United States v. Branden Pete

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-10370

Plaintiff-Appellee,

D.C. No.

v. 3:03-cr-00355-SMM-4

BRANDEN PETE,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Arizona

Stephen M. McNamee, Senior District Judge, Presiding

Argued and Submitted

September 18, 2015—San Francisco, California

Filed April 11, 2016

Before: William A. Fletcher, Marsha S. Berzon,

and Carlos T. Bea, Circuit Judges.

Opinion by Judge Berzon

2 UNITED STATES V. PETE

SUMMARY*

Criminal Law

The panel vacated a sentence, which the district court

imposed on resentencing in light of Miller v. Alabama,

132 S. Ct. 2455 (2012), and remanded for appointment of a

neuropsychological expert and for resentencing after

considering any expert evidence offered.

The defendant was 16 years old when, in 2002, he

committed a crime that resulted in a mandatory life sentence

without the possibility of parole. Following Miller, which

held unconstitutional for juvenile offenders mandatory terms

of life imprisonment without the possibility of parole, the

district court resentenced the defendant to 708 months.

The panel held that the district court abused its discretion

in denying the indigent-defendant’s motion for appointment

of a neuropsychological expert under 18 U.S.C. § 3006A(e)

to help develop mitigating evidence at resentencing, where

(1) a reasonable attorney would have considered an up-to-

date neuropsychological evaluation necessary had the

defendant been a nonindigent defendant; and (2) the

defendant was prejudiced because a current evaluation could

have provided mitigating evidence in support of a lesser

sentence.

The panel rejected the defendant’s contention that in light

of 28 U.S.C. § 994(b)(1), which delegates authority to the

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. PETE 3

Sentencing Commission to develop sentencing “ranges,” the

Commission lacked authority to enact base offense level 43,

which provides no sentencing “range.” The panel explained

that at least where, as in 18 U.S.C. § 1111, a single sentence

is compelled by statute, a sentencing “range” is properly

limited to that sentence. The panel concluded that the district

court did not commit prejudicial error when it considered the

presentence report’s calculation of criminal history points

attributable to the defendant’s juvenile offenses.

COUNSEL

Atmore L. Baggot (argued), Apache Junction, Arizona, for

Defendant-Appellant.

John S. Leonardo, United States Attorney, District of

Arizona; Krissa M. Lanham, Deputy Appellate Chief; Joan G.

Ruffennach, Assistant United States Attorney (argued),

Phoenix-Arizona, for Plaintiff-Appellee.

OPINION

BERZON, Circuit Judge:

Branden Pete was 16 years old when he committed a

crime that resulted in a mandatory sentence of life without the

possibility of parole. Later, Miller v. Alabama, 132 S. Ct.

2455 (2012), held unconstitutional for juvenile offenders

mandatory terms of life imprisonment without the possibility

of parole. On resentencing, the district court refused to

appoint a neuropsychological expert pursuant to 18 U.S.C.

§ 3006A(e) to help Pete develop mitigating evidence.

4 UNITED STATES V. PETE

Our principal question on appeal is whether the district

court abused its discretion in declining to appoint such an

expert to aid the defense. We conclude that it did, and so

remand for appointment of an expert, and for resentencing

after considering any expert evidence offered. We also

consider, and reject, Pete’s other challenges to his

resentencing.

I.

A. The Crime

In May 2002, Pete, a Navajo youth who lived on an

Arizona reservation, was riding in a car with three men,

Hoskie James, Harris James (Hoskie’s son1), and Irvin Cepi.

At the time, Pete was 16 years old, Hoskie was 41, Harris was

20, and Cepi was 23. Hoskie drove the car. Pete and Harris

had been drinking for some time before meeting up with Cepi

and Hoskie, and the four riders continued to drink while

driving.

Hoskie pulled over to pick up a hitchhiker, Charlotte

Brown. After a period of driving, Hoskie stopped the car in

a wooded area and everyone got out. One member of the

group suggested that they rape Brown. They then took turns

holding her down and raping her.

After the rapes, everyone got back in the car. The victim

sat between Pete and Cepi in the back seat, naked, while

Hoskie drove away. Although the exact events and

chronology are unclear, it appears that either Brown

1

Because Harris and Hoskie James share a surname, we refer to them

by their first names.

UNITED STATES V. PETE 5

threatened to call the police, or the group became concerned

that she would. As a result, some member of the

group—probably Cepi—suggested killing her.

Hoskie stopped the car once again, and the victim was

either ordered or dragged out of the car. She was then

physically forced or ordered to the ground. Pete and Harris

held Brown down while Cepi, who had retrieved a large rock,

threw it onto her head. Brown’s face was bleeding, but she

continued to breathe, making “stuffy nose” sounds. Pete then

threw another rock at Brown’s head or face, apparently

killing her. Pete asked Harris to “throw [a rock] on her,” but

Harris said no.

Pete and Cepi then dragged Brown’s body into a ditch and

covered it with rocks. The perpetrators returned to the car

and drove home. Later, to conceal the crime, Harris and Pete

set fire to Brown’s clothes and shoes and to their own

clothing as well.

B. Pre-Trial Events

After Brown’s remains were discovered, Pete was

arrested. He was held in Navajo tribal custody until a

juvenile information was filed in the U.S. District Court for

the District of Arizona. United States v. Brandon P.,

387 F.3d 969, 971 (9th Cir. 2004).2 The United States

petitioned to try Pete as an adult, invoking the transfer

2

Although the record indicates that Pete spells his first name “Branden,”

his name was spelled “Brandon” in the case name of earlier iterations of

this case.

6 UNITED STATES V. PETE

provisions of 18 U.S.C. § 5032.3 Id. In preparation for the

transfer proceedings, the court granted Pete’s request under

section 3006A(e) for a forensic psychiatric evaluation.

The forensic evaluator, Dr. Herschel D. Rosenzweig,

interviewed Pete for three hours in May 2003 and reviewed

a number of case-related materials. Dr. Rosenzweig

described Pete as “cordial, polite and cooperative throughout

the interview,” and as “wholly responsive to all inquiries to

the best of his ability.” Pete had “fair vocabulary and [a]

relatively poor fund of general information.” Pete’s “first

language is Navajo” and he “had a long history of learning

difficulties, [attending] special education programs while in

school.” Pete dropped out of school at the age of 13, in

seventh grade, when his “level of learning in school was two

to three years delayed.”

Pete’s “mother and father were severe alcoholics and

drank most of the time.” At the age of 14, Pete began to

drink alcohol more regularly than he had before (he didn’t

remember when he first used alcohol) and began using

marijuana; at 15, he started using cocaine. Pete believed he

was “quite dependent and addicted to alcohol, and []

3

Section 5032 provides, in relevant part:

A juvenile alleged to have committed an act of juvenile

delinquency . . . shall not be proceeded against in any

court of the United States unless the Attorney General,

after investigation, certifies to the appropriate district

court of the United States that . . . the offense charged

is a crime of violence that is a felony . . . , and that

there is a substantial Federal interest in the case or the

offense to warrant the exercise of Federal jurisdiction.

UNITED STATES V. PETE 7

acknowledged that [he] ha[d] a serious problem with this

substance.”

After dropping out of school, Pete lived with various

family members. He worked odd jobs, mostly to earn money

to buy alcohol and marijuana. Pete described getting into

trouble when he used alcohol, but said he didn’t drink while

living with his older brother in New Mexico. While living

with that brother, Pete studied for his GED and intended to

complete the exam, but his mother urged him to come live

with her, back in Arizona, and he did. Pete’s father, who

physically abused both Pete and Pete’s mother, died shortly

before Pete committed the crimes underlying this appeal.

Pete, Dr. Rosenzweig concluded, was a substance abuser

who “had virtually no support or help from his family while

attending school,” and who, “with the exception of one older

brother . . . , d[id] not identify any positive role models within

his family system.” He “appear[ed] to be a youngster who

c[ould] be readily intimidated, and influenced by others such

that he has little resilience against participating in drug and

alcohol abuse when in the company of those who are so

inclined.” “[B]ut when provided with [positive role] models,

he appears to be capable of responding in a very appropriate

manner.” The doctor noted that Pete was a model prisoner in

his ten months at the juvenile facility. According to staff, he

had been “an extremely cooperative inmate, had no incidents

or inappropriate behavior,” and was “polite and cooperative,”

“essentially . . . a model inmate,” attaining the top of five

privilege levels in his time there.

Dr. Rosenzweig opined, ultimately, that Pete was “a very

salvageable young man, and with adequate structure and

support, appropriate treatment resources and abstinence from

8 UNITED STATES V. PETE

substance abuse, he ha[d] the potential of becoming a

responsible and productive citizen.”

The district court considered Dr. Rosenzweig’s evaluation

but rejected the doctor’s ultimate conclusions, on the ground

that the doctor’s opinion was influenced by Pete’s

inconsistent recitation of the crime and events leading to it.

The court then granted the United States’ motion to transfer

the case to try Pete as an adult. Brandon P., 387 F.3d at 971.

We affirmed the transfer. Id. at 978.

C. Convictions and Initial Sentencing

Pete’s trial began in October 2005. Harris pled guilty and

testified at Pete’s trial.4 United States v. Pete, 277 F. App’x

730, 733 (9th Cir. 2008). The jury convicted Pete on counts

of second-degree and felony murder, as well as conspiracy to

murder. The judge sentenced him to concurrent mandatory

terms of life imprisonment without the possibility of parole,

pursuant to 18 U.S.C. § 1111.5

We affirmed the convictions and sentence on all grounds.

See Pete, 277 F. App’x 730; United States v. Pete, 525 F.3d

844 (9th Cir. 2008).

4

Cepi was convicted by a jury and sentenced to life imprisonment

without the possibility of parole. See 18 U.S.C. § 1111.

5

In relevant part, section 1111 provides: “Whoever is guilty of murder

in the first degree shall be punished by death or by imprisonment for life

. . . .” 18 U.S.C. § 1111(b). Pete’s felony murder convictions were treated

as first-degree murder. See id. § 1111(a).

UNITED STATES V. PETE 9

D. Requests for Resentencing and for an Expert

In 2013, after the Supreme Court decided Miller, Pete

moved for resentencing. The district court granted the

motion, noting that Miller requires the court to give a juvenile

offender “an opportunity to present mitigating evidence to

support a sentence less than life without parole,” and ordering

that Pete be resentenced on an open record.6

Before the resentencing, Pete filed an ex parte motion for

expert services pursuant to section 3006A(e),7 requesting that

Marc Walter, Ph.D., be paid to assist him. Pete explained that

Dr. Walter’s help was “necessary to pursue information that

might mitigate or lessen the sentence imposed on

resentencing.” Noting the passage of more than a decade

since preparation of the original PSR and Dr. Rosenzweig’s

forensic evaluation, Pete explained:

Dr. Walter would conduct a comprehensive

neuropsychological evaluation which would

6

The United States agreed before the district court that Miller applies

retroactively and does not contest its retroactivity on appeal. After this

case was argued, the U.S. Supreme Court agreed that the Miller rule is

retroactive. See Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

7

Section 3006(A)(e)(1) provides:

Upon request. –Counsel for a person who is financially

unable to obtain investigative, expert, or other services

necessary for adequate representation may request them

in an ex parte application. Upon finding, after

appropriate inquiry in an ex parte proceeding, that the

services are necessary and that the person is financially

unable to obtain them, the court . . . shall authorize

counsel to obtain the services.

10 UNITED STATES V. PETE

let us know [Pete’s] ‘mental age’, whether he

has any cognitive dysfunction which could

make him more suggestible or impair his

judgment, and whether he has any particular

mental disorders which could have played into

his behavior.

Further, Dr. Walter “could offer insights into the impact

incarceration has had on Mr. Pete, who has been in

segregation much of his confinement.”

The court denied Pete’s motion. It held that although Pete

is financially qualified for an expert, he had not shown Dr.

Walter’s services were “necessary” within the meaning of

section 3006A. The court noted that “[t]he purpose of th[e]

re-sentencing is to allow defendant Pete to present mitigating

evidence in support of a sentence of less than life without

parole, in accordance with Miller . . . .” Pete’s “2003

psychiatric evaluation . . . includes such evidence,” said the

court, and although Pete “implie[d] that the passage of time

may impact that evidence, . . . it is difficult to conceive how

. . . . For example, the passage of time would not change his

‘family and home environment’ nor the ‘circumstances of the

underlying homicide offense.’” “Not only that,” explained

the court, “but the 2003 evaluation encompasses the matters

which the neuropsychologist intends to evaluate, rendering a

second evaluation duplicative.” Lastly, “any ‘insights into

the impact incarceration has had’ on [Pete] is not the type of

mitigating evidence which Miller contemplates.”

E. The Pre-Sentence Report (“PSR”)

In preparation for resentencing, the U.S. Probation Office

calculated the offense level for Pete’s crimes as 43.

UNITED STATES V. PETE 11

Originally, the PSR recommended that three of Pete’s

juvenile offenses be assigned two criminal history points

each. The PSR also discussed Pete’s prison record, which

included:

January 25, 2008, possessing intoxicants;

January 29, 2008, possessing a dangerous

weapon; March 13, 2008, fighting with

another person; May 30, 2008, destroying

property over $100; October 24, 2008,

refusing to take alcohol test and being in an

unauthorized area; March 15, 2009, assault

without serious injury, wherein the defendant

struck with his shoulder a staff member while

in restraints; December 8, 2011, possession of

a dangerous weapon; April 17, 2012,

interfering with security devices, wherein the

defendant burned a hole in the exterior

window of his cell; April 22, 2012, setting a

fire on the SHU range; June 27, 2012,

refusing work/program assignment, wherein

the defendant refused to accept a cellmate

because he was not willing to accept “just any

cellie;” October 31, 2013, destroy property

$100 or less.

The PSR concluded that the Guidelines range for Pete’s

crimes was life, and that, pursuant to section 1111, he was

subject to two life sentences for the felony murder

convictions. The probation officer recommended a life

sentence because of “the seriousness of the offense and [to]

protect the public from further crimes.”

12 UNITED STATES V. PETE

Pete objected to the six criminal history points attributed

to three of his juvenile offenses in the PSR. The calculation

was incorrect, he contended, because he never served a

sentence for those offenses. The probation officer adjusted

the calculation to give the offenses one point rather than two,

but noted that this did not affect the Guidelines’

recommendation of a life sentence.

Pete also challenged the PSR’s characterization of his

prison record, pointing out that (1) he had explained the

circumstances surrounding each infraction; (2) ten “minor

incidents in more than seven years is not unusual for an

inmate confined prior to age 18, and [is] also not unusual for

an inmate who has been transferred between nine different

institutions”; and (3) “because these incidents came in spurts

over a relatively short period of time, external stressors most

likely prompted” them.

F. Resentencing Proceeding

At resentencing, the court first reviewed the PSR with the

parties, asking whether the proper calculation of criminal

history points for Pete’s juvenile offenses had been resolved.

Pete’s attorney confirmed, and the United States agreed, that

the issue had been resolved.

Pete’s counsel, Daniel Drake, then argued. Drake

reported that he had met with Pete several times in

preparation for resentencing and was struck by his client’s

inquisitiveness. Pete was “quite unlike” his teenage self,

Drake maintained. Pete and Drake had discussed “a number

of things, interesting things that, again, belie what [Pete] was

like when he was 16.” Drake listed Pete’s recent reading

materials, “including Friedrich Nietzche’s[] Beyond Good

UNITED STATES V. PETE 13

and Evil[,] . . . Victor Frankl’s[] Man’s Search For Meaning,

. . . [and] The Alchemist.” According to Drake, “[t]hese

things intrigue [Pete]. I can’t imagine they would have

caught his attention at the age of 16.” Referring to the

comments of a woman with whom Pete had corresponded

over the years, Drake summarized, “Mr. Pete is a different

person than he was when he committed this offense or when

he was sentenced the first time.”

Drake then discussed the crime, noting that the jury chose

not to convict Pete of first-degree murder. He emphasized

that Cepi, not Pete, instigated the crime; that Pete was the

youngest participant; and that the car’s occupants were

drinking heavily. Further, the 2003 evaluation revealed that

Pete’s cognitive processes as a juvenile mirrored those that

concerned the justices and underlay the decisions in Miller

and Roper v. Simmons, 543 U.S. 551 (2005).8

Drake then reviewed the 18 U.S.C. § 3553 sentencing

factors, explaining, among other things, that, were a life

sentence reimposed, Pete would not be allocated the limited

rehabilitative services available in prison; that a life sentence

was not necessary to protect the public, “given Mr. Pete’s

growth and maturation”; and that deterrence would not be

served by a life sentence because of the nature and extent of

crime on the Navajo reservation.

Next, Drake explained that Pete had been in segregation

for much of his dozen years in prison and had been

transferred many times. His status as a sex offender made

him subject to mistreatment by other prisoners. The isolation,

8

Roper held unconstitutional capital punishment imposed on individuals

who were under 18 at the time of their crimes.

14 UNITED STATES V. PETE

frequent transfer, and mistreatment were relevant to Pete’s

sentence, according to Drake, in two ways. First, they

indicated that Pete would be affected in an excessively

negative way by spending a lifetime in prison, nearly always

in isolation. Second, Pete’s sex offender status explained at

least three of his assaultive infractions. Because of his status,

other inmates “jumped him,” and he had to fight back in self-

defense. Also, he had been placed in a cell with another

inmate with whom he felt unsafe.

Pete then personally addressed the court. He thanked the

court for the opportunity to speak; described prison as a

“rough journey” that had taken a mental and emotional toll on

him; and explained that because he had spent 80% of his time

in solitary confinement, he had done a lot of thinking, with

the result that he felt he had “to better [him]self with

knowledge, wisdom, understanding, and to . . . have goals

. . . .” When the court asked about Pete’s work toward his

GED, Pete noted that he had studied and taken pretests, but

that his solitary confinement prevented him from progressing

further.

“[T]he majority of the reason” that he was in solitary

confinement, Pete explained, was fear for his life. Being in

the “general population . . . , as with my charges, you know,

it’s political,” and the “majority of penitentiary is run by

gangs.” But he maintained that he had changed quite a bit.

He now had “morals, principles, and a code [he goes] by in

[his] daily routine, and [he does] his best each and every day

to meet those goals.” Pete emphasized that he had “changed

a lot,” “matured” and “grown a lot,” that he didn’t “have the

same mindframe as [he] had as an adolescent, as a youth, at

the age of 16,” and that he now had goals and wanted to do

something positive with his life. Although he wished his

UNITED STATES V. PETE 15

crimes “didn’t happen,” he couldn’t change the fact that they

had.

The prosecutor then spoke. Addressing Pete’s

representation that he had changed, the prosecutor challenged

that portrayal: “The defendant says that he has changed, that

he has matured. His disciplinary record from the bureau of

prisons is at odds with that.” The prosecutor noted that Pete

was at first housed in the general population but then had to

be placed in segregated housing, “because he gets in trouble.”

Further, Pete had not made much progress toward his GED,

having participated in fifteen or twenty classes, and then

withdrawing in late 2013, which, the prosecutor suggested,

meant Pete was not following through on his asserted goals.

The cruel nature of the crime, the prosecutor continued,

justified any deviation between Pete’s sentence and those

imposed on other juveniles. As an example, the prosecutor

referred to Pete’s behavior, throwing the rock that probably

killed Brown, while Harris refused to participate in stoning

Brown. Pete’s participation was not due to juvenile

impulsivity or poor judgment, discussed in Miller, the

prosecutor maintained. Overall, said the prosecutor: “I think

that that singular act of depravity is just evil. It is not

explained by the fact that you were neglected or you drink.”

The district court then imposed the sentence. The court

reasoned that Pete’s prison infractions indicated he had not

matured. Next, the court discussed the crime, noting that Pete

“was an active knowing and willing participant,” that Pete

had had time to consider whether he wanted to participate,

but that he chose to “deliver[] the fatal blow” and dispose of

Brown’s body and clothing, and that the crime was “one of

the most cruel, deliberate, heinous acts I have seen in over 40

16 UNITED STATES V. PETE

years.” The court also emphasized that Pete had

“demonstrated his violence and his antisocial nature while in

jail . . . .” Disagreeing with Dr. Rosenzweig’s ultimate

prediction about Pete, “particularly when he said . . . he

thought there was some opportunities for the defendant to

correct himself,” the court announced that any sentence less

than life would mean that, “upon release . . . , [Pete] still

poses a danger, and although they seem to suggest that after

the age of 35 people start to diminish their propensity for

criminal activity, I am not so sure it is accurate in this case.”

Although it acknowledged Pete’s drinking and family life, the

court opined that, “instead of trying to be better than the

circumstances of his parents, [Pete] gave into it, and most of

the time he spent as a youth was out of school, drinking,

doing drugs, and getting into trouble, and there’s no

indication that that would go unabated.”

To calculate the exact sentence, the court reasoned that

Pete’s life expectancy was 75 years. It then subtracted Pete’s

age and the amount of time he had already served to come to

a sentence of 708 months—59 years—as the total appropriate

sentence, elaborating:

That means that you have the opportunity to

get out of jail, Mr. Pete, when you are 75

years old and live the balance of whatever life

you have left back on the reservation.

By that time, the families will be gone. You

will certainly be beyond the age of probably

violent behavior. I doubt that even with that

given amount of time you’ll be able to do

anything productive, but at least it gives you

UNITED STATES V. PETE 17

a chance to pass on from this life into the next

outside of the confines of the prison yard.

The court thereupon imposed a 708-month sentence.

II.

On appeal, Pete first challenges the district court’s denial

of his motion for an expert under section 3006A(e). “A

district court’s denial of a request for public funds to hire an

expert is reviewed for abuse of discretion.” United States v.

Rodriguez-Lara, 421 F.3d 932, 939 (9th Cir. 2005), overruled

on other grounds by United States v. Hernandez-Estrada,

749 F.3d 1154, 1164 (9th Cir. 2014).

“The purpose of the Criminal Justice Act [is] to put

indigent defendants as nearly as possible in the same position

as nonindigent defendants . . . .” United States v. Sanders,

459 F.2d 1001, 1002 (9th Cir. 1972). For that reason, under

section 3006A(e), “a district judge shall authorize the

provision of expert services to a defendant financially unable

to obtain them9 where such services are necessary for

adequate representation.” Rodriguez-Lara, 421 F.3d at 939.

A district court thus abuses its discretion in denying an expert

“where (1) reasonably competent counsel would have

required the assistance of the requested expert for a paying

client, and (2) the defendant was prejudiced by the lack of

expert assistance.” Id. at 940 (citation omitted).

Here, both those conditions were satisfied.

9

The parties do not dispute that Pete is financially qualified for an

expert.

18 UNITED STATES V. PETE

A. Necessity

Critical to the question before us is the well-established

principle that “a court’s duty is always to sentence the

defendant as he stands before the court on the day of

sentencing.” United States v. Quintieri, 306 F.3d 1217, 1230

(2d Cir. 2002) (citation omitted). Further, where, as here, a

court is resentencing on an open record, the court is “free to

consider any matters relevant to sentencing, even those that

may not have been raised at the first sentencing hearing, as if

it were sentencing de novo.” United States v. Matthews,

278 F.3d 880, 885–86 (9th Cir. 2002) (en banc); see also

Pepper v. United States, 562 U.S. 476, 490 (2011) (“[A]

district court may consider evidence of a defendant’s

rehabilitation since his prior sentencing.”). Applying those

precepts, we have rejected the contention that at resentencing

a district court should not consider intervening events, see

United States v. Jones, 114 F.3d 896, 897–98 (9th Cir. 1997),

and have held that a district court should have explained why

a PSR was not updated for resentencing, as the earlier PSR

did not account for five years during which time the

defendant was imprisoned, see United States v. Turner,

905 F.2d 300 (9th Cir. 1990).

More specifically on point here is United States v.

Hernandez, in which the Second Circuit ruled that a district

court should have considered changes in the defendant over

the course of the 15 years since the original sentence,

including how the defendant’s aging affected the likelihood

of his recidivism; his rehabilitation in the interim; and

intervening changes in sentencing law. See 604 F.3d 48,

53–55 (2d Cir. 2010). We agree with Hernandez that at a

resentencing, a district court should consider how the passage

of time, including the defendant’s maturation and personal

UNITED STATES V. PETE 19

development in the interim, affect such sentencing factors as

likelihood of rehabilitation and recidivism.

In rejecting the motion to appoint an expert, the district

court expressed views inconsistent with that principle. In

particular, the district court noted that Pete’s upbringing and

the circumstances of the crime have not changed, and

maintained that because a psychiatric evaluation had been

done in 2003, a second evaluation would be “duplicative.”

“[I]t is difficult to conceive how,” the district court stated,

“the passage of time may impact [the psychiatric] evidence”

presented during the pretrial proceedings nearly ten years

before. Further, the district court held that the impact of

incarceration on Pete “is not the type of mitigating evidence

which Miller contemplates.” We disagree with the district

court as to all three aspects of its reasoning.

First, an evaluation for resentencing would not duplicate

the 2003 evaluation. The 2003 evaluation did address Pete’s

family and home environment and the circumstances of the

offense, including the extent of his participation and what

familial and peer pressures may have played a role. Those

section 3553 factors have not changed since Pete committed

the offense. But his chronological age has changed. Contrary

to the district court’s assertion that “it is difficult to conceive

how” the passage of time mattered with regard to Pete’s

family background and the nature of the crime, the passage of

time could affect the degree to which Pete was negatively

affected by his difficult upbringing, as well as what lessons

he had learned, if any, by reflecting on the crime. Indeed,

“Miller requires a sentencer to consider a juvenile offender’s

youth and attendant characteristics before determining that

life without parole is a proportionate sentence.” Montgomery,

136 S. Ct. at 734. Moreover, if contemporary factors relating

20 UNITED STATES V. PETE

to psychological maturation and personal evolution were

developed, the passage of time could affect the weight given

to Pete’s family background and the circumstances of the

crime in the overall mix of mitigating circumstances.

Second, an individual’s psychological makeup could

certainly change significantly over a ten-year period, both

cognitively and emotionally. Two psychological evaluations

ten years apart are simply not “duplicative.” Cf. Griffin v.

Johnson, 350 F.3d 956, 965 (9th Cir. 2003) (finding a current

psychological evaluation “minimally probative” of a

defendant’s mental capacity to commit murder eight years

earlier); Eley v. Bagley, 604 F.3d 958, 967 (6th Cir. 2010)

(concluding that psychiatric evaluations performed nearly ten

years after a crime had “virtually no probative value” in

assessing the defendant’s mental state at the time of the

crime).

The district court’s determination to the contrary was

seemingly premised on an erroneously narrow temporal

focus—that is, on the assumption that only Pete’s mental

status at the time of the crime and during the 2003 transfer

evaluation is relevant. As we have discussed, however, the

resentencing should have taken into account—and, indeed, to

some degree did take into account—an assessment of the

relevant factors, including the prospects for rehabilitation, as

of the time of the resentencing.

Moreover, the likelihood of psychological change

over time is very much heightened when, as here, the

defendant was a juvenile both at the time of the crime and at

the earlier psychological evaluation. As Miller observed,

“developments in psychology and brain science continue to

show fundamental differences between juvenile and adult

UNITED STATES V. PETE 21

minds—for example, in parts of the brain involved in

behavior control.” 132 S. Ct. at 2464 (citation omitted). The

Court in Miller also emphasized the specific characteristics of

juvenile brain development and resulting mental states that

often cause juveniles’ impulsivity, recklessness, and

vulnerability to outside pressures. See id. at 2464–65. As a

result of these characteristics, juveniles have less control over

their actions, and, critically, greater capacity to change over

time so as not to repeat similar behavior, as compared to

adults. Id. Youth’s “signature qualities are all transient,”

concluded Miller. Id. at 2467 (citation omitted).

Miller also stressed that certain policy rationales

underlying hefty punishments—culpability, incapacitation,

and rehabilitation—differ as applied to juveniles. Id. at

2464–65. “Miller, then, did more than require a sentencer to

consider a juvenile offender’s youth before imposing life

without parole; it established that the penological

justifications for life without parole collapse in light of ‘the

distinctive attributes of youth.’” Montgomery, 136 S. Ct. at

734 (quoting Miller, 132 S. Ct. at 2465).

To account for the transience of youthful characteristics

and the differing policy considerations applicable to minors,

Miller mandated that a juvenile offender be “provide[d] some

meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation.” Id. at 2469

(citation omitted). Accordingly, although Miller does “not

foreclose a sentencer’s ability to [impose life imprisonment]

in homicide cases,” the case does “require [the sentencer] to

take into account how children are different, and how those

differences counsel against irrevocably sentencing them to a

lifetime in prison.” Id.

22 UNITED STATES V. PETE

When the district court ruled that no expert testimony was

“necessary,” it ignored Miller’s reasoning and directives. At

the time of resentencing, Pete’s neuropsychological condition

had not been evaluated in more than a decade. An updated

evaluation could have revealed whether Pete was the same

person psychologically and behaviorally as he was when he

was 16. Rather than being “duplicative,” as the district court

believed, a new evaluation could have shown whether the

youthful characteristics that contributed to Pete’s crime had

dissipated with time, or whether, instead, Pete is the “rare

juvenile offender whose crime reflects irreparable

corruption.” Id. at 2469 (citation omitted); see also

Montgomery, 136 S. Ct. at 733. Similarly, without current

information relating to the policy rationales applicable

specifically to juvenile offenders, Pete was hamstrung in

arguing for a more lenient sentence.

More specifically, the significant mitigating evidence

available to Pete at resentencing, other than his own

testimony and that of his lawyer (neither of which the district

court credited), would have been information about his

current mental state—in particular, whether and to what

extent he had changed since committing the offenses as a

juvenile. This information was directly related to Pete’s

prospects for rehabilitation, including whether he continued

to be a danger to the community, and therefore whether the

sentence imposed was “sufficient, but not greater than

necessary, to comply with the purposes” of sentencing.

18 U.S.C. § 3553(a); see id. (a)(2)(C), (D). Such information

is pertinent to determining whether, as Miller indicates is

often the case, Pete’s psychological makeup and prospects for

behavior control had improved as he matured, with the

consequence that his prospects for rehabilitation and the need

for incapacitation had changed.

UNITED STATES V. PETE 23

The third reason the district court gave for rejecting the

request for funds to conduct a current psychological

evaluation—that the impact of incarceration “is not the type

of mitigating evidence [] Miller contemplates”—fares no

better. As it turned out, the United States, and the district

court, emphasized information about Pete’s incarceration at

the resentencing hearing, relying on the PSR to conclude that

Pete’s prison record indicated he had not appreciably changed

or matured in the twelve years since he committed the

offense. Yet, the district court precluded Pete from

developing key rebuttal evidence—namely, current evidence

as to his mental state. The refusal to authorize expert services

thus assured a lopsided presentation of evidence, favoring the

United States.

In particular, the court’s refusal to approve a new

psychological appraisal denied Pete the opportunity to

respond effectively to the PSR’s discussion of his prison

record or to provide corroborating evidence that could

substantiate his explanations for his prison infractions. Pete’s

explanation for his prison record was that his status as a sex

offender caused him to be mistreated by other inmates, and

therefore resulted in him being placed, indefinitely, in

segregated housing. An expert’s testimony could have

bolstered Pete’s arguments that the infractions, which tended

to come in spurts over relatively short periods of time,

reflected external stressors (such as mistreatment by other

inmates), not some inherent and intractable defect in Pete’s

mature personality. See Miller, 132 S. Ct. at 2464 (citing

“studies showing that only a relatively small proportion of

adolescents who engage in illegal activity develop entrenched

patterns of problem behavior” (citation and internal

alterations omitted)); Montgomery, 136 S. Ct. at 733, 734.

Similarly, the expert could have opined as to the excessively

24 UNITED STATES V. PETE

negative psychological impact that could result from placing

Pete in segregated housing for many more years, were his

sentence to remain lengthy. In all these respects, an expert

could have provided substantive evidence to support the

argument that Pete’s prison record did not suggest he lacked

the capacity for rehabilitation before the age of 75.

To be sure, Pete could have done a better job in his

motion for an expert of explaining the ways in which the

expert would aid his defense. But Pete did identify the issues

he hoped the neuropsychologist would address—mitigating

evidence in the form of an analysis of Pete’s development and

maturity since the offenses, as well as the impact

incarceration had had on him.

In sum, the critical question under Miller was Pete’s

capacity to change after he committed the crimes at the age

of 16. As to that consideration, whether Pete has changed in

some fundamental way since that time, and in what respects,

is surely key evidence. Under these circumstances, a

reasonably competent attorney would have found the services

of the requested expert necessary to provide adequate

representation at Pete’s resentencing. See 18 U.S.C.

§ 3006A(e)(1). By precluding Pete from developing this

potential mitigating evidence, the district court abused its

discretion.

B. Prejudice

We next consider whether Pete has shown by clear and

convincing evidence that the refusal to appoint an expert

prejudiced him. See Rodriguez-Lara, 421 F.3d at 946.

UNITED STATES V. PETE 25

“[T]he function of the prejudice inquiry is to prevent

appellate courts from second-guessing district judges in cases

in which the requested services could not have mattered to the

outcome.” Id. at 947. But the inquiry is not meant “to force

the defendant to prove that the requested expenditure would

necessarily have produced a different result.” Id. The

prejudice question is, instead, whether the defendant

“requested expert services in furtherance of a claim that

would, if meritorious, change the outcome of the case.” Id.

(emphasis added). In other words, to show prejudice, the

defendant requesting services is not required to proffer what

evidence the expert will develop—or in this case, the actual

results of the expert’s examination. To so require would be

to create a Catch-22, whereby a defendant who cannot afford

to pay an expert could obtain an expert’s services only by

providing precisely the expert evidence he has no funds to

pay for. Accordingly, the defendant need only identify the

way in which an expert could develop evidence in support of

a claim that would, if proven, materially benefit the defense.

Id. at 946–47.

For example, United States v. Hartfield, 513 F.2d 254

(9th Cir. 1975), ruled that the defendant was prejudiced by

lack of access to an expert whom the defendant requested to

examine the defendant’s mental status, hoping that the

examination would bear fruit as a defense to the crimes

charged. Hartfield did not first have to demonstrate what the

expert would have concluded. See id. at 258; United States

v. Bass, 477 F.2d 723 (9th Cir. 1973).

Here, the district court’s denial of the neuropsychological

expert prevented Pete from developing and presenting

potentially useful mitigating evidence in line with Miller.

The expert could have updated the court as to Pete’s mental

26 UNITED STATES V. PETE

status, and, depending on his findings, backed up Pete’s and

his counsel’s assertions that Pete (1) had changed positively

during his time in prison; (2) was susceptible to

rehabilitation; and (3) either no longer presented a danger to

the community or likely would not be a danger at some time

before he was 75. The expert could also have placed Pete’s

prison record in context, explaining the impact on Pete of

segregated housing and harassment by other prisoners.

Particularly because the district court was skeptical, at best,

of Pete’s and his counsel’s representations as to these issues,

Dr. Walter’s evaluation was likely the only Miller-related

evidence that could possibly convince the district court that

Pete deserved leniency. Because Pete “requested expert

services in furtherance of a claim that would, if meritorious,

change the outcome of the case,” Rodriguez-Lara, 421 F.3d

at 947, he was prejudiced by not having access to the expert

he requested.

In summary, a reasonable attorney would have considered

an up-to-date neuropsychological evaluation necessary had

Pete been a nonindigent defendant. And because a current

evaluation could have provided mitigating evidence in

support of a lesser sentence, Pete was sufficiently prejudiced

by the failure to appoint a psychological expert before

resentencing. We therefore vacate Pete’s sentence and

remand for resentencing.

III.

Pete next challenges the U.S. Sentencing Commission’s

authority to enact base offense level 43, which provides no

sentencing “range.” While 28 U.S.C. § 994(b)(1) delegates

authority to the Commission to develop sentencing “ranges,”

it also requires the Commission to develop Guidelines

UNITED STATES V. PETE 27

consistent with “all pertinent provisions of title 18, United

States Code.” (Emphasis added). Level 43 corresponds to

the mandatory minimum sentence of life codified in section

1111, a provision in title 18 with which the Guidelines must

be consistent. See also U.S.S.G. § 2A1.1 & cmt. n.1

(providing that the base offense level for murder offenses is

43, consistent with and incorporating section 1111). At least

where a single sentence is compelled by statute, a sentencing

“range” is properly limited to that sentence. We therefore do

not decide whether a “range” is more than one suggested

sentence where no particular sentence is mandated by statute.

Pete has not shown the district court erred by calculating

the Guidelines’ recommended base offense level as 43.10

Notably, after conducting that calculation, the district court

did not sentence Pete to the Guidelines life sentence, but

instead to 708 months.

IV.

Pete also has not demonstrated that the district court

committed prejudicial error when it considered the PSR’s

calculation of criminal history points attributed to his juvenile

offenses. Even assuming that Pete’s objection to the district

court’s calculation of his criminal history category based on

his juvenile offenses was forfeited, as opposed to waived, see

United States v. Alferahin, 433 F.3d 1148, 1154 n.2 (9th Cir.

2006), and assuming the district court committed plain error

by attributing criminal history points to three of his juvenile

offenses (but not to others that resulted in the same juvenile

“sentence”), id. at 1154; see also Fed. R. Crim. P. 52(b), Pete

10

Pete does not argue that Miller compelled the Commission to revise

base offense level 43 as it pertains to minors.

28 UNITED STATES V. PETE

has not shown prejudice as a result of the error, see Alferahin,

433 F.3d at 1157–58.

The Guidelines recommend life imprisonment for all

criminal history categories at base offense level 43. So, even

if the district court erroneously calculated the criminal history

category, the Guidelines would recommend the same

sentence for him. And, because the PSR identified many

juvenile offenses for which Pete was not given criminal

history points, it is unlikely that eliminating three points for

three juvenile offenses would have materially changed the

court’s overall view of Pete’s criminal history, considered

apart from the offense level calculation. It is that overall

perception, rather than the number of criminal history points,

that mattered here, where the criminal history points did not

affect the base offense level calculation and the court

imposed a non-Guidelines sentence.

V.

While Pete’s latter two challenges fail, we conclude that

he was entitled to the assistance of an expert for resentencing.

For that reason, we vacate the 708-month sentence and

remand, instructing the district court to grant Pete’s motion

for expert services, and to resentence Pete after having done

so.

SENTENCE VACATED AND REMANDED FOR

RESENTENCING.