We've been seated. Good morning to everybody. We are ready for all argument in the first case, the US versus Hunter. Mr. Holmes, when you're ready. Thank you. May it please the court. I'm Scott Holmes. I'm from Durham, North Carolina, and it is an honor and a pleasure to get to appear before you today on behalf of my client, Mr. Hunter. I'm going to frame the issue for the court in this way. I'm going to ask the court to consider whether the mandatory provisions or the armed career criminal act, whether that mandatory provision is unconstitutional, when it prohibits the sentencing court from crafting an individualized sentence, when the predicate felonies that enhance the sentence were committed by a child. And I frame it that way because Miller versus Alabama set out two broad principles. One, that for the purposes of sentencing children, that's true
. That is a very important difference between my case and the Miller case. Well, you asked if you wanted us to ignore that fact. No. I don't think there's any way to ignore that fact. I'm asking either Dewey. I'm asking this court to take a leap from Miller and broaden significantly at a scope because in Miller, clearly they were sentencing a child. And in this case, my client was 35 years old when he was sentenced. And that is a significant difference between the two cases. But how was he treated at the time of those prior convictions? Was he treated as a child? Or was he treated as an adult? The record, the court noted that he was tried as an adult for those convictions. The Pre-Senates report itself and the record is unclear about that, but there's nothing to dispute about that he was treated as an adult. For the federal purposes, he was clearly a minor. He was under the age of 18 when he was convicted at the age of 15 and the age of 17 for those predicate felonies. So I'm trying to follow you on this because I think I see what you're going, but I want to make sure I follow you
. The Miller case dealt with the actual sentence, which was to impose, is that one life without parole. Yes, sir. So that's the sentence, right? The time, what if it occurred that occurred here when he was a minor for that. This is an enhancement type situation. Yes, sir. He knows he knows he has those three offenses. Yes, sir. And so he's not being punished for the three things he did when he was under 18. He's being punished for what he's doing now in 35 knowing as an adult what he did as a child. That's right. I could probably understand a due process maybe to kind of know this type thing. He doesn't know or he thinks, basically, I don't know how you get there, but I'm having some difficulty understanding how those sociological factors come into play to an adult who understands his position at 35 and he commits this crime and it's sort of, you know, I understand the court's concern and let me see if I can address it. I'll ask the court to consider comparing Mr
. Hunter to an adult who had the predicate felonies as an adult. The purpose of the Eighth Amendment is to give graduated proportional punishment and is an adult who commits three violent felonies as an adult the same level of culpability as an adult who committed their predicate felonies as a child. What about throwing another where a person committed those felonies as a child who was treated as a child? I think that doesn't make the case you wish you had. Yes, it does. I've had a motion to change the facts. My client would be a child, but it's really important. I believe still that the factors that Miller looked at the maturity of the child, the lack of ability to control their environment, the ability of a child to change their circumstances. Those factors are still present when you look back at those convictions that they committed as a child. Those convictions are less culpable and he is being punished for those convictions. That may bear some discussion as what does that mean? Does that mean the court did all those factors that you put in? This is no ordinary juvenile. This is someone who actually doesn't understand those things and does have the possession of the powers of appreciators conduct to the level of an adult. Therefore, he's going to be tried as an adult. It takes him out of the juvenile consideration because he was tried as an adult
. You say what if he'd been over 18? Well, it's been the same thing. He'd been tried as an adult. So he's under 18 and the only thing that makes him a juvenile is the law. So the law then elevates him from a juvenile to an adult by virtue of saying you're going to be tried as an adult. But you seem to want to carve out an exception to say, well, you can be tried as an adult, but you don't lose the benefit of the sociological factors that have been attributed on the miller to those who are juvenile. I understand the court's concern. If he did not have these prior, if felonies, if he did not have these predicate offenses that occurred when he was a child, he would not have been enhanced. He would have received a less than 10 years. And so in a very real sense, he is being punished because of offenses that occurred. He's got an enhanced mandatory nondiscretionary sentence. And the problem with that is that the court is not allowed to look back at those offenses that occurred when he was a child and give those ways. Well, you know, this has to meet the confounds of the eighth amendment, I mean, you're talking about a sentence. This is not life without possibility of parole
. It's not death. And I'm not sure you want to expand miller, but I don't know if it is done that to say from a proportionality perspective, is that I mean, eight amendments are hard. It is. It is. This is hard. But this is the harshest penalty for this crime. The Armed Career Criminal Act makes us a 15 year mandatory minimum. Raises it from a 10 year maximum. And so it's not death. It's not life without parole, but it is the harshest penalty for this offense. And one of the things that the miller court did is it looks back at the Graham and it said in Graham, all those factors for children are not crime specific. That's not crime specific. The constitutional significance of a child is is is important regardless of the crime
. And that's one of the things we learned from miller and mandatory minimums per se or violation of the direction and instruction have individualized sentences. Do you think mandatory minimum sentences fall because of that? I think miller taught us that that it's a combination of the two. No, I think that that mandatory minimums under while wouldn't it? Because when you add the fact that it's a child, I don't think about a child. I am talking about because part of your argument was individualized sentences. That's correct. And I'm just saying don't mandatory minimums treat everybody that fall in the category of certain way without any consideration of individual characteristics or how bad that felony was they committed. Maybe it barely made the felony. Maybe you can make an argument that they they decided to do that. So they wouldn't face the death penalty. You a lawyer can make all those arguments. That's true. But in your argument about lack of individualization, doesn't that run every mandatory minimum? It does. But my argument does not stop with just I say that it stopped
. Okay. But but let me take up that idea of mandatory minimums just a minute. In the current state of the law, mandatory minimums have been regularly approved for eighth amendment purposes. So there's no no no place for me to walk and expand that at the current state of law. But I will tell you and it looks it appears that the evolving standards of decency are really trending against mandatory minimums. That there is a recognition with the problems we have in our society with mass incarceration. A lot of nonviolent folks in prison that there is a trend societally against those. But at the at the present moment, I would I agree with the court that mandatory minimums on their own do not violate the eighth amendment. Yes, sir. He had five predicate offenses which could have been used against him. We don't even need to consider the two that occurred when he was 15 years old. He didn't contest the attempted malicious conduct by prisoner committed at age 25. And the other two were committed when he was 17, conviction of robbery with a dangerous weapon and an adult is adult conviction for attempted armed robbery both committed at age 17
. Now you've got here at juvenile if we just use the two age 17 convictions and then the one when he was 25 years old. Here you've got an individual who continued his criminal conduct through the 17 years old into his adult situation when he was 25 years old. Yes, sir. I could see that there might be a little bit of sympathy or you could make a good argument if all of the convictions that were used were those that committed when he was a juvenile. But the two 17 year old convictions and then the one when he was 25 years old, sir, feeding myself, shows that he committed crimes as a juvenile and then continued his criminal conduct when he was an adult. I understand that. I'm glad you raised that because one this this conviction in 2003 for attempted malicious conduct by a prisoner was something I raised at the trial court level and I briefed and that you'll see in the joint appendix where I argued that that does not qualify as a crime of violence for the purposes of the armed career criminal act. At synancing the judge said I'm not taking up that issue. I don't even need to determine that other legal issue about whether or not an attempted spitting qualifies as a crime of violence. And that because the court specifically said I don't need to reach that and pointed out what you just pointed out. I've got plenty of these convictions that occurred under the age of 18 that do qualify under the statute and I have no binding precedence to the contrary. And so what I would point in my response is that that particular issue, that adult issue, there were issues raised in the trial level that that would not qualify because it doesn't qualify as a violent offense. And that the other four all did occur while he was under the age of 18 and 18 was the age in which the Miller court said as the age of adulthood
. And so my argument is to this court that all of his qualifying predicate of felonies were committed under the age of 18. Let me ask you this as I understand the record that predicate offense when he was age 25 is not contested on appeal. I as trial counsel contested it in the trial court and my recollection I could be wrong in the joint appendix was that the court said he is not taking up that legal issue. That he did not consider that in his consideration of whether or not he qualified as a career offender. I think what you're saying is but is that contested on appeal? The court didn't rule on it. That's right. So is that I didn't think that was contested on appeal? Well I have not raised it in my brief because the court did not consider it as a predicate felony on appeal. So I feel very hesitant to weigh too far beyond my very sparse brief. But I will tell the court I did litigate that you'll find it in the joint appendix where I made the legal arguments that that does not qualify as a career of a violent offense. So if you want here you'd have to go back and battle out those arguments. I think so, Your Honor. And so I'd ask the court to consider that because Miller did set forth a principle that children are as a constitutional significance for the Eighth Amendment that a child is convicted. In the other circuit, bought this argument
. No sir. And the government will... Well you can't argue to us. I was just asking the same question. That's true. Not that I'm aware of. The government has cited a case from the eleventh circuit that did consider this very similar argument for Eighth Amendment purposes. And what I'd ask this court to consider was that standard of review in that case was plain error. And that case, the defendant lost in that case because there was no clearly binding precedent that could have overturned or changed that outcome. And the standard or review here is denovo. And so this court is free to substitute your own judgment for the trial court's judgment with respect to the constitutionality of this sentencing structure. And so I would submit that because the Armed Career Criminal Act prohibits the sentencing court from taking into consideration the fact that these predicate felonies were committed by a child, it is unconstitutional. That the combination of the mandatory nature of that provision and the added to the fact that these were predicates that were occurred when the person was a child. That the court should be able to have some individualized consideration of that without enhancing automatically. So the argument is, anytime there's a mandatory minimum in sentencing and something in the... What if it added to criminal history police? You know an offense committed at 16 between it as an adult. You still would argue that that's unconstitutional. Mandatory minimum based on guideline bracket based on offense or criminal history. You made the same argument. I don't know that I would because the guidelines are advisory and the court would have the discretion to weigh those factors when they are crafting an individualized sentence. My concern is with the statutory provisions that are mandatory and prohibit the sentencing court from considering the fact that these were convictions that occurred when the person was a child and not as an adult. And as a matter of fact he's less culpable
. And so I would submit that because the Armed Career Criminal Act prohibits the sentencing court from taking into consideration the fact that these predicate felonies were committed by a child, it is unconstitutional. That the combination of the mandatory nature of that provision and the added to the fact that these were predicates that were occurred when the person was a child. That the court should be able to have some individualized consideration of that without enhancing automatically. So the argument is, anytime there's a mandatory minimum in sentencing and something in the... What if it added to criminal history police? You know an offense committed at 16 between it as an adult. You still would argue that that's unconstitutional. Mandatory minimum based on guideline bracket based on offense or criminal history. You made the same argument. I don't know that I would because the guidelines are advisory and the court would have the discretion to weigh those factors when they are crafting an individualized sentence. My concern is with the statutory provisions that are mandatory and prohibit the sentencing court from considering the fact that these were convictions that occurred when the person was a child and not as an adult. And as a matter of fact he's less culpable. Thank you. You say sometimes. Yes sir. Thank you very much. Mr. Rogers. Good morning ma'am. Please the court. My name is Joshua Rogers and I represent the United States. Defendant acknowledged sentencing that the argument he's making is quote, quite a stretch and he also rightly concedes in his brief that there is no... Well he wanted to stretch it all the way to Richmond
. Thank you. You say sometimes. Yes sir. Thank you very much. Mr. Rogers. Good morning ma'am. Please the court. My name is Joshua Rogers and I represent the United States. Defendant acknowledged sentencing that the argument he's making is quote, quite a stretch and he also rightly concedes in his brief that there is no... Well he wanted to stretch it all the way to Richmond. That's right. And the court indulged it and so therefore we have would also note that he concedes there's no specific authority upholding the argument that he makes. There is... He is the indicate this is the direction that the law sees be going. There is the the case has extended the law to some extent and there are some interesting language within the sociological factors that deal with juvenile. It seems as though that's what he's pointing us to to consider that perhaps and given it back even though there's no authority for it there's really nothing here to prevent us from doing this if we choose to do it in the circuit. So that's seems to be the basis of his advancing and argument for which there's nothing more important and not even indicates that we should show that but nonetheless he's saying we can do this. Well I would say what would restrain this court from doing is the checks and balances that are inherent to our system. I mean there's a news article that just came out yesterday about the fact that Congress is submitting bills right now to address the mandatory minimums and also reforming the sentence and guidelines but essentially he's asking..
. That's right. And the court indulged it and so therefore we have would also note that he concedes there's no specific authority upholding the argument that he makes. There is... He is the indicate this is the direction that the law sees be going. There is the the case has extended the law to some extent and there are some interesting language within the sociological factors that deal with juvenile. It seems as though that's what he's pointing us to to consider that perhaps and given it back even though there's no authority for it there's really nothing here to prevent us from doing this if we choose to do it in the circuit. So that's seems to be the basis of his advancing and argument for which there's nothing more important and not even indicates that we should show that but nonetheless he's saying we can do this. Well I would say what would restrain this court from doing is the checks and balances that are inherent to our system. I mean there's a news article that just came out yesterday about the fact that Congress is submitting bills right now to address the mandatory minimums and also reforming the sentence and guidelines but essentially he's asking... I'm not to deal too much in the politics of it I think we'll stick with trying to see if it satisfies the 188th Amendment. Right. We don't... And to mention the yesterday's news article is what we do today. Pardon me for doing so. The point being essentially I think the defendant is asking us to wait into something essentially in the political realm when he begins to talk about where we're going as a country. This court is simply being asked to talk about the 8th Amendment and what we know for Miller. That's a way it doesn't. This is a Supreme Court. Sometimes talk about what the trend is in the states when they apply the law sometimes. Well that's the Supreme Court's prerogative but again I would simply state that in terms of what the Supreme Court talked about in Miller it is simply talking about the impact of a life sentence mandatory without parole for H
. I'm not to deal too much in the politics of it I think we'll stick with trying to see if it satisfies the 188th Amendment. Right. We don't... And to mention the yesterday's news article is what we do today. Pardon me for doing so. The point being essentially I think the defendant is asking us to wait into something essentially in the political realm when he begins to talk about where we're going as a country. This court is simply being asked to talk about the 8th Amendment and what we know for Miller. That's a way it doesn't. This is a Supreme Court. Sometimes talk about what the trend is in the states when they apply the law sometimes. Well that's the Supreme Court's prerogative but again I would simply state that in terms of what the Supreme Court talked about in Miller it is simply talking about the impact of a life sentence mandatory without parole for H. You and I. What do we do? What do we do as a court looking back at these predicate offenses? What do we do under a general... This is a general question. When somebody was a juvenile at the time they committed a crime but they were treated as an adult. Do we look at the process under which they were treated as an adult? Do we just accept it as an adult conviction? What do we do? I think the court looks to the ACCA which specifically allows for those particular sentences and convictions to count... So those particular convictions account. But they don't say anything about child and being treated as an adult at the time do they? I would agree. And so what.
. You and I. What do we do? What do we do as a court looking back at these predicate offenses? What do we do under a general... This is a general question. When somebody was a juvenile at the time they committed a crime but they were treated as an adult. Do we look at the process under which they were treated as an adult? Do we just accept it as an adult conviction? What do we do? I think the court looks to the ACCA which specifically allows for those particular sentences and convictions to count... So those particular convictions account. But they don't say anything about child and being treated as an adult at the time do they? I would agree. And so what... That's my question to you. Now I'm not asking the question about a specific type of conviction you know for assault and battery or attempted murder. We can we can look at the statute for that but I'm saying what do we do in this scenario when a person has such a conviction but how much do we look at the circumstances of that person's age at the time of that predicate conviction? We would argue the court should not look at the circumstances at the time to age in particular with this defendant we have a defendant who's proven that he's more than willing to continue that type of behavior into adulthood. So it would be our argument particularly in light of fact that there is an unpublished understanding that's persuasive for circuit opinion and an 11th circuit opinion that are moving against this position and not only that there are no courts whatsoever which defendant can cite that have adopted this argument we would argue that the district court should be affirmed in this case and beyond that we have no other argument. Thank you very much. Thank you very much. Mr. Holmes you say five minutes. The court raises an interesting question about how far this court should look into whether or not how the person was treated in the state level. I don't mean to cut you off but are you for me with the state's first as Linda? I think so is it the case cited in the opinion. Directly against you it's for circuit decision 1993 that for the proposition that after the thinner was prosecutor as an adult it's irrelevant that he if he was a junior let's the time of the offense for purposes of 19 924 E so long as the offense was punished for more than one year. Now if that's the law in this circuit how can we ignore it? Because that case was decided prior to Miller
.. That's my question to you. Now I'm not asking the question about a specific type of conviction you know for assault and battery or attempted murder. We can we can look at the statute for that but I'm saying what do we do in this scenario when a person has such a conviction but how much do we look at the circumstances of that person's age at the time of that predicate conviction? We would argue the court should not look at the circumstances at the time to age in particular with this defendant we have a defendant who's proven that he's more than willing to continue that type of behavior into adulthood. So it would be our argument particularly in light of fact that there is an unpublished understanding that's persuasive for circuit opinion and an 11th circuit opinion that are moving against this position and not only that there are no courts whatsoever which defendant can cite that have adopted this argument we would argue that the district court should be affirmed in this case and beyond that we have no other argument. Thank you very much. Thank you very much. Mr. Holmes you say five minutes. The court raises an interesting question about how far this court should look into whether or not how the person was treated in the state level. I don't mean to cut you off but are you for me with the state's first as Linda? I think so is it the case cited in the opinion. Directly against you it's for circuit decision 1993 that for the proposition that after the thinner was prosecutor as an adult it's irrelevant that he if he was a junior let's the time of the offense for purposes of 19 924 E so long as the offense was punished for more than one year. Now if that's the law in this circuit how can we ignore it? Because that case was decided prior to Miller. I know but no court in this United States extended Miller to cover what you have addressing here today. That's true but Miller. The case didn't cover that because there there was a sentence of life without parole possibility for all. That's correct Miller also said that it is constitutionally significant when you have mandatory sentencing if the sentence was with respect to a child and that has changed and that was a synthesis of rope versus and Graham rope versus Simmons and Graham versus Florida where the court showed that the evolving standards of decency with respect to treating children as children require a different constitutional approach and because there is now a different constitutional approach with respect to children and mandatory sentencing the the case is prior to Miller have to be looked at from a different constitutional lens. Authority you're relying on. I'm relying on Miller. Well I think you agree that Miller has not been extended to the extent that you are going to I really admit that and I don't think that you can test that this defendant's convictions do meet the requirements of the armed career criminal act and USC this guideline 4B1.4 That's correct as as as written and currently interpreted they meet those criteria yes sir. Well you make a persuasive argument that might be made to the Supreme Court but I don't see how this courts in a position to grant you the relief that you are going to. Well you you could if you wanted to but I'm that will be your decision. I mean this is a denovo review it was argued below. What authority would I rely on? Miller. I don't think Miller helps you at all
. I know but no court in this United States extended Miller to cover what you have addressing here today. That's true but Miller. The case didn't cover that because there there was a sentence of life without parole possibility for all. That's correct Miller also said that it is constitutionally significant when you have mandatory sentencing if the sentence was with respect to a child and that has changed and that was a synthesis of rope versus and Graham rope versus Simmons and Graham versus Florida where the court showed that the evolving standards of decency with respect to treating children as children require a different constitutional approach and because there is now a different constitutional approach with respect to children and mandatory sentencing the the case is prior to Miller have to be looked at from a different constitutional lens. Authority you're relying on. I'm relying on Miller. Well I think you agree that Miller has not been extended to the extent that you are going to I really admit that and I don't think that you can test that this defendant's convictions do meet the requirements of the armed career criminal act and USC this guideline 4B1.4 That's correct as as as written and currently interpreted they meet those criteria yes sir. Well you make a persuasive argument that might be made to the Supreme Court but I don't see how this courts in a position to grant you the relief that you are going to. Well you you could if you wanted to but I'm that will be your decision. I mean this is a denovo review it was argued below. What authority would I rely on? Miller. I don't think Miller helps you at all. Well I appreciate that and I'm here to try to persuade you otherwise and obviously not do it very good. I'm diminishing the I follow to your argument at all. You just you have to know as you're arguing against precedent you're arguing for a new path you're just you're doing that. I'm just going right up the hill you're on it yes sir. But you just think the way you read Miller you may not be the way we read Miller. Apparently it's not been the way any other circuit court should read Miller but you're just taking the stab at it to tell us we have precedent that hurts you. Yes sir. You just suggest that that precedent can be adjusted if not ignored because of your reading of Miller. Yes sir. I do think it is important to look at the question that you raised about whether or not these how these children are looked at under the armed crew of criminal act or how they're looked at from federal purposes when you're looking at a state. I wouldn't really mind question but I've heard she was how a person had been treated not how they're looked at but you understand. I do you know I'm not saying you look at it. I just asked that question
. Well I appreciate that and I'm here to try to persuade you otherwise and obviously not do it very good. I'm diminishing the I follow to your argument at all. You just you have to know as you're arguing against precedent you're arguing for a new path you're just you're doing that. I'm just going right up the hill you're on it yes sir. But you just think the way you read Miller you may not be the way we read Miller. Apparently it's not been the way any other circuit court should read Miller but you're just taking the stab at it to tell us we have precedent that hurts you. Yes sir. You just suggest that that precedent can be adjusted if not ignored because of your reading of Miller. Yes sir. I do think it is important to look at the question that you raised about whether or not these how these children are looked at under the armed crew of criminal act or how they're looked at from federal purposes when you're looking at a state. I wouldn't really mind question but I've heard she was how a person had been treated not how they're looked at but you understand. I do you know I'm not saying you look at it. I just asked that question. No yes but what do you do do you look at there is a seems to me if there's a judicial term a determination that seems to me that's something you have difficulty fighting fighting against because you've had a judge no reason to ask the judge is anything but competent look at the factors in the side sort of what Judge Winter alluded to that person in front of me has the understanding and the wisdom as as an adult even though the age might be a little bit different but I can now I'm satisfied I can treat that person as an adult and that was the case in Miller that they did treat those 14 year old children as adults made that judicial determination it was still unconstitutionally firm in firm because under the federal law they're still children under the age of 18. I really appreciate your your um candor and your willingness to make let me make this argument and it has been an honor truly to get you up here before you today on behalf of mr hunter. Thank you very much I know you're you're court appointed aren't you thank you very much mr. home we all acknowledge as a court that we appreciate you taking on this obligation and of course we have to have people who will come up and make arguments on behalf of folks to let us do our job so we acknowledge that thank you for it thank you you need a break at all you ready to go. We'll step down to greet council and then go.
We've been seated. Good morning to everybody. We are ready for all argument in the first case, the US versus Hunter. Mr. Holmes, when you're ready. Thank you. May it please the court. I'm Scott Holmes. I'm from Durham, North Carolina, and it is an honor and a pleasure to get to appear before you today on behalf of my client, Mr. Hunter. I'm going to frame the issue for the court in this way. I'm going to ask the court to consider whether the mandatory provisions or the armed career criminal act, whether that mandatory provision is unconstitutional, when it prohibits the sentencing court from crafting an individualized sentence, when the predicate felonies that enhance the sentence were committed by a child. And I frame it that way because Miller versus Alabama set out two broad principles. One, that for the purposes of sentencing children, that's true. That is a very important difference between my case and the Miller case. Well, you asked if you wanted us to ignore that fact. No. I don't think there's any way to ignore that fact. I'm asking either Dewey. I'm asking this court to take a leap from Miller and broaden significantly at a scope because in Miller, clearly they were sentencing a child. And in this case, my client was 35 years old when he was sentenced. And that is a significant difference between the two cases. But how was he treated at the time of those prior convictions? Was he treated as a child? Or was he treated as an adult? The record, the court noted that he was tried as an adult for those convictions. The Pre-Senates report itself and the record is unclear about that, but there's nothing to dispute about that he was treated as an adult. For the federal purposes, he was clearly a minor. He was under the age of 18 when he was convicted at the age of 15 and the age of 17 for those predicate felonies. So I'm trying to follow you on this because I think I see what you're going, but I want to make sure I follow you. The Miller case dealt with the actual sentence, which was to impose, is that one life without parole. Yes, sir. So that's the sentence, right? The time, what if it occurred that occurred here when he was a minor for that. This is an enhancement type situation. Yes, sir. He knows he knows he has those three offenses. Yes, sir. And so he's not being punished for the three things he did when he was under 18. He's being punished for what he's doing now in 35 knowing as an adult what he did as a child. That's right. I could probably understand a due process maybe to kind of know this type thing. He doesn't know or he thinks, basically, I don't know how you get there, but I'm having some difficulty understanding how those sociological factors come into play to an adult who understands his position at 35 and he commits this crime and it's sort of, you know, I understand the court's concern and let me see if I can address it. I'll ask the court to consider comparing Mr. Hunter to an adult who had the predicate felonies as an adult. The purpose of the Eighth Amendment is to give graduated proportional punishment and is an adult who commits three violent felonies as an adult the same level of culpability as an adult who committed their predicate felonies as a child. What about throwing another where a person committed those felonies as a child who was treated as a child? I think that doesn't make the case you wish you had. Yes, it does. I've had a motion to change the facts. My client would be a child, but it's really important. I believe still that the factors that Miller looked at the maturity of the child, the lack of ability to control their environment, the ability of a child to change their circumstances. Those factors are still present when you look back at those convictions that they committed as a child. Those convictions are less culpable and he is being punished for those convictions. That may bear some discussion as what does that mean? Does that mean the court did all those factors that you put in? This is no ordinary juvenile. This is someone who actually doesn't understand those things and does have the possession of the powers of appreciators conduct to the level of an adult. Therefore, he's going to be tried as an adult. It takes him out of the juvenile consideration because he was tried as an adult. You say what if he'd been over 18? Well, it's been the same thing. He'd been tried as an adult. So he's under 18 and the only thing that makes him a juvenile is the law. So the law then elevates him from a juvenile to an adult by virtue of saying you're going to be tried as an adult. But you seem to want to carve out an exception to say, well, you can be tried as an adult, but you don't lose the benefit of the sociological factors that have been attributed on the miller to those who are juvenile. I understand the court's concern. If he did not have these prior, if felonies, if he did not have these predicate offenses that occurred when he was a child, he would not have been enhanced. He would have received a less than 10 years. And so in a very real sense, he is being punished because of offenses that occurred. He's got an enhanced mandatory nondiscretionary sentence. And the problem with that is that the court is not allowed to look back at those offenses that occurred when he was a child and give those ways. Well, you know, this has to meet the confounds of the eighth amendment, I mean, you're talking about a sentence. This is not life without possibility of parole. It's not death. And I'm not sure you want to expand miller, but I don't know if it is done that to say from a proportionality perspective, is that I mean, eight amendments are hard. It is. It is. This is hard. But this is the harshest penalty for this crime. The Armed Career Criminal Act makes us a 15 year mandatory minimum. Raises it from a 10 year maximum. And so it's not death. It's not life without parole, but it is the harshest penalty for this offense. And one of the things that the miller court did is it looks back at the Graham and it said in Graham, all those factors for children are not crime specific. That's not crime specific. The constitutional significance of a child is is is important regardless of the crime. And that's one of the things we learned from miller and mandatory minimums per se or violation of the direction and instruction have individualized sentences. Do you think mandatory minimum sentences fall because of that? I think miller taught us that that it's a combination of the two. No, I think that that mandatory minimums under while wouldn't it? Because when you add the fact that it's a child, I don't think about a child. I am talking about because part of your argument was individualized sentences. That's correct. And I'm just saying don't mandatory minimums treat everybody that fall in the category of certain way without any consideration of individual characteristics or how bad that felony was they committed. Maybe it barely made the felony. Maybe you can make an argument that they they decided to do that. So they wouldn't face the death penalty. You a lawyer can make all those arguments. That's true. But in your argument about lack of individualization, doesn't that run every mandatory minimum? It does. But my argument does not stop with just I say that it stopped. Okay. But but let me take up that idea of mandatory minimums just a minute. In the current state of the law, mandatory minimums have been regularly approved for eighth amendment purposes. So there's no no no place for me to walk and expand that at the current state of law. But I will tell you and it looks it appears that the evolving standards of decency are really trending against mandatory minimums. That there is a recognition with the problems we have in our society with mass incarceration. A lot of nonviolent folks in prison that there is a trend societally against those. But at the at the present moment, I would I agree with the court that mandatory minimums on their own do not violate the eighth amendment. Yes, sir. He had five predicate offenses which could have been used against him. We don't even need to consider the two that occurred when he was 15 years old. He didn't contest the attempted malicious conduct by prisoner committed at age 25. And the other two were committed when he was 17, conviction of robbery with a dangerous weapon and an adult is adult conviction for attempted armed robbery both committed at age 17. Now you've got here at juvenile if we just use the two age 17 convictions and then the one when he was 25 years old. Here you've got an individual who continued his criminal conduct through the 17 years old into his adult situation when he was 25 years old. Yes, sir. I could see that there might be a little bit of sympathy or you could make a good argument if all of the convictions that were used were those that committed when he was a juvenile. But the two 17 year old convictions and then the one when he was 25 years old, sir, feeding myself, shows that he committed crimes as a juvenile and then continued his criminal conduct when he was an adult. I understand that. I'm glad you raised that because one this this conviction in 2003 for attempted malicious conduct by a prisoner was something I raised at the trial court level and I briefed and that you'll see in the joint appendix where I argued that that does not qualify as a crime of violence for the purposes of the armed career criminal act. At synancing the judge said I'm not taking up that issue. I don't even need to determine that other legal issue about whether or not an attempted spitting qualifies as a crime of violence. And that because the court specifically said I don't need to reach that and pointed out what you just pointed out. I've got plenty of these convictions that occurred under the age of 18 that do qualify under the statute and I have no binding precedence to the contrary. And so what I would point in my response is that that particular issue, that adult issue, there were issues raised in the trial level that that would not qualify because it doesn't qualify as a violent offense. And that the other four all did occur while he was under the age of 18 and 18 was the age in which the Miller court said as the age of adulthood. And so my argument is to this court that all of his qualifying predicate of felonies were committed under the age of 18. Let me ask you this as I understand the record that predicate offense when he was age 25 is not contested on appeal. I as trial counsel contested it in the trial court and my recollection I could be wrong in the joint appendix was that the court said he is not taking up that legal issue. That he did not consider that in his consideration of whether or not he qualified as a career offender. I think what you're saying is but is that contested on appeal? The court didn't rule on it. That's right. So is that I didn't think that was contested on appeal? Well I have not raised it in my brief because the court did not consider it as a predicate felony on appeal. So I feel very hesitant to weigh too far beyond my very sparse brief. But I will tell the court I did litigate that you'll find it in the joint appendix where I made the legal arguments that that does not qualify as a career of a violent offense. So if you want here you'd have to go back and battle out those arguments. I think so, Your Honor. And so I'd ask the court to consider that because Miller did set forth a principle that children are as a constitutional significance for the Eighth Amendment that a child is convicted. In the other circuit, bought this argument. No sir. And the government will... Well you can't argue to us. I was just asking the same question. That's true. Not that I'm aware of. The government has cited a case from the eleventh circuit that did consider this very similar argument for Eighth Amendment purposes. And what I'd ask this court to consider was that standard of review in that case was plain error. And that case, the defendant lost in that case because there was no clearly binding precedent that could have overturned or changed that outcome. And the standard or review here is denovo. And so this court is free to substitute your own judgment for the trial court's judgment with respect to the constitutionality of this sentencing structure. And so I would submit that because the Armed Career Criminal Act prohibits the sentencing court from taking into consideration the fact that these predicate felonies were committed by a child, it is unconstitutional. That the combination of the mandatory nature of that provision and the added to the fact that these were predicates that were occurred when the person was a child. That the court should be able to have some individualized consideration of that without enhancing automatically. So the argument is, anytime there's a mandatory minimum in sentencing and something in the... What if it added to criminal history police? You know an offense committed at 16 between it as an adult. You still would argue that that's unconstitutional. Mandatory minimum based on guideline bracket based on offense or criminal history. You made the same argument. I don't know that I would because the guidelines are advisory and the court would have the discretion to weigh those factors when they are crafting an individualized sentence. My concern is with the statutory provisions that are mandatory and prohibit the sentencing court from considering the fact that these were convictions that occurred when the person was a child and not as an adult. And as a matter of fact he's less culpable. Thank you. You say sometimes. Yes sir. Thank you very much. Mr. Rogers. Good morning ma'am. Please the court. My name is Joshua Rogers and I represent the United States. Defendant acknowledged sentencing that the argument he's making is quote, quite a stretch and he also rightly concedes in his brief that there is no... Well he wanted to stretch it all the way to Richmond. That's right. And the court indulged it and so therefore we have would also note that he concedes there's no specific authority upholding the argument that he makes. There is... He is the indicate this is the direction that the law sees be going. There is the the case has extended the law to some extent and there are some interesting language within the sociological factors that deal with juvenile. It seems as though that's what he's pointing us to to consider that perhaps and given it back even though there's no authority for it there's really nothing here to prevent us from doing this if we choose to do it in the circuit. So that's seems to be the basis of his advancing and argument for which there's nothing more important and not even indicates that we should show that but nonetheless he's saying we can do this. Well I would say what would restrain this court from doing is the checks and balances that are inherent to our system. I mean there's a news article that just came out yesterday about the fact that Congress is submitting bills right now to address the mandatory minimums and also reforming the sentence and guidelines but essentially he's asking... I'm not to deal too much in the politics of it I think we'll stick with trying to see if it satisfies the 188th Amendment. Right. We don't... And to mention the yesterday's news article is what we do today. Pardon me for doing so. The point being essentially I think the defendant is asking us to wait into something essentially in the political realm when he begins to talk about where we're going as a country. This court is simply being asked to talk about the 8th Amendment and what we know for Miller. That's a way it doesn't. This is a Supreme Court. Sometimes talk about what the trend is in the states when they apply the law sometimes. Well that's the Supreme Court's prerogative but again I would simply state that in terms of what the Supreme Court talked about in Miller it is simply talking about the impact of a life sentence mandatory without parole for H. You and I. What do we do? What do we do as a court looking back at these predicate offenses? What do we do under a general... This is a general question. When somebody was a juvenile at the time they committed a crime but they were treated as an adult. Do we look at the process under which they were treated as an adult? Do we just accept it as an adult conviction? What do we do? I think the court looks to the ACCA which specifically allows for those particular sentences and convictions to count... So those particular convictions account. But they don't say anything about child and being treated as an adult at the time do they? I would agree. And so what... That's my question to you. Now I'm not asking the question about a specific type of conviction you know for assault and battery or attempted murder. We can we can look at the statute for that but I'm saying what do we do in this scenario when a person has such a conviction but how much do we look at the circumstances of that person's age at the time of that predicate conviction? We would argue the court should not look at the circumstances at the time to age in particular with this defendant we have a defendant who's proven that he's more than willing to continue that type of behavior into adulthood. So it would be our argument particularly in light of fact that there is an unpublished understanding that's persuasive for circuit opinion and an 11th circuit opinion that are moving against this position and not only that there are no courts whatsoever which defendant can cite that have adopted this argument we would argue that the district court should be affirmed in this case and beyond that we have no other argument. Thank you very much. Thank you very much. Mr. Holmes you say five minutes. The court raises an interesting question about how far this court should look into whether or not how the person was treated in the state level. I don't mean to cut you off but are you for me with the state's first as Linda? I think so is it the case cited in the opinion. Directly against you it's for circuit decision 1993 that for the proposition that after the thinner was prosecutor as an adult it's irrelevant that he if he was a junior let's the time of the offense for purposes of 19 924 E so long as the offense was punished for more than one year. Now if that's the law in this circuit how can we ignore it? Because that case was decided prior to Miller. I know but no court in this United States extended Miller to cover what you have addressing here today. That's true but Miller. The case didn't cover that because there there was a sentence of life without parole possibility for all. That's correct Miller also said that it is constitutionally significant when you have mandatory sentencing if the sentence was with respect to a child and that has changed and that was a synthesis of rope versus and Graham rope versus Simmons and Graham versus Florida where the court showed that the evolving standards of decency with respect to treating children as children require a different constitutional approach and because there is now a different constitutional approach with respect to children and mandatory sentencing the the case is prior to Miller have to be looked at from a different constitutional lens. Authority you're relying on. I'm relying on Miller. Well I think you agree that Miller has not been extended to the extent that you are going to I really admit that and I don't think that you can test that this defendant's convictions do meet the requirements of the armed career criminal act and USC this guideline 4B1.4 That's correct as as as written and currently interpreted they meet those criteria yes sir. Well you make a persuasive argument that might be made to the Supreme Court but I don't see how this courts in a position to grant you the relief that you are going to. Well you you could if you wanted to but I'm that will be your decision. I mean this is a denovo review it was argued below. What authority would I rely on? Miller. I don't think Miller helps you at all. Well I appreciate that and I'm here to try to persuade you otherwise and obviously not do it very good. I'm diminishing the I follow to your argument at all. You just you have to know as you're arguing against precedent you're arguing for a new path you're just you're doing that. I'm just going right up the hill you're on it yes sir. But you just think the way you read Miller you may not be the way we read Miller. Apparently it's not been the way any other circuit court should read Miller but you're just taking the stab at it to tell us we have precedent that hurts you. Yes sir. You just suggest that that precedent can be adjusted if not ignored because of your reading of Miller. Yes sir. I do think it is important to look at the question that you raised about whether or not these how these children are looked at under the armed crew of criminal act or how they're looked at from federal purposes when you're looking at a state. I wouldn't really mind question but I've heard she was how a person had been treated not how they're looked at but you understand. I do you know I'm not saying you look at it. I just asked that question. No yes but what do you do do you look at there is a seems to me if there's a judicial term a determination that seems to me that's something you have difficulty fighting fighting against because you've had a judge no reason to ask the judge is anything but competent look at the factors in the side sort of what Judge Winter alluded to that person in front of me has the understanding and the wisdom as as an adult even though the age might be a little bit different but I can now I'm satisfied I can treat that person as an adult and that was the case in Miller that they did treat those 14 year old children as adults made that judicial determination it was still unconstitutionally firm in firm because under the federal law they're still children under the age of 18. I really appreciate your your um candor and your willingness to make let me make this argument and it has been an honor truly to get you up here before you today on behalf of mr hunter. Thank you very much I know you're you're court appointed aren't you thank you very much mr. home we all acknowledge as a court that we appreciate you taking on this obligation and of course we have to have people who will come up and make arguments on behalf of folks to let us do our job so we acknowledge that thank you for it thank you you need a break at all you ready to go. We'll step down to greet council and then go