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United States v. Sheppard

United States District Court, W.D. Missouri, Western Division

March 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BRYAN E. SHEPPARD, Defendant.

          ORDER

          FERNANDO J. GAITAN, JR., United States District Judge

         I. BACKGROUND

         Bryan E. Sheppard is currently serving a life sentence without the possibility of parole. On February 26, 1997, Sheppard, along with four other individuals was convicted of aiding and abetting an act of arson which resulted in the deaths of six Kansas City, Missouri firefighters. Sheppard's sentence was imposed on July 2, 1997. Sheppard appealed his sentence to the Eighth Circuit, which affirmed his conviction on October 30, 1998. Sheppard filed a petition for a writ of certiorari in the United States Supreme Court which was denied on October 4, 1999. Sheppard filed his first 28 U.S.C. § 2255 motion on September 28, 2000. That motion was denied on July 11, 2003. Sheppard appealed, but the Eighth Circuit denied the appeal on February 27, 2004.

         Fifteen years after Bryan Sheppard was sentenced, on June 25, 2012, the Supreme Court issued its decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012), holding 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.'” On September 9, 2013, the Eighth Circuit authorized Sheppard to file a successive habeas petition based on this decision. Sheppard was born on March 5, 1971, and was 17 years and 8 months old, on November 29, 1988, the date of the offense. On August 25, 2014, the Court granted Sheppard's Amended Motion to Vacate, Set Aside or Correct Sentence. After the Court granted the §2255 motion, the Supreme Court granted certiorari on the question whether Miller v. Alabama applied retroactively. On January 25, 2016, the Supreme Court issued its decision in Montgomery v. Louisiana, 577 U.S., 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) holding that “Miller announced a substantive rule that is retroactive in cases on collateral review.” Id. at 732. A resentencing hearing was held on February 15, 2017. The Court heard testimony from three family members of the firefighters who were killed during the explosion, testimony from Bryan Sheppard, his family and friends regarding his efforts over the years at rehabilitation, testimony from expert witnesses regarding Sheppard's background and mental state as a teenager and also Sheppard's amenability to rehabilitation as an adult. The Court now issues its decision after consideration of the Miller factors and the 18 U.S.C. §3553 factors.

         II. DISCUSSION

         A. Evolving State of the Law

         Because so much time has elapsed since the explosion and the trial, the Court finds it helpful to briefly review the law regarding juvenile sentencing and how it has changed over the years and how this impacts Bryan Sheppard's resentencing.

         In 1950, Congress passed the Federal Youth Corrections Act (“FYCA”). This was an alternative sentencing system for juveniles, which focused on treatment and rehabilitation of juveniles. In 1984, the FYCA was repealed with the passage of the Comprehensive Crime Control Act. One commentator has noted:

The mid-1980s and 1990s ushered in even coarser treatment of youth due to the rise in popularity of the myth of the juvenile “superpredator, ” purportedly radically impulsive, brutally remorseless youngsters, including ever more pre-teenage boys, who murder, assault, rape, rob, burglarize, deal deadly drugs, join gun-toting gangs and create serious communal disorders. Though the pundits who spun these theories turned out to be wrong about the future of crime, cultural lore around the superpredator claim contributed to Congress enacting and President Clinton signing the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA). Among other things, the VCCLEA authorized the federal prosecution of juveniles as adults for certain crimes of violence and increased penalties for juveniles in possession of a handgun or ammunition.

         Note, Mending the Federal Sentencing Guidelines Approach to Consideration of Juvenile Status, 130 Harv.L.Rev. 994, 1002 (2017)(internal quotations omitted).

         In Thompson v. Oklahoma, 487 U.S. 815, 838108 S.Ct. 2687, 2700, 101 L.Ed.2d 702 (1988), a plurality of the Court found that the Eighth and Fourteenth Amendments prohibited the execution of a person who was under the age of 16 at the time of the offense. However, just a year later in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), the Court stated that it “discern[ed] neither a historical nor a modern societal consensus forbidding the imposition of capital punishment on any person who murders at 16 or 17 years of age.” The Court determined that capital punishment of those 16 and over did not violate the Eighth Amendment's prohibition of cruel and unusual punishment. One commentator noted that “Stanford was decided during the rise in the tough-on-crime attitude. Thus, the majority's determination about the imposition of the death penalty on youth mirrored the nation's trend toward crime-centric punishment instead of sentences that accounted for an offender's characteristics.” Elizabeth Hilliard, Note & Comment, A Life Without: Juveniles Spending Their Lives in Oregon's Prisons and the Need for Change Following Miller and Graham, 20 Lewis & Clark L.Rev. 333, 356 (2016).

         In 1997, when Bryan Sheppard was originally sentenced, the sentencing guidelines were mandatory. The original Presentence Investigation Report stated that the sentencing guideline for a violation of 18 U.S.C. §844 (i) was found in 2K1.4. According to 2K1.4, the base offense level is applied unless death resulted. The Probation Office determined that the guideline for first degree murder under 2A1.1 was the most analogous for the following reasons:

According to the evidence at trial, Sheppard went to the location of the highway construction project to burglarize the construction trailers in order to steal tools from the machinery. In the process of committing this offense, he assisted in setting fire to one of the construction trailers, which contained explosive materials. As a direct and proximate result of his contributory actions in setting the fire, an explosion resulted which caused death to the six firefighters who were attempting to extinguish the construction trailer fire in furtherance of their official duties. Therefore, because the death of the firefighters resulted during Sheppard's aiding and abetting in the burglary and arson at the construction site, the guideline for first degree murder under 2A1.1 applies and requires a base offense level of 43.

(Pre-Sentence Investigation Report, pp. 9-10). This resulted in a sentencing range of life in prison without the possibility of parole. However, in the almost twenty years since Sheppard's sentence was imposed, the Supreme Court has issued numerous opinions regarding the sentencing of juveniles. A brief summary of these opinions provides a historical context and explanation for the factors which courts now consider in sentencing juveniles.

         In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the Court reconsidered the question whether the Constitution bars capital punishment for juvenile offenders who were older than 15, but younger than 18 when they committed their crimes. The Court began by noting:

The prohibition against “cruel and unusual punishments, ” like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework we have established the propriety and affirmed the necessity of referring to “the evolving standards of decency that mark the progress of a maturing society” to determine which punishments are so disproportionate as to be cruel and unusual. Trop v. Dulles, 356 U.S. 86, 100-101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)(plurality opinion).

Roper, 543 U.S. at 560-61. The Court in Roper found:

objective indicia of consensus in this case - the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice - provide sufficient evidence that today our society views juveniles, in the words Atkins [v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)] used respecting the mentally retarded, as “categorically less culpable than the average criminal.” 536 U.S., at 316, 122 S.Ct. 2242.

Id. at 567.

         The evolution of juvenile sentencing continued with the Supreme Court's decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), where the Supreme Court held that mandatory life without parole sentences violated the Eighth Amendment when imposed on juvenile non-homicide offenders. In discussing the Eighth Amendment, the Court stated:

To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to “‘the evolving standards of decency that mark the progress of a maturing society.'” Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)(quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)(plurality opinion)). “This is because ‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.'” Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S.Ct. 2641, 2649, 171 L.Ed.2d 525 (2008)(quoting Furman v. Georgia, 408 U.S. 238, 382, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)(Burger, C.J., dissenting)).

Id. at 58. The Court in Graham noted that “[n]o recent data provide reason to reconsider the Court's observations in Roper about the nature of juveniles. . . . developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.” Id. at 68. The Court in Graham concluded that “a categorical rule gives all juvenile nonhomicide offenders a chance to demonstrate maturity and reform. The juvenile should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential.” Id. at 79.

         Two years after Graham, the Supreme Court held in Miller v. Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), that mandatory life imprisonment without the possibility of parole for those under the age of 18 at the time of their offense, violates the Eighth Amendment. The Court in Miller stated:

As we noted the last time we considered life-without-parole sentences imposed on juveniles, “[t]he concept of proportionality is central to the Eighth Amendment.” Graham, 560 U.S., at __, 130 S.Ct., at 2021. And we view that concept less through a historical prism than according to “‘the evolving standards of decency that mark the progress of a maturing society.'” Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)(quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)(plurality opinion)).

Id. at 2463. The Court in Miller explained that the previous decisions in Roper and Graham found that “children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, we explained, ‘they are less deserving of the most severe punishments.' Graham, 560 U.S. at __, 130 S.Ct., at 2026.” Id. at 2464. There were three significant differences between juveniles and adults the Court noted:

First, children have a “‘lack of maturity and an underdeveloped sense of responsibility, '” leading to recklessness, impulsivity, and heedless risk-taking. Roper, 543 U.S., at 569, 125 S.Ct. 1183. Second, children “are more vulnerable . . .to negative influences and outside pressures, ” including from their family and peers; they have limited “control[l] over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. Ibid. And third, a child's character is not as “well formed” as an adult's; his traits are “less fixed” and his actions less likely to be “evidence of irretrievabl[e] deprav[ity].” Id. at 570, 125 S.Ct. 1183.

Id. at 2464. The Court in Miller continued:

Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features - among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him - and from which he cannot usually extricate himself - no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. . . .And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.

Id. at 2468.

         After Miller was decided, questions arose regarding whether it applied retroactively to cases on collateral review. In Montgomery v. Louisiana, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the Court stated:

Because Miller determined that sentencing a child to life without parole is excessive for all but “‘the rare juvenile offender whose crime reflects irreparable corruption, '” 567 U.S. at __, 132 S.Ct. at 2469 (quoting Roper, supra, at 573, 125 S.Ct. 1183), it rendered life without parole an unconstitutional penalty for “a class of defendants because of their status” - that is, juvenile offenders whose crimes reflect the transient immaturity of youth. Penry, 492 U.S., at 330, 109 S.Ct. 2934. As a result, Miller announced a substantive rule of constitutional law. Like other substantive rules, Miller is retroactive because it “‘necessarily carr[ies] a significant risk that a defendant'” - here, the vast majority of juvenile offenders - “‘faces a ...

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