You gotta be thinking this one may go en banc, no?
Not because there's a circuit split, or it's a death penalty case, or anything like that. It's not. It's just a fact-intensive case about a single defendant. It doesn't even really raise any substantial issues of law either. It's instead merely about whether the facts and transcript below demonstrate sufficient support for the life sentence imposed by the district court below. Period.
That's not something that one would normally think has even a shot at en banc review. It affects only one person, and one person only.
And yet I think the thing may perhaps go up.
In part because it's a life sentence for someone who was a minor (seventeen) at the time he committed the (admittedly terrible) crimes at issue here. Which means, in the federal system, that he's going to almost certainly spend the actual rest of his life in prison for something he did as a kid. ("Because the federal system does not permit parole or
early release from life sentences, see 18 U.S.C. § 3624,
Briones’s sentence is effectively for life without the
possibility of parole.")
Normally, that wouldn't matter. We lock up kids forever plenty of times. But pretty much everyone seems to agree that this case involves someone who'd far from the hardened, unreformable criminal that's the stereotype of someone we put in prison forever. He's now been in prison for 20-plus years, and his conduct for the past two decades has been completely unblemished by any misconduct. As the majority opinion notes, the evidence below demonstrated that "in all his time in prison he had not been written up once
for a disciplinary infraction, that he had no gang involvement,
that he had been working continuously, and that he married
his girlfriend with whom he has a now-adult child, and that he
sees his wife regularly." And even the government recognized that "Briones was 'really doing well in prison,'” as opposed to what you might well initially think of someone with his history.
I hear you. "So what? He committed serious crimes (albeit as a juvenile), and the district court looked at the evidence and sent the guy to prison forever. That's life. At least in our justice system. Maybe right, maybe wrong. But hardly subject to en banc review. He'd never get the votes."
My thought too. At least initially.
But the lineup of the panel may end up persuading me the other way. The majority opinion is written by Judge Rawlinson. That may suggest that there are a ton of judges on the Ninth Circuit who might well see the case the same way. Though the judge that joins her is Judge Ezra, sitting by designation from Hawaii, so you don't know for sure.
But dissenting is Judge O'Scannlain. Hardly some shrinking violet let-em-all-out leftie. Exactly the opposite, even. If even he thinks that the right result is to remand for resentencing, that might well suggest that one might potentially persuade other folks that the right result here is not to lock this person up for the entire remainder of his life.
Now, look. This is not the "old days" of the Ninth Circuit. Many of your heartfelt lefties in criminal cases are now gone. Some of the strongest voices for correcting serious individual injustice through the en banc process are now silent.
But not all of them.
The prospect of compelling someone to die in prison when they might well be a "different person" from the one who committed the heinous crimes of a teenager might perhaps prompt a serious look at this case. If only knowing that even some ordinarily hard-core people (like Judge O'Scannlain) may be perhaps sympathetic to the cause -- not in general, but in this particular case.
We'll see. It'll be a good test case about the contemporary composition of the court, and it's desire (or willingness) to do justice in a given case.
