### In the



# United States Court of Appeals

For the Seventh Circuit

Nos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

T OBY J ONES

, M ARIO W HITFIELD

, and

K ELSEY J ONES

, Defendants

‐ Appellants.

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 14 CR 155

— Amy J. St. Eve

, Judge.

A RGUED M AY 25, 2017

— D ECIDED S EPTEMBER 20, 2017

Before W OOD

, Chief Judge, and B AUER and H AMILTON

,

Circuit Judges

.

B AUER

, Circuit Judge. In December 2013, a confidential

informant (“CI”) informed the Bureau of Alcohol, Tobacco,

Firearms, and Explosives about Defendant Toby Jones, the

leader of a drug

‐ distribution operation on Chicago’s West Side.2 Nos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975

The CI introduced Toby and his brother, Defendant Kelsey

Jones, to ATF Agent Christopher Labno, who posed as a

firearms and drug dealer. During several controlled drug

purchases, Toby negotiated a drugs

‐ for

‐ guns transaction with

Agent Labno. Eventually, Toby instructed one of his drug

workers, Wesley Fields, to complete the transaction; Fields

was arrested immediately after the exchange. Thereafter, Toby

and Kelsey engaged in a week

‐ long effort to track down and

kill the CI who arranged the deal, resulting in two separate

shootings. In the later shooting, Kelsey fled the scene in a

getaway car driven by Defendant Mario Whitfield, whose

counsel filed an Anders brief that we consider later on.

Toby and Kelsey were later arrested, charged, and con

‐

victed of several crimes based on these events. Now, they both

raise challenges to those convictions; Kelsey also challenges his

sentence. We affirm.

I. BACKGROUND

A. Facts

Kelsey was tried by jury, and Toby proceeded to a bench

trial. At this joint trial, the government established the follow

‐ ing facts, which we view in the light most favorable to the

prosecution. See United States v. Resnick

, 823 F.3d 888, 893 (7th

Cir. 2016).

1. Kelsey’s Role

Kelsey worked for Toby, selling crack cocaine and heroin

to customers. He used a cell phone, which Toby provided, to

take orders from and make deliveries to customers; he and

Fields worked the drug phone in alternating shifts. AfterNos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975 3

Kelsey completed a drug sale, he brought the money back to

Toby. Kelsey also packaged drugs for Toby and provided

security to him during drug sales. Particularly, he provided

security for Toby and packaged the drugs that were sold to

Agent Labno on March 19, 2014. In addition, Kelsey allowed

Toby to store drugs in his apartment.

2. Drugs

‐ For

‐ Guns Exchange

Between December 2013 and March 2014, the CI and Agent

Labno met with Toby six times to purchase crack cocaine with

all purchases taking place near the CI’s apartment building

located at 464 North Austin Boulevard, Oak Park, Illinois. All

these meetings were audio and video recorded. At several of

these meetings, Toby discussed the purchase of guns.

On January 15, 2014, Toby told Agent Labno that he wanted

to purchase a handgun capable of holding 30 rounds of

ammunition in the magazine, but not to discuss guns over the

phone. On February 4, 2014, Agent Labno showed Toby

pictures of guns that he said he had for sale. When shown the

picture, Toby specifically asked Agent Labno about the cost

of the Glock with an extended magazine and extended clip

(“Glock”). Agent Labno responded that he wanted approxi

‐ mately $450 or “six jabs” of crack cocaine. (One jab is a package

that typically contains 10 to 12 individual use amounts of crack

cocaine or heroin.) Toby responded, “Yeah,” and told Agent

Labno to bring the Glock to him. He also told Agent Labno

that he wanted to purchase the Glock for himself and the

Beretta pistol for “somebody else.”

On February 26, 2014, the CI and Agent Labno met with

Toby to conduct another controlled purchase of crack cocaine.4 Nos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975

There, Toby confirmed his intention to purchase the Glock in

exchange for crack cocaine. Similarly, Toby, who was accompa

‐

nied by Kelsey, confirmed that same intention to Agent Labno

at a controlled purchase of crack cocaine on March 19, 2014.

On March 25, 2014, Agent Labno and the CI placed a

recorded call to Toby. The CI asked Toby if he still wanted to

purchase guns from Agent Labno. Toby responded, “Hell yeah

I want them.” Further, Toby stated, “I just want that [Glock],

man.” Agent Labno confirmed with Toby that the price was six

jabs for the Glock.

On March 26, 2014, Toby sent a text message to Agent

Labno, explaining that he was sending Fields to conduct the

guns

‐ for

‐ drugs exchange. Agent Labno confirmed that the

price was six jabs of crack cocaine for the Glock. Toby re

‐ sponded, “Yep.”

Around the same time, Toby called Fields to meet him at

Kelsey’s apartment to pick up the crack cocaine to pay for the

Glock. Toby gave Fields six jabs of crack cocaine and approxi

‐ mately $450 in cash; he instructed Fields to purchase the Glock

for him and an additional gun for himself. He further in

‐

structed Fields to bring the Glock “straight to him” after

purchasing it.

Upon Toby’s instruction, Fields then met with Agent Labno

and the CI. Agent Labno presented Fields with multiple

guns. Fields picked out the Glock for Toby and the Beretta for

himself. He was immediately arrested after he gave the crack

cocaine and cash to Agent Labno in exchange for the guns.Nos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975 5

About an hour after Fields’ arrest, the CI called Toby,

asking about his payment for arranging the drugs

‐ for

‐ guns

transaction. Toby told the CI that Fields had not returned from

the drugs

‐ for

‐ guns transaction, and he asked the CI when he

had last seen Fields. Toby assured the CI that he would be

paid for arranging the deal.

ATF agents placed the CI in a hotel room where he was

instructed to stay until Toby was in custody. Despite these

instructions, the CI drove back to his apartment. During the

drive, the CI received an incoming call from Toby who

sounded agitated and repeatedly asked the CI about the CI and

Fields’ whereabouts. The CI told Toby that he was driving

back to his apartment and that he had completed the gun deal

with Fields earlier that day, but he did not know Fields’

current location. Toby placed a total of 12 outgoing calls to

Fields and 15 outgoing calls to the CI in the hours after Fields’

arrest. Toby sent Fields a text message, telling him to “Call me

let me know you alright.”

3. Retaliation Conspiracy

On March 27, 2014, shortly after midnight, Kensha Barlow

was shot in his apartment located at 464 North Austin Boule

‐

vard, Oak Park, Illinois (the CI lived in the same building, but

in the unit on the floor below). Barlow heard someone knock

on his door and asked who was there. A male voice responded:

“It’s me

... You know who it is, open the fucking door.”

Barlow looked through the door’s peephole, but the person

in the hallway covered the peephole with a finger. Once the

other person removed his finger from the peephole, Barlow

saw two males standing in the hallway; he did not know who6 Nos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975

either of the individuals were. Shortly after, Barlow heard

shots ring out, and he was shot in the leg. (He later identified

Toby as one of these two males.)

Around March 30, 2014, Kelsey called Marty Smith, one of

his drug customers, and asked Smith to come to his apartment.

Smith and the CI knew each other and lived in the same

apartment building. When Smith arrived at Kelsey’s apart

‐

ment, Toby and Kelsey were there. Kelsey questioned Smith

about the CI’s whereabouts and what kind of car he drove.

Smith told Kelsey that he had not seen the CI recently.

On April 2, 2014, the CI’s brother (“Mark”) and sister

‐ in

‐

law (“Christy”) came to Chicago to stay with the CI in his hotel

room. Mark, Christy, and the CI drove around the CI’s

neighborhood. Near the CI’s apartment building, the CI saw

Kelsey wearing a black

‐ hooded sweatshirt. The CI observed

that Kelsey “looked right at” him.

Around 7:24 p.m. that evening, Kelsey called Smith and

asked him if there were any cameras in the parking lot outside

of the CI’s (and Smith’s) apartment building. At approximately

8:55 p.m., the CI drove back to his apartment with Mark and

Christy. Once the CI parked his vehicle, Kelsey exited a red

minivan nearby, approached the CI’s vehicle, and fired three

shots at the CI. Kelsey fired a fourth shot, which struck

through the CI’s shoulder and grazed Mark’s head.

The CI, Mark, and Christy exited the CI’s vehicle and ran

in different directions. Christy ran towards the red minivan

and saw Whitfield in the driver’s seat. Whitfield drove into the

alleyway behind the apartment building, picked up Kelsey,

and fled the scene with him. Before and after this shooting,Nos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975 7

there were many phone calls between Kelsey and Toby, and

between Toby and Whitfield.

On April 5, 2014, Kelsey was arrested at his residence.

During a search of Kelsey’s apartment, agents recovered four

dark sweatshirts on Kelsey’s bedroom floor. Several of the

sweatshirts tested positive for the presence of gunshot residue.

Toby was arrested on April 20, 2014.

B. Procedural History

On September 17, 2015, Toby and Kelsey were charged in

a fifteen

‐ count third superseding indictment. They were both

charged with conspiracy to distribute cocaine base, in violation

of 21 U.S.C. § 846 (Count 1); distribution of cocaine base, in

violation of 21 U.S.C. § 841(a)(1) (Count 7) (based on the

March 19, 2014, drug deal); and conspiracy to kill another

person with intent to retaliate against an informant, in viola

‐

tion of 18 U.S.C § 1513(f) (Count 10). Toby was charged with

additional counts of distributing cocaine base, in violation of

21 U.S.C. § 841(a)(1) (Counts 2 through 8); possession of a

firearm in furtherance of a drug crime, in violation of 18 U.S.C.

§ 924(c) (Count 9) (based on the March 26, 2014, drugs

‐ for

‐ guns

exchange); attempt to kill another person with intent to

retaliate against an informant, in violation of 18 U.S.C.

§ 1513(a)(1)(B) (Count 11) (based on the March 27, 2014,

shooting of Barlow); and discharging a firearm during a crime

of violence, in violation of 18 U.S.C. § 924(c) (Count 12) (same).

Kelsey was also charged with violations of § 1513(a)(1)(B)

and § 924(c) (Counts 13 and 14, respectively) (based on the

April 2, 2014, attempted murder of the CI).8 Nos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975

Prior to trial, Toby moved to suppress Barlow’s identifica

‐

tion of him. The court denied the motion, finding that the

agent’s identification procedure was not suggestive. Thereaf

‐

ter, Toby pleaded guilty to Counts 1 through 7 and proceeded

to a bench trial; the court found him guilty on Counts 8

through 12. Toby moved for a judgment of acquittal or a new

trial; the court denied the motion. At sentencing, Toby was

sentenced to a total of 40 years’ imprisonment. Toby appealed.

Kelsey moved to suppress evidence found at his apartment.

After a suppression hearing, the court denied the motion,

finding that Kelsey had given oral consent to the search. At

trial, Kelsey requested that a buyer

‐ seller instruction be given

to the jury. The court denied this request but, in the alternative,

proposed that the jury be instructed that Kelsey had obtained

drugs for personal use, and that such evidence could not be

used to prove the existence of a conspiracy or to prove that he

became a member of a conspiracy. Kelsey accepted the court’s

proposed alternative instruction, but preserved his objection to

the denial of his request.

On January 26, 2016, the jury returned guilty verdicts on all

counts against Kelsey. Kelsey moved for judgment of acquittal

or a new trial. The court denied the motion.

The Probation Office prepared the Presentence Investiga

‐

tion Report, recommending a two

‐ level sentencing enhance

‐

ment for obstruction of justice based on perjured testimony at

the suppression hearing, see U.S.S.G. § 3C1.1, and a two

‐ level

sentencing enhancement for causing a serious bodily injury to

the CI and Mark, see U.S.S.G. § 2A2.1(b)(1)(B). Kelsey filed

objections to the PSR, arguing that his testimony did notNos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975 9

amount to an obstruction of justice and that the shooting of the

CI and Mark did not constitute a serious bodily injury. At

sentencing, the court rejected these two objections and sen

‐

tenced Kelsey to a total of 35 years’ imprisonment. Kelsey

appealed.

II. DISCUSSION

A. Toby’s Challenges

Toby raises two main arguments on appeal: first, he argues

that there was insufficient evidence to support his conviction

for possession of a gun in furtherance of a drug trafficking

crime; 1 second, he challenges the district court’s denial of his

motion to suppress Barlow’s eyewitness identification of him.

1. Sufficiency of the Evidence

“When reviewing a challenge to the sufficiency of the

evidence, we view the evidence in the light most favorable to

the prosecution and ask whether any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.” United States v. Moshiri

, 858 F.3d 1077, 1081

(7th Cir. 2017) (citation and quotation marks omitted). In

conducting this evaluation, we neither assess credibility

determinations nor reweigh the evidence. Id. A defendant who

challenges the sufficiency of the evidence against him “faces a

1 Toby also argues that there was insufficient evidence to support his

convictions based on his involvement in the Barlow shooting. He contends

that the evidence of the shooting stems from unreliable testimony. We

decline his invitation to second

‐ guess the trier of fact’s credibility determi

‐

nations.10 Nos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975

formidable burden.” United States v. Goree

, 756 F.3d 522, 525

(7th Cir. 2014) (citation omitted).

Section 924(c)(1)(A) prescribes an enhanced penalty for a

person who possesses a gun “in furtherance of” a drug

trafficking crime. 18 U.S.C. § 924(c)(1)(A). Toby argues that the

evidence was insufficient to find that he was in possession of

a gun and, even if he had been, the possession was not “in

furtherance of” a drug trafficking crime. See id.

To establish that Toby possessed a gun, the government

relied on a theory of constructive possession. See United States

v. McAnderson

, 914 F.2d 934, 947 (7th Cir. 1990) (“Possession of

a firearm may be either actual or constructive.”). “Constructive

possession is a legal fiction whereby a person is deemed to

possess [a gun] even when he does not actually have immedi

‐

ate, physical control of the [gun].” United States v. Schmitt

, 770

F.3d 524, 534 (7th Cir. 2014) (quoting United States v. Griffin

, 684

F.3d 691, 695 (7th Cir. 2012)). “Constructive possession may be

established by demonstrating that the defendant knowingly

had the power and intention to exercise dominion and control

over the [gun], either directly or through others, thus establish

‐ ing a nexus between himself and the [gun].” United States v.

Katz

, 582 F.3d 749, 752 (7th Cir. 2009) (collecting cases).

The government presented sufficient evidence to show that

Toby was in constructive possession of a gun. On several

occasions, Toby explicitly communicated his intention to

acquire the Glock from Agent Labno. The terms of the agree

‐

ment between Toby and Agent Labno were clear: six jabs of

crack cocaine for the Glock. Toby repeatedly confirmed that he

wanted to purchase the Glock and agreed to the terms of theNos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975 11

deal, such as the confirmation he gave Agent Labno on

March 19 and March 25, 2014.

Toby exercised control over the gun through Fields. As

characterized by the district court, Fields was simply Toby’s

“middleman.” Toby informed Agent Labno that he was

sending Fields to complete the transaction. Fields testified that

Toby gave him six jabs of crack cocaine and $450 on March 26,

2014. He also testified that he was instructed to take the drugs

and cash to the transaction with Agent Labno to purchase the

Glock and a gun for himself. Toby instructed Fields to bring

the Glock to him immediately after the exchange. Moreover,

Toby’s calls with the CI shortly after Field’s arrest demon

‐

strated that Toby expected Fields to bring the Glock to him.

Accordingly, the government provided sufficient evidence to

establish that Toby constructively possessed a gun.

Since we have concluded that Toby constructively pos

‐

sessed the gun, we now consider whether he possessed the gun

“in furtherance of” a drug trafficking crime. See 18 U.S.C.

§ 924(c). We have previously concluded that, “when a defen

‐

dant receives a gun for drugs, he takes possession of the

firearm in a way that furthers, advances, or helps forward the

distribution of drugs.” United States v. Doody

, 600 F.3d 752, 755

(7th Cir. 2010) (quotations and brackets omitted). That is what

occurred here.

Toby claims that there is insufficient evidence to establish

the in

‐ furtherance

‐ of element because Fields exchanged drugs

for one gun and cash for the other, and there was insufficient

evidence to show which gun was purchased with cash and

which with drugs. This argument is unavailing. The evidence,12 Nos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975

including the conversations between Toby, Agent Labno, and

the CI, makes it clear that Toby intended to purchase the Glock

for himself in exchange for six jabs of crack cocaine. We agree

with the district court that it does not matter whether Fields

was aware of the specifics of the deal. Instead, what matters is

that Toby agreed to exchange six jabs of crack cocaine for a

Glock.

Toby’s constructive possession of the gun, through Fields,

was an essential component of the drugs

‐ for

‐ guns transaction.

The transaction would not have occurred if it was not for

taking possession of the gun. Because Toby, through Fields,

received a gun for drugs, the government presented sufficient

evidence that he possessed the gun in a way that furthered his

distribution of drugs.

2. Photo Lineup

Next, Toby challenges the district court’s denial of his

motion to suppress Barlow’s identification of him. We review

a district court’s denial of a motion to suppress an identifica

‐

tion de novo

, with “due deference to [its] findings of historical

fact.” United States v. Sanders

, 708 F.3d 976, 984 (7th Cir. 2013)

(citation omitted).

Due process forbids law enforcement from using an

“identification procedure that is both suggestive and unneces

‐ sary.” Perry v. New Hampshire

, 565 U.S. 228, 239 (2012). Even

when such a procedure is used, suppression of the identifica

‐

tion is not the inevitable result. Id. Suppression follows “only

when there is a very substantial likelihood of irreparable

misidentification

... .” United States v. Johnson

, 745 F.3d 227, 229

(7th Cir. 2014) (citation and quotation marks omitted). ToNos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975 13

determine whether a specific identification procedure offends

due process, we follow a two

‐ prong approach: (1) we consider

whether the defendant has established that the procedure was

“both suggestive and unnecessary[;]” and, if so, (2) “we

examine the ‘totality of the circumstances’ to determine

whether other indicia of reliability outweigh the corrupting

effect of law enforcement suggestion.” Sanders

, 708 F.3d at

983–984 (citations, alterations, and quotation marks omitted).

During the suppression hearing, five witnesses were called

to testify, and the parties stipulated to the testimony of two

other witnesses. According to the testimony presented, Barlow

went to the Oak Park Police Station and met with Detective

Robert Taylor on April 2, 2014. Detective Taylor testified that

he assembled two color photo lineups based on information he

obtained from the ATF. He also testified that, when he showed

Barlow the lineup, Barlow paused over Toby’s arrest photo

twice. Barlow’s testimony corroborated that he paused at

Toby’s photo because he recognized him as the shooter.

According to Barlow, he denied any recognition because he did

not want to get involved and feared for his safety.

The evidence at the suppression hearing also established

that Barlow was arrested for drug activity unrelated to this

case and was interviewed by Agent Labno on June 2, 2014. At

the ATF offices, Barlow told the agents that he viewed a photo

lineup at the Oak Park Police Station on March 28, 2014, and

stated that his shooter was depicted in that lineup. Agent

Labno printed large scale pictures of each of the six individuals

in the photo lineup, intending to display the photos for Barlow

in the same order as the previous lineup.14 Nos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975

When Agent Labno entered the room where Barlow was

sitting, he held the six photos in the order of the previous

lineup. However, the top three photos were more prominent

than the other photos in the stack. Toby’s arrest photo was the

third photo from the top and just as visible to Barlow as the top

two photos. Before Agent Labno had the opportunity to place

the individual photos on the table, Barlow identified his

shooter as the person in Toby’s arrest photo. Agent Labno

realized that the identification was not ideal, so he placed the

photos on the table in the same order as the previous photo

lineup as he initially intended to do. Barlow identified Toby

again. Agent Labno then printed off a black and white copy of

the photo lineup that Detective Taylor had shown him; Barlow

again identified Toby.

First, Toby claims that the identification procedure was

unduly suggestive because Agent Labno showed Barlow the

same arrest photo of Toby that was contained in the array first

administered by Detective Taylor. We disagree. As an initial

matter, “there is nothing per se impermissible about placing

the same suspect in two different identification procedures.”

United States v. Griffin

, 493 F.3d 856, 865 (7th Cir. 2007) (citation

omitted). The “danger to be avoided in identification proce

‐

dures is that of orchestrating the procedure so that

... the

procedure implicitly suggests to the witness that ‘this is the

man.’” Gregory

‐ Bey v. Hanks

, 332 F.3d 1036, 1045 (7th Cir. 2003).

Here, Toby’s argument ignores the fact that, in both identifica

‐

tion procedures, Barlow was shown not only the same arrest

photo of Toby, but the same arrest photo of five other individ

‐

uals. Given that the six photos were the same in both identifi

‐

cation procedures, we do not see how Toby can seriously claimNos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975 15

that the use of the same arrest photo implicitly suggested that

he was the shooter.

Second, Toby argues that the officers failed to use best

practices when conducting the identification procedures. Toby

observes that we have previously suggested that an officer

should show photos sequentially rather than as part of an

array. See United States v. Ford

, 683 F.3d 761 (7th Cir. 2012).

However, we have noted that “some recent research has called

into question the view that sequential presentation of photo

‐ graphs is superior to photo spreads.” Johnson

, 745 F.3d at 228.

Because Toby does not address Johnson

, we find his argument

unpersuasive. Toby’s other “best practices” challenges are

undeveloped or have been addressed in Johnson

.

Third, Toby contends that it was unduly suggestive for

Agent Labno to display Toby’s photo on top of the stack of

photos. As the government notes, this is a mischaracterization

of the record. The record shows that Agent Labno walked into

the room where Barlow was waiting with six individual photos

in his hand, while the top three were more prominent than the

others. Toby’s photo was included in the three photos that

were more prominent, but it was no more prominently

displayed than the other two more prominent photos. More

‐

over, Toby’s photo, like the other two, was previously viewed

at the initial identification procedure.

Lastly, Toby argues that the two months elapsed time

between the identifications made it unduly suggestive. We

disagree. We have previously held that two months between

identification procedures mitigated the suggestiveness of an

identification procedure. Griffin

, 493 F.3d at 865–866; see also16 Nos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975

Sanders

, 708 F.3d at 989 (collecting cases). We conclude that the

identification procedure was not unduly suggestive.

B. Kelsey’s Challenges

Kelsey challenges the sufficiency of the evidence to sustain

his convictions on several counts. He also argues that the

district court erred in its application of two sentencing en

‐

hancements.

1. Sufficiency of the Evidence

Kelsey contends that the government presented insufficient

evidence to sustain his convictions on Count 10, Count 13, and

Count 14. Specifically, he argues that there was insufficient

evidence to prove that he shot the CI on April 2, 2014, and that

he had the retaliatory intent as required for Count 10 and

Count 13.

A defendant is guilty of retaliating against a witness if he

attempts to kill a person with intent to retaliate against that

person for “providing to a law enforcement officer any infor

‐

mation relating to the commission or possible commission of

a Federal offense

... .” 18 U.S.C. § 1513(a)(1)(B). Section 1513(f)

makes it a crime to conspire to commit the offense of retalia

‐

tion. Section 924(c)(1)(A)(iii) prescribes an enhanced penalty

for anyone who discharges a firearm “during and in relation

to” any crime of violence.

Here, the government presented sufficient evidence to

establish that Kelsey was the person who shot the CI on

April 2, 2014. The CI and Mark testified that they got a clear

view of Kelsey’s face on the day that they were shot and they

both identified him in court as the person who shot them.Nos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975 17

Kelsey simply challenges those witnesses’ credibility, noting

Mark’s drug use and inconsistencies with the CI’s initial

description of the person who shot him. These concerns were

addressed at trial, and the jury still determined that Kelsey was

the shooter.

The government also provided sufficient evidence to

establish Kelsey’s intent to retaliate against the CI for provid

‐ ing information to law enforcement. The evidence illustrated

that Kelsey and Toby knew the CI before he was shot on

April 2, 2014. The CI introduced Agent Labno to Toby to help

arrange the drugs

‐ for

‐ guns transaction. Toby made repeated

attempts to contact the CI and ultimately blamed the CI for the

set up.

Smith, the CI’s neighbor, testified that Kelsey inquired

about the CI’s location and car, and asked him to report back

if he saw the CI. Smith also testified that on the evening of

April 2, 2014, Kelsey called him to ask whether there were any

cameras in the parking lot of the apartment building where the

CI lived.

Barlow and the CI resided at the same address; Barlow was

shot on March 27, 2014, and the CI was shot on April 2, 2014.

The evidence established that Toby mistakenly shot Barlow

at his apartment because he thought the CI lived there. After

realizing his mistake, Kelsey went back to the building on

April 2, 2014, and shot the CI. A jury could have reasonably

inferred that Toby and Kelsey wanted to kill the CI in retalia

‐

tion for the CI’s cooperation with law enforcement, which

resulted in Fields’ arrest and a foiled drugs

‐ for

‐ guns transac

‐

tion.18 Nos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975

Next, Kelsey argues that there was insufficient evidence to

support his drug

‐ conspiracy conviction, see 21 U.S.C. § 846. We

decline his invitation to “second

‐ guess the jury’s credibility

determinations.” United States v. Cardena

, 842 F.3d 959, 994 (7th

Cir. 2016). We have already detailed Kelsey’s role in the

conspiracy. We conclude that the government’s evidence was

sufficient. Relatedly, we note that Kelsey also challenges the

court’s denial of his request for a buyer

‐ seller jury instruction.

See United States v. Lomax

, 816 F.3d 468, 476 (7th Cir. 2016). His

argument lacks merit, especially in light of all the evidence the

government presented and the court’s alternative instruction.

2. Sentencing Enhancements

Kelsey challenges the two

‐ level obstruction of justice

enhancement under U.S.S.G. § 3C1.1. We review a district

court’s factual findings underlying this enhancement for clear

error, and we review de novo whether these findings ade

‐ quately support the enhancement. United States v. Nichols

, 847

F.3d 851, 858 (7th Cir. 2017).

The Guidelines permit a two

‐ level upward adjustment if a

defendant “willfully obstructed or impeded, or attempted to

obstruct or impede” the prosecution of the offense of convic

‐

tion. U.S.S.G. § 3C1.1. In applying this enhancement based on

perjury, the district court should indicate it has found the

elements of perjury: falsity, materiality, and willfulness. United

States v. Brown

, 843 F.3d 738, 742 (7th Cir. 2016) (citation

omitted).

Kelsey argues that the false testimony he provided at the

suppression hearing was not willful. He claims that he testified

to the best of his ability as to his interactions with law enforce

‐Nos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975 19

ment agents on April 5, 2014. He argues that his testimony at

the suppression hearing was along the lines of simply not

being able to recall being shown a consent

‐ to

‐ search form and

that he never gave oral consent to the search.

We disagree. The district court found that Kelsey gave

more than just misstatements but “intentionally false responses

that were made in an effort to get the evidence suppressed.”

The court referenced its findings from its order denying

Kelsey’s suppression motion, which detailed his internally

inconsistent testimony. For example, Kelsey submitted an

affidavit in which he denied giving the agents oral consent to

search his apartment and represented that he refused to sign a

consent

‐ to

‐ search form. In contrast, he testified that Agent

Labno never showed him a document and that he never saw a

consent

‐ to

‐ search form. But this was not the end of the contra

‐

dictions. On cross

‐ examination, Kelsey testified that he did not

recall having a conversation with Agent Labno about consent

to search his apartment. Contrary to this claim, he testified that

Agent Labno asked him to sign a consent

‐ to

‐ search form and

that he told Agent Labno that “there’s nothing in my apart

‐

ment. I’m not signing no consent.” The district court found that

Kelsey’s testimony was contradictory, evasive, and not

credible. Accordingly, the district court properly applied the

enhancement for obstruction of justice under § 3C1.1. 2

2 In light of this discussion, we note that Kelsey also challenges the denial

of his suppression motion, arguing that the district court erred in finding

that he gave consent to the search of his apartment. It is well established

that a search conducted pursuant to voluntary consent from the person

(continued...)20 Nos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975

Next, Kelsey contends that there was insufficient evidence

to support the two

‐ level enhancement under U.S.S.G.

§ 2A2.1(b)(1)(B). He also argues that the injuries the CI and

Mark suffered did not constitute a “serious bodily injury.”

Because Kelsey argues that the district court misinterpreted the

Guidelines, our review is de novo

. United States v. Bogan

, 267

F.3d 614, 624 (7th Cir. 2001). We review for clear error a district

court’s factual findings at sentencing. Id. at 623.

The Guidelines permit a two

‐ level sentencing enhancement

when a victim sustains a “serious bodily injury” in the course

of an attempted murder. U.S.S.G. § 2A2.1(b)(1)(B). A serious

bodily injury is as an “injury involving extreme physical pain

or the protracted impairment of a function of a bodily member,

organ, or mental faculty; or requiring medical intervention

such as surgery, hospitalization, or physical rehabilitation.”

U.S.S.G. § 1B1.1, cmt. n.1(L).

The district court applied the enhancement based on

injuries that the CI and Mark suffered as a result of Kelsey

shooting them. First, the court credited the CI’s testimony that

Kelsey shot him “point

‐ blank” in the back of his left shoulder

and the bullet hit his jaw as it exited. The court further noted

2 (...continued)

whose property is searched is not a violation of the Fourth Amendment. See

Georgia v. Randolph

, 547 U.S. 103, 109 (2006). “Whether consent was given

is a factual issue that we review for clear error.” United States v. Gonzalez

‐

Ruiz

, 794 F.3d 832, 835 (7th Cir. 2015). Kelsey fails to show that the court

committed clear error in finding that he gave consent or that its decision to

credit the agent’s testimony over his own was “completely without

foundation.” Id. The court properly denied Kelsey’s motion.Nos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975 21

that the CI had to go to the hospital and that he was in physical

pain. Second, the court also credited Mark’s testimony that he

had to go to the hospital to have his head stapled after the

bullet lacerated his scalp. Mark described his extreme physical

pain, testifying that, on a level from one to ten, his pain was a

ten.

Kelsey denies that the two victims suffered a serious bodily

injury because they were released from the hospital within

hours of arriving. In Bogan

, we rejected the argument that a

serious bodily injury necessarily requires a prolonged hospital

stay. 267 F.3d at 624. Hospitalization is only one aspect of what

may be considered in determining whether a victim’s injury

constitutes a serious bodily injury. See U.S.S.G. § 1B1.1, cmt.

n.1(L). The court considered the victim’s extreme physical

pain, not hospitalization.

The question here is whether the government proved by a

preponderance of the evidence that the CI or Mark suffered a

serious bodily injury. The district court observed the CI’s and

Mark’s testimony and photographs presented at trial. The

court had an adequate basis to support its finding as to the

nature of the injuries.

C. Anders Brief

Last, we address the Anders brief submitted by counsel for

Whitfield. Whitfield waived his right to a jury trial and

proceeded to a bench trial. He was convicted of being an

accessory after the fact, in violation of 18 U.S.C. § 3. The district

court denied his renewed motion for a judgment of acquittal or

a new trial. Prior to sentencing, Whitfield objected to the

presentence investigation report. At sentencing, the district22 Nos. 16

‐ 2208, 16

‐ 2676 & 16

‐ 3975

court rejected Whitfield’s objections to the PSR and sentenced

him to 84 months’ imprisonment.

Whitfield’s attorney filed an Anders brief in support of his

motion to withdraw as appointed counsel. We agree with

counsel that it would be frivolous to challenge the denial of

Whitfield’s motion for acquittal or a new trial, the district

court’s evidentiary determinations, or the denial of his request

for new appointed counsel.

We also agree with counsel that it would be frivolous to

challenge the sentence; the district court stated that it would

have imposed the same sentence even if it was incorrect about

the sentencing enhancement; the district court departed from

the Guidelines based on strong evidence that Whitfield was

the getaway driver for the April 2, 2014, shooting of the CI.

Finally, we also note that Whitfield made further argu

‐

ments in his response to the Anders brief that are without merit.

We therefore grant counsel’s motion to withdraw and dismiss

Whitfield’s appeal.

III. CONCLUSION

For the reasons mentioned above, we AFFIRM Toby Jones’

conviction and Kelsey Jones’ conviction and sentence. We

GRANT Whitfield’s counsel’s motion to withdraw and

DISMISS Whitfield’s appeal.