United States v. Tyrone Kirklin, 2013 U.S. App. LEXIS 16993

Kirklin organized and supplied firearms for a November 2010 bank robbery in Homewood, Illinois; accomplices Jones and McCallister entered and committed the robbery while brandishing guns; surveillance video and witness testimony implicated brandishing.
Kirklin was indicted on Count 1: aiding and abetting armed bank robbery (18 U.S.C. §§ 2113(a),(d); § 2) and Count 2: aiding and abetting the use or carrying of a firearm in relation to the robbery (18 U.S.C. § 924(c); § 2).
At trial the district court read jury instructions on Count 2 requiring proof that (1) a bank robbery occurred, (2) an individual used or carried a firearm during the robbery, and (3) the defendant knowingly aided, counseled, induced or procured the use or carrying of that firearm; defense counsel affirmatively stated he had no objections.
Jury convicted Kirklin on both counts. The PSR and district court applied the § 924(c)(1)(A)(ii) 7‑year mandatory minimum for brandishing based on the court’s factual finding that guns were brandished and Kirklin was willing to have others brandish on his behalf.
On appeal Kirklin challenged (1) the adequacy/clarity of the § 924(c) aiding-and-abetting jury instruction and (2) imposition of the 7‑year brandishing mandatory minimum without a jury finding (arguing Alleyne/Apprendi error). The government conceded Alleyne error post‑Alleyne but argued the error was harmless under plain‑error review given overwhelming evidence.

Issue	Plaintiff's Argument (Government)	Defendant's Argument (Kirklin)	Held
Jury instruction on § 924(c) aiding-and-abetting: whether instruction failed to require intent to facilitate the firearm’s use	Instruction, read in full and contextualized, sufficiently required proof that defendant knowingly aided the use or carrying of the firearm; defense waived objections	Instruction was misleading/ambiguous because it did not clearly require that defendant intended to further the firearm’s use (distinct from aiding the robbery)	Waiver/forfeiture: counsel affirmatively declined to object; even if reviewed for plain error, instructions were not misleading when read in context — conviction affirmed
Application of § 924(c)(1)(A)(ii) 7‑year mandatory minimum for brandishing without jury finding (Apprendi/Alleyne issue)	Government concedes post‑Alleyne that judicial factfinding on brandishing was error but contends error is harmless under plain‑error because proof of brandishing was overwhelming	Brandishing increased mandatory minimum and thus was an element under Alleyne that must be found by a jury beyond a reasonable doubt; sentence must be vacated/remanded	Error was plain under Alleyne but did not warrant vacatur/remand because overwhelming, largely uncontroverted evidence of brandishing makes the error not a miscarriage of justice — sentence affirmed

United States v. Taylor, 226 F.3d 593 (7th Cir. 2000) (elements for aiding-and-abetting liability under § 924(c))
Alleyne v. United States, 133 S. Ct. 2151 (2013) (any fact increasing mandatory minimum must be submitted to a jury)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty beyond statutory maximum must be found by a jury)
Harris v. United States, 536 U.S. 545 (2002) (pre‑Alleyne: brandishing treated as sentencing factor for judge to find)
Olano v. United States, 507 U.S. 725 (1993) (standards for plain‑error review: error, plainness, effect on substantial rights, and discretionary relief)
United States v. Cotton, 535 U.S. 625 (2002) (Apprendi‑type indictment error may be harmless where evidence overwhelming)
United States v. Nance, 236 F.3d 820 (7th Cir. 2001) (applying harmless/plain‑error principles to drug‑quantity sentencing errors)