United States v. Jenkins, 849 F.3d 390

Antwon Jenkins was charged with kidnapping (18 U.S.C. § 1201(a)) and using/carrying a firearm during a crime of violence (18 U.S.C. § 924(c)(1)(A)(ii)).
Jenkins gave a proffer identifying where he hid the gun; agents recovered the gun and the government used the gun and agents’ testimony at trial. A jury convicted on both counts; total sentence 308 months (188 months for kidnapping, consecutive 120 months for § 924(c)).
On appeal Jenkins argued the government breached the proffer agreement by directly using his statements; after briefing, the Supreme Court decided Johnson v. United States and Jenkins supplemented his brief to challenge the § 924(c) conviction.
Jenkins argued § 924(c)(3)(B) (the Residual Clause) is unconstitutionally vague under Johnson and that kidnapping does not qualify under the Force Clause, § 924(c)(3)(A).
The panel held the Residual Clause in § 924(c)(3)(B) is unconstitutionally vague (following this court’s Cardena decision) and also found kidnapping under § 1201(a) does not have physical force as an element and thus does not qualify under the Force Clause.
Because the § 924(c) conviction added a consecutive 120-month sentence, the panel found plain error affecting Jenkins’ substantial rights and reversed the § 924(c) conviction; it did not reach the proffer-agreement issue.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 924(c)(3)(B) (Residual Clause) is constitutional	Jenkins: Johnson renders the Residual Clause void for vagueness; § 924(c) conviction cannot stand	Government: Johnson should not extend to § 924(c)(3)(B); alternatively kidnapping qualifies under Force Clause	Court: § 924(c)(3)(B) is unconstitutionally vague (Cardena control); cannot sustain conviction on that basis
Whether kidnapping (§ 1201(a)) is a crime of violence under the Force Clause (§ 924(c)(3)(A))	Jenkins: Kidnapping does not require use/threat/attempted use of physical force as an element	Government: The holding element requires unlawful restraint and necessarily involves at least a threat of force	Court: Kidnapping § 1201(a) can be satisfied without physical force as an element (e.g., deception, confinement without force); not a Force-Clause crime
Whether the plain-error standard permits reversal where challenge was not raised below	Jenkins: Error is plain after Johnson/Cardena and prejudiced him because of consecutive mandatory sentence	Government: Issue not raised below; reversal not warranted	Court: Plain error standard met — error was clear, affected substantial rights (120-month consecutive sentence), and undermined fairness
Whether proffer-agreement breach claim must be decided now	Jenkins: Initially appealed on proffer breach	Government: —	Court: Did not reach proffer-agreement issue because reversal of § 924(c) disposed of appeal

United States v. Yang, 799 F.3d 750 (7th Cir.) (elements-only inquiry for Force Clause)
United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir.) (extension of Johnson principles in this circuit)
United States v. Cardena, 842 F.3d 959 (7th Cir.) (holding § 924(c)(3)(B) unconstitutionally vague)
United States v. Cureton, 845 F.3d 323 (7th Cir.) (plain-error discussion distinguishing sentencing prejudice)
Johnson v. United States, 135 S. Ct. 2551 (U.S. 2015) (holding ACCA residual clause void for vagueness)
United States v. Armour, 840 F.3d 904 (7th Cir.) (examples of reversible plain error when consecutive mandatory sentence imposed)