review, we affirm.

We have considered the remainder of Portillo’s arguments and find them to

be without merit. Accordingly, the judgment of the District Court is AFFIRMED.

22 Ruling in Montgomery that Miller’s prohibition of a mandatory life sentence without parole, imposed on a juvenile, applied retroactively, the Supreme Court stated, “The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.”

. 14