Argued May 21, 2013
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 CR 928-3 — Matthew F. Kennelly, Judge.
Before Ripple, Williams, and Tinder, Circuit Judges.
Williams, 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 various 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.
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 jury 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 because the district court wrongly imposed a 7-year sentence under 18 U.S.C. § 924(c)(1)(A)(ii) for his accomplices' "brandishing" 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 minimum sentence—like brandishing a firearm—must be submitted 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.
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. 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. McCallister'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 ordered 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 or carrying of a firearm in furtherance of that robbery in violation 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 before 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 proceeded 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 propositions:
Number 1. An individual committed the crime of bank robbery, as charged in Count 1 of the indictment.
Number 2. The individual used or carried a firearm during and in relation to the bank robbery.
Number 3. The defendant knowingly aided, counseled, 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 ...