### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 12

‐ 2765

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

T YRONE K IRKLIN

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 10 CR 928

‐ 3

— Matthew F. Kennelly

, Judge

.

____________________

A RGUED M AY 21, 2013

— D ECIDED A UGUST 15, 2013

____________________

Before R IPPLE

, W ILLIAMS

, and T INDER

, Circuit Judges

.

W ILLIAMS

, Circuit Judge

. Tyrone Kirklin hatched a scheme

with several accomplices to rob a bank in Illinois. They

robbed the bank, were soon caught, and charged with vari

‐

ous federal offenses. A jury convicted Kirklin of two counts

related to aiding and abetting an armed bank robbery, and

aiding and abetting the use and carrying of a firearm during

that robbery in violation of 18 U.S.C. § 2113; § 924(c)(1)(A);

§ 2. He was sentenced to 171 months’ imprisonment.2 No. 12

‐ 2765

Kirklin now challenges his conviction, arguing that the

district court failed to accurately instruct the jury on aiding

and abetting the use and carrying of a firearm during the

robbery. But Kirklin never raised any objection about the ju

‐

ry instructions even when the district court specifically

asked the parties if they had any comments on the final draft

of the instructions. Furthermore, we are not persuaded that

the instruction was so misleading that reversal is necessary

in this case.

Kirklin also argues that he is entitled to resentencing be

‐

cause the district court wrongly imposed a 7

‐ year sentence

under 18 U.S.C. § 924(c)(1)(A)(ii) for his accomplices’ “bran

‐ dishing” firearms even though the jury never found this fact

beyond a reasonable doubt. The Supreme Court’s decision in

Alleyne v. United States

, 133 S. Ct. 2151 (2013), has confirmed

that any fact that increases a defendant’s mandatory mini

‐

mum sentence—like brandishing a firearm—must be sub

‐

mitted to a jury. And while there is no question that this fact

should have been submitted to the jury in Kirklin’s case in

order to hold him accountable for brandishing, we are not

convinced that this sentencing error resulted in a miscarriage

of justice because the evidence supporting the district court’s

finding of brandishing was overwhelming. Therefore, we

affirm Kirklin’s conviction and sentence.

I. BACKGROUND

One morning in November 2010, Kirklin drove to the

home of a friend named Tiffany Jones and asked her if she

wanted to help rob a bank in Homewood, Illinois. Kirklin

promised it would be “easy,” showed her two firearms he

had stashed in his van (a TEC

‐ 9 semi

‐ automatic handgun

and .38 millimeter revolver), and Jones agreed to participate.No. 12

‐ 2765 3

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. Kirklin assured Jones that there

was no security at the bank and all she needed to do was

stand guard in the lobby to make sure no one came in or out.

He also told Jones that she could shoot the revolver inside

the bank without leaving any shell casings behind. McCallis

‐

ter’s job was to find someone who knew the combination to

the vault and force it open. Kirklin said he would drop them

off, wait across the street for four or five minutes, and then

pick them up in front of the bank. Like many bank robberies,

this one did not go according to plan.

Jones entered the bank carrying Kirklin’s TEC

‐ 9 and .38

revolver; McCallister brought his own Hi

‐ Point 9

‐ millimeter

pistol. The pair entered the bank just as several customers

were exiting. With the two firearms in her hands, Jones or

‐

dered the customers to go back inside the lobby of the bank.

One customer attempted to leave, but Jones put a gun to the

back of her neck and forced her back inside. Unbeknownst

to Jones, one customer was too quick and managed to slip

past her to call 911. Meanwhile, McCallister ordered the

bank tellers to fill a backpack with the cash in their drawers.

McCallister and Jones then ordered the customers inside the

vault and fled. Just as the pair ran outside for their escape,

police squad cars began to arrive at the bank and Jones and

McCallister were arrested near the scene. The pair both gave

post

‐ arrest statements in which they implicated themselves

as well as Kirklin.

Kirklin was charged with aiding and abetting an armed

bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d), and

18 U.S.C. § 2 (Count 1), and aiding and abetting the use or4 No. 12

‐ 2765

carrying of a firearm in furtherance of that robbery in viola

‐

tion of 18 U.S.C. § 924(c) and 18 U.S.C. § 2 (Count 2). The

case was tried in front of a jury over three days. Shortly be

‐

fore closing arguments, the district court presented both

sides with a final set of written jury instructions and asked

counsel if they had any objections that they wanted to make

for the record. Neither party objected, and so the court pro

‐

ceeded to instruct the jury on Counts 1 and 2. For Count 2—

the only one at issue here on appeal—the court stated that

the government must prove the following three proposi

‐

tions:

Number 1. An individual committed the crime of

bank robbery, as charged in Count 1 of the indict

‐

ment.

Number 2. The individual used or carried a firearm

during and in relation to the bank robbery.

Number 3. The defendant knowingly aided, coun

‐

seled, induced or procured the use or carrying of a

firearm during and in relation to the bank robbery.

The government must prove that the defendant

knowingly participated in the criminal activity and

tried to make it succeed.

The court went on to explain that the term “use” includes

“brandishing, displaying, striking with, firing and attempt

‐ ing to fire a firearm

... . However, mere possession of a fire

‐

arm at or near the site of the crime is not enough to consti

‐

tute use of that firearm.” During deliberations, the jury

asked one question relevant to Count 2:

In relation to Count 2, we need to know if the defend

‐

ant is being charged with supplying the guns to use inNo. 12

‐ 2765 5

the bank robbery or with aiding in a crime where a

firearm was used.

The district court met with the parties and observed: “I think

the correct answer is neither of the above.” The parties

agreed that the court should answer back: “The instruction

... defines what is required for Count 2. No further infor

‐

mation can be provided.”

The jury convicted Kirklin on both counts. The presen

‐

tence investigation report recommended a 7

‐ year sentence

on the § 924(c) charge, reflecting the mandatory minimum

sentence for cases where a firearm is “brandished.” See 18

U.S.C. § 924(c)(1)(A)(ii). Kirklin did not object to this rec

‐

ommendation, and the district court concluded that the evi

‐

dence supported a finding of brandishing because Kirklin

was “willing to have other people brandish guns on his be

‐

half” and guns were brandished. As a result, the court sen

‐

tenced Kirklin to 84 months on the § 924(c) charge in Count

2. He also received a consecutive 87

‐ month sentence on

Count 1.

II. ANALYSIS

Kirklin raises challenges to both his conviction and sen

‐

tence on Count 2 of the indictment. Count 2 charged Kirklin

with aiding and abetting the use or carrying of a firearm in

relation to a crime of violence in violation of 18 U.S.C.

§ 924(c)(1)(A) 1 and 18 U.S.C. § 2 (punishing as a principal

anyone who “commits an offense against the United States

or aids, abets, counsels, commands, induces or procures its

1 Attempted bank robbery qualifies as a crime of violence under 18 U.S.C.

§ 924(c)(3)(A)–(B).6 No. 12

‐ 2765

commission” or who “willfully causes an act to be done

which if directly performed by him or another would be an

offense against the United States”). In order to prove aiding

and abetting under § 924(c), the government must put forth

evidence showing that: “(1) the defendant knew, either be

‐

fore or during the crime, of the principal’s weapon posses

‐

sion or use; and (2) the defendant intentionally facilitated

that weapon possession or use once so informed.” United

States v. Taylor

, 226 F.3d 593, 596 (7th Cir. 2000). The penalty

provisions of § 924(c) provide, in relevant part, that anyone

found guilty of such an offense shall

(i) be sentenced to a term of imprisonment of not less

than 5 years; [or]

(ii) if the firearm is brandished, be sentenced to a term

of imprisonment of not less than 7 years.

18 U.S.C. § 924(c)(1)(A).

A. No Error in Jury Instructions

Kirklin first argues that the district court’s instruction to

the jury on the § 924(c) charge in Count 2 was highly mis

‐ leading. Kirklin asserts that the standard of review is com

‐ plicated on this matter because the district court initially

held an informal meeting with the parties off the record re

‐ garding proposed jury instructions. But we are not faced

with a situation in which all discussion of jury instructions

was held off the record. Such a practice would seriously

frustrate our review on appeal. See Maltby v. Winston

, 36 F.3d

548, 561 n. 18 (7th Cir. 1994) (noting that “it is the responsi

‐ bility of the district court, if it conducts the instruction con

‐

ference without a court reporter, to provide the parties with

an opportunity to specifically object to jury instructions onNo. 12

‐ 2765 7

the record”). Rather, the record in this case reveals that the

district court held an informal conference off the record first

(Tr. 447), but then presented the parties with a final draft of

the instructions on the record and directly asked for any is

‐

sues to be raised at that time. See Tr. 483. We appreciate the

potential dangers of any such discussions off the record, but

nothing prohibits a judge from participating in an informal

conference first, and here we are confident that the district

court took the necessary steps to orient the record for our

review on appeal. Moreover, there is no suggestion that

counsel for Kirklin made any objection to the jury instruc

‐

tions on Count 2 off the record before the court went back on

the record, so it is not as if we have missed an argument

Kirklin thought he had preserved. See Graham v. Sauk Prairie

Police Comm’n

, 915 F.2d 1085, 1106–07 (7th Cir. 1990) (finding

objection to jury instructions waived where no record exist

‐

ed in which defendants voiced an objection to the instruc

‐

tions because counsel only objected during an informal con

‐ ference).

The next hurdle for Kirklin is that his attorney stated that

he had no objections to the final instructions before they

were read to the jury. We have cautioned before that

“[c]ounsel’s affirmative statement that he had no objection to

the proposed [jury] instruction constitutes waiver of the abil

‐ ity to raise this claim on appeal.” United States v. Griffin

, 493

F.3d 856, 864 (7th Cir. 2007); see also United States v. Natale

,

719 F.3d 719, 729 (7th Cir. 2013) (“Although passive silence

with regard to a jury instruction permits plain error review

... a defendant’s affirmative approval of a proposed instruc

‐

tion results in waiver.”); United States v. O’Connor

, 656 F.3d

630, 644 (7th Cir. 2011) (same); United States v. Gonzalez

, 319

F.3d 291, 298 (7th Cir. 2003) (finding defendants’ challenge to8 No. 12

‐ 2765

jury instructions waived because they “accepted” the rele

‐

vant instructions by affirmatively “stat[ing] in court, ‘No ob

‐ jection’”); United States v. Griffin

, 84 F.3d 912, 924 (7th Cir.

1996) (same). That is precisely what happened here. When

counsel for Kirklin was asked directly whether he had “any

objections or additions that [he] want[ed] to make for the

record” regarding the instructions, he replied: “None that I

can think of, your Honor.” At oral argument, counsel for

Kirklin suggested that this statement was equivocal, but we

disagree. Plus, we have held before that similar everyday

language constituted an intentional relinquishment of the

defendant’s right to object. See United States v. Anifowoshe

,

307 F.3d 643, 650 (7th Cir. 2002).

To be sure, even if Kirklin’s objection was only forfeited

instead of waived, we are not persuaded that the instruc

‐

tions on the § 924(c) charge in Count 2 were vague or mis

‐ leading. Kirklin argues that the part of the instruction on

Count 2 which stated that “the government must prove that

the defendant knowingly participated in the criminal activi

‐

ty and tried to make it succeed” fails to specify which crimi

‐

nal activity—the bank robbery itself or the use of the weap

‐

on in the bank robbery—the jury was required to find Kirk

‐

lin facilitated. According to Kirklin, the district court’s fail

‐

ure to explicitly require that the government establish that

the defendant intended to further the use of the weapon (as

opposed to only aiding the bank robbery) constitutes re

‐

versible error because it omitted an essential element of the

§ 924(c) offense.

Kirklin’s argument is persuasive only when the instruc

‐

tion is read out of context. Remember that the disputed part

of the instruction read in full: “the government must proveNo. 12

‐ 2765 9

... that the defendant knowingly aided, counseled, induced

or procured the use or carrying of a firearm during and in rela

‐

tion to the bank robbery

. The government must prove that the

defendant knowingly participated in the criminal activity

and tried to make it succeed” (emphasis added). We do not

think it is a stretch of the imagination to think that the jury

understood “the criminal activity” to refer back to “the use

and carrying of a firearm” in the preceding sentence.

Kirklin points out that the more recent version of the

Seventh Circuit Pattern Criminal Jury Instructions explicitly

distinguishes between knowledge of a gun’s use and inten

‐

tional furtherance of its use within the aiding and abetting

context by stating: “A person who merely aids the underly

‐ ing offense knowing that a firearm would be [used; carried]

does not [aid, counsel; command; induce; procure] the

commission of the offense charged in Count [1].” 7th Cir.

Pattern Criminal Jury Instructions (2012 ed.). We agree with

Kirklin that this clarification in the 2012 version of the in

‐

structions is certainly helpful. But that does not automatical

‐ ly mean that the 1999 version that was read to the jury was

plainly erroneous. And we note that the instructions that

were read went beyond mere boilerplate. They reminded the

jury that it could only convict if it found that Kirklin know

‐ ingly induced “the use or carrying of a firearm during and in

relation to the bank robbery.” Cf. United States v. Wright

, No.

12

‐ 3425,

__ F.3d

__, 2013 WL 3600345, at *4 (7th Cir. July 16,

2013) (discouraging use of boilerplate jury instructions).

Kirklin also suggests in passing that the one question

submitted by the jury during deliberations demonstrates

that it did not understand the jury instructions. We cannot

agree. Lay jurors may have trouble understanding instruc

‐10 No. 12

‐ 2765

tions for many reasons, and we will not speculate on the rea

‐

son for the jury’s question here. And in any event, when the

district court proposed telling the jurors that all of the essen

‐

tial information they needed was already provided in the

instructions on Count 2, defense counsel unequivocally

agreed and never suggested any alternative instruction.

Kirklin’s challenge to his conviction on Count 2 must there

‐

fore fail.

B. Sentencing Error Did Not Affect Fairness of Judicial

Proceedings

Kirklin’s second argument is that his 7

‐ year sentence on

Count 2 should be vacated because the jury—not the judge—

needed to find him responsible for brandishing a firearm be

‐

fore any mandatory minimum penalty under 18 U.S.C.

§ 924(c) could be applied. According to Kirklin, because his

sentence rests on a mere judicial finding of a fact it is incom

‐ patible with the rule announced in Apprendi v. New Jersey

,

530 U.S. 466, 490 (2000), that “any fact that increases the pen

‐ alty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable

doubt.” Because Kirklin failed to raise this argument before

the district court, we review for plain error. See United States

v. Wolfe

, 701 F.3d 1206, 1216 (7th Cir. 2012) (“An Apprendi

challenge is reviewed for plain error if it was not made in the

district court.”).

At the time Kirklin filed this appeal, Supreme Court

precedent foreclosed any argument suggesting that a de

‐

fendant’s rights are violated if the district court finds him

accountable for brandishing a firearm when the jury made

no such finding. See Harris v. United States

, 536 U.S. 545, 556

(2002) (finding “brandishing” a sentencing factor, as op

‐No. 12

‐ 2765 11

posed to an element of § 924(c), which may be considered by

the judge after trial). 2 However, Alleyne v. United States

, 133

S. Ct. 2151 (2013), a case that reconsidered Harris

, was pend

‐ ing before the Supreme Court when this case was argued, so

we held the case in abeyance awaiting the Court’s decision.

That decision has now been issued and the Court confirmed

that “any fact that increases the mandatory minimum is an

‘element’ that must be submitted to the jury.” Id. at 2155.

Like Kirklin, Alleyne was found guilty of a § 924(c) viola

‐

tion. The district court in Alleyne’s case found that a pre

‐ ponderance of the evidence supported a finding of brandish

‐ ing during a bank robbery and applied the 7

‐ year statutory

minimum sentence even though the jury did not find this

fact beyond a reasonable doubt. Id. at 2156. The Supreme

Court reversed and agreed with Alleyne, explaining that any

“fact triggering a mandatory minimum alters the prescribed

range of sentences to which a criminal defendant is ex

‐ posed,” thereby increasing the “sentencing floor” and

“form[ing] an essential ingredient of the offense” that must

be submitted to the jury. Id. at 2160–61.

Here, the government concedes that in the wake of Al

‐ leyne

, the district court’s imposition of the 7

‐ year mandatory

minimum based on facts not found by a jury was erroneous.

But before we can correct an error not raised at trial, we have

2 Kirklin’s supplementary briefing concedes that plain error applies in

this case and Harris explains why Kirklin chose not to make the argu

‐

ment in the district court he advances now. The law was clearly against

him. But we remind parties in future cases that “a claim must be ad

‐

vanced, if it is to be preserved, even when all precedent is contrary,”

otherwise we can only review for plain error. United States v. Messino

, 382

F.3d 704, 715 (7th Cir. 2004) (Easterbrook, J., dissenting) (collecting cas

‐

es).12 No. 12

‐ 2765

to find that the error was “plain” and affected the defend

‐

ant’s “substantial rights.” United States v. Olano

, 507 U.S. 725,

732–34 (1993). The government concedes that the error here

was plain. Although the government does not concede that

this error affected Kirklin’s “substantial rights,” we will as

‐

sume for sake of argument that it did. See Olano

, 507 U.S. at

734 (explaining that an error affected “substantial rights” if it

“affected the outcome of the district court proceedings.”). At

this point, Kirklin has satisfied the three threshold require

‐

ments of plain error review. Id. at 732–34. So this brings us to

the discretionary element: whether the error seriously affect

‐

ed the “fairness, integrity, or public reputation of judicial

proceedings.” Id. at 732. In other words, we must decide

whether the error is so fundamental in nature that uphold

‐ ing this sentence results in an intolerable miscarriage of jus

‐

tice. United States v. Nance

, 236 F.3d 820, 825–26 (7th Cir.

2000); see also Neder v. United States

, 527 U.S. 1, 8 (1999) (list

‐ ing structural errors).

A similar quandary was presented in the aftermath of

Apprendi in federal narcotics prosecutions when courts had

to decide whether resentencing was necessary in cases

where the drug quantity was not charged in the indictment

and the jury did not find an amount triggering the statutory

maximum. See Nance

, 236 F.3d at 824–26 (finding no plain

error given strength of evidence); cf. United States v. Noble

,

246 F.3d 946, 955–56 (7th Cir. 2001) (vacating sentence on

plain error review given minimal corroborating testimony

and evidence). Then came United States v. Cotton

, 535 U.S.

625 (2002), which confirmed that an “indictment’s failure to

allege a fact, drug quantity, that increased the statutory max

‐

imum sentence rendered respondents’ sentences erroneous

under the reasoning of Apprendi ,” id. at 632, but such an er

‐No. 12

‐ 2765 13

ror cannot be said to “seriously affect the fairness, integrity,

or public reputation of judicial proceedings” when the evi

‐

dence against the defendant is “overwhelming” and “essen

‐ tially uncontroverted.” Id. at 632–33; see also Washington v.

Recuenco

, 548 U.S. 212, 218 (2006) (holding trial court’s appli

‐

cation of mandatory 3

‐ year firearm enhancement based on

its own factual findings in violation of Blakely v. Washington

,

542 U.S. 296 (2004), not subject to automatic reversal).

We have similarly declined to find a miscarriage of jus

‐

tice on plain error review in cases in which we were “con

‐

vinced that upon a properly worded indictment, a properly

instructed jury would have found the defendants guilty of

distributing the requisite threshold quantities of narcotics.”

United States v. Mansoori

, 304 F.3d 635, 658 (7th Cir. 2002); see

also Knox v. United States

, 400 F.3d 519, 523 (7th Cir. 2005)

(concluding that “judicial resolution of a factual dispute that

should have been presented to the jury is not a ‘structural

error’ that requires automatic reversal” under Apprendi giv

‐

en the “strength of the evidence”); Nance

, 236 F.3d at 826 (“If

it is clear beyond a reasonable doubt that a properly worded

indictment and a properly instructed jury would have found

[the defendant] guilty absent th[e] error, then we cannot say

that the error was so serious that it requires us to set aside

the judgment.”), cert. denied

, 534 U.S. 832 (2001).

Applying these principles to the case at hand, we cannot

conclude that the district court’s sentencing error affected

“the fairness, integrity, or public reputation” of the proceed

‐ ings below given the significant amount of evidence of

brandishing a firearm in the record. Remember that Kirklin

was charged with aiding and abetting the use and carrying

of a firearm during the bank robbery. From the very outset,14 No. 12

‐ 2765

he made it clear to Jones that he “had something” to prevent

customers from leaving the bank and that she should use the

revolver because it would not leave any shell casings. Jones’s

testimony at trial on this point was very clear and she also

described pointing guns at customers in the bank. Two other

witnesses, including a bank teller and a customer, also testi

‐

fied that Kirklin’s accomplices brandished firearms during

the robbery. Moreover, several instances of Jones and Kirklin

brandishing their weapons are visible on the surveillance

video that was played for the jury at trial. It therefore seems

highly unlikely that the jury would have found Kirklin

guilty on Count 2, but reach a different conclusion from the

district court on the brandishing factor if it had been asked

to make such a finding. As a result, we decline to remand for

resentencing on Count 2.

III. CONCLUSION

For these reasons, we A FFIRM Kirklin’s conviction and

sentence.