Jesus Ruiz v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1114
JESUS R UIZ ,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cv-2521 — Charles R. Norgle, Judge.
____________________
On Petition for Rehearing and Rehearing En Banc
____________________
DECIDED A UGUST 4, 2021
____________________
Before S YKES , Chief Judge, EASTERBROOK, K ANNE, R OVNER ,
WOOD, HAMILTON , BRENNAN , S CUDDER , S T. EVE, and K IRSCH ,
Circuit Judges.
SCUDDER , Circuit Judge. On consideration of the petition for
rehearing and rehearing en banc filed by petitioner-appellant

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2 No. 18-1114
on April 23, 2021, a majority of judges on the original panel
voted to deny rehearing. A judge in regular active service re-
quested a vote on the petition for rehearing en banc. A major-
ity of judges1 in regular active service voted to deny rehearing
en banc. Judges Ilana Diamond Rovner, Diane P. Wood, and
David F. Hamilton voted to grant rehearing en banc.
Accordingly, the petition for rehearing and rehearing en
banc is DENIED.
1 Judge Candace Jackson-Akiwumi did not participate in the considera-
tion of this matter.

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No. 18-1114 3
WOOD, Circuit Judge, with whom Rovner and Hamilton,
Circuit Judges, join, dissenting from denial of rehearing en
banc.
The question before the court in this case is one of great
consequence: whether the harmless-error doctrine categori-
cally bars a federal prisoner from showing that one count of
his conviction is fundamentally flawed, solely because the
sentence from that conviction is set to run consecutive to one
or more life sentences on other counts. By answering this
question in the affirmative, the majority in this case has taken
a position that is flatly inconsistent with the Supreme Court’s
decision in Sibron v. New York, 392 U.S. 40 (1968). Sibron holds
that courts’ crystal balls are not perfect, and so we are not per-
mitted to presume that a flawed conviction that would be sub-
ject to vacatur if it stood alone has no legally redressable con-
sequence for a defendant simply because the conviction is
consecutive to a life sentence. Rather, it establishes the con-
trary presumption: there are collateral consequences associ-
ated with each conviction in a criminal case.
My dissent from the panel opinion outlines several prob-
lems with the majority’s analysis. See Ruiz v. United States, 990
F.3d 1025, 1035–41 (7th Cir. 2021) (Wood, J., dissenting). Key
among these is its de facto application of the concurrent sen-
tence doctrine to a consecutive sentence. In this statement,
however, I wish to elaborate on three reasons why I believe
this case is worth the attention of the full court, and failing
that, the Supreme Court: the conflict with binding Supreme
Court authority, the serious possibility of real-world conse-
quences for Ruiz, and the far-reaching implications of the ap-
proach the majority has adopted for hundreds of similarly sit-
uated people.

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4 No. 18-1114
For ease of reference, I begin with a brief recap of the facts.
Petitioner Jesus Ruiz was sentenced to seven concurrent life
sentences for hostage-taking and kidnapping resulting in
death, plus a consecutive 45-year term for three firearms
crimes under 18 U.S.C. § 924(c). At the time he committed
those crimes, he had just turned 18 years old. In his motion
attacking his sentence under 28 U.S.C. § 2255, Ruiz has argued
compellingly that his firearms convictions must be vacated
because they are no longer predicated on crimes of violence,
given the Supreme Court’s holding in United States v. Davis,
139 S. Ct. 2319 (2019). The district court declined to confront
these arguments. Instead, it denied Ruiz’s motion on harm-
less-error grounds, reasoning that, because Ruiz would still
be subject to seven consecutive life sentences even if he pre-
vailed on the firearms counts, his motion was of “no material
consequence.” On appeal, a majority of a panel of this court
affirmed that result and endorsed that reasoning. It concluded
that it is impossible for Ruiz to suffer any prejudice from the
extra 45 years, and so any error relating to those convictions
must be harmless.
The majority was wrong both as a matter of fact and as a
matter of law. An error is not harmless if it may have a mate-
rial effect on the movant’s rights. See F ED. R. C IV. P. 61; Rules
Governing Section 2255 Proceedings for the United States Dis-
trict Courts, Rule 12 (applicability of the Federal Rules of Civil
Procedure). As I explain below, the error in Ruiz’s firearms
counts easily could have such an effect. And, contrary to the
majority’s unsupported assumption, Ruiz’s situation is not an
isolated case. Criminal judgments that include a life sentence
on one or more counts and a consecutive sentence on addi-
tional counts are common.

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No. 18-1114 5
Most importantly, the majority’s opinion cannot be recon-
ciled with Sibron v. New York, 392 U.S. 40 (1968). Sibron rejects
“all inquiry into the actual existence of specific collateral con-
sequences.” Id. at 55. Instead, it instructs courts to presume
that each conviction in a criminal judgment carries distinct
collateral consequences.
The majority attempts to distinguish Sibron because the
context was somewhat different, insofar as Sibron dealt with
the question whether the case (though filed while the defend-
ant was in custody) had become moot because of the peti-
tioner’s release. It reached the Supreme Court on direct ap-
peal from New York’s courts. The Supreme Court held that
Sibron was entitled to pursue his challenge to the conviction
because he faced collateral legal consequences from the un-
derlying conviction. In so holding, it relied on its then-recent
decision in Carafas v. Lavallee, 391 U.S. 234 (1968), a state pris-
oner’s habeas corpus case. It thus was not drawing any line
based on the difference between direct and collateral review.
See Sibron, 392 U.S. at 51. And there is no meaningful differ-
ence between saying that a conviction doesn’t matter because
the person has now completed his sentence (i.e. the mootness
argument) and saying that it doesn’t matter because the per-
son will die before the later sentence comes into effect. The
latter is just an extreme form of anticipated mootness.
With a tweak or two, Ruiz’s case illustrates the point of
Sibron. Suppose, at the time Ruiz committed his crimes (1996),
he had been just a few months younger than age 18, rather than
a few months past his 18th birthday. At the time of Ruiz’s con-
victions and sentencing, it was permissible to impose manda-
tory life-imprisonment sentences without possibility of parole
on persons who committed their crimes before they turned 18.

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6 No. 18-1114
Had this appeal reached us in 2010, the majority would have
held that the 45-year consecutive sentences on the gun counts
could never have any practical impact, and thus it would have
declined to resolve a legal challenge to them. But that obvi-
ously would have been wrong: Miller v. Alabama, 567 U.S. 460
(2012), came along 26 years after the crimes and two years af-
ter the hypothetical 2010 appeal. Miller held that mandatory
life imprisonment without parole for persons who committed
their crimes before they turned 18 violates the Eighth Amend-
ment, and the Supreme Court later made Miller retroactive to
state collateral review proceedings. See Montgomery v. Louisi-
ana, 577 U.S. 190 (2016). So, in my hypothetical, Ruiz would
have been entitled to resentencing if he prevailed on his chal-
lenge to the convictions underlying the 45-year consecutive
sentence. That is, he would have been entitled to have the sen-
tences attached to his three firearms convictions (five years, 20
years, and 20 years, consecutive to one another), eliminated.
If all three firearms counts were set aside, as Ruiz has argued
should happen, that would erase his full consecutive 45-year
sentences.
The majority is unmoved by this analogy, because the Su-
preme Court’s Miller decision draws the line at 18 years of
age. But there is nothing inevitable about that. Miller itself
probably seemed unpredictable to the bench and bar back in
1996, when Ruiz committed his offenses. Yet now we have it.
The majority speculates that there will be no more changes in
the law that take age and maturity into account, and thus
there is no realistic possibility that Ruiz can reap any benefit
from his current challenge. That line of reasoning, however, is
not only inconsistent with Sibron; it also makes factual as-
sumptions that do not withstand analysis.

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No. 18-1114 7
The tension between the majority’s position and Sibron is
well captured by the following passage in the Supreme
Court’s opinion:
We cannot foretell what opportunities might present
themselves in the future for the removal of other con-
victions from an individual’s record. The question of
the validity of a criminal conviction can arise in many
contexts … and the sooner the issue is fully litigated
the better for all concerned. It is always preferable to
litigate a matter when it is directly and principally in
dispute, rather than in a proceeding where it is collat-
eral to the central controversy. Moreover, litigation is
better conducted when the dispute is fresh and addi-
tional facts may, if necessary, be taken without a sub-
stantial risk that witnesses will die or memories fade.
And it is far better to eliminate the source of a potential
legal disability than to require the citizen to suffer the
possibility of unjustified consequences of the disability
itself for an indefinite period of time before he can se-
cure adjudication of the State’s right to impose it on the
basis of some past action.
392 U.S. at 56–57. In short, the Supreme Court has instructed
us to “get out of the prediction business” when it comes to the
validity of a person’s convictions. Each conviction must be as-
sessed on its own. For Ruiz, this means that we not only can,
but must, adjudicate his claim that three of his counts of con-
viction must be vacated because they do not qualify as crimes.
To the extent that this clear-cut rule from Sibron does not
conclusively resolve this appeal, we may look to see whether
collateral consequences from Ruiz’s 45-year consecutive fire-
arms offenses are possible. (And note that nothing in Sibron

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8 No. 18-1114
would support a rule requiring those collateral consequences
to be more likely than not.) The short answer is that they are
easy to predict. For example, Sibron points to the use of a prior
conviction to impeach in a future criminal trial. Id. at 55–56.
This is certainly possible, as inmates are frequently tried for
offenses they commit in prison. The majority implies that the
reputational effect of Ruiz’s firearms convictions pales in
comparison to his unchallenged kidnapping convictions, but
Sibron takes this reasoning off the table. As the Supreme Court
put it, “[i]t is impossible for this Court to say at what point the
number of convictions on a man’s record renders his reputa-
tion irredeemable.” Id. at 56. The possibility that Ruiz’s fire-
arms convictions might contribute some reputational harm is
already enough.
And then there is the real possibility that future legal re-
forms might allow reconsideration of Ruiz’s life sentences.
The majority brushes this off as fanciful, but I respectfully dis-
agree with that assessment. As discussed earlier, in 2012 the
Court held in Miller that mandatory life imprisonment with-
out parole for those under the age of 18 at the time of their
crimes violates the Eighth Amendment. 567 U.S. 460. The
Court justified this rule on the theory that offenders under the
age of 18 have “diminished culpability” because of their “lack
of maturity,” “underdeveloped sense of responsibility,” and
character that is less “well formed,” as compared with that of
adults. Id. at 471.
Miller is part of a long line of cases recognizing that the
Constitution demands different penal treatment for young of-
fenders—usually those under the age of 18. See, e.g., Graham
v. Florida, 560 U.S. 48 (2010); Roper v. Simmons, 543 U.S. 551
(2005). As the Miller Court noted, these decisions are

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No. 18-1114 9
grounded in science. Courts have paid heed to “develop-
ments in psychology and brain science [that] show funda-
mental differences between juvenile and adult minds” includ-
ing the “parts of the brain involved in behavior control.” Mil-
ler, 567 U.S. at 471–72 (quoting Graham, 560 U.S. at 68). But
there is nothing magic about the age of 18, as other areas of
the law demonstrate. Legislatures sometimes demand a
higher age with presumptively more maturity: for instance,
Congress has decreed that states are not entitled to receive
federal highway funds unless they impose a minimum age of
21 for purchase and public possession of alcoholic beverages.
See the 1984 National Minimum Drinking Age Act, 23 U.S.C.
§ 158.
For now, in the criminal law area courts are using the age
of 18 as the relevant cut-off point, largely because of the sci-
entific community’s assessments regarding the length of the
developmental period in the human brain. But that is an em-
pirical conclusion, and it is one that is subject to change. Neu-
rological science continues to advance. Indeed, the American
Association on Intellectual and Developmental Disabilities
(AAIDD), a respected organization whose work is often cited
by the Supreme Court, now defines the end of the human in-
tellectual development period as age 22, not age 18. See
I NTELLECTUAL DISABILITY : DEFINITION , DIAGNOSIS,
C LASSIFICATION , AND S YSTEMS OF SUPPORTS 1, 13, 32 (12th ed.
2021). Federal law now uses the age of 22 for purposes of pro-
grams for people with developmental disabilities. See 42
U.S.C. 15002(8).
It does not require a wild leap of faith to imagine that a
future Supreme Court might reconsider the line drawn in Mil-
ler and Montgomery and announce that mandatory life

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10 No. 18-1114
imprisonment without possibility of parole violates the
Eighth Amendment as applied to persons who committed
crimes before the age of 19, or 20, or 21. Any of those would
be transformative for Ruiz, who as I have stressed was just a
few months past his 18th birthday when he committed these
crimes. And if his life sentences were to become eligible for
reexamination, Ruiz’s consecutive 45-year sentence would
take on immense practical significance. See United States v. Ce-
phus, 684 F.3d 703, 710 (7th Cir. 2012).
Reasonable minds might disagree over how likely such a
change is. But in the end, that debate is irrelevant. Sibron rec-
ognizes that courts are poorly positioned to guess what re-
forms might come about, and when. In 1996, few foresaw Mil-
ler. For that matter, many people did not predict the Fair Sen-
tencing Act, 124 Stat. 2372, and the later First Step Act, 132
Stat. 5194, which taken together retroactively lowered many
drug sentences. Comparable legislative changes could also af-
fect Ruiz’s life sentences, yet the government would be likely
in that instance to resist a successive section 2255 motion, be-
cause successive motions that are not based on newly discov-
ered evidence depend on a change in constitutional interpreta-
tion. See 28 U.S.C. § 2255(h)(2).
Sibron addressed and rejected that wait-and-see approach.
The question is ripe for decision now; Ruiz has properly pre-
sented it; and he has made a compelling showing that the fire-
arms convictions should be vacated. We should not dodge
that last issue by trying to squeeze this into the harmless-error
category, when the error is anything but harmless under the
Supreme Court’s cases.
The majority’s last point is that this case does not deserve
rehearing en banc because the fact pattern it presents is

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No. 18-1114 11
unusual. With respect, nothing could be further from the
truth. Criminal judgments that include a life sentence on one
or more counts and a consecutive sentence on additional
counts are common. Indeed, they are exceedingly prevalent
in the context of section 924(c), because that statute requires
that firearms convictions run consecutively to sentences on
other counts. 18 U.S.C. § 924(c)(1)(D)(2).
According to the U.S. Sentencing Commission, in 2013
alone, judges sentenced 153 offenders to prison terms of life
without parole. U.S. SENT’ G C OMM ’ N , LIFE SENTENCES IN THE
F EDERAL SYSTEM (2015), https://www.ussc.gov/sites/de-
fault/files/pdf/research-and-publications/research-projects-
and-surveys/miscellaneous/20150226_Life_Sentences.pdf. Of
these, almost 40% (around 60) were also found to have pos-
sessed a weapon in connection with their offense in violation
of 18 U.S.C. § 924(c), mandating at least one sentence consecu-
tive to their life term. Id. And this does not include the 168
other defendants from that year who received sentences that
were so long that they had the practical effect of being a life
sentence, nor does it include the 291 defendants sentenced to
terms of incarceration longer than their life expectancy. To the
extent that any of those defendants also committed firearms
offenses under section 924(c)—and many undoubtedly did—
they too would have been sentenced to terms consecutive to
their de facto life sentences.
In short, Ruiz’s circumstances are far from unique. He
joins hundreds, if not thousands, of people who are now cut
off from challenging their flawed section 924(c) convictions
thanks to the majority’s disregard of Sibron.
I therefore respectfully dissent from the denial of rehear-
ing en banc.

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