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November 24, 2020

Second Circuit panel affirms 55-year federalsentence for 15-year-old while lamenting the "unavailability of parole"

A helpful reader made sure I did not miss the interesting opinion by the Second Circtuit today in US v Portillo, No. 19-2158 (2d Cir. Nov. 24, 2020) (available here).  Here is how the opinion gets started:

This appeal, challenging as unreasonably severe a sentence of fifty-five years imposed on a defendant who was fifteen years old at the time of the offense, presents the legal issue of the lawfulness of the sentence and also serves as a classic illustration of the unfortunate consequences of the congressional decision to eliminate parole in the Sentencing Reform Act of 1984.  Defendant-Appellant Josue Portillo appeals from the July 12, 2019, judgment entered in the United States District Court for the Eastern District of New York (Joseph F. Bianco, then-District Judge).  Pursuant to a guilty plea, Portillo was convicted of participating in a pattern of racketeering activity evidenced by his role in the murder of four teenagers, in violation of 18 U.S.C. § 1962(c).

On appeal, Portillo makes two arguments.  First, he urges an extension of the Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012), that would require the District Court at sentencing in this case to consider the factors that Miller ruled must be considered in sentencing a juvenile to life imprisonment without the possibility of parole.  Second, he contends that his sentence was substantively “unreasonable,” the standard the Supreme Court instructed federal appellate courts to use on review of sentences, see United States v. Booker, 543 U.S. 220, 260-64 (2005), after the Court determined in 2005 that the federal Sentencing Guidelines, which had become effective in 1987, were no longer mandatory, see id. at 245, 259-60.

We conclude that the challenged sentence was lawfully imposed and therefore affirm the judgment.  We also add some observations on the relationship between this sentence and the unavailability of parole.

November 24, 2020 at 09:30 PM | Permalink


I will never forget seeing two young black brothers from South Carolina, who had sentences of about 53 and 56 years each at FCI - Gilmer in Glenville, West Virginia about 2002, when I was an inmate there. At the times they committed their crimes, they were about 18 and 19 years old, and had recently timed out of the Foster Care System at age 18. These boys never really had a chance at life. They had been abused by their Foster families and had much instability and lack of parental love during their upbringings. Their crimes involved a spree of armed robberies of gas stations/ convenience stores. What would normally have been prosecuted under state laws as armed robberies ended up as Federal prosecutions for "Armed Robberies In or Affecting Interstate Commerce". In one case, one of the boy jumped over a counter and pistol-whipped a 17 year old female cashier, who was not resisting handing over the money. When they pleaded guilty, their attorneys had not told them of how much mandatory gun-stacking time they were facing under section 924(c). Normally, violent inmates such as these two, with sentences of more than 50 years would have been sent to Federal maximum security penitentiaries, but because of their young ages and vulnerability to being exploited by older inmates, the BOP sent them instead to an FCI. The Warden and staff hardly knew what to do with such young convicts. Thankfully, a few older black inmates took them under their wings and provided the kind of loving fatherly influence they had not had in the free world. While their crimes were serious and violent, they should have been handed over to a Marine Corps drill instructor for a few years, not sent to Federal prison for 50+ years. Just a horrible tragedy all the way around.

Posted by: Jim Gormley | Nov 25, 2020 7:55:39 PM

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