United States of America v. Antonio Sherrod

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1345
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
A NTONIO S HERROD ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 CR 20001—Michael P. McCuskey, Chief Judge.
____________
A RGUED F EBRUARY 13, 2006—D ECIDED A PRIL 27, 2006
____________
Before K ANNE , E VANS , and W ILLIAMS , Circuit Judges.
E VANS , Circuit Judge. The utter senselessness of the
crime in this case is shocking. It played out over a matter
of moments, and was captured on a surveillance camera, at
an Amoco gas station/convenience store in Kankakee,
Illinois. We recount just a snippet of the facts.
Around midnight on a March evening in 2003, 24-year-old
Stephen Prendergast was driving his girlfriend, Regan
Booker, from Matteson, just south of Chicago, to Cham-
paign, where she attended college. Two girls, Regan’s sister
Loren and Tiffany Sanders, both also students at
the college, were also traveling to Champaign with
Prendergast and Regan, but they were in a separate car.

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2 No. 05-1345
1 It’s certainly a dubious distinction, but Escalades are the
favorite target of thieves and carjackers. As reported (in October
2004) by the Institute for Highway Safety, Escalades have
the highest theft-claim rate among newer vehicles. This is so
because they have expensive parts and a certain cachet due
to their exposure from celebrity ownership.
Prendergast was driving a flashy 2003 Cadillac Escalade. 1
They stopped at the Amoco station as Prendergast pulled
the Escalade up to a pump. He got out of the car and
entered the convenience store. When he returned and
was about to enter his car, he was met by a man who
turned out to be Antonio Sherrod. Sherrod confronted
Prendergast, demanded his car keys, and shot him at point-
blank range with a 9 mm handgun. Ms. Booker ran from
the Escalade as Sherrod commandeered it and drove off.
Prendergast died a short time later of a bullet wound to his
heart.
A federal jury convicted Sherrod on several counts:
carjacking with intent to cause death and serious bodily
harm, 18 U.S.C. § 2119(3), using a firearm to commit a
crime of violence, 18 U.S.C. § 924(c), and possessing a
firearm as a convicted felon, 18 U.S.C. § 922(g)(1). Sherrod
received two consecutive life sentences plus 10 years
concurrent. On appeal, he challenges: (1) the jurisdictional
basis of his carjacking conviction; (2) the admission at
trial of statements he made following his arrest; and (3) the
determination of his sentence.
Carjacking with intent to kill or maim is a federal crime
if the vehicle “has been transported, shipped, or received in
interstate or foreign commerce.” 18 U.S.C. § 2119. The
government therefore had to show that Prendergast’s
Escalade at some point crossed the border into
Illinois—which shouldn’t be too difficult, given that
Escalades aren’t manufactured in Illinois. Where, as here,
the connection to interstate commerce is all but self-evi-

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No. 05-1345 3
dent, the jurisdictional element is typically stipulated to.
But for some reason, that didn’t happen in this case.
Instead, the government offered the testimony from
Lt. Patrick Kane, the Kankakee police officer in charge of
the investigation, to establish the vehicle’s origin:
AUSA: [I]s there a database maintained by the
Secretary of State that could—that can advise
a police officer of the origin of a vehicle based
on its VIN, or vehicle identification number?
KANE: There is a database. However, I don’t know if
that’s the Secretary of State’s database or who
actually maintains that. I know it’s a state
agency, but it may not be the SOS office.
AUSA: Did you conduct an inquiry based on the VIN
of the Cadillac Escalade with the state agency
to determine its origin?
KANE: I had that done, yes.
AUSA: And what were the results of that?
KANE: The vehicle was made in Arlington, Texas.
Sherrod now argues that this testimony should have been
excluded as hearsay, given that Lt. Kane apparently did not
conduct the inquiry himself but rather “had [it] done” by
someone else. Without Kane’s testimony, the argument
goes, there was no evidence at all that the Escalade came
from outside of Illinois, and thus no basis for federal
jurisdiction. And although it’s common knowledge that
Escalades aren’t made in Illinois, Sherrod insists that the
government still must meet its burden of proof. See United
States v. Burton, 324 F.3d 768, 770 (5th Cir. 2003) (revers-
ing federal carjacking conviction where government offered
no evidence of interstate transport, rejecting argument that
it was within the jury’s common knowledge that the
particular vehicle model was not manufactured in-state).

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4 No. 05-1345
The main problem Sherrod faces in making this argument
is that he didn’t object to the admission of Kane’s testimony
during the trial, so our review is only for plain error. For
Sherrod to prevail under that standard, the error must
seriously affect the fairness, integrity or public reputation
of the judicial proceedings. See United States v. Atkinson,
297 U.S. 157, 160 (1936); United States v. Gray, 410 F.3d
338, 345 (7th Cir. 2005). It doesn’t in this case. If Sherrod
had objected that the lieutenant’s testimony was hearsay,
the government could easily have found additional ways to
show that the Escalade came from outside of Illinois. In the
absence of an objection, the government’s reliance on Kane’s
testimony—concerning a fact which is, after all, usually
undisputed and undeniable—that Escalades are in fact not
made in Illinois, does not amount to a miscarriage of
justice.
Next, Sherrod argues that in the interview immediately
following his arrest the Kankakee police failed to honor
his invocation of the right to remain silent and that the
district court should therefore have suppressed the incrimi-
nating statements he made during that interview. During
the interview, Sherrod asked Lt. Kane what he was charged
with, but Kane insisted that they finish reviewing the
written Miranda warnings before proceeding with the
interview. Taking a defiant stance, Sherrod told Kane, “I’m
not going to talk about nothin’,” and, reemphasizing the
point, “I’m not gonna talk about nothin’—if you’d give me a
picture of what’s going on, but I ain’t gonna talk about shit.”
After they completed the Miranda warnings, Kane informed
Sherrod of the charges against him and Sherrod executed a
written waiver of rights. The interview continued for about
10 minutes and was terminated when Sherrod requested a
lawyer. During the 10 minutes, Sherrod said, among other
things, (1) “I’ll bet the video don’t show my real face, do it?”;
(2) the woman in the front seat “can’t identify me”; and (3)
you “can’t trust those whores at the gas station.” He also

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No. 05-1345 5
denied that his fingerprints would be found on the gun or in
the Escalade. They were.
After a hearing on Sherrod’s motion to suppress, the
district court (Judge Michael P. McCuskey) concluded that
Sherrod did not unambiguously invoke his right to re-
main silent when he said that he was “not going to talk
about nothin’.” Noting that an ambiguous invocation of
the right to remain silent does not require that the police
cease all questioning, see United States v. Banks, 78 F.3d
1190, 1197-98 (7th Cir.), vacated on other grounds by Mills
v. United States, 519 U.S. 990 (1996), the court denied
Sherrod’s motion. Sherrod argues that his statements can
only have meant one thing: he wanted the interview to end.
But we agree with the district court. A suspect telling a
police officer that he’s “not going to talk about nothin’ ” is as
much a taunt—even a provocation—as it is an invocation of
the right to remain silent. When Sherrod wanted to end the
interview, he knew how to do it unambiguously. He didn’t
do so before he uttered his statements.
Finally, Sherrod presents two challenges to his sentence.
He first argues that the district court erred in calculat-
ing his advisory guideline range (this was post-Booker)
for his carjacking conviction. The relevant guideline,
§ 2B3.1(c), directs the court to apply the guideline for first
degree murder, § 2A1.1, if a victim was killed during
the offense under circumstances that would constitute
murder under federal law. Sherrod argues that this cross-
reference was impermissibly applied because the jury
did not find him guilty of murder. He’s right that the
jury did not find him guilty of murder—rather, it found him
guilty of carjacking with intent to cause death and serious
bodily harm, which, if death results (as the jury explicitly
found), carries a penalty of “any number of years up to life,”
18 U.S.C. § 2119(3). The court then properly carried out its
responsibility under United States v. Booker, 543 U.S. 220
(2005) to determine, based on a preponderance of the

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6 No. 05-1345
evidence, the facts relevant to an advisory guideline range,
such as whether the killing of Stephen Prendergast would
have been murder under federal law. That’s how it’s
supposed to be done—there was no error.
Sherrod also argues that the district court wrongly
concluded that it was required to impose his two life
sentences consecutively, based on its interpretation of
18 U.S.C. § 924(c)(1)(D)(2). Not only is it unclear how
Sherrod would benefit if the court were allowed to con-
sider imposing his two life sentences concurrently instead,
but we have already rejected an essentially identical
argument in United States v. Sutton, 337 F.3d 792, 802
(7th Cir. 2003), and find no reason to conclude dif-
ferently here.
The judgment of the district court is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-27-06

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