### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 1056

T YRONE K IRKLIN

,

Petitioner

‐ Appellant

,

v.

U NITED S TATES OF A MERICA

, Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 15

‐ CV

‐ 09537

— Matthew F. Kennelly

, Judge

.

____________________

A RGUED D ECEMBER 6, 2017

— D ECIDED M ARCH 5, 2018

____________________

Before W OOD

, Chief Judge

, and E ASTERBROOK and

H AMILTON

, Circuit Judges

.

H AMILTON

, 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.2 No. 17

‐ 1056

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. Nev

‐

ertheless, we affirmed Kirklin’s conviction and sentence be

‐

cause his attorney did not raise the issue in the district court,

and we found the error was not a plain error requiring rever

‐

sal 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 attor

‐ ney’s failure to object in the district court amounted to ineffec

‐

tive assistance of counsel in violation of the Sixth Amend

‐

ment. We disagree. The constitutional standard for perfor

‐

mance under the Sixth Amendment does not require a crimi

‐

nal 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. Ar

‐ riving at the bank, Jones used a gun to force a customer leav

‐ ing the bank to go back inside, but she failed to stop anotherNo. 17

‐ 1056 3

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.

Kirklin was tried and convicted of two counts: aiding and

abetting the robbery, and aiding and abetting the use or car

‐ rying of a firearm during a crime of violence. He was sen

‐

tenced 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 mini

‐

mum 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 vio

‐

lence, 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 re

‐ sponsible 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 (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,4 No. 17

‐ 1056

submitted to the jury, or proved beyond a reasonable doubt.”

Id. at 568. Under Harris

, a judge could decide whether a fire

‐

arm was brandished so that the seven

‐ year mandatory mini

‐

mum would apply. The result in Harris depended on a distinc

‐

tion between factual findings that increase a mandatory min

‐

imum sentence and findings that increase the maximum sen

‐

tence under a statute, which the Court had recently held must

be found by a jury in Apprendi v. New Jersey

, 530 U.S. 466

(2000). Harris

, 536 U.S. at 557.

Despite criticism of this fragile distinction, Harris re

‐

mained 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 (2012). The Court decided

Alleyne on the merits in June 2013, overruling Harris and hold

‐ ing that juries must make factual determinations that increase

mandatory minimum sentences as well as maximum sen

‐

tences permitted by statute. Alleyne

, 570 U.S. 99, 103 (2013).

Alleyne addressed exactly the same statutory provision: the

brandishing enhancement under § 924(c)(1)(A). Alleyne held

that brandishing is an element of the conduct criminalized by

the seven

‐ year mandatory minimum and must be determined

by a jury beyond a reasonable doubt. 570 U.S. at 117.

We decided Kirklin’s direct appeal after the Court issued

Alleyne

. We held in that first appeal that the district court had

erred by imposing the seven

‐ year mandatory sentence with

‐

out a jury determining the brandishing element. United States

v. Kirklin

, 727 F.3d 711, 718 (7th Cir. 2013). Since Kirklin’s at

‐

torney had not raised the matter in the district court, we ap

‐No. 17

‐ 1056 5

plied the “plain error” standard of review. We affirmed Kirk

‐

lin’s sentence because the error did not affect the fairness, in

‐ tegrity, or public reputation of the proceedings in the district

court. Id. at 719. The evidence that Kirklin’s accomplices bran

‐

dished the firearms and that Kirklin was responsible for their

having done so was overwhelming. It seemed “highly un

‐ likely” that the jury would have found Kirklin guilty of aiding

and abetting the use or carrying of the firearms without find

‐ ing him equally responsible for the brandishing. Id.

After his loss on direct appeal, Kirklin sought relief from

his sentence under 28 U.S.C. § 2255, claiming that he was de

‐

nied his Sixth Amendment right to effective assistance of

counsel. Under Strickland v. Washington

, 466 U.S. 668 (1984), to

prove ineffective assistance of counsel, Kirklin must show

that his attorney’s performance “fell below an objective stand

‐

ard of reasonableness” and that there is a “reasonable proba

‐ bility that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Id. at 688, 694.

The district court held that Kirklin failed to establish that his

attorney’s performance was objectively unreasonable. We

agree. Since Kirklin’s appeal focuses only on the legal conclu

‐

sions of the district court, we review the court’s decision de

novo

. Spiller v. United States

, 855 F.3d 751, 755 (7th Cir. 2017).

Kirklin contends that his attorney’s performance was ob

‐ jectively unreasonable because he failed to anticipate the pos

‐

sible overruling of Harris and thus failed to object to having

the district court make the factual finding whether Kirklin

was responsible for Jones and McCallister brandishing the

firearms. Kirklin argues that by the time of his sentencing, a

competent lawyer would have realized that the overruling of

Harris was imminent. Kirklin points to Alleyne’s own lawyer,6 No. 17

‐ 1056

who raised the issue despite the continuing viability of Harris

.

He also notes Justice Sotomayor’s later observation in Alleyne

itself that the majority coalition in Harris had relied on Justice

Breyer’s opinion, in which he had announced that he viewed

the logic of Apprendi and Harris as incompatible, but had con

‐

curred with the majority’s judgment on the understanding

that Apprendi had been decided wrongly and should be over

‐

ruled. Alleyne

, 570 U.S. at 119–20 (Sotomayor, J., concurring).

As the years passed, the broader reading of Apprendi

gained more force, and in Alleyne Justice Breyer ultimately

acknowledged that Apprendi was not going away. He con

‐

ceded that his long

‐ held view that judges could make factual

findings that alter statutory sentencing ranges would not pre

‐

vail and voted to overrule Harris to provide greater uni

‐ formity in sentencing doctrine. Alleyne

, 570 U.S. at 122 (Breyer,

J., concurring in part and concurring in the judgment). But

that does not mean Alleyne was a foregone conclusion.

For years the Court continued to deny certiorari in cases

arguing that Harris should be overruled, even as the principle

underlying Apprendi applied with greater force to sentencing

statutes. Most notably, in United States v. Booker

, 543 U.S. 220

(2005), the Court held unconstitutional the statutory provi

‐

sions making the U.S. Sentencing Guidelines mandatory. And

in United States v. O’Brien

, 560 U.S. 218 (2010), the Court held

that a factual finding that would trigger a mandatory mini

‐

mum thirty

‐ year sentence under § 924(c)(1)(B) for use of a ma

‐

chine

‐ gun was an element that must be decided by a jury be

‐

cause the factual finding resulted in a “drastic

... increase” in

the mandatory minimum as compared to the “incremental

changes” in § 924(c) then permitted under Harris

. O’Brien

, 560

U.S. at 229.No. 17

‐ 1056 7

The most recent of those certiorari denials that we have

identified came just two months before Kirklin’s sentencing.

See Crayton v. United States

, 566 U.S. 991 (2012) (order denying

certiorari on May 14, 2012). And the Court had repeatedly de

‐

nied certiorari on the issue in the preceding years. See Krieger

v. United States

, 628 F.3d 857 (7th Cir. 2010), cert. denied

, 565

U.S. 835 (2011); Booker v. United States

, 612 F.3d 596 (7th Cir.

2010), cert. denied

, 562 U.S. 1182 (2011); Berroa v. United States

,

374 Fed. App’x 266 (3d Cir. 2010), cert. denied

, 562 U.S. 1061

(2010); Benford v. United States

, 574 F.3d 1228 (9th Cir. 2009),

cert. denied

, 560 U.S. 928 (2010); Clark v. United States

, 538 F.3d

803 (7th Cir.), cert. denied

, 556 U.S. 1127 (2009). While certiorari

denials are not rulings on the merits, defense counsel reason

‐ ably may read in them a reluctance on the Court’s part to re

‐

visit a prior ruling, particularly when similar certiorari deni

‐

als come over an extended period of time.

The central problem for Kirklin is that his claim of ineffec

‐

tive assistance depends on hindsight, which Strickland warns

against: “A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of

hindsight

... .” 466 U.S. at 689. With the benefit of hindsight,

the overruling of Harris can too easily seem almost inevitable.

But it was not inevitable to Justice Scalia, who concurred in

both Apprendi and Harris and dissented in Alleyne

. Nor was it

inevitable or appropriate in the view of the other Justices who

dissented in Alleyne

. See 570 U.S. at 124; 133 S. Ct. at 2167

(Roberts, C.J., dissenting); 570 U.S. at 132; 133 S. Ct. at 2172

(Alito, J., dissenting). We have said repeatedly that the guar

‐

antee of effective assistance of counsel does not require an at

‐

torney to anticipate every eventual change in the law. Valen

‐

zuela v. United States

, 261 F.3d 694, 700 (7th Cir. 2001); United

States v. Smith

, 241 F.3d 546, 548 (7th Cir. 2001); Lilly v. Gilmore

,8 No. 17

‐ 1056

988 F.2d 783, 786 (7th Cir. 1993). We do not expect criminal

defense attorneys to follow all the procedural developments

in the Supreme Court to divine meaning from certiorari peti

‐

tions and oracular denials when the Supreme Court already

has decided a controlling precedent on the question at hand.

Overruling precedent is serious and rare. It is not objectively

unreasonable for a defense lawyer to assume that the Court

will follow its precedents unless and until it signals clearly

that it will not do so.

Our reasoning here does not address the constitutional

standard for performance on this issue after the grant of a pe

‐

tition for certiorari, which gives notice to the criminal defense

bar that an issue of previously settled law has become unset

‐

tled, so that reasonable attorneys may need to take appropri

‐

ate action in pending cases. Still, given the strength of the ev

‐

idence against Kirklin on the brandishing issue, even after

certiorari was granted in Alleyne

, a defense lawyer might have

made a reasonable strategic decision not to challenge the

brandishing issue.

The judgment of the district court is AFFIRMED.