November 16, 2016
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.
Easterbrook, Kanne, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
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
Factual and Procedural Background
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.
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
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).
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.
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
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
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 ...