United States v. Brazier
| Decision Date | 12 August 2019 |
| Docket Number | Nos. 16-4258,17-1412,17-2268 & 17-2269,17-1060,s. 16-4258 |
| Citation | 933 F.3d 796 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ivan BRAZIER, Lindani Mzembe, and Derek Fields, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Nathaniel Whalen, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.
Barry Levenstam, Attorney, Jenner & Block LLP, Chicago, IL, Ishan Bhabha, Attorney, Andrew Noll, Attorney, Corinne M. Smith, Attorney, Jenner & Block LLP, Washington, DC, for Defendant-Appellant in Nos. 16-4258 & 17-2268.
Sarah Justine Newman, Attorney, Lucas M. Walker, Attorney, Mololamken LLP, Washington, DC, for Defendant-Appellant in Nos. 17-1060 & 17-2269.
Michelle L. Jacobs, Attorney, Vanessa K. Eisenmann, Attorney, Biskupic & Jacobs, S.C., Mequon, WI, for Defendant-Appellant in No. 17-1412.
Before Kanne, Rovner, and Hamilton, Circuit Judges.
In the early hours of September 8, 2015, in South Bend, Indiana, appellants Ivan Brazier, Derek Fields, and Lindani Mzembe kidnapped, shot, and ruthlessly beat Adrian Harris as he left his home. Charged with federal kidnapping and firearms crimes, the three defendants were tried and sentenced separately, but their appeals have been consolidated. The defendants do not challenge their convictions for the underlying crimes of kidnapping or holding Harris for ransom, and the two defendants convicted of being felons in possession of firearms do not challenge those convictions. Defendants Fields and Mzembe were also convicted and sentenced under 18 U.S.C. § 924(c) for using and discharging firearms during a crime of violence. The district court complied with circuit law applicable at the time of its decisions. Later decisions by the Supreme Court and this court, however, require us to reverse Fields' and Mzembe's convictions and sentences under § 924(c). We also conclude both of their cases should be remanded for resentencing. Those defendants have raised other challenges to their sentences that either are moot in light of our decision on the § 924(c) charges or fail to show any error or abuse of discretion by the district court. We also affirm Brazier's sentence.
Around 3:30 a.m. on September 8, 2015, Ivan Brazier, Derek Fields, and Lindani Mzembe attacked Adrian Harris as he approached his car, which was parked in front of his home. The defendants demanded money from Harris and beat him with their guns. While picking Harris up from the ground, one defendant accidentally shot him. The bullet broke apart in Harris's arm. Part of it went through his arm, and other bits lodged in his elbow.
The defendants drove Harris and his car to Brazier's house where they used duct tape to bind, blindfold, and gag him. At Brazier's, the defendants continued to pistol-whip Harris and demanded money. Nearly three hours into the kidnapping, the defendants forced Harris to call his sister and ask for a ransom. He said, "I need some money, they got me." His sister collected roughly $3,000 from friends and delivered it to a house near Brazier's. As two of the defendants went to get the ransom, Brazier continued to beat Harris, kicking him, pouring alcohol on his wounds
, and twisting his injured arm. When the other two returned, the defendants demanded more money from Harris and continued to torture him. Harris again called his sister, pleading,
After the second telephone call, Harris had trouble breathing because of his broken nose
and swollen mouth. One attacker noticed Harris taking irregular breaths and became concerned that he would die in the house. Hearing this, Harris thought he might have a way out. He began "breathing funny" on purpose, and one defendant said, "He can't die in here." The defendants decided to drop him in an alley. They cut the duct tape from his hands and feet but kept him blindfolded. Harris asked a man on the street to help. Police were dispatched at 8:53 a.m. They arrived, and an ambulance took Harris to a hospital.
Less than one hour before the defendants released Harris, a police officer had received a tip from a confidential informant that Fields had kidnapped someone. As police gathered more information on the kidnapping, the officer who received the tip saw a car drive in front of him with Fields and Mzembe riding as passengers around 9:00 a.m. The officer stopped the car and detained its passengers. The driver—not Fields or Mzembe—agreed to allow the police to search the car. They found a pair of bloody gloves, Harris's car keys, and a black mask. The police also obtained a search warrant for Brazier's residence.
A federal grand jury indicted the defendants on charges of kidnapping, making a ransom demand, possessing a firearm in furtherance of a crime of violence, and being felons in possession of firearms. See 18 U.S.C. § 875(a) (ransom demand); § 922(g)(1) (); § 924(c)(1)(A)(iii) (); § 1201 (kidnapping). In three separate trials, juries convicted Fields and Mzembe on all counts and convicted Brazier on only the kidnapping and ransom charges.
Brazier was tried and sentenced first. One issue under the Sentencing Guidelines was how to categorize Harris's injuries under U.S.S.G. § 2A4.1(b)(2)(A), which adds four levels for "permanent or life-threatening bodily injury," two levels for "serious bodily injury," or three levels for something in between. Brazier argued that he should not receive a four-level enhancement because the injury Harris suffered was not permanent or life-threatening. The court overruled the objection, explaining that the defendants had denied Harris medical care for his serious injuries and applying a four-level increase. The court sentenced Brazier to a total of 444 months in prison, with consecutive prison terms of 240 months for kidnapping and 204 months for demanding a ransom.
The court sentenced Mzembe to a total of 528 months in prison. The sentence included a combined 408 months for kidnapping, demanding a ransom, and being a felon in possession of a firearm. The court then added a mandatory consecutive term of 120 months (ten years) under § 924(c) for discharging a firearm in furtherance of a crime of violence.
The court sentenced Fields to a total of 656 months in prison, with 536 months for the kidnapping, ransom, and felon-in-possession charges, plus a mandatory consecutive term of 120 months for his § 924(c) conviction. In imposing the 536-month prison term, the court applied a two-level enhancement under § 2A4.1(b) because "a dangerous weapon was used" in the crime.
The district court also ordered all three defendants to pay more than $190,000 in restitution for Harris's injuries.1 The court held Fields, Mzembe, and Brazier jointly and severally liable for that amount. Mzembe and Brazier objected to restitution under the Mandatory Victim Restitution Act on the theory that kidnapping is not a "crime of violence" subject to that Act. The district court accepted this argument but decided to order restitution under the Victim and Witness Protection Act, 18 U.S.C. § 3663.
The parties have briefed and argued a number of issues. Developments since the district court's sentencings and our oral argument have reduced the number we must decide. First, we reverse the § 924(c) convictions and sentences for Mzembe and Fields because recent precedents establish that the underlying offenses do not qualify categorically as crimes of violence under that provision. We then reject two Sentencing Guideline challenges. Brazier alone argues that the district court erred in applying the guideline enhancement for life-threatening or permanent bodily injury. Fields' challenge to the guideline enhancement for possessing a firearm is undermined by our reversal of his § 924(c) sentence. Finally, we affirm the district court's restitution orders against all three defendants.
Fields and Mzembe challenge their convictions under § 924(c). That statute imposes a series of escalating mandatory minimum sentences for "any person who, during and in relation to any crime of violence ... uses or carries a firearm ...." 18 U.S.C. § 924(c)(1)(A). Section 924(c)(3) provides two alternative tests for a crime of violence:
Subparagraphs (A) and (B) have become known more commonly as the "elements clause" and the "residual clause," respectively. Fields and Mzembe argue that they cannot be sentenced under § 924(c) since their kidnapping and ransom offenses do not categorically qualify as crimes of violence under the elements clause and because the residual clause is unconstitutional.
Fields and Mzembe did not raise this argument at the time of their trials, so we review for "plain error." Plain-error review requires the defendants to show (1) an error that has not been intentionally waived; (2) that the error was "plain—that is to say, clear or obvious;" (3) that the error "affected the defendant's substantial rights;" and (4) that the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Molina-Martinez v. United States , 578 U.S. ––––, 136 S. Ct. 1338, 1343, 194 L.Ed.2d 444 (2016) (internal quotation marks omitted); United States v. Olano , 507 U.S. 725, 732-38, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
The defendants did not intentionally...
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