United States v. James KernsUnited States v. James Kerns
COUNSEL
ON BRIEF: Michael M. Losavio, Louisville, Kentucky, for Appellant. Timothy VerHey, Kathryn Dalzell, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
COLE, J., delivered the opinion of the court in which SUTTON, C.J., and READLER, J., joined. READLER, J. (pp. 11–17), delivered a separate concurring opinion.
COLE, Circuit Judge. James Michael Kerns pleaded guilty to one count of kidnapping and one count of possession of a firearm in furtherance of a crime of violence. The district court imposed a 192-month sentence. On appeal, Kerns challenges his guilty plea and sentence. For the reasons that follow, we affirm.
I.
On July 24, 2018, a sheriff’s deputy observed a vehicle swerving in traffic and initiated a stop. Kerns was operating the vehicle. When the car came to a halt, the passenger, Kerns’s prior romantic partner
Kerns was indicted on three counts: kidnapping (
On February 12, 2020, Kerns pleaded guilty before a magistrate judge to kidnapping and possession of a firearm in furtherance of a crime of violence without the benefit of a plea agreement. Kerns confirmed that he understood the nature of the charges and the maximum prison time he could face, that his decision to plead guilty was voluntary, and that he was waiving certain constitutional rights. Both parties agreed that there was a sufficient factual basis to support Kerns’s plea. Having found that Kerns’s plea was knowing and intelligently made, the magistrate judge recommended that the district judge accept the plea. On February 28, the district judge adopted the magistrate judge’s report and recommendation and accepted Kerns’s guilty plea.
The district court sentenced Kerns on May 27. At sentencing, Kerns confirmed he had reviewed the presentence-investigation report and had no objection to its findings. The court explained that the recommended sentencing range for the kidnapping count was 87 to 108 months’ imprisonment and that the firearm count under
The court also indicated that Kerns and his counsel had reviewed and signed an order noting additional sentencing conditions prior to sentencing. This signed order noted, among other things, that Kerns “must pay a below advisory guideline fine of $1,000.00 on Counts One and Three, for a total of $2,000.00.” (Order, R. 79, PageID 293.) The court summarized this order from the bench, noting that “[t]he additional conditions include a fine of $1,000 on which interest is waived.” (Sent’g Hr’g Tr., R. 86, PageID 338.)
Neither party raised any objections to Kerns’s sentence. This appeal timely followed.
II.
A. SENTENCING INCONSISTENCY
Kerns first contends that an inconsistency exists between the court’s oral reference to a fine of $1,000 and its imposition of a total fine of $2,000. Kerns asserts “that when an oral sentence conflicts with the written sentence, the oral sentence controls.” United States v. Schultz, 855 F.2d 1217, 1225 (6th Cir. 1988). But there was no genuine ambiguity as to the total fine Kerns would be required to pay. Prior
B. PROCEDURAL AND SUBSTANTIVE REASONABLENESS
Next, Kerns purports to challenge both the procedural and substantive reasonableness of his sentence, but his arguments implicate only substantive reasonableness. Procedural reasonableness challenges, unlike substantive ones, focus on whether the district court “fail[ed] to calculate (or improperly calculate[ed]) the Guidelines range, treat[ed] the Guidelines as mandatory, fail[ed] to consider the § 3553(a) factors, select[ed] a sentence based on clearly erroneous facts, or fail[ed] to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007); United States v. McBride, 434 F.3d 470, 476 n.3 (6th Cir. 2006). Kerns does not identify any procedural error in the district court’s sentencing decision. Nor could he. The court calculated Kerns’s sentencing range correctly, consulted the
The district court’s sentencing decision is reviewed for abuse of discretion. United States v. Lanning, 633 F.3d 469, 473 (6th Cir. 2011). A sentence is assessed for substantive reasonableness by asking whether it is “proportionate to the seriousness of the circumstances of the offense and offender, and sufficient but not greater than necessary, to comply with the purposes of § 3553(a).” United States v. Solano-Rosales, 781 F.3d 345, 356 (6th Cir. 2015) (quoting United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008)). Our review is “highly deferential” though not “without limit.” United States v. Boucher, 937 F.3d 702, 707–08 (6th Cir. 2019) (quoting United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018)).
Kerns argues that the district court failed to give sufficient weight to his mental-health history in weighing the § 3553(a) factors, and consequently his sentence was greater than necessary. First, Kerns’s sentence fell within his Guidelines range and therefore is presumptively reasonable. Boucher, 937 F.3d at 707. Second, the court considered Kerns’s significant mental-health issues but concluded that the seriousness of his offense, which was supported by a victim-impact statement, deterrence, and the need to protect the public favored a sentence at the top of the Guidelines range. At the same time, the court rejected the government’s request for an above-the-Guidelines sentence as “greater than necessary to comply with the statute[.]” (Sent’g Hr’g Tr., R. 86, PageID 337.) A district court does not commit reversible error when it simply assigns more weight to certain § 3553(a) factors than others and arrives at a presumptively reasonable sentence. United States v. Robinson, 892 F.3d 209, 214 (6th Cir. 2018) (“[A] district court does not commit reversible error simply by ‘attach[ing] great weight’ to a few factors.” (quoting Gall, 552 U.S. at 57)). Kerns’s sentence was not substantively unreasonable.
C. VALIDITY OF THE GUILTY PLEA
Kerns also challenges the validity of his guilty plea. First, he argues that his guilty plea to the kidnapping charge was invalid
Because Kerns did not object contemporaneously to these purported errors, we apply plain-error review. United States v. Lalonde, 509 F.3d 750, 757 (6th Cir. 2007). To prevail, Kerns must show that the district court committed an “(1) error, (2) that is plain, and (3) that affects substantial rights,” and if those elements exist, we may grant relief for the error “if (4) the error seriously affects the fairness, integrity, or reputation of judicial proceedings.” Id. at 757–58. An error affects a defendant’s substantial rights if there is a “a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004).
1. Violation of Rule 11(b)(1)(G)
Kerns’s argument that he was improperly advised of the elements of the kidnapping offense implicates
Upon carefully reviewing the record, we conclude that the district court properly determined that Kerns understood the elements of kidnapping. The federal kidnapping statute provides, in relevant part, that a person is guilty of kidnapping where he “unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person” while traveling in interstate commerce.
We are not persuaded. The record reveals that the court fully apprised Kerns of the elements of kidnapping as described in the superseding felony information and that Kerns consulted with his lawyer about the nature of his charges. And the court fully described the elements of
2. Violation of Rule 11(b)(3)
Under
Kerns claims that the district court did not establish facts showing that Kerns’s kidnapping was motivated by “ransom or reward or otherwise.” We have held that the federal kidnapping statute’s “otherwise” clause is satisfied where the government “show[s] that the defendant acted for any reason which would in any way be of benefit” to the defendant. United States v. Small, 988 F.3d 241, 250 (6th Cir. 2021). Here, during Kerns’s plea hearing, the government detailed at length the evidence it would produce were the case to go to trial, including evidence suggesting that Kerns’s actions were motivated by his emotional ties to the victim. And Kerns agreed that the evidence described was sufficient to support a conviction. Based on these representations, the district court did not plainly err in concluding that his actions provided a sufficient factual basis to support the kidnapping charge. Lalonde, 509 F.3d at 762 (noting “even a summary of the charges in the indictment and an admission by the defendant” may be “sufficient to establish a factual basis” (internal quotations omitted)).
Kerns also claims the district court did not confirm there was a factual basis for his guilty plea to possession of a firearm in furtherance of a crime of violence under
This argument contradicts the record. At Kerns’s plea hearing, the government noted that it would be able to prove Kerns brandished a firearm because “he had it out and pointed it at [the victim] when he grabbed her off the porch.” (Plea Hr’g Tr., R. 66, PageID 205.) Kerns expressly agreed to that factual representation. Therefore, the court correctly determined a factual basis for Kerns’s guilty plea to
Finally, Kerns suggests that his firearm conviction lacks a factual basis because the government failed to set forth facts establishing that he possessed a firearm in furtherance of a “crime of violence.” This claim is belied by the record as well. At the plea hearing the court informed Kerns—as did the superseding felony information—that the “crime of violence” furthered by his possession of a firearm was interstate domestic violence under
Kerns contends that
[T]he Government must show that the defendant: (1) traveled in interstate commerce (2) with the intent to kill, injure, harass, or intimidate (3) a spouse or intimate partner (4) and that, in the course of or as a result of such travel (5) the defendant committed or attempted to commit a crime of violence against that spouse or intimate partner.
United States v. Utrera, 259 F. App’x 724, 731 (6th Cir. 2008). But Kerns fails to explain why this embedded “crime of violence” element affects the nature of his guilty plea. Nor does he identify any authority suggesting that the court was required to inform him of the specific “crime of violence” the government believes he committed or attempted to commit under
In any event, as the government points out in its briefing, Kerns’s conduct could constitute felonious assault under Michigan Law, see
While the government devotes much briefing to the issue of whether
D. VAGUENESS
Kerns argues that the term “or otherwise” in the federal kidnapping statute,
Kerns’s argument lacks merit. Section
Finally, Kerns appears to challenge his firearm conviction on the grounds that its predicate crime of violence (Kerns’s since-dropped Count 2 for § 2261 interstate domestic violence, see supra) itself contains a “crime of violence” element that is unconstitutionally vague. Kerns is correct that the Supreme Court has invalidated one of the statutory definitions of “crime of violence” as unconstitutionally vague, namely
III.
For the foregoing reasons, we affirm the district court’s conviction and sentence.
CONCURRENCE
CHAD A. READLER, Circuit Judge, concurring. James Kerns was charged with violating the federal kidnapping statute. That statute,
A bit of history helps frame today’s issue. At common law, kidnapping entailed an obscure form of false imprisonment—abducting and sending one into another country to avoid the initial country’s jurisdiction. See 4 William Blackstone, Commentaries *219; see also Model Penal Code § 212.1 cmt. 210 (1980) (describing common-law kidnapping as a “relatively unknown and inconsequential offense”). Originally, kidnapping was a misdemeanor offense. But as states began to enact kidnapping statutes, many states made it a felony to engage in false imprisonment when the perpetrator had a particularly nefarious motive, such as holding the victim for ransom or using the victim as a hostage. 2 Wharton’s Criminal Law § 207 (15th ed. 2020).
The federal government, on the other hand, went many years without enacting a federal kidnapping statute. That changed in 1932 with the passage of what was then-called the “Federal Kidnaping Act.” See Pub. L. No. 72-189, 47 Stat. 326 (1932). (Congress amended Title 18 in 1994 so that the statute is now called the “Federal Kidnapping Act,” the name I will use here. See Pub. L. No. 103-322, § 330021, 108 Stat. 1796, 2150 (1994)). The Act was seemingly inspired by the well-published abduction for ransom and murder of aviator Charles Lindbergh’s infant son. See Robert C. Finley, Lindbergh Law, 28 Geo. L.J. 908, 910 (1940). Enactment of the so-called “Lindbergh Law” followed extensive debates in Congress over the risks of federalizing kidnapping law. See id. at 910–12. As enacted, the law prohibited the kidnapping and holding of a person for “ransom or reward” while transporting that person in interstate or foreign commerce. See 47 Stat. 326. Two years later, amidst a flurry of legislative enactments pursued by President Franklin Roosevelt’s Justice Department, see Homer Cummings, Progress Toward a Modern Administration of Criminal Justice in United States, 22 A.B.A. J. 345, 346 (1936), Congress amended the Act. See Pub. L. No. 73-232, 48 Stat. 781 (1934). At the time, observers believed Congress’s most significant handiwork was redrafting the law to allow for the imposition of the death penalty for certain kidnapping offenses. See Horace L. Bomar, Jr., The Lindbergh Law, 1 Law & Contemp. Probs. 435, 440 (1934) (discussing the “major” amendments to the Act); see also Hugh A. Fisher & Matthew F. McGuire, Kidnapping and the So-Called Lindbergh Law, 12 N.Y.U. L. Q. Rev. 646, 655 (1935) (similar); cf. United States v. Jackson, 390 U.S. 570, 587 & n.31 (1968) (describing the 1934 legislative debate and noting that—save for a provision allowing for imposition of the death penalty—the statute left the 1932 law “substantially unchanged”). Yet history arguably would prove otherwise.
While perhaps unknown to the Seventy-Third Congress, let alone an ordinary English speaker in 1934, a cosmetic change to the Act—adding the phrase “or otherwise” to the clause containing “ransom or reward”—would prove consequential. Indeed, the Supreme Court would soon seize upon that term to vastly expand the Act’s scope. That opportunity came in the case of Arthur Gooch, an Oklahoman convicted under the Federal Kidnapping Act and sentenced to death. See Gooch, 297 U.S. at 124–25. Two years earlier, Gooch and a compatriot were in the midst of a month-long crime spree when two officers encountered them in Texas. Id. at 125. To avoid arrest, the pair disarmed the officers, forced them into a car, and proceeded to drive several hours into southern Oklahoma. Id. But upon arriving in the Sooner state, Gooch, in an act of mercy, released the two officers largely unharmed. Id.
Challenging his conviction, Gooch argued that the Act’s use of the phrase “or otherwise” should be interpreted to imply some sort of pecuniary benefit, making his motive for the kidnapping—to prevent his arrest—insufficient to violate the Act. Id. A unanimous Supreme Court disagreed. Two considerations informed that conclusion. One was Congress’s purported purpose in amending the Act, which the Supreme Court described as “enlarg[ing] the earlier” statute’s reach. Id. at 126. Another was the statute’s legislative history, which in significant part parroted the Department of Justice’s views that federal jurisdiction should generally extend to kidnappings done “not only for reward, but for any other reason.” Id. at 127–28 & n.1 (quoting S. Rep. 73-534 (1934) and H.R. Rep. 73-1457 (1934)). Embracing this purpose-based approach, Gooch concluded that “[h]olding an officer to prevent the captor’s arrest” is an act done to “benefit . . . the transgressor,” meaning Gooch’s conduct fell “within the broad term, ‘otherwise.’” Id. at 128.
Judged by modern interpretative orthodoxy, Gooch’s sins were many. Chief among them, the Supreme Court elevated purpose and legislative history over reliance on the statute’s text. The Supreme Court charted that perilous course first by promoting the views of the Justice Department (documented in a House and Senate report) to the status of law. See id. at 128 n.1 (describing a Senate report that consisted almost entirely of a memorandum from the Department of Justice). Gooch in turn utilized that legislative history to divine a grand purpose to the 1934 amendments, id. at 126, even though legislation, we now rightly acknowledge, is the “art of compromise,” with “no statute yet known pursu[ing] its stated purpose at all costs.” Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017) (cleaned up). Gooch then elevated the statute’s supposed purpose at the expense of the contemporary, ordinary meaning of the phrase “or otherwise.” See Gooch, 297 U.S. at 128. In 1934 (as today), the phrase was well understood in a “restrictive sense” to “refer[] to such matters as are kindred to the classes before mentioned.” See 6 Judicial and Statutory Definitions of Words and Phrases 5105 (1904); see also Walker v. Jack, 88 F. 576, 581 (6th Cir. 1898) (Taft, J.) (interpreting “or otherwise” to mean “in a manner similar” to the preceding language in the statute). That understanding, moreover, aligned with the familiar canon of statutory construction that
Over time, Gooch’s disregard for the Act’s text has led the lower courts to find a “wide variety of purposes” to be encompassed by the “or otherwise” phrase. 3 Wayne R. LaFave, Substantive Criminal Law § 18.2(a) (3d ed. 2020) (surveying circuit case law); see, e.g., United States v. Vickers, 578 F.2d 1057, 1058 (5th Cir. 1978) (per curiam) (holding that a defendant who drove his estranged wife against her will to “discuss their marital affairs” violated the Federal Kidnapping Act); United States v. Cavallaro, 553 F.2d 300, 302 (2d Cir. 1977) (holding that a defendant who forced a woman into his car and tried to extract information from her satisfied the Federal Kidnapping Act’s motive clause); Brooks v. United States, 199 F.2d 336, 336 (4th Cir. 1952) (holding that members of the Ku Klux Klan who seized a couple to tell them to “stop living together and making liquor” and to instead “attend church” violated the Federal Kidnapping Act). We too have been swept up in that interpretive tidal wave, extending the Act to encompass kidnappings done for the purpose of assaulting another individual, see United States v. Sensmeier, 2 F. App’x 473, 476 (6th Cir. 2001); see also United States v. Ingram, 846 F. App’x 374, 382 (6th Cir. 2021), or to execute a robbery more effectively, United States v. Small, 988 F.3d 241, 250 (6th Cir. 2021), among other reasons. Despite the limiting fashion in which its text would otherwise be understood today, federal courts functionally amended the Act to have “little or no realistic analysis of the motives involved.” Finley, supra, at 914.
Allowing federal courts to expand Congress’s work in such sweeping fashion pays little heed to the principle of the separation of powers, a founding cornerstone of our system of government. Mistretta v. United States, 488 U.S. 361, 380 (1989) (“[T]he central judgment of the Framers of the Constitution [is] that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.”). After all, as every middle school American history student understands, the legislative branch, not the judiciary, is tasked with writing the laws that govern us. Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018) (“Congress alone has the . . . constitutional authority to revise statutes . . . . Until it exercises that power, the people may rely on the original meaning of the written law.”); Henson, 137 S. Ct. at 1725 (“[W]hile
Gooch similarly disregarded federalism principles, another bedrock of our federal system. See Gregory v. Ashcroft, 501 U.S. 452, 457–59 (1991) (recognizing the “system of dual sovereignty between the States and the Federal Government” as critical to check “abuses of government power” and to secure the “promise of liberty”). Gooch’s dubious interpretive methods functionally created a federal false imprisonment statute. By all accounts, the only remaining distinction between the Federal Kidnapping Act and the broadest state laws criminalizing kidnapping is the federal jurisdictional hook. And that “hook,” it bears noting, has “substantially expanded” in recent years and, as merely a basis for jurisdiction, can be satisfied without “any proof” the defendant knew his crime implicated interstate commerce. See LaFave, supra § 18.2(a); see also United States v. Burnette, 170 F.3d 567, 571 (6th Cir. 1999) (recognizing that after amendments to the Federal Kidnapping Act in 1972, “knowledge of interstate transportation” is no longer “an element of the offense” and “interstate transportation now serves merely as a jurisdictional basis for federal prosecution of kidnapping”); see generally Rehaif v. United States, 139 S. Ct. 2191, 2196 (2019) (noting that jurisdictional elements are not subject to the presumption in favor of scienter). The result is expanding federal criminalization, here and elsewhere, which, more often than not, leaves state and local law enforcement at the behest of their federal counterparts. See Stephen F. Smith, Federalization’s Folly, 56 San Diego L. Rev. 31, 55–64 (2019) (discussing how the federalization of criminal law “interferes with the effective functioning of the state [criminal legal] system”); see also Brief of Senator Orrin Hatch as Amicus Curiae in Support of Petitioner at 28, Gamble v. United States, 139 S. Ct. 1960 (2018) (No. 17-646), 2018 WL 4358114 (observing that the “expansion of federal criminal law has come at the expense of states’ traditionally exclusive jurisdictions,” eroding states’ ability to “punish behavior falling within [overlapping] areas of interest”).
For better or worse, the expansion of federal criminal jurisdiction has many fathers. Congress, to be sure, has driven much of that evolution. See, e.g., John G. Malcolm, Criminal Justice Reform at the Crossroads, 20 Tex. Rev. L. & Pol. 249, 278–81 (2016); Robert Alt, You Might Be Committing a Federal Crime, Heritage Found. (Dec. 17, 2010), https://perma.cc/WT9S-8WPT; Alex Kozinski & Misha Tseytlin, You’re (Probably) a Federal Criminal, in In the Name of Justice 43–45 (Timothy Lynch ed., 2009). But those of us in the federal judiciary should be careful about casting too many stones in Congress’s direction. After all, at least some of the blame lies at the doorstep of the glass house we occupy. In cases like Gooch, we have “perform[ed] Congress’s” job by “defin[ing] a crime and ordain[ing] its punishment.’” United States v. Bond, 572 U.S. 844, 867 (2014) (Scalia, J., concurring in judgment) (quoting United States v. Wiltberger, 5 Wheat. 76, 95 (1820)). Doing so threatens individual liberty, a virtue that “is always at stake when one or more of the branches seek to transgress the separation of powers.” Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J, concurring). Arthur Gooch understood these concerns better than most: he died at the gallows three months after his conviction was affirmed, suffering the ignominious fate of being the
Despite the many flaws in our modern kidnapping jurisprudence, however, vagueness seemingly is not one of them. Back to today’s case, where Kerns argues that the term “otherwise” is too vague to allow him to enter a knowing and voluntary guilty plea. See Appellant’s Br. at 41. Yet Gooch effectively forecloses such an argument. A law violates the “constitutional requirement of definiteness” where it fails to provide a “person of ordinary intelligence fair notice” of what conduct is forbidden by the statute. See United States v. Harriss, 347 U.S. 612, 617 (1954). Gooch, however, concluded that it was “obvious” what Congress’s amendment to the Federal Kidnapping Act criminalized: any act of kidnapping, so long as that act provided some sort of “benefit to the transgressor.” Gooch, 297 U.S. at 128; see also Wainwright v. Stone, 414 U.S. 21, 22 (1973) (observing that the “judgment of federal courts as to the vagueness” of a statute “must be made in light” of prior judicial constructions of the statute). In other words, after Gooch, there was no doubt as to the import of the “or otherwise” phrase in the Act. Gooch merely obviated the Act’s motive element—something the government typically need not prove as part of a criminal offense, see 1 Wayne R. LaFave, Substantive Criminal Law § 5.3(a) (3d ed. 2020)—leaving in its place a federal criminal law largely indistinguishable from any state false imprisonment law. The mere fact that a law is “marked by . . . reasonable breadth, rather than meticulous specificity,” does not make it unconstitutionally vague. Grayned v. City of Rockford, 408 U.S. 104, 110 (1972) (citations omitted). Accordingly, we (and other circuits too) have rejected challenges similar to Kerns’s, albeit sometimes on somewhat imprecise grounds. See Daulton, 474 F.2d at 1249 (rejecting a vagueness challenge on standing grounds and noting in dicta the purpose of
True, a law can also be considered unconstitutionally vague where its definitiveness is so insufficient that it “encourage[s] arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983); see also Johnson v. United States, 576 U.S. 591, 595 (2015). That said, whether the Federal Kidnapping Act “invite[s] the exercise of arbitrary power” by “allowing prosecutors and courts to make . . . up” when the law is enforced is left largely unexplored by Kerns. See Sessions v. Dimaya, 138 S. Ct. 1204, 1223–24 (2018) (Gorsuch, J., concurring). It is thus best left for another day to resolve whether the Act’s “otherwise” clause raises such constitutional concerns and, more broadly, whether Gooch’s errors can be corrected.
Accordingly, I concur in full in the majority opinion.