United States v. John Thomas ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1002
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN THOMAS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 15-CR-74 — Richard L. Young, Judge.
____________________
ARGUED MAY 16, 2018 — DECIDED JULY 26, 2018
____________________
Before FLAUM, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Whitney “Strawberry” Blackwell
stole cash and drugs from defendant-appellant John Thomas.
His effort to punish her and recover his cash and drugs has
landed him in federal prison with a life sentence. Thomas kid-
napped Blackwell’s younger brother and sister in Indiana and
had them taken to Michigan and Kentucky, respectively, be-
fore law enforcement tracked them down.
2 No. 17-1002
Thomas raises four issues on appeal: (a) that Blackwell
was allowed to offer inadmissible and prejudicial testimony
for the prosecution; (b) that the district court should have ex-
cluded cell-site location information about cell phones associ-
ated with Thomas; (c) that the court erred in its Sentencing
Guideline calculations; and (d) that the court erred under Al-
leyne v. United States, 570 U.S. 99 (2013), by failing to have the
jury decide that the kidnapping victims were under 18 years
old, which increased the mandatory minimum sentence.
Thomas did not raise any of these issues in the district court.
We affirm the convictions and sentence. We first review
the facts of the case and then turn to Thomas’s new argu-
ments. To summarize our conclusions: (a) the district court
did not plainly err in dealing with Blackwell’s testimony and
her apparent inability to follow instructions about answering
what she was asked and not raising certain subjects; (b) the
court did not err by admitting the cell-site location evidence
where Thomas did not move to suppress or even object to that
evidence; (c) the court did not plainly err in its guideline cal-
culation; and (d) the court made an Alleyne error regarding
the ages of the kidnapping victims, but the error was harm-
less, calling for no remedy under the plain-error doctrine.
I. Factual and Procedural Background
On Thanksgiving night 2014, defendant John “Jay”
Thomas met Whitney “Strawberry” Blackwell at Club Venus
in Detroit where she worked as a stripper and prostitute.
When Blackwell testified at trial, the prosecution asked the
usually innocuous question, “What is the first thing you said
to Mr. Thomas, the defendant, when you met him?” Blackwell
said, “I asked him if he wanted his d*** sucked.” After this
No. 17-1002 3
first encounter, Thomas took in Blackwell as one of his girl-
friends and supported her from his drug dealing. She never
worked at Club Venus again. Their short and volatile relation-
ship erupted on Valentine’s Day, 2015. Blackwell testified at
trial that Thomas “beat me up” that day, apparently because
she “drank all of his water,” though this supposed provoca-
tion never made it before the jury. After that beating, Black-
well decided to leave Thomas.
When the “baby-sitter” whom Thomas assigned to “snitch
on” Blackwell was upstairs in his bedroom, Blackwell testi-
fied, she “tiptoed around the house all sneaky like,” and stole
from Thomas $50,000 in cash, 2,500 OxyContin pills, and an
ounce of cocaine. Blackwell loaded up her contraband, her be-
longings, and her young child, and she fled. She paid a friend
to drive her from Detroit to Chicago. She arrived in Chicago
and stayed at the home of the father of one of her children
until she suspected Thomas’s associates were tracking her
down. According to Blackwell’s trial testimony, Thomas’s
friends would do “whatever Jay told him to do … [g]o out and
sell drugs, shoot people, steal something.” Fearing that
Thomas would find her in Chicago, she left for Indianapolis,
where her family lived and where she grew up. After she had
left, Thomas and others tried to raid the Chicago residence
where she had been staying.
Thomas and his henchmen regrouped in Detroit. They de-
cided to expand their search to Indianapolis. Thomas dis-
patched four of his underlings to an Indianapolis address.
Telling them, “I want my money and my drugs,” Thomas
promised them $45,000 if they found Blackwell and provided
them with a “burner” phone and $1,000 in cash. He also pro-
vided specific instructions about Blackwell’s young son: “if
4 No. 17-1002
you see C—, bring me C—.” Thomas’s henchmen went to In-
dianapolis and began their search for Blackwell. They ob-
tained her family’s address from local drug dealers. They
staked out the home and saw Blackwell drop off her mother
and leave. After alerting Thomas, he told them to wait for
him. He drove from Detroit with several more confederates
and asked one of his co-conspirators to buy zip ties as he pre-
pared his next steps.
In the early hours of March 2, 2015, Thomas and his gang
drove to the house. Thomas kicked in the door. He found a
family friend sleeping on the floor and ordered an accomplice
to restrain the man with the zip ties. Thomas and others then
broke into Blackwell’s mother’s bedroom, where her mother
slept with Blackwell’s younger brother and sister. Thomas
asked the mother, “Where the f*** is Strawberry? Where the
f*** is my money? That b**** took my money and took my
dope. You know where she at?” Blackwell’s mother said she
did not know where the money was. Thomas ordered one ac-
complice to take the brother while Thomas himself took the
sister. Thomas and his henchmen drove away from the house
with the brother and sister in separate vehicles. After driving
back to Detroit, Thomas ordered the brother to be kept in
Michigan. He told a group of his underlings to take the sister
to his house in Kentucky.
Thomas directed his henchmen throughout the kidnap-
ping. He told them to tell Blackwell’s brother that he would
be raped if he did not tell them where the money was. He also
told them, “Get my money. … Squeeze my money out of
him.” The associates followed Thomas’s lead, telling the
brother that he would be raped if he did not cooperate. When
the brother did not respond, one of the conspirators testified,
No. 17-1002 5
Thomas told her “to do whatever I have to do; hurt him, cut
him, beat him up, get whatever I could out of him.” Thomas
also told the boy on speakerphone, “I cut your sister’s fingers
off already and if you don’t tell me where everything’s at, [an-
other person is] about to cut your fingers, too.” Still getting no
response from the brother, one kidnapper took a knife and ac-
tually cut the webbing of the brother’s finger until “it was
bleeding very bad.”
After Thomas seized the children, Blackwell’s mother
called the police. Officers overheard several ransom calls from
Thomas, and they began a manhunt in Indiana, Michigan,
Ohio, and Kentucky. Officers arrested Thomas in Detroit.
They traced the cell phones of his accomplices and arrested
them at Thomas’s house and at another address where the
kidnappers kept Blackwell’s brother.
While the officers conducted surveillance at the address
where the brother was being held, the accomplices—feeling
the pressure and unable to contact Thomas as he remained in
custody—decided to abandon the plan and release the
brother. They sped away from the address with the brother in
the back of the car. Drunk and executing several evasive ma-
neuvers, the driver crashed the vehicle. Officers found the
brother inside the car, bound and blindfolded. The associates
who held Blackwell’s sister in Kentucky also gave up soon af-
ter they found themselves unable to contact Thomas. They left
the sister in a restaurant in Ohio, and she took a taxi back
home to Indianapolis.
A federal grand jury indicted Thomas for conspiracy to
commit kidnapping and two counts of kidnapping. At trial,
virtually every participant and victim testified against
Thomas, including Blackwell, her mother, her mother’s friend
6 No. 17-1002
who was zip-tied, her brother and sister, and Thomas’s co-
conspirators. The trial testimony contained graphic details re-
lated in sometimes colorful language.
The jury convicted Thomas on all charges. At sentencing,
the judge adopted the presentence investigation report pre-
pared by the U.S. Probation Office that applied the U.S. Sen-
tencing Guidelines. In calculating Thomas’s offense level un-
der the guidelines, the judge determined that the offense in-
volved vulnerable victims and the use of physical restraints.
With those enhancements, Thomas’s guideline calculation of
an offense level 52 was literally off the chart, well above the
offense level 43 for which the guideline sentence is life in
prison for all six criminal history categories. Without those
enhancements, the offense level would have been 48, still off
the chart. The court found that the statutory mandatory min-
imum sentence of twenty years should apply because the kid-
napping victims were minors, but that issue was not submit-
ted to the jury. The district court sentenced Thomas to life in
prison.
II. Analysis
A. Evidentiary Rulings on Blackwell’s Testimony
On appeal, Thomas argues first that the district court erred
under Federal Rules of Evidence 403 and 404(b) by admitting
three statements from Blackwell that referred to other, un-
charged allegedly criminal acts by Thomas. First, he points to
Blackwell’s first meeting with Thomas where, she testified,
she “asked him if he wanted his d*** sucked.” This, Thomas
claims, created an inference that he engaged in improper sex-
ual conduct, including prostitution. Second, Thomas objects
to Blackwell’s statement that one of his henchmen would do
No. 17-1002 7
“whatever Jay told him to do,” specifically to “[g]o out and
sell drugs, shoot people, steal something.” Third, he points to
Blackwell’s statement that Thomas “beat me up on Valentine’s
Day,” which led to her decision to leave Thomas a few days
later.
The first statement drew no objections from the defense.
The second and third drew objections. The prosecutor re-
sponded to the objections by offering to rephrase the question
and to instruct Blackwell to tailor her answers more narrowly.
The district judge sustained only the second objection, but his
response to both objections was the same: he allowed the
prosecution to proceed on its proposed, modified questions.
We ordinarily review a district court’s evidentiary rulings
on Rule 404(b) for abuse of discretion. United States v. Curtis,
781 F.3d 904, 907 (7th Cir. 2015). If a party never objected to
the admission of evidence in the district court, we review only
for plain error. United States v. Adams, 628 F.3d 407, 414 (7th
Cir. 2010). To succeed on plain error review, Thomas must
show: (1) an error that he has not intentionally waived; (2) that
the error was “plain—that is to say, clear or obvious;” (3) that
the error affected his substantial rights; and (4) that the error
“‘seriously affects the fairness, integrity or public reputation
of judicial proceedings.’” Molina-Martinez v. United States, 136
S. Ct. 1338, 1343 (2016), citing United States v. Olano, 507 U.S.
725, 736 (1993). Where an appellant’s objection was sustained
at trial, with a prosecutor’s agreement to rephrase the ques-
tion, and where the appellant did not promptly ask the dis-
trict court for a stronger response, we review whether it was
plain error for the district court not to provide a stronger rem-
edy on its own initiative. See Fed. R. Crim. P. 52; cf. Adams, 628
F.3d at 414.
8 No. 17-1002
On appeal, Thomas argues that the district court erred un-
der Federal Rule of Evidence 404(b), which provides that evi-
dence “of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particu-
lar occasion the person acted in accordance with the charac-
ter.” Fed. R. Evid. 404(b)(1). The rule is designed to prevent
juries from drawing the improper inference from a prior act
that the defendant has a propensity to act in a certain way and
acted in that way on the particular occasion that is the subject
of the trial. United States v. Gomez, 763 F.3d 845, 860 (7th Cir.
2014) (en banc). The rule, however, does not impose a categor-
ical bar to evidence of other acts. If the evidence serves an-
other purpose, such as “motive, opportunity, intent, prepara-
tion, plan, knowledge, identity, absence of mistake, or lack of
accident,” then the evidence may be admitted. Fed. R. Evid.
404(b)(2). Even if a piece of evidence is not barred by Rule
404(b), however, courts still must determine that the evidence
meets Rule 402’s requirement that the evidence be relevant
and Rule 403’s requirement that its “probative value” not be
“substantially outweighed by … unfair prejudice.” Fed. R.
Evid. 403.
In United States v. Gomez, sitting en banc, we laid out the
two-step process mandated by the Rules. Upon objection to
the introduction to other-act evidence, the proponent must
show under Rule 404(b) that the evidence serves another pur-
pose and establish that purpose “through a chain of reasoning
that does not rely on the forbidden inference that the person
has a certain character and acted in accordance with that char-
acter on the occasion charged in the case.” 763 F.3d at 860. If
the proponent can do this, the district court must then under
Rule 403 “assess whether the probative value of the other-act
evidence is substantially outweighed by the risk of unfair
No. 17-1002 9
prejudice” and “take account of the extent to which the non-
propensity fact for which the evidence is offered actually is at
issue in the case.” Id.
In this case, the defense never objected to the first con-
tested statement, though Thomas’s attorney did object to the
last two statements, arguing that Blackwell was “nonrespon-
sive” and “offering much more than the answer requires.” In
those instances the court either sustained the objection or the
prosecutor willingly rephrased the question to evade the in-
flammatory statement. At no time, however, did the defense
ask the district court to provide a curative or limiting instruc-
tion to the jury to ignore statements made by Blackwell that
might run afoul of the Rules. On appeal, Thomas argues that
the district court erred by not providing a limiting jury in-
struction sua sponte.1
This argument runs contrary to our decision in Gomez,
where we expressed “caution against judicial freelancing in
this area” because “sua sponte limiting instructions … may
preempt a defense preference to let the evidence come in
without the added emphasis of a limiting instruction.” Gomez,
763 F.3d at 860. The district court in this case rightly heeded
that caution and refrained from judicial freelancing absent
specific requests from the defense. Instead, the court re-
sponded in the limited way requested, by sustaining objec-
tions to evidence when necessary but drawing no additional
attention to the matter. By following our approach in Gomez,
1 Thomas has not argued that the judge should have declared a mis-
trial sua sponte, and it is doubtful he could have met the high bar for plain-
error review for failure to declare a mistrial. See United States v. Tanner,
628 F.3d 890, 898–99 (7th Cir. 2010).
10 No. 17-1002
the district court did not abuse its discretion, let alone commit
plain error.
There is no doubt that Blackwell was a difficult witness for
both lawyers and for the judge. The prosecutor prepared
Blackwell to testify and warned her against mentioning other
acts committed by the defendant. She highlighted for Black-
well those specific acts that should not be repeated in court,
namely, instances of domestic violence, including one inci-
dent that caused her to suffer a miscarriage, as well as
Thomas’s violent acts against others, including breaking
someone’s kneecaps in a drug dispute. In addition to telling
Blackwell orally not to mention these other acts, the govern-
ment had her sign a letter acknowledging these instructions.
Blackwell herself remembered the letter and refrained from
mentioning a second time the Valentine’s Day beating when
defense counsel asked the risky question, what “was the de-
ciding factor” in her decision to steal Thomas’s property?
Blackwell responded, “Gosh. So they made me sign this piece
of paper that said I wouldn’t talk about that.”
Before presenting its case, the government had taken the
unusual step of advising the court and defense counsel of its
efforts to try to ensure that Blackwell’s testimony would com-
ply with the Federal Rules of Evidence, to say nothing of
courtroom decorum. The prosecutor frankly admitted her in-
ability to get Blackwell to comply but recounted her many ef-
forts. Here was the prosecutor’s unusual statement:
She is not a cooperating witness. She has abso-
lutely no agreement with the federal authorities.
And on top of that, Your Honor, she is not under
our control.
No. 17-1002 11
The reason I say that, Your Honor, is—Ms.
Blackwell is—is someone who, through my
preparation of her, I have seen she doesn’t
mince words. She says whatever she is thinking
at that moment. And I have tried, through my
preparation, to admonish her on many, many,
many subject matters that she is not allowed to
bring out in her testimony. I have told her on nu-
merous occasions that she is to only answer the
question that either I or the defense attorney
asks.
Now, some of the things that Ms. Blackwell has
said in her preparation that I have admonished
her that she is absolutely not allowed … to say
fall into a couple different categories. The first
of those categories are prior acts of domestic vi-
olence between Ms. Blackwell and the defend-
ant. …
The reason I’m making that clear, Your Honor,
is because Ms. Blackwell is certainly not under
my control. I have taken as many steps as I can
think of to control her before this jury. Not only
have I admonished her orally but prior to her
testimony, we will be presenting her with a writ-
ten letter that I’ve signed … and then we will
ask Ms. Blackwell to sign that memorializes in
writing that we have told her she is not allowed
to bring up those instances.
And I just wanted to put all that on the record,
Judge, because I have to tell you, if I can speak
plainly, I’ve been doing this eight or nine years.
12 No. 17-1002
I’ve put so many different kinds of witnesses on
the stand. She is a first for me. She is someone
as unwieldy as it gets. So I wanted to make it
absolutely clear to this Court the steps I have
taken to control her.
Despite these precautions, Blackwell did not comply with the
prosecutor’s instructions.
The government does not choose the principal players in-
volved in serious crimes like this, and it must make its best
effort to present its evidence according to law. It is hard to
imagine what else the government could have done with
Blackwell. She and her relationship with Thomas were at the
heart of the kidnapping case.
Blackwell’s refusal to comply with warnings and instruc-
tions, and her colloquial and often obscene language, pre-
sented a serious challenge for the government to present its
case without unfair prejudice to Thomas. Much of the testi-
mony was graphic because of the nature of the events and
Thomas’s crimes. The government took reasonable measures
to minimize the risks of unfair prejudice. Despite those ef-
forts, Blackwell strayed a few times. When she did, the judge
took appropriate action, and the defense did not ask him to
do more. We do not see any error, let alone plain error. Further
restrictions could have made the trial of these events too
stilted and artificial—the judicial equivalent of editing a
Quentin Tarantino movie to air on the Disney Channel. Fed-
eral law and the Rules of Evidence do not require that. And
given the mountain of evidence against Thomas, we cannot
imagine that the three incidents Thomas challenges on appeal
had any effect on the ultimate verdicts.
No. 17-1002 13
B. Admission of Cell Phone Location Data
Thomas argues next that the government’s collection of his
cell phones’ location information without a search warrant vi-
olated the Fourth Amendment. Under Federal Rule of Crimi-
nal Procedure 12(b)(3)(C), a defendant who believes the gov-
ernment obtained evidence by violating the Fourth Amend-
ment’s prohibition on unreasonable searches and seizures
must move before trial to suppress that evidence. Under Rule
12(c)(3), a court may consider untimely motions if the defend-
ant can show good cause. In this case, Thomas never moved
to suppress the evidence, never attempted to show good
cause for this failure in the district court, and did not object to
admission of the evidence at trial. He argues on appeal, how-
ever, that the district court still erred in admitting the evi-
dence. Under our precedents, this argument calls for us to an-
swer the somewhat roundabout question: whether the district
court would have abused its discretion if it had concluded
that Thomas lacked good cause. See United States v. Acox, 595
F.3d 729, 732 (7th Cir. 2010).
The cell-site location information pinned Thomas and his
accomplice at specific locations during the kidnapping. The
government obtained this information pursuant to the Stored
Communications Act, 18 U.S.C. § 2701 et seq., but without a
search warrant. Thomas argues that the government’s collec-
tion of his cell phone location information without a warrant
violated the Fourth Amendment. As good cause for his failure
to follow the required procedure, he cites “the legal ambigu-
ity surrounding” the use of “historical cell-site location infor-
mation.” At the time of his trial, a circuit split existed on this
precise issue, one we acknowledged in United States v. Daniels,
803 F.3d 335, 351 (7th Cir. 2015). Shortly before Thomas’s trial,
14 No. 17-1002
the Sixth Circuit decided United States v. Carpenter, 819 F.3d
880, 890 (6th Cir. 2016), finding no constitutional violation in
obtaining cell-site data without a warrant. The rule stated in
Carpenter remained uncertain throughout Thomas’s trial and
appeal as the Supreme Court granted certiorari and later re-
versed Carpenter. See Carpenter v. United States, 137 S. Ct. 2211
(2017) (granting certiorari); 138 S. Ct. 2206 (2018) (reversing
on merits because search warrant was required).
While Thomas certainly is correct that this legal issue re-
mained uncertain before his trial, that uncertainty did not
qualify as good cause under Rule 12 for failing to raise the
issue. We have trouble seeing how a circuit split on such a
high-profile issue can provide good cause for failing to raise
the issue in the district court. In Daniels, we rejected a similar
challenge to the use of cell data because the defendant failed
to file the required pretrial motion. The defendant in that case
could not show good cause because the “defendants knew all
they needed to know in order to make the Fourth Amend-
ment argument” before this court. Daniels, 803 F.3d at 352. Fol-
lowing Daniels, we find that the district court would not have
abused its discretion if it had found no good cause for failing
to file a timely motion. In other words, though the Supreme
Court’s Carpenter decision indicates a potential Fourth
Amendment problem with the cell-site data used here,
Thomas cannot raise this argument now, after failing to raise
it in the district court.2
2In Carpenter, the Supreme Court reversed the Sixth Circuit, holding
that the collection of cell-site location information can be, and was in that
case, “a search within the meaning of the Fourth Amendment.” Carpenter
v. United States, 138 S. Ct. 2206, 2220 (2018). We need not and do not ad-
dress here the scope of the Court’s decision in Carpenter. See id. at 2217 n.3
No. 17-1002 15
C. Sentencing Guideline Issues: Vulnerable Victims and Re-
straint of Victims
Thomas next argues that the district court made two errors
in calculating his offense level under the Sentencing Guide-
lines. The court found that Thomas was in criminal history
category V and that his total offense level was 52, which was
literally off the chart. In rare cases like this one, the offense
level will exceed the maximum offense level of 43 listed on the
guideline sentencing chart. When that happens, the “offense
level of more than 43 is to be treated as an offense level of 43,”
which recommends a life sentence for all criminal history cat-
egories. U.S.S.G. § 5A cmt. 2.
The district court grouped Thomas’s convictions into two
groups, one for kidnapping and conspiracy to kidnap Black-
well’s brother, and the other for kidnapping and conspiracy
to kidnap her sister. The district court’s offense calculation be-
gan with a base offense level of 32 for kidnapping under
U.S.S.G. § 2A4.1 for the kidnapping of Blackwell’s brother.
The court added a total of eighteen points under offense level
adjustments because the crime involved a demand for a ran-
som, use of a dangerous weapon, physical restraint of a vic-
tim, a vulnerable victim, and obstruction of justice, and be-
cause Thomas was the leader of the criminal activity. An ad-
ditional two points were added to account for the separate
group of counts for kidnapping Blackwell’s sister. Taking the
greater of the two groups and adding the multiple-count ad-
justment, Thomas’s total offense level hit 52.
(disclaiming any decision on scope of Fourth Amendment protections for
less than seven days' worth of information).
16 No. 17-1002
Thomas challenges on appeal the two-level enhancements
for vulnerable victims under § 3A1.1 and for restraint of a vic-
tim under § 3A1.3. He did not raise either issue in the district
court, so we review for plain error. Rosales-Mireles v. United
States, 138 S. Ct. 1897, 1904 (2018); Molina-Martinez v. United
States, 136 S. Ct. at 1343; United States v. Olano, 507 U.S. 725,
733–34, 736 (1993).
Starting with the vulnerable-victim enhancement in
§ 3A1.1, Thomas argues it amounted to double-counting be-
cause he was convicted of kidnapping two minors, who are
deemed vulnerable victims. We do not see any error in this
enhancement, let alone a plain one. The kidnapping guide-
line, § 2A4.1, applies generally to all kidnappings. No other
offense characteristic that was applied under the Guidelines
accounted for the victims’ ages or vulnerability.
The restraint-of-victim enhancement of § 3A1.3 is more of
a problem. Application Note 2 to § 3A1.3 instructs that this
enhancement simply does not apply to offenses covered by
§ 2A4.1, including kidnapping. The reason is that restraint of
a victim is an element of the offense and is already accounted
for in the base offense level. We agree with Thomas that this
was an error, but we find no plain error requiring a remand.3
3
If this issue had been raised with the district court, there might well
have been grounds for a departure or a variance on this issue based on the
use of the zip-ties to restrain the man who was in the house during the
kidnapping of Blackwell’s younger brother and sister. The court might
reasonably have considered that additional restraint of a bystander as be-
yond the intended scope of Application Note 2. Perhaps that was the pro-
bation officer’s view. The PSR applied the enhancement because the “vic-
tim was physically restrained with zip ties,” but the government has not
pursued this possibility on appeal.
No. 17-1002 17
In Molina-Martinez, the Supreme Court addressed plain er-
rors in guideline calculations. The Court made clear that most
guideline errors, even if not raised in the district court, will
satisfy the criteria for a plain error because there is a reasona-
ble probability of a different outcome. 136 S. Ct. at 1346. The
Court there rejected a categorical rule (applied by one circuit)
that a guideline error was not plain if the actual sentence im-
posed was within the correct range. See id. at 1345. More re-
cently, in Rosales-Mireles, the Court applied the fourth element
of the plain-error standard in a way that shows most guide-
line errors will require a remand. 138 S. Ct. at 1908.
Both Molina-Martinez and Rosales-Mireles frame their hold-
ings in terms of “most” cases, and both decisions recognize
that there may be circumstances where a guideline error will
not affect the ultimate sentence. Molina-Martinez, 136 S. Ct. at
1346; Rosales-Mireles, 138 S. Ct. at 1909–10. In one category of
those cases, the sentencing judge makes clear that the defend-
ant’s sentence simply does not depend on the resolution of a
guideline issue. See, e.g., United States v. Marks, 864 F.3d 575,
576 (7th Cir. 2017) (“when an arcane and arbitrary issue arises
under the Sentencing Guidelines, the sentencing judge should
ask, ‘Why should I care?’”); United States v. Minhas, 850 F.3d
873, 879–880 (7th Cir. 2017) (“Procedural errors do not war-
rant remand when we are convinced that returning the case
to the district court would result in the same sentence.”), cit-
ing United States v. Abbas, 560 F.3d 660, 667 (7th Cir. 2009).
The government’s contention on appeal that the victim-restraint en-
hancement was available here because it applied to the conspiracy charge
is not persuasive. The presentence investigation report used kidnapping
as the base offense under § 2A4.1(a).
18 No. 17-1002
Second, a guideline error that does not actually affect the
final guideline range calculated by the court falls outside the
general rule of Molina-Martinez and Rosales-Mireles. Both
opinions are framed in terms of whether the final “range” is
correct or not, and not on whether there might be errors that
do not affect the final range. See Molina-Martinez, 136 S. Ct. at
1345–46, 1348–49; Rosales-Mireles, 138 S. Ct. at 1903. In this
case, a two-level error in the offense level would not have
changed the final recommended guideline range. The range
still would have been life in prison. The error on the restraint-
of-victim adjustment therefore did not affect Thomas’s sub-
stantial rights or undermine confidence in the proceedings
and their final result. See United States v. Fletcher, 763 F.3d 711,
718 (7th Cir. 2014) (error in guideline calculation was harm-
less; statutory maximum would have governed under both
correct and incorrect calculations, so correct guideline range
would have been exactly the same); United States v. Anderson,
517 F.3d 953, 965−66 (7th Cir. 2008) (guideline error harmless
where correct guideline range on remand would be exactly
the same as range that district court calculated).
In addition, Judge Young made clear at sentencing that the
life sentence he imposed was driven by his overall assessment
of the sentencing factors under 18 U.S.C. § 3553(a). He consid-
ered Thomas’s personal characteristics, noting that Thomas
engaged in illegal activity “all his life and admits that. He has
no other employment history.” The judge noted in particular
the terrible nature of the crime, saying, “These young chil-
dren, I’m sure, were terrified. They had to be … taken in the
middle of the night by strangers, armed, threatening, to a
place where they didn’t have any idea where they were going
or whether they would remain alive.” He also noted the im-
portance of protecting the public from Thomas’s future
No. 17-1002 19
crimes, stating that if he were released, “these young victims
will still be alive. And will they have to be constantly looking
over their shoulder if the defendant is released?” There is no
need to remand for resentencing on a slightly different guide-
line calculation that would still result in a recommended
range of life in prison.
D. The Alleyne Error on Ages of Victims
In Alleyne v. United States, 570 U.S. 99 (2013), the Supreme
Court held that “any fact that increases the mandatory mini-
mum” sentence under a criminal statute is an element of the
crime “that must be submitted to the jury.” Id. at 103. The fed-
eral kidnapping statute mandates that if the victim “has not
attained the age of eighteen years,” the sentence “shall in-
clude imprisonment for not less than 20 years” if the offender
is over eighteen and not a close relative or person with cus-
tody rights. 18 U.S.C. § 1201(g)(1). To apply the mandatory
minimum, therefore, the defendant must admit or the jury
must find beyond a reasonable doubt that at least one of the
victims of the offense was younger than 18.
Thomas argues on appeal that the district court made an
Alleyne error by not submitting the age issue to the jury. He is
correct, but his counsel did not object to the verdict form or
otherwise raise this issue in the district court. Because Thomas
forfeited this argument, we will reverse the district court only
if, again, he can establish plain error. See United States v. Cot-
ton, 535 U.S. 625, 631 (2002); United States v. Long, 748 F.3d 322,
330 (7th Cir. 2014) (plain error review for forfeited Alleyne er-
ror); see also Fed. R. Crim. P. 52(b).
To succeed on plain error review, again, Thomas must
show (1) an error that he has not intentionally waived; (2) that
20 No. 17-1002
the error was “plain—that is to say, clear or obvious;” (3) that
the error affected his substantial rights; and (4) that the error
“seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Molina-Martinez, 136 S. Ct. at 1343;
Olano, 507 U.S. at 733–34, 736. In this case, the Alleyne error
was not waived, and it was plain. Counsel on both sides just
missed it at trial and sentencing. But this error also fails to
satisfy the third and fourth elements of the plain-error stand-
ard. We are confident the error did not affect Thomas’s sub-
stantial rights and did not undermine the fairness, integrity,
or public reputation of the judicial proceedings. See Olano, 507
U.S. at 737 (error did not affect substantial rights because it
was not prejudicial).
The only place the ages of the kidnapping victims affected
the guideline range was in the two-level enhancement for vul-
nerable victims, which was not erroneous and did not affect
the ultimate sentence. And in the face of the off-the-charts
guideline recommendation for life sentence and the district
judge’s explanation at sentencing, we are confident that the
20-year mandatory minimum sentence was so far below the
guideline recommendation of life and the actual sentence of
life that it had no effect on the sentence.
In addition, Alleyne and Apprendi errors do not amount to
plain error where the evidence on the issue at trial was “‘over-
whelming’ and ‘essentially uncontroverted.’” Cotton, 535 U.S.
at 633, quoting Johnson v. United States, 520 U.S. 461, 470
(1997); Long, 748 F.3d at 329; United States v. Kirklin, 727 F.3d
711, 718 (7th Cir. 2013). In this case, the government presented
overwhelming and uncontroverted evidence that the kidnap-
ping victims were minors. Blackwell’s brother and sister both
testified at trial. During their testimony, her brother and sister
No. 17-1002 21
gave their ages, which were 17 and 15 on the day of testimony.
Not surprisingly, the defense made no effort to contradict or
undermine this testimony. No other witness gave contradic-
tory testimony about their ages. The evidence at trial would
have compelled the finding that the victims were minors, so
the Alleyne error was not a “plain error” requiring a remand.
See Long, 748 F.3d at 330–32 (Alleyne errors did not satisfy
plain-error standard where there was “no real possibility”
that a jury would have failed to make required findings).
The judgment of the district court is
AFFIRMED.