Case Information
*1 Before R IPPLE W ILLIAMS T INDER , Circuit Judges . W ILLIAMS Circuit Judge
. Tyrone hatched scheme several accomplices rob Illinois. They robbed bank, soon caught, vari ous federal offenses. A convicted two counts related aiding abetting armed robbery, violation 2113; § 924(c)(1)(A); He sentenced months’ imprisonment. ‐
Kirklin now challenges his conviction, arguing district court failed accurately instruct a robbery. But Kirklin never raised any objection about ju ry even district specifically asked parties if had any comments final draft instructions. Furthermore, we are persuaded instruction misleading reversal necessary in this case. argues he entitled resentencing be
cause wrongly imposed a ‐ year sentence 924(c)(1)(A)(ii) his accomplices’ “bran dishing” firearms even though never this fact beyond reasonable doubt. Supreme Court’s decision in Alleyne S. Ct. (2013), has confirmed fact increases defendant’s mandatory mini mum sentence—like brandishing firearm—must be sub mitted jury. And while there no question this fact should been submitted Kirklin’s case order hold him accountable brandishing, convinced sentencing resulted miscarriage justice evidence supporting court’s finding brandishing overwhelming. Therefore, affirm conviction sentence.
I. BACKGROUND
One morning November drove home friend named Tiffany Jones asked her she wanted help rob Homewood, Illinois. promised “easy,” showed her two firearms stashed his van (a TEC semi automatic handgun .38 millimeter revolver), Jones agreed participate. ‐ Kirklin then picked up his cousin, Justice McCallister, and drove to the bank. On the way there, the group discussed their plan for the robbery. assured Jones there was no security the bank and all she needed to do was stand guard the lobby to sure no one came in or out. He told Jones she could shoot the revolver inside bank without leaving shell casings behind. McCallis ter’s job was to someone who knew combination to vault and force open. said drop them off, wait across street four five minutes, and then pick them up front bank. Like many bank robberies, one did go according to plan.
Jones entered bank TEC ‐ and .38 revolver; McCallister brought his own Hi Point ‐ millimeter pistol. The pair entered bank just as several customers were exiting. With two firearms her hands, Jones dered customers go back inside lobby bank. One customer attempted leave, but Jones put gun back her neck and forced her back inside. Unbeknownst Jones, one customer too quick and managed slip past her call Meanwhile, McCallister ordered bank tellers fill backpack cash their drawers. McCallister and Jones then ordered customers inside vault and fled. Just as pair ran outside their escape, police squad cars began arrive Jones and McCallister arrested near scene. pair both gave post arrest statements implicated themselves well as Kirklin. aiding abetting armed violation U.S.C. §§ 2113(a) (d), (Count 1), carrying of firearm in furtherance of in viola ‐ tion of and U.S.C. (Count 2). The case tried front jury over three days. Shortly ‐ fore closing arguments, court presented both sides final set written and asked counsel if objections they wanted to make record. Neither party objected, court pro ‐ ceeded to instruct Counts 2. For Count 2— only one issue here appeal—the stated government must prove following three proposi tions:
Number 1. An individual committed crime bank robbery, charged Count indict ment.
Number 2. The individual used or carried firearm during relation to robbery.
Number The defendant knowingly aided, coun seled, induced procured use firearm relation to robbery. The prove knowingly participated criminal activity tried succeed. went explain term “use” includes
“brandishing, displaying, striking with, firing attempt ing fire … . However, mere possession fire arm near site crime enough consti tute use firearm.” During deliberations, asked one question relevant Count 2:
In relation need know defend ant being supplying guns *5 5 ‐ 2765 robbery or with aiding a crime where a firearm used.
The court met parties observed: “I think correct answer neither above.” The parties agreed court should answer back: “The instruction … defines what required Count 2. No further infor mation can be provided.” convicted Kirklin on both counts. The presen
tence investigation report recommended a year sentence on § 924(c) charge, reflecting mandatory minimum sentence cases where a firearm “brandished.” U.S.C. § 924(c)(1)(A)(ii). Kirklin did object rec ommendation, concluded evi dence supported finding brandishing Kirklin “willing other people brandish guns on his half” guns brandished. As result, sen tenced months § charge Count 2. He received consecutive month sentence Count
II. ANALYSIS raises challenges both his conviction sen
tence indictment. Count relation crime violence violation U.S.C. 924(c)(1)(A) U.S.C. § (punishing as principal anyone who “commits offense against aids, abets, counsels, commands, induces procures its commission” or who “willfully causes an act be done which if directly performed by him or another would be an offense against States”). In order prove § 924(c), put forth evidence showing that: “(1) defendant knew, either be fore crime, of principal’s weapon posses sion use; (2) intentionally facilitated weapon possession once informed.” Taylor F.3d (7th 2000). penalty provisions of § 924(c) provide, relevant part, anyone guilty such an offense shall
(i) be sentenced term imprisonment not less than years; [or]
(ii) if brandished, sentenced term imprisonment less than years. 924(c)(1)(A). A. No Error Jury Instructions first argues district court’s instruction jury on charge highly mis
leading. asserts standard review com plicated matter initially held an informal meeting with parties off record re garding proposed instructions. But faced situation all discussion instructions held off record. Such practice seriously frustrate our appeal. Maltby Winston n. (noting “it responsi bility court, conducts instruction con ference without reporter, provide parties opportunity specifically object *7 7 record”). Rather, record this case reveals the court held an informal conference off record first (Tr. 447), but then presented parties final draft instructions on record directly asked for any is sues to raised time. See Tr. We appreciate potential dangers any such discussions off record, but nothing prohibits judge from participating an informal conference first, here confident took necessary steps to orient record for our review on appeal. Moreover, there no suggestion counsel made objection to instruc tions off record before went back record, have missed an argument thought he had preserved. Graham v. Sauk Prairie Police Comm’n , F.2d 1085, 1106–07 (7th Cir. 1990) (finding objection instructions waived where no record exist ed defendants voiced an objection instruc tions counsel only objected informal con ference). next hurdle his attorney stated
he had no objections final before read jury. We cautioned before “[c]ounsel’s affirmative statement no objection proposed [jury] instruction constitutes waiver abil ity raise claim appeal.” United States v. Griffin , F.3d 856, (7th Cir. 2007); see United States v. Natale F.3d 719, (7th Cir. 2013) (“Although passive silence regard instruction permits plain … defendant’s affirmative approval proposed instruc tion results waiver.”); O’Connor F.3d (7th 2011) (same); Gonzalez (finding defendants’ challenge instructions waived because “accepted” the rele ‐ vant by affirmatively “stat[ing] court, ‘No ob ‐ jection’”); Griffin F.3d (7th (same). That precisely what happened here. When counsel for was asked directly whether he “any objections additions that [he] want[ed] to make the record” regarding the instructions, replied: “None that I can think of, your Honor.” At oral argument, counsel suggested that statement was equivocal, but we disagree. Plus, held before similar everyday language constituted an intentional relinquishment defendant’s right object. Anifowoshe 2002).
To sure, even Kirklin’s objection only forfeited instead waived, persuaded instruc ‐ tions 924(c) charge Count vague mis ‐ leading. argues part instruction which stated “the government must prove defendant knowingly participated criminal activi ty tried succeed” fails specify crimi nal activity—the bank itself use weap robbery—the required Kirk lin facilitated. According Kirklin, court’s fail ure explicitly require government establish intended further weapon (as opposed only robbery) constitutes re versible omitted essential element offense. argument persuasive only instruc tion read out context. Remember disputed part instruction read full: “the prove No.
… that the defendant knowingly aided, counseled, induced procured the use carrying of firearm during in rela tion the . prove that the knowingly participated in criminal activity tried it succeed” (emphasis added). We do not think it stretch of imagination think that jury understood “the criminal activity” refer back “the use carrying firearm” preceding sentence.
Kirklin points out that more recent version Seventh Circuit Pattern Criminal Jury Instructions explicitly distinguishes between knowledge gun’s use inten tional furtherance its use within context by stating: “A person who merely aids underly ing offense knowing that firearm [used; carried] does not [aid, counsel; command; induce; procure] commission offense [1].” 7th Pattern Criminal Jury Instructions (2012 ed.). We agree that clarification version structions certainly helpful. But that does automatical ly mean version read jury plainly erroneous. And note read went beyond mere boilerplate. They reminded jury could only convict it know ingly induced “the use during relation robbery.” Cf. Wright __ __, WL *4 July 16, (discouraging boilerplate instructions). suggests passing one question submitted by deliberations demonstrates did understand instructions. We cannot agree. Lay jurors may trouble understanding instruc 2765 tions for many reasons, will speculate on rea ‐ son for jury’s question here. And any event, when district proposed telling jurors all essen tial information needed already provided on Count 2, defense counsel unequivocally agreed never suggested any alternative instruction. Kirklin’s challenge his conviction Count must there fore fail.
B. Sentencing Error Did Not Affect Fairness Judicial Proceedings second argument his year sentence should be vacated because jury—not judge—
needed him responsible for brandishing a firearm be fore any mandatory minimum penalty could be applied. According Kirklin, his sentence rests mere judicial finding a fact incom patible rule announced Apprendi v. New Jersey U.S. 466, (2000), “any fact increases pen alty for crime beyond prescribed statutory maximum submitted jury, proved beyond reasonable doubt.” Because failed raise this argument before district court, for plain error. See Wolfe (“An Apprendi challenge reviewed plain if made court.”).
At time filed appeal, Supreme Court precedent foreclosed argument suggesting de fendant’s rights violated finds him accountable brandishing made no such finding. Harris U.S. (2002) (finding “brandishing” sentencing factor, op ‐ posed an element 924(c), which may be considered by judge after trial). However, Alleyne , S. Ct. (2013), a case that reconsidered Harris was pend ‐ ing before Supreme Court when this case was argued, we held case abeyance awaiting Court’s decision. That decision has now been issued Court confirmed “any fact that increases mandatory minimum is an ‘element’ must be submitted jury.” Id. at 2155. Like Kirklin, Alleyne was found guilty a viola ‐ tion. The district Alleyne’s case found pre ponderance evidence supported finding brandish ing applied year statutory minimum sentence even though did not this fact beyond reasonable doubt. Id. at The Supreme Court reversed agreed Alleyne, explaining “fact triggering mandatory minimum alters prescribed range sentences criminal ex posed,” thereby increasing “sentencing floor” “form[ing] an essential ingredient offense” must be submitted jury. Id. 2160–61.
Here, concedes wake Al leyne court’s imposition year mandatory minimum based facts not by erroneous. But before we can correct error raised trial, we 2765 find error was “plain” affected defend ‐ ant’s “substantial rights.” United States v. Olano , U.S. 725, 732–34 (1993). government concedes error here was plain. Although does not concede this error affected “substantial rights,” will ‐ sume sake argument did. See Olano , U.S. at (explaining an error affected “substantial rights” “affected outcome proceedings.”). At this point, has satisfied three threshold require ments plain error review. Id. at 732–34. So this brings us discretionary element: whether error seriously affect ed “fairness, integrity, public reputation judicial proceedings.” Id. at In other words, decide whether error fundamental nature uphold ing sentence results an intolerable miscarriage jus tice. United States v. Nance , F.3d 820, 825–26 (7th 2000); see Neder v. United States , U.S. 1, (1999) (list ing structural errors).
A similar quandary was presented aftermath Apprendi federal narcotics prosecutions courts decide whether resentencing necessary cases where drug quantity indictment did an amount triggering statutory maximum. Nance F.3d 824–26 (finding no plain error given strength evidence); cf. Noble 955–56 (vacating sentence plain given minimal corroborating testimony evidence). Then came Cotton U.S. (2002), confirmed an “indictment’s failure allege fact, drug quantity, increased statutory max imum sentence rendered respondents’ sentences erroneous reasoning Apprendi ,” id. but such er *13 13 12 2765 ror cannot said “seriously affect fairness, integrity, public reputation of judicial proceedings” evi dence against “overwhelming” “essen tially uncontroverted.” Id. at 632–33; see also Washington v. Recuenco , U.S. 212, 218 (2006) (holding trial court’s appli cation of mandatory year firearm enhancement based its own factual findings violation of Blakely v. Washington , U.S. (2004), subject automatic reversal).
We have similarly declined a miscarriage of jus tice plain error cases we “con vinced that upon a properly worded indictment, a properly instructed would have found defendants guilty distributing requisite threshold quantities narcotics.” Mansoori , F.3d (7th 2002); see Knox F.3d (concluding “judicial resolution factual dispute should have been presented ‘structural error’ requires automatic reversal” Apprendi giv en “strength evidence”); Nance (“If clear beyond reasonable doubt properly worded indictment properly instructed [the defendant] guilty absent th[e] error, then cannot say error serious requires us set aside judgment.”), cert. denied U.S. (2001).
Applying these principles case hand, cannot conclude court’s sentencing affected “the fairness, integrity, public reputation” proceed ings below given significant amount evidence brandishing firearm record. Remember robbery. From very outset, made it clear Jones he “had something” prevent customers from leaving she should revolver would leave shell casings. Jones’s testimony at trial on point very clear she also described pointing guns customers bank. Two other witnesses, including teller customer, testi fied Kirklin’s accomplices brandished firearms robbery. Moreover, several instances Jones brandishing their weapons visible on surveillance video played trial. It therefore seems highly unlikely guilty Count but reach different conclusion from brandishing factor been asked such finding. As result, decline remand resentencing
III. CONCLUSION
For these reasons, A FFIRM conviction sentence.
[1] Attempted qualifies crime violence 924(c)(3)(A)–(B).
[2] supplementary briefing concedes plain applies case Harris explains why chose argu ment advances now. law clearly against him. But remind parties future cases “a claim be ad vanced, preserved, even all precedent contrary,” otherwise can only plain error. Messino (Easterbrook, J., dissenting) (collecting cas es).