United States v. Bonilla-Romero

United States Court of Appeals
for the Fifth Circuit

No. 19-20643

United States of America,

Plaintiff—Appellee,

versus

Jose Leonel Bonilla-Romero, also known as Jose Tupapa,

Defendant—Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CR-245-3

Before Owen, Chief Judge, and Dennis and Haynes, Circuit Judges.
Haynes, Circuit Judge:
Appellant Jose Leonel Bonilla-Romero was involved in a gang-related
murder when he was seventeen years old. He was charged with and pleaded
guilty to first-degree murder under 18 U.S.C. § 1111(b). While a person
convicted of first-degree murder under § 1111(b) “shall be punished by death
or by imprisonment for life,” a defendant who was under the age of eighteen
at the time of the offense, such as Bonilla-Romero, cannot be sentenced to
death or mandatory life imprisonment, see Miller v. Alabama, 567 U.S. 460,
479 (2012) (holding mandatory life without parole unconstitutional for
juveniles); Roper v. Simmons, 543 U.S. 551, 575 (2005) (holding the same for
United States Court of Appeals
Fifth Circuit
FILED
December 30, 2020

Lyle W. Cayce
Clerk
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No. 19-20643
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the death penalty). In order to resolve this constitutional defect, the district
court severed § 1111(b)’s punishment provision for first-degree murder,
determined that the statute-as-modified authorizes imprisonment “for any
term of years or for life,” and accordingly sentenced Bonilla-Romero to a
term of imprisonment of 460 months. For the reasons set forth below, we
AFFIRM.
I. Background
As a teenager, Bonilla-Romero became involved with a gang. Related
to their gang involvement, Bonilla-Romero and two other gang members
“killed Josael Guevara by striking him with a bat and a machete.” At the time
of the murder, Bonilla-Romero was seventeen years old—a minor.
The Government filed proceedings against Bonilla-Romero under the
Juvenile Justice and Delinquency Prevention Act, 18 U.S.C. §§ 5031–42. In
a “Juvenile Information” charging document, the Government alleged that
Bonilla-Romero killed Guevara “with premeditation and malice
aforethought . . . which would have been a crime in violation of [18 U.S.C. §
1111] if he had been an adult.” The Government moved to transfer the
proceedings against Bonilla-Romero to adult criminal prosecution. The
district court granted the motion and noted, among other factors warranting
transfer, that Bonilla-Romero was only three months shy of his eighteenth
birthday at the time of the offense, that the alleged murder “was particularly
brutal,” and that Bonilla-Romero exhibited sufficient maturity to be tried as
an adult.
Bonilla-Romero appealed the transfer of his case to adult proceedings.
A previous panel of this court stayed the appeal “for the limited purpose of
plea proceedings.” Back at the district court, Bonilla-Romero entered into a
plea agreement with the Government that included a sentence of “no more
than 30 years” of imprisonment and “a term of supervised release after
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imprisonment of up to five years.” The district court, however, rejected the
plea agreement. His plea agreement rejected, Bonilla-Romero withdrew his
plea of guilty. But later, he again pleaded guilty. During the plea colloquy,
the court asked Bonilla-Romero, “Have you talked with your lawyer . . . about
what the maximum penalties are for the offense charged against you in the
Superseding Indictment?” Bonilla-Romero answered affirmatively. The
court also explained:
Now, under Section 1111 of Title 18, which is the federal
murder statute, the offense of murder in the first degree, which
is charged here, carries a maximum sentence of death and a
minimum sentence of life in prison.
Because you had not quite attained the age of 18 when the
crime was committed and are being tried as an adult, under the
United States Constitution, you’re not eligible for the death
penalty or for a mandatory sentence of life imprisonment.
Therefore, in reading the punishments prescribed for murder,
in the murder statute, Section 1111(b), the Court must sever
and omit those words in the punishment language. That would
be unconstitutional, if applied to you, because of your age at the
time of the crime. When the Court does that, the offense—the
offense of murder in the first degree committed at the time—
committed by one who, at the time of the murder, had not
attained 18 years of age and is tried as an adult, carries with it
the following punishment:
The sentence of imprisonment for any term of years or for life;
a fine not to exceed $250,000; a term of not more than five
years of supervised release; and a special assessment of $100.
Bonilla-Romero then pursued his interlocutory appeal. Sealed Appellee
1 v. Sealed Juvenile 1, No. 15-20262, slip op. at 3 (5th Cir. Mar 9, 2018), cert.
denied, 139 S. Ct. 1258 (2019). Another panel of this court dismissed the
interlocutory appeal since sentencing had not yet occurred; in dismissing the
appeal, the panel noted that Bonilla-Romero “raised an important
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constitutional question that may deserve a thorough review when the
appropriate time comes.” Id. at 5.
Prior to the sentencing hearing, as part of Bonilla-Romero’s
presentence investigation report (“PSR”), the probation officer provided
that the statutory provision allowed for “[a]ny term of years up to and
including Life” and that Bonilla-Romero’s guideline range—based on an
offense level of 43 and criminal history category of I—was life imprisonment.
The probation officer recommended that, after applying a downward
variance “given the defendant’s age at the time of the offense” and
accounting for time served in custody, Bonilla-Romero be sentenced to 578
months’ imprisonment. The Government filed a sentencing memorandum
requesting that the district court “sentence Bonilla-Romero to 35 years or
more of incarceration.”
Bonilla-Romero objected to the PSR’s determination that he was
subject to a term of imprisonment up to and including life, noting that 18
U.S.C. § 1111(b) allows for first-degree murder to be punished only with
mandatory life imprisonment or death but that juveniles may not receive
those sentences. At the sentencing hearing, the district court explained that
“[t]he question is whether there is any valid portion of Section 1111(a) [that
when] applied to juveniles . . . would function independently, and in a
manner consistent with the intent of Congress.” In this case, because “the
maximum penalty is authorized” by statute and no provision exists for “less
than [a] life sentence,” a “gap” had been “left open.” The court further
explained that “[i]n the absence of more specific and constitutional guidance
from Congress,” a statute authorizing only a maximum penalty “provid[es]
discretion to the sentencing judge to sentence anywhere between no penalty,
and the maximum penalty.” For these reasons, the court overruled Bonilla-
Romero’s objection.
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The district court ultimately sentenced Bonilla-Romero to 460
months of imprisonment (thirty-eight years and four months), followed by
five years of supervised release. Bonilla-Romero timely appealed the district
court’s judgment.
II. Jurisdiction and Standard of Review
The district court had jurisdiction over this case under 18 U.S.C.
§ 3231, and we have jurisdiction over Bonilla-Romero’s timely appeal under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review constitutional
challenges de novo. United States v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir.
2000).
III. Discussion
On appeal, Bonilla-Romero raises two challenges to his conviction.
First, he contends that the district court unconstitutionally fashioned a new
punishment for first-degree murder committed by juveniles, violating the
Due Process Clause’s notice requirement and separation-of-powers doctrine.
Second, he asserts that the district court violated the Due Process Clause and
Federal Rule of Criminal Procedure 11 by failing to specify his potential
sentencing range at his plea hearing. Neither of Bonilla-Romero’s challenges
succeed.
A. Punishment Provision Challenge
18 U.S.C. § 1111(a) creates two categories of murder. First-degree
murder features an aggravating characteristic, such as being perpetrated “by
poison, lying in wait, or any other kind of deliberate, malicious, and
premediated killing.” 18 U.S.C. § 1111(a). Second-degree murder
encompasses all murder not in the first degree. Id. Although § 1111(b)
authorizes a sentence of “imprison[ment] for any term of years or for life”
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for second-degree murder, §1111(b) sets forth a minimum and maximum
sentence prescribing that first-degree murder “be punished by death or
imprisonment for life.” Id. § 1111(b). As the Government concedes, as a
result of the Court’s rulings in Miller and Roper, a death sentence is not
available for juveniles. A mandatory life sentence without possibility of
parole is also proscribed.
The Supreme Court recently restated that when a portion of a statute
is unconstitutional, “the traditional rule is that the unconstitutional
provision must be severed unless the statute created in its absence is
legislation that Congress would not have enacted.” Seila Law LLC v.
Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2209 (2020) (internal quotation
marks and citation omitted). Nothing suggests that Congress would not have
enacted a murder statute covering juveniles if it had foreseen the rulings in
Miller and Roper. Thus, the focus here must be on the proper remedy.
We conclude that it is appropriate to sever as necessary. The question
then becomes which portions of § 1111 must be excised and which must be
retained. United States v. Booker provides the framework: “we must retain
those portions of [§ 1111] that are (1) constitutionally valid, (2) capable of
functioning independently, and (3) consistent with Congress’ basic
objectives in enacting the statute.” 543 U.S. 220, 258–59 (2005) (cleaned
up). At the same time, “we must refrain from invalidating more of the statute
than is necessary.” Id. at 258 (internal quotation marks and citation omitted).
Roper requires that we strike § 1111(b)’s authorization of the death
penalty for juveniles, and Miller requires that we do the same for its
mandatory minimum of life imprisonment. Yet we need not go further;
under Miller, juveniles may be sentenced to life imprisonment, provided that
the sentencer adequately considers the offender’s youth. 567 U.S. at 479–80
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(noting that “appropriate occasions for sentencing juveniles to this harshest
penalty will be uncommon”).
As currently drafted, § 1111(b) provides a statutory maximum of death
for first-degree murder and a statutory minimum of life imprisonment
without parole.
1
Under Roper, the death penalty must be discarded, leaving
life imprisonment as both the statutory maximum and minimum. Because
Miller in turn prohibits mandatory life without parole sentences for juveniles,
all that remains of the punishment provision is a statutory maximum of life
imprisonment. Where Congress only provides a statutory maximum, the
district court has discretion to impose no penalty or any penalty up to that
maximum. Cf. United States v. Turner, 389 F.3d 111, 120 (4th Cir. 2004)
(holding that when Congress fails to provide a statutory maximum, it “gives
maximum discretion to the sentencing court,” such that “the maximum is
life imprisonment”); United States v. Wright, 812 F.3d 27, 33 (1st Cir. 2016)
(holding the same). Thus, excising the mandatory minimum nature of the
life sentence is all that is needed to satisfy the constitutional issue for
juveniles under § 1111.
Another way to address the issue is to substitute the punishment
provision for second-degree murder in this case because, under § 1111’s
scheme, all of the elements of second-degree murder must be met to be
convicted of first-degree murder.
2
Either approach yields the result reached

1
A federal life sentence is a sentence of life imprisonment without parole because
parole is no longer available in the federal system. Richmond v. Polk, 375 F.3d 309, 316 (4th
Cir. 2004) (citing the Sentencing Reform Act of 1984, Pub. L. No. 98-473, Title II, 98 Stat.
1987).
2
First-degree murder is a murder plus the heightened state-of-mind element
(willfulness, deliberateness, maliciousness, or premeditation). See 18 U.S.C. § 1111(a).
Second-degree murder is any other murder. Id. Therefore, any offense that satisfies the
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by the district court: that Bonilla-Romero shall be punished by imprisonment
“for any term of years or for life.”
The district court’s remedy complies with Roper and Miller, functions
independently, and is consistent with Congress’s clear intent to criminalize
“the unlawful killing of a human being with malice aforethought,” 18 U.S.C.
§ 1111(a). Nevertheless, Bonilla-Romero contends that the district court’s
solution is still unconstitutional, relying on United States v. Evans, 333 U.S.
483 (1948), and United States v. Under Seal, 819 F.3d 715 (4th Cir. 2016), for
the proposition that the Government cannot retroactively graft a lesser
penalty onto an indicted charge.
Evans presented “an unusual and a difficult problem”: the statute at
issue criminalized both smuggling and harboring aliens, but it provided a
punishment only for smuggling. 333 U.S. at 484. Because the statutory
scheme resulted in doubt and ambiguity, the Supreme Court declined to
apply the smuggling penalty to a harboring offense. Id. at 489, 495. Here,
however, the statutory scheme is not ambiguous. The scheme makes clear
that any killing of a human being with malice aforethought is illegal and
punishable by a term of imprisonment; and if the offender’s conduct was
willful, deliberate, malicious, or premediated, then an increased penalty
applies. See 18 U.S.C. § 1111. Because the offenses and corresponding
punishments are clear under the statutory scheme, the instant case does not
raise the “unusual” problem that was at issue in Evans.
In Under Seal, the district court denied the Government’s motion to
try the defendant—a juvenile accused of murder in aid of racketeering—as
an adult because the racketeering statute carried a mandatory penalty of

elements for first degree murder necessarily satisfies those for second-degree murder as
well.
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either life imprisonment or death. 819 F.3d at 717. The Fourth Circuit
affirmed the district court’s decision because a “conviction would require
the court to impose an unconstitutional sentence.” Id. at 728. The Fourth
Circuit reasoned that, under the structure of the racketeering statute, there
was no punishment that could be applicable to the juvenile. Id. The provision
at issue, 18 U.S.C. § 1959(a)(1), contained one penalty for racketeering-
related murder (life imprisonment or death), which could not be imposed on
a juvenile, and another for racketeering-related kidnapping (imprisonment for
any term of years or life). See id. at 723–24. The Fourth Circuit declined to
“combine the penalty provisions for two distinct criminal acts.” Id. at 724.
Therefore, “[t]he penalty enacted for the kidnapping-based offense [could
not] simply be interchanged with and applied to the murder-based offense, as
these . . . [have] distinct elements.” Id. Grafting the kidnapping penalty onto
a murder offense would “run[] counter to the Constitution’s guarantee of
due process” because the statute does not provide notice that any other
penalty could be applicable for the murder. Id. at 726.
Under Seal is also distinguishable from the instant case. As discussed
above, an offense that meets the elements for first-degree murder would also
satisfy the elements for second-degree murder. With that aspect of the
statutory scheme in mind, the statute provides notice that the conduct of
murder could result in a term of imprisonment for any term of years. See 18
U.S.C. § 1111(b).
Bonilla-Romero also insists that the district court’s solution violates
the separation-of-powers doctrine because it applies the penalty Congress
intended for second-degree murder to first-degree murder. Yet by deleting
any penalty for juvenile first-degree murderers, Bonilla-Romero’s approach
would completely frustrate the will of Congress by placing juveniles who
committed the most heinous murders in a better position than those who
committed second-degree murder. Thus, we conclude that Bonilla-
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Romero’s challenges to the district court’s construction of § 1111(b)’s
punishment provision fail.
B. Plea Hearing Challenge
Bonilla-Romero also challenges the district court’s supposed failure
to specify his sentencing range at his plea hearing. Under the Due Process
Clause and Federal Rule of Criminal Procedure 11, when a guilty plea is
accepted, the court must inform the defendant of the consequences of his
plea, including the maximum possible penalty and any mandatory minimum
sentence. See Fed. R. Crim. P. 11(c)(1); see also United States v. Pearson,
910 F.2d 221, 222–23 (5th Cir. 1990). As long as a defendant is advised of
and understands the consequences of his plea, the plea is knowing and
voluntary. Pearson, 910 F.2d at 223.
At the plea hearing, the district court provided notice of Bonilla-
Romero’s sentencing considerations in detail, as set forth above. It made
clear that his offense typically resulted in a penalty of mandatory life
imprisonment or death but that, because of his youth at the time of the
offense, Bonilla-Romero would be eligible for a “sentence of imprisonment
for any term of years or for life” and “a fine not to exceed $250,000.” Thus,
Bonilla-Romero was informed of the maximum penalty that he faced.
Moreover, no mandatory minimum applied. The transcript of Bonilla-
Romero’s plea hearing demonstrates that the court properly notified him of
the consequences of a guilty plea and, accordingly, that Bonilla-Romero’s
plea was knowing and voluntary. Therefore, this challenge also fails.
Accordingly, we AFFIRM.
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