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United States v. Cureton

United States Court of Appeals, Seventh Circuit

January 5, 2017

United States of America, Plaintiff-Appellee,
v.
Thomas Cureton, Defendant-Appellant.

          Argued November 16, 2016

         Appeals from the United States District Court for the Southern District of Illinois. Nos. 3:10-CR-30106-DRH-1 & 3:10-CR-30200-DRH-l - David R. Herndon, Judge.

          Before Easterbrook, Kanne, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         Thomas Cureton appeals his conviction for using a firearm during a crime of violence. He contends that the crime of making a ransom demand in violation of 18 U.S.C. § 875(a) does not qualify as a "crime of violence" under 18 U.S.C. § 924(c). Because Cureton did not raise this challenge in the district court, we examine it through the demanding lens of plain-error review. We see no plain error in interpreting the federal crime of demanding ransom as necessarily including at least an implied threat of physical force. Because a crime that includes a threat of physical force as an element qualifies as a crime of violence, we affirm.

         I. Factual and Procedural Background

         While Thomas Cureton was under investigation for dealing crack cocaine, he used a gun to demand ransom. A roommate of his, Ashley Lawrence, failed to bring him some money he expected. Cureton tied her up, choked her, beat her, pointed a gun to her head, and made her call family members to ask for ransom money. Lawrence's grandfather agreed in a telephone call to wire Cureton $4, 500. The police were waiting for Cureton at his home when he returned there with Lawrence.

         A jury convicted Cureton on four federal charges: one count of interstate communication of a ransom demand or request under 18 U.S.C. § 875(a), one count of attempted extortion under 18 U.S.C. § 1951(a), and two counts of possessing a firearm during a crime of violence under 18 U.S.C. § 924(c). The first § 924(c) charge, Count 2, was based on the ransom demand. The second one, Count 4, was based on attempted extortion. In the district court, this case (Case No. 3:10-CR-30200-DRH-l or Case 200) was consolidated for trial and sentencing with another case against Cureton involving drug possession (Case No. 3:10-CR-30106-DRH-1 or Case 106).

         At sentencing, the guideline range in the drug case (Case 106) was 360 to 720 months; the guideline range for the ransom demand and attempted extortion (Case 200) was 240 months, the statutory maximum sentence. The district court imposed a sentence of 360 months for the drug counts in Case 106 to run concurrently with a 240 month sentence for the ransom and attempted extortion in Case 200. The court then added consecutive sentences in Case 200 for the convictions on the two § 924(c) counts-84 months on Count 2 and 300 months on Count 4. That increased the total sentence from 360 months to 744 months (62 years).

         In his first appeal, United States v. Cureton, 739 F.3d 1032, 1039-45 (7th Cir. 2014) (Cureton I), this court ruled that two § 924(c) charges against Cureton for a single course of conduct involving only one use of one firearm were multiplicitous. We vacated Cureton's sentence and remanded for resentencing. 739 F.3d at 1045. On remand the district court sentenced Cureton to 444 months (37 years) in prison, eliminating the 300 months originally imposed on Count 4 in Case 200, the § 924(c) charge based on attempted extortion.

         Cureton appealed again. We vacated the sentence again because the district court set conditions of supervised release without complying with United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). United States v. Cureton, Nos. 14-2576 & 14-2586 (7th Cir. June 30, 2015) (Cureton II). On remand the district court imposed the same 444-month sentence. Cureton has now appealed for a third time.

         II. Analysis

         Cureton challenges only his § 924(c) conviction on Count 2. That conviction is based on his having demanded a ransom and accounts for 84 months of his 444-month sen- tence. Section 924(c)(1)(A) applies to the use of a firearm during or in connection with the commission of a "crime of violence."

         An offense may qualify as a "crime of violence" under § 924(c) in one of two ways. First, under the "elements" clause, an offense qualifies if it is a felony that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). Second, under the "residual" clause, the predicate offense qualifies if it is a felony that "by its nature, involves a substantial risk that physical force against the person or ...


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