### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 14

‐ 2898

U NITED S TATES O F A MERICA

,

Plaintiff

‐ Appellee

,

v.

A NTWON J ENKINS

,

Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 3:12

‐ CR

‐ 30239

‐ DRH

‐ 1

— David R. Herndon

, Judge

.

____________________

A RGUED M AY 18, 2015

— D ECIDED F EBRUARY 24, 2017

____________________

Before K ANNE and S YKES

, Circuit Judges, and E LLIS

, Dis

‐

trict Judge

. *

E LLIS

, District Judge

. Defendant

‐ Appellant, Antwon Jen

‐

kins, was arrested and charged with Kidnapping, 18 U.S.C. §

1201(a), and Using or Carrying a Firearm to Commit a Fed

‐

* The Honorable Sara L. Ellis, of the United States District Court for

the Northern District of Illinois, sitting by designation.2 No. 14

‐ 2898

eral Crime of Violence, 18 U.S.C. § 924(c)(1)(A)(ii). 1 Follow

‐ ing his arrest, Jenkins agreed to cooperate with the Govern

‐

ment’s investigation of these crimes and give a proffer inter

‐

view. Prior to the interview, the Government and Jenkins en

‐

tered into a proffer agreement, the terms of which prohibited

the Government from making direct use of any statements

or information Jenkins provided during the interview in its

case

‐ in

‐ chief, but permitted the Government to derivatively

use such information. During the interview, Jenkins told the

Government where he hid the gun he used during the kid

‐ napping. The Government used this information to recover

the gun and then introduced both physical evidence of the

gun, as well as the testimony of the agents who found the

gun (collectively, the “gun evidence”), during its case

‐ in

‐

chief. A jury convicted Jenkins on all counts and he received

a sentenced of 308 months in prison—188 months for kid

‐ napping and 120 months for using a firearm to commit a

federal crime of violence, to run consecutively. On appeal,

Jenkins argues that the Government breached the proffer

agreement by directly using the information he provided

during the proffer interview against him during its case

‐ in

‐

chief.

After Jenkins filed his appeal and the parties argued the

case before this panel, but before we decided the appeal, the

Supreme Court issued its opinion in Johnson v. United States

,

‐‐‐ U.S.

‐‐‐‐ , 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), which

held the residual clause of the Armed Career Criminals Act

(“ACCA”), 18 U.S.C. § 924(e), to be unconstitutionally vague.

1 While not explicitly addressed by either party, Jenkins’ appeal re

‐

lates only to evidence admitted in support of the firearm count, Count II

of the indictment. We limit our analysis accordingly.No. 14

‐ 2898 3

Jenkins then filed a supplemental appellate brief challenging

his conviction under 18 U.S.C. § 924(c) for using a weapon

during a “crime of violence,” in this case kidnapping under

18 U.S.C. 1201(a), arguing that in light of the ruling in John

‐

son

, kidnapping is no longer a “crime of violence” as defined

under § 924(c), and therefore his conviction under § 924(c)

must be overturned as a matter of law. The Government ar

‐

gues that the ruling in Johnson should not be extended to the

Residual Clause of § 924(c), and even if it were, kidnapping

would still be a crime of violence under the Force Clause,

§ 924(c)(3)(A), which Johnson did not implicate. Because the

Residual Clause, § 924(c)(3)(B), is unconstitutionally vague

and kidnapping under § 1201(a) does not have, as an ele

‐

ment, the use, threatened use, or attempted use of physical

force, we reverse Jenkins’ conviction under § 924(c). Because

Jenkins’ conviction under § 924(c) is the only issue on ap

‐ peal, we need not reach the original appellate issue of

whether the Government breached the proffer agreement.

I. ANALYSIS

A jury convicted Jenkins of using or possessing a weapon

during the commission of a crime of violence, namely, kid

‐ napping, under 18 U.S.C. § 924(c). Section 924(c)(3) defines a

crime of violence as:

[A] felony and—

(A) has as an element the use, attempted use,

or threatened use of physical force against the

person or property of another, or

(B) that by its nature, involves a substantial

risk that physical force against the person or4 No. 14

‐ 2898

property of another may be used in the course

of committing the offense.

18 U.S.C. § 924(c)(3)(A), (B). Subsection A is commonly re

‐

ferred to as the “Force Clause” and Subsection B is referred

to as the “Residual Clause.”

Jenkins now challenges his conviction under § 924(c), ar

‐ guing that in light of Johnson

, the Residual Clause is uncon

‐ stitutionally vague and that the Force Clause does not apply

to kidnapping because kidnapping under § 1201(a) does not

include the use of physical force as an element. The Gov

‐

ernment responds that kidnapping is a crime of violence

under the Force Clause and, in the alternative, under the Re

‐

sidual Clause and that we should not extend Johnson to

§ 924(c)(3)(B). Additionally, the Government argues that we

should not even consider the vagueness challenge to

§ 924(c)(3)(B) because Jenkins has not brought it as an as ap

‐ plied challenge.

The parties agree that because Jenkins did not raise his

challenge to § 924(c) in the district court, the proper standard

of review is plain error. To reverse a trial court ruling for

plain error, there must be “(1) an error or defect (2) that is

clear or obvious (3) affecting the defendant’s substantial

rights (4) and seriously impugning the fairness, integrity, or

public reputation of judicial proceedings.” United States v.

Jenkins

, 772 F.3d 1092, 1097 (7th Cir. 2014) (quoting United

States v. Goodwin

, 717 F.3d 511, 518 (7th Cir. 2013), cert. de

‐

nied

, ‐‐‐ U.S.

‐‐‐‐ , 134 S. Ct. 334, 187 L. Ed. 2d 234 (2013)). An

error is plain if it is plain at the time the appellate court re

‐

views the error, regardless of whether it was settled or un

‐

settled at the time the district court ruled. Henderson v. Unit

‐No. 14

‐ 2898 5

ed States

, ‐‐‐ U.S.

‐‐‐‐ , 133 S. Ct. 1121, 1130–31, 185 L. Ed. 2d 85

(2013).

A. Force Clause

There is no question as to the constitutionality of the

Force Clause; Jenkins simply argues that it does not apply to

kidnapping. The Force Clause defines a crime of violence as

any felony that “has as an element the use, attempted use, or

threatened use of physical force against the person or prop

‐

erty of another.” 18 U.S.C. § 924(c)(3)(A). In determining

whether a crime fits this definition, a court may only look at

the elements of the offense, not the underlying facts of con

‐

viction. United States v. Yang

, 799 F.3d 750, 752 (7th Cir. 2015)

(interpreting the functionally identical force clause of the

Armed Career Criminal Act). Therefore, in evaluating

whether kidnapping under § 1201(a) is a crime of violence

under § 924(c)(3)(A), the kidnapping statute must have as an

element the use, attempted use, or threatened use of physical

force; it is irrelevant whether a defendant actually used force

in the commission of the crime. Id.

Section 1201(a) punishes for kidnapping:

[w]hoever unlawfully seizes, confines, invei

‐ gles, decoys, kidnaps, abducts, or carries away

and holds for ransom or reward or otherwise

any person

... when the person is willfully

transported in interstate or foreign commerce

...

18 U.S.C. § 1201(a).

The Government does not argue that the first element—

unlawfully seizing, confining, inveigling, decoying, kidnap

‐ ping, abducting, or carrying away—requires the use of force6 No. 14

‐ 2898

and rests its argument on the second element, “hold[ing] for

ransom or reward or otherwise.” Id. The Government argues

that because the holding must be unlawful, it necessarily re

‐ quires at a minimum the threat of physical force. This is in

‐

correct. Holding can be accomplished without physical

force. For example, a perpetrator could lure his victim into a

room and lock the victim inside against his or her will. This

would satisfy the holding element of kidnapping under

§ 1201(a) without using, threatening to use, or attempting to

use physical force. See United States v. Swanson

, 55 Fed.

App’x 761, 762 (7th Cir. 2003) (“[O]ur sister circuits have

held that the similar crimes of false imprisonment and kid

‐ napping by deception

... do not have physical force as an

element[.]“ (citing United States v. Zamora

, 222 F.3d 756, 764–

65 (10th Cir. 2000); United States v. Williams

, 110 F.3d 50, 52–

53 (9th Cir. 1997); United States v. Kaplansky

, 42 F.3d 320, 324

(6th Cir. 1994) (en banc))).

The Government argues that even in cases where no

force is actually used there is an ever

‐ present risk that the

situation will devolve to the point that the perpetrator will

need to use force. But this argument conflates the Force

Clause and the Residual Clause. The Force Clause only de

‐

fines crimes of violence by the elements of those crimes, not

by any inherent risk associated with the crime. While kid

‐ napping very well may carry such inherent risks, one

properly analyzes that argument only under the Residual

Clause, rather than the Force Clause.

We are aware of this Court’s recent decision in United

States v. Cureton

, 845 F.3d 323, 326 (7th Cir. 2017), in which

we found, applying the plain error standard, that it is a de

‐

batable question whether the ransom demand statute, 18No. 14

‐ 2898 7

U.S.C. § 875(a), “has as an element the

... threatened use of

physical force against the person

... of another.” The Cureton

Court determined that because the law is not settled on that

issue and further, because the defendant failed to carry his

burden to demonstrate that his conviction under the statute

affected his substantial rights, he could not prevail under the

plain error standard. 2 Id

. at 326

‐ 27. We find Cureton distin

‐ guishable because without the conviction on Count II, Jen

‐

kins’ sentencing guidelines range would be 151 to 188

months on Count I. R. 246. He received a sentence of 308

months, which was 120 months longer than the top end of

the sentencing guidelines range for Count I. R. 261. Unlike

the defendant in Cureton

, Jenkins has clearly demonstrated

harm from this error.

Finally, the Government attempts to bolster its argument

by citing to pre

‐ Johnson cases that held kidnapping to be a

crime of violence. However, none of these cases found that

kidnapping had physical force as an element, and one even

expressly stated that it does not. See Delgado

‐ Hernandez v.

Holder

, 697 F.3d 1125, 1130 (9th Cir. 2012) (“The federal kid

‐ napping statute has no force requirement

... .”). Therefore,

we find that kidnapping is not a crime of violence under the

Force Clause.

2 The Cureton Court found that reversing the defendant’s conviction

for the ransom demand would not affect the sentencing guidelines range

for the remaining offenses and the district court would be well within its

discretion to impose the same sentence on remand even without that

conviction; therefore, the defendant failed to demonstrate that any error

was harmful. Id

. at 327.8 No. 14

‐ 2898

B. Residual Clause

Jenkins also argues that in light of the Supreme Court’s

decision in Johnson

, 135 S. Ct. 2551, and our subsequent ex

‐

tension of Johnson ’s holding in United States v. Vivas

‐ Ceja

, 808

F.3d 719 (7th Cir. 2015), the Residual Clause of § 924(c)(3)(B)

is unconstitutionally vague and therefore we should vacate

his § 924(c) conviction. After the parties submitted their

supplemental briefs, we decided this very issue in United

States v. Cardena

, 842 F.3d 959, 996 (7th Cir. 2016), holding

that § 924(c)(3)(B) is unconstitutionally vague. Therefore,

kidnapping under 18 U.S.C. § 1201(a) is not a crime of vio

‐

lence as defined in § 924(c).

C. Plain Error Analysis

Because § 1201(a) does not satisfy the Force Clause and

the Residual Clause is unconstitutionally vague, we must

determine if this error satisfies the plain error standard for

reversing the conviction on the basis of an argument the de

‐

fendant did not previously raise before the district court.

First we must determine if there was an error and if that

error is clear and obvious. Jenkins

, 772 F.3d at 1097. In light

of the Supreme Court ruling in Johnson and our subsequent

extension of Johnson to § 924(c)(3)(B) in Cardena

, the uncon

‐ stitutionality of § 924(c)(3)(B) is plain. Additionally, kidnap

‐ ping as defined in 18 U.S.C. § 1201(a) does not require the

use of force as an element, therefore Jenkins’ conviction un

‐

der § 924(c) cannot be sustained under the Force Clause ei

‐

ther. Thus, Jenkins’ conviction under § 924(c) was in error

and that error is plain at the time of this review.

Next, we must determine whether this error affected Jen

‐

kins’ substantive rights and seriously impugned the fairnessNo. 14

‐ 2898 9

of the judicial proceedings. Id. An error affects a defendant’s

substantive rights if it resulted in the defendant receiving a

longer sentence than he otherwise would have without the

error. See id. at 1098–99 (sentencing a defendant to a longer

prison term based on an improperly calculated sentencing

guideline range affected defendant’s substantive rights).

Here, Jenkins received a sentence of 120 months in prison for

his § 924(c) conviction, to run consecutively to his 188 month

sentence for kidnapping. Therefore, this erroneous convic

‐

tion directly resulted in the district court increasing Jenkins’

sentence by 120 months. See, e.g., United States v. Armour

, 840

F.3d 904, 910 (7th Cir. 2016) (plain error standard satisfied

where defendant was given a consecutive seven

‐ year man

‐ datory minimum sentence for brandishing where there was

no jury verdict finding him guilty of brandishing). There is

no set of alternative facts that the government could have

presented that would have resulted in a valid conviction

under § 924(c) for using or carrying a firearm during the

commission of a federal kidnapping offense because, as dis

‐

cussed above, kidnapping is not a crime of violence under §

924(c)(3). And a 120

‐ month prison sentence for a non

‐

existent crime undermines the fairness of the judicial pro

‐ ceedings and cannot stand. Therefore, Jenkins has satisfied

the high burden for reversal under the plain error standard

and we reverse his conviction under § 924(c)(1)(A)(ii).10 No. 14

‐ 2898

II. CONCLUSION

For the foregoing reasons, we REVERSE Jenkins’ convic

‐

tion for Using or Carrying a Firearm to Commit a Federal

Crime of Violence, 18 U.S.C. § 924(c)(1)(A)(ii), and REMAND

for further proceedings consistent with this opinion.