Kirklin v. United States

883 F.3d 993
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 5, 2018
DocketNo. 17-1056
StatusPublished
Cited by16 cases

This text of 883 F.3d 993 (Kirklin v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirklin v. United States, 883 F.3d 993 (7th Cir. 2018).

Opinion

Hamilton, Circuit Judge.

For the second time we review Tyrone Kirklin's conviction for aiding and abetting a robbery where his co-conspirator brandished the guns he gave her. In Kirklin's first appeal, we found that the district judge erred by making the brandishing finding rather than requiring a jury to make this determination. The district judge had acted in accord with controlling Supreme Court precedent at the time. After oral argument in Kirklin's first appeal, the Supreme Court overruled its controlling precedent and held that the brandishing determination must be made by a jury. Because that later case controlled, we found the judge had erred. Nevertheless, we affirmed Kirklin's conviction and sentence because his attorney did not raise the issue in the district court, and we found the error was not a plain error requiring reversal despite the lack of objection. United States v. Kirklin , 727 F.3d 711 (7th Cir. 2013).

Under 28 U.S.C. § 2255, Kirklin now asserts that his attorney's failure to object in the district court amounted to ineffective assistance of counsel in violation of the Sixth Amendment. We disagree. The constitutional standard for performance under the Sixth Amendment does not require a criminal defense attorney to anticipate that the Supreme Court is about to overrule its controlling precedent, at least not in these circumstances, before the Supreme Court had granted review in a case presenting the question whether to overrule the controlling precedent. We affirm the district court's denial of Kirklin's motion to vacate his conviction.

This case began in November 2010, when Kirklin recruited his friend Tiffany Jones to rob a bank in Homewood, Illinois. Kirklin picked up Jones and his cousin, Justice McCallister, and drove them to the bank. Kirklin instructed Jones to stand guard at the front of the bank to prevent anyone from entering or leaving the building while McCallister grabbed the money. Kirklin gave Jones a semi-automatic handgun and a revolver. He also explained that one advantage of the revolver was that it would not leave shell casings behind if she had to fire. Arriving at the bank, Jones used a gun to force a customer leaving the bank to go back inside, but she failed to stop another customer who was leaving and who immediately called the police. McCallister and Jones carried out the robbery and left the bank with the stolen money, but they were arrested quickly near the scene. They gave statements admitting the robbery and implicating Kirklin.

*995Kirklin was tried and convicted of two counts: aiding and abetting the robbery, and aiding and abetting the use or carrying of a firearm during a crime of violence. He was sentenced to a total of 171 months in prison, which included an 84-month consecutive sentence on the second count, under 18 U.S.C. § 924(c), because the firearms had been brandished during the robbery. Section 924(c) provides mandatory minimum and consecutive prison sentences that vary based on whether the defendant was responsible for merely carrying or using the weapon, or for brandishing it, or for discharging it. If the weapon is only used or carried during the crime of violence, the mandatory minimum is five years. § 924(c)(1)(A)(i). If the weapon is brandished, the mandatory minimum is seven years. § 924(c)(1)(A)(ii).

Video evidence and witness testimony showed that Jones and McCallister had both brandished their weapons during the robbery. The court did not, however, instruct the jury to make a specific factual finding as to whether the government had proved beyond a reasonable doubt that Kirklin was responsible for the brandishing. Instead, the district court made this determination at sentencing in July 2012.

A decade before Kirklin's sentencing, the Supreme Court had held in Harris v. United States , 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), that whether a firearm was brandished in violation of § 924(c)(1)(A) was a sentencing factor rather than an element of the offense so that it "need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt." Id. at 568, 122 S.Ct. 2406. Under Harris , a judge could decide whether a firearm was brandished so that the seven-year mandatory minimum would apply. The result in Harris depended on a distinction between factual findings that increase a mandatory minimum sentence and findings that increase the maximum sentence under a statute, which the Court had recently held must be found by a jury in Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Harris , 536 U.S. at 557, 122 S.Ct. 2406.

Despite criticism of this fragile distinction, Harris remained the law when Kirklin was sentenced. Just three months later, however, in October 2012 the Court granted a writ of certiorari in Alleyne v. United States , which signaled that the Court would consider whether to overrule Harris . See Alleyne v. United States , 568 U.S. 936, 133 S.Ct. 420, 184 L.Ed.2d 252 (2012). The Court decided Alleyne on the merits in June 2013, overruling Harris

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Bluebook (online)
883 F.3d 993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirklin-v-united-states-ca7-2018.