April 5, 2018
Appeals from the United States District Court for the
Northern District of Indiana, South Bend Division. Nos.
15-cr-87-3, 15-cr-87-2, and 15-cr-87-1 - Robert L. Miller,
Kanne, Rovner, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
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.
Factual Background and Procedural History
Shooting, Kidnapping, and Ransom Demands
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.
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,
"Please, Sis. Hurry up. Hurry up. I can't take it
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.
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
Trials and Sentencing
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) (felon in possession of firearm);
§ 924(c)(1)(A)(iii) (possessing firearm during and in
furtherance of crime of violence); § 1201 (kidnapping).
In three separate trials, juries convicted Fields and Mzembe
on all counts and convicted Brazier on only the kidnapping
and ransom charges.
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.
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.
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.l(b) because "a
dangerous weapon was used" in the crime.
district court also ordered all three defendants to pay more
than $190, 000 in restitution for Harris's
injuries. 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 ...