United States of America v. Tyrone Kirklin

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐2765
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
T YRONE KIRKLIN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 928‐3 — Matthew F. Kennelly, Judge.
____________________
A RGUED MAY 21, 2013 — D ECIDED A UGUST 15, 2013
____________________
Before R IPPLE , WILLIAMS, and T INDER , Circuit Judges.
WILLIAMS, Circuit Judge. Tyrone Kirklin hatched a scheme
with several accomplices to rob a bank in Illinois. They
robbed the bank, were soon caught, and charged with vari‐
ous federal offenses. A jury convicted Kirklin of two counts
related to aiding and abetting an armed bank robbery, and
aiding and abetting the use and carrying of a firearm during
that robbery in violation of 18 U.S.C. § 2113; § 924(c)(1)(A);
§ 2. He was sentenced to 171 months’ imprisonment.

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2 No. 12‐2765
Kirklin now challenges his conviction, arguing that the
district court failed to accurately instruct the jury on aiding
and abetting the use and carrying of a firearm during the
robbery. But Kirklin never raised any objection about the ju‐
ry instructions even when the district court specifically
asked the parties if they had any comments on the final draft
of the instructions. Furthermore, we are not persuaded that
the instruction was so misleading that reversal is necessary
in this case.
Kirklin also argues that he is entitled to resentencing be‐
cause the district court wrongly imposed a 7‐year sentence
under 18 U.S.C. § 924(c)(1)(A)(ii) for his accomplices’ “bran‐
dishing” firearms even though the jury never found this fact
beyond a reasonable doubt. The Supreme Court’s decision in
Alleyne v. United States, 133 S. Ct. 2151 (2013), has confirmed
that any fact that increases a defendant’s mandatory mini‐
mum sentence—like brandishing a firearm—must be sub‐
mitted to a jury. And while there is no question that this fact
should have been submitted to the jury in Kirklin’s case in
order to hold him accountable for brandishing, we are not
convinced that this sentencing error resulted in a miscarriage
of justice because the evidence supporting the district court’s
finding of brandishing was overwhelming. Therefore, we
affirm Kirklin’s conviction and sentence.
I. BACKGROUND
One morning in November 2010, Kirklin drove to the
home of a friend named Tiffany Jones and asked her if she
wanted to help rob a bank in Homewood, Illinois. Kirklin
promised it would be “easy,” showed her two firearms he
had stashed in his van (a TEC‐9 semi‐automatic handgun
and .38 millimeter revolver), and Jones agreed to participate.

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No. 12‐2765 3
Kirklin then picked up his cousin, Justice McCallister, and
drove to the bank. On the way there, the group discussed
their plan for the robbery. Kirklin assured Jones that there
was no security at the bank and all she needed to do was
stand guard in the lobby to make sure no one came in or out.
He also told Jones that she could shoot the revolver inside
the bank without leaving any shell casings behind. McCallis‐
ter’s job was to find someone who knew the combination to
the vault and force it open. Kirklin said he would drop them
off, wait across the street for four or five minutes, and then
pick them up in front of the bank. Like many bank robberies,
this one did not go according to plan.
Jones entered the bank carrying Kirklin’s TEC‐9 and .38
revolver; McCallister brought his own Hi‐Point 9‐millimeter
pistol. The pair entered the bank just as several customers
were exiting. With the two firearms in her hands, Jones or‐
dered the customers to go back inside the lobby of the bank.
One customer attempted to leave, but Jones put a gun to the
back of her neck and forced her back inside. Unbeknownst
to Jones, one customer was too quick and managed to slip
past her to call 911. Meanwhile, McCallister ordered the
bank tellers to fill a backpack with the cash in their drawers.
McCallister and Jones then ordered the customers inside the
vault and fled. Just as the pair ran outside for their escape,
police squad cars began to arrive at the bank and Jones and
McCallister were arrested near the scene. The pair both gave
post‐arrest statements in which they implicated themselves
as well as Kirklin.
Kirklin was charged with aiding and abetting an armed
bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d), and
18 U.S.C. § 2 (Count 1), and aiding and abetting the use or

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4 No. 12‐2765
carrying of a firearm in furtherance of that robbery in viola‐
tion of 18 U.S.C. § 924(c) and 18 U.S.C. § 2 (Count 2). The
case was tried in front of a jury over three days. Shortly be‐
fore closing arguments, the district court presented both
sides with a final set of written jury instructions and asked
counsel if they had any objections that they wanted to make
for the record. Neither party objected, and so the court pro‐
ceeded to instruct the jury on Counts 1 and 2. For Count 2—
the only one at issue here on appeal—the court stated that
the government must prove the following three proposi‐
tions:
Number 1. An individual committed the crime of
bank robbery, as charged in Count 1 of the indict‐
ment.
Number 2. The individual used or carried a firearm
during and in relation to the bank robbery.
Number 3. The defendant knowingly aided, coun‐
seled, induced or procured the use or carrying of a
firearm during and in relation to the bank robbery.
The government must prove that the defendant
knowingly participated in the criminal activity and
tried to make it succeed.
The court went on to explain that the term “use” includes
“brandishing, displaying, striking with, firing and attempt‐
ing to fire a firearm … . However, mere possession of a fire‐
arm at or near the site of the crime is not enough to consti‐
tute use of that firearm.” During deliberations, the jury
asked one question relevant to Count 2:
In relation to Count 2, we need to know if the defend‐
ant is being charged with supplying the guns to use in

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No. 12‐2765 5
the bank robbery or with aiding in a crime where a
firearm was used.
The district court met with the parties and observed: “I think
the correct answer is neither of the above.” The parties
agreed that the court should answer back: “The instruction
… defines what is required for Count 2. No further infor‐
mation can be provided.”
The jury convicted Kirklin on both counts. The presen‐
tence investigation report recommended a 7‐year sentence
on the § 924(c) charge, reflecting the mandatory minimum
sentence for cases where a firearm is “brandished.” See 18
U.S.C. § 924(c)(1)(A)(ii). Kirklin did not object to this rec‐
ommendation, and the district court concluded that the evi‐
dence supported a finding of brandishing because Kirklin
was “willing to have other people brandish guns on his be‐
half” and guns were brandished. As a result, the court sen‐
tenced Kirklin to 84 months on the § 924(c) charge in Count
2. He also received a consecutive 87‐month sentence on
Count 1.
II. ANALYSIS
Kirklin raises challenges to both his conviction and sen‐
tence on Count 2 of the indictment. Count 2 charged Kirklin
with aiding and abetting the use or carrying of a firearm in
relation to a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)1 and 18 U.S.C. § 2 (punishing as a principal
anyone who “commits an offense against the United States
or aids, abets, counsels, commands, induces or procures its
1 Attempted bank robbery qualifies as a crime of violence under 18 U.S.C.
§ 924(c)(3)(A)–(B).

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6 No. 12‐2765
commission” or who “willfully causes an act to be done
which if directly performed by him or another would be an
offense against the United States”). In order to prove aiding
and abetting under § 924(c), the government must put forth
evidence showing that: “(1) the defendant knew, either be‐
fore or during the crime, of the principal’s weapon posses‐
sion or use; and (2) the defendant intentionally facilitated
that weapon possession or use once so informed.” United
States v. Taylor, 226 F.3d 593, 596 (7th Cir. 2000). The penalty
provisions of § 924(c) provide, in relevant part, that anyone
found guilty of such an offense shall
(i) be sentenced to a term of imprisonment of not less
than 5 years; [or]
(ii) if the firearm is brandished, be sentenced to a term
of imprisonment of not less than 7 years.
18 U.S.C. § 924(c)(1)(A).
A. No Error in Jury Instructions
Kirklin first argues that the district court’s instruction to
the jury on the § 924(c) charge in Count 2 was highly mis‐
leading. Kirklin asserts that the standard of review is com‐
plicated on this matter because the district court initially
held an informal meeting with the parties off the record re‐
garding proposed jury instructions. But we are not faced
with a situation in which all discussion of jury instructions
was held off the record. Such a practice would seriously
frustrate our review on appeal. See Maltby v. Winston, 36 F.3d
548, 561 n. 18 (7th Cir. 1994) (noting that “it is the responsi‐
bility of the district court, if it conducts the instruction con‐
ference without a court reporter, to provide the parties with
an opportunity to specifically object to jury instructions on

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No. 12‐2765 7
the record”). Rather, the record in this case reveals that the
district court held an informal conference off the record first
(Tr. 447), but then presented the parties with a final draft of
the instructions on the record and directly asked for any is‐
sues to be raised at that time. See Tr. 483. We appreciate the
potential dangers of any such discussions off the record, but
nothing prohibits a judge from participating in an informal
conference first, and here we are confident that the district
court took the necessary steps to orient the record for our
review on appeal. Moreover, there is no suggestion that
counsel for Kirklin made any objection to the jury instruc‐
tions on Count 2 off the record before the court went back on
the record, so it is not as if we have missed an argument
Kirklin thought he had preserved. See Graham v. Sauk Prairie
Police Comm’n, 915 F.2d 1085, 1106–07 (7th Cir. 1990) (finding
objection to jury instructions waived where no record exist‐
ed in which defendants voiced an objection to the instruc‐
tions because counsel only objected during an informal con‐
ference).
The next hurdle for Kirklin is that his attorney stated that
he had no objections to the final instructions before they
were read to the jury. We have cautioned before that
“[c]ounsel’s affirmative statement that he had no objection to
the proposed [jury] instruction constitutes waiver of the abil‐
ity to raise this claim on appeal.” United States v. Griffin, 493
F.3d 856, 864 (7th Cir. 2007); see also United States v. Natale,
719 F.3d 719, 729 (7th Cir. 2013) (“Although passive silence
with regard to a jury instruction permits plain error review
… a defendant’s affirmative approval of a proposed instruc‐
tion results in waiver.”); United States v. O’Connor, 656 F.3d
630, 644 (7th Cir. 2011) (same); United States v. Gonzalez, 319
F.3d 291, 298 (7th Cir. 2003) (finding defendants’ challenge to

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8 No. 12‐2765
jury instructions waived because they “accepted” the rele‐
vant instructions by affirmatively “stat[ing] in court, ‘No ob‐
jection’”); United States v. Griffin, 84 F.3d 912, 924 (7th Cir.
1996) (same). That is precisely what happened here. When
counsel for Kirklin was asked directly whether he had “any
objections or additions that [he] want[ed] to make for the
record” regarding the instructions, he replied: “None that I
can think of, your Honor.” At oral argument, counsel for
Kirklin suggested that this statement was equivocal, but we
disagree. Plus, we have held before that similar everyday
language constituted an intentional relinquishment of the
defendant’s right to object. See United States v. Anifowoshe,
307 F.3d 643, 650 (7th Cir. 2002).
To be sure, even if Kirklin’s objection was only forfeited
instead of waived, we are not persuaded that the instruc‐
tions on the § 924(c) charge in Count 2 were vague or mis‐
leading. Kirklin argues that the part of the instruction on
Count 2 which stated that “the government must prove that
the defendant knowingly participated in the criminal activi‐
ty and tried to make it succeed” fails to specify which crimi‐
nal activity—the bank robbery itself or the use of the weap‐
on in the bank robbery—the jury was required to find Kirk‐
lin facilitated. According to Kirklin, the district court’s fail‐
ure to explicitly require that the government establish that
the defendant intended to further the use of the weapon (as
opposed to only aiding the bank robbery) constitutes re‐
versible error because it omitted an essential element of the
§ 924(c) offense.
Kirklin’s argument is persuasive only when the instruc‐
tion is read out of context. Remember that the disputed part
of the instruction read in full: “the government must prove

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No. 12‐2765 9
… that the defendant knowingly aided, counseled, induced
or procured the use or carrying of a firearm during and in rela‐
tion to the bank robbery. The government must prove that the
defendant knowingly participated in the criminal activity
and tried to make it succeed” (emphasis added). We do not
think it is a stretch of the imagination to think that the jury
understood “the criminal activity” to refer back to “the use
and carrying of a firearm” in the preceding sentence.
Kirklin points out that the more recent version of the
Seventh Circuit Pattern Criminal Jury Instructions explicitly
distinguishes between knowledge of a gun’s use and inten‐
tional furtherance of its use within the aiding and abetting
context by stating: “A person who merely aids the underly‐
ing offense knowing that a firearm would be [used; carried]
does not [aid, counsel; command; induce; procure] the
commission of the offense charged in Count [1].” 7th Cir.
Pattern Criminal Jury Instructions (2012 ed.). We agree with
Kirklin that this clarification in the 2012 version of the in‐
structions is certainly helpful. But that does not automatical‐
ly mean that the 1999 version that was read to the jury was
plainly erroneous. And we note that the instructions that
were read went beyond mere boilerplate. They reminded the
jury that it could only convict if it found that Kirklin know‐
ingly induced “the use or carrying of a firearm during and in
relation to the bank robbery.” Cf. United States v. Wright, No.
12‐3425, __ F.3d __, 2013 WL 3600345, at *4 (7th Cir. July 16,
2013) (discouraging use of boilerplate jury instructions).
Kirklin also suggests in passing that the one question
submitted by the jury during deliberations demonstrates
that it did not understand the jury instructions. We cannot
agree. Lay jurors may have trouble understanding instruc‐

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10 No. 12‐2765
tions for many reasons, and we will not speculate on the rea‐
son for the jury’s question here. And in any event, when the
district court proposed telling the jurors that all of the essen‐
tial information they needed was already provided in the
instructions on Count 2, defense counsel unequivocally
agreed and never suggested any alternative instruction.
Kirklin’s challenge to his conviction on Count 2 must there‐
fore fail.
B. Sentencing Error Did Not Affect Fairness of Judicial
Proceedings
Kirklin’s second argument is that his 7‐year sentence on
Count 2 should be vacated because the jury—not the judge—
needed to find him responsible for brandishing a firearm be‐
fore any mandatory minimum penalty under 18 U.S.C.
§ 924(c) could be applied. According to Kirklin, because his
sentence rests on a mere judicial finding of a fact it is incom‐
patible with the rule announced in Apprendi v. New Jersey,
530 U.S. 466, 490 (2000), that “any fact that increases the pen‐
alty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable
doubt.” Because Kirklin failed to raise this argument before
the district court, we review for plain error. See United States
v. Wolfe, 701 F.3d 1206, 1216 (7th Cir. 2012) (“An Apprendi
challenge is reviewed for plain error if it was not made in the
district court.”).
At the time Kirklin filed this appeal, Supreme Court
precedent foreclosed any argument suggesting that a de‐
fendant’s rights are violated if the district court finds him
accountable for brandishing a firearm when the jury made
no such finding. See Harris v. United States, 536 U.S. 545, 556
(2002) (finding “brandishing” a sentencing factor, as op‐

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No. 12‐2765 11
posed to an element of § 924(c), which may be considered by
the judge after trial). 2 However, Alleyne v. United States, 133
S. Ct. 2151 (2013), a case that reconsidered Harris, was pend‐
ing before the Supreme Court when this case was argued, so
we held the case in abeyance awaiting the Court’s decision.
That decision has now been issued and the Court confirmed
that “any fact that increases the mandatory minimum is an
‘element’ that must be submitted to the jury.” Id. at 2155.
Like Kirklin, Alleyne was found guilty of a § 924(c) viola‐
tion. The district court in Alleyne’s case found that a pre‐
ponderance of the evidence supported a finding of brandish‐
ing during a bank robbery and applied the 7‐year statutory
minimum sentence even though the jury did not find this
fact beyond a reasonable doubt. Id. at 2156. The Supreme
Court reversed and agreed with Alleyne, explaining that any
“fact triggering a mandatory minimum alters the prescribed
range of sentences to which a criminal defendant is ex‐
posed,” thereby increasing the “sentencing floor” and
“form[ing] an essential ingredient of the offense” that must
be submitted to the jury. Id. at 2160–61.
Here, the government concedes that in the wake of Al‐
leyne, the district court’s imposition of the 7‐year mandatory
minimum based on facts not found by a jury was erroneous.
But before we can correct an error not raised at trial, we have
2 Kirklin’s supplementary briefing concedes that plain error applies in
this case and Harris explains why Kirklin chose not to make the argu‐
ment in the district court he advances now. The law was clearly against
him. But we remind parties in future cases that “a claim must be ad‐
vanced, if it is to be preserved, even when all precedent is contrary,”
otherwise we can only review for plain error. United States v. Messino, 382
F.3d 704, 715 (7th Cir. 2004) (Easterbrook, J., dissenting) (collecting cas‐
es).

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12 No. 12‐2765
to find that the error was “plain” and affected the defend‐
ant’s “substantial rights.” United States v. Olano, 507 U.S. 725,
732–34 (1993). The government concedes that the error here
was plain. Although the government does not concede that
this error affected Kirklin’s “substantial rights,” we will as‐
sume for sake of argument that it did. See Olano, 507 U.S. at
734 (explaining that an error affected “substantial rights” if it
“affected the outcome of the district court proceedings.”). At
this point, Kirklin has satisfied the three threshold require‐
ments of plain error review. Id. at 732–34. So this brings us to
the discretionary element: whether the error seriously affect‐
ed the “fairness, integrity, or public reputation of judicial
proceedings.” Id. at 732. In other words, we must decide
whether the error is so fundamental in nature that uphold‐
ing this sentence results in an intolerable miscarriage of jus‐
tice. United States v. Nance, 236 F.3d 820, 825–26 (7th Cir.
2000); see also Neder v. United States, 527 U.S. 1, 8 (1999) (list‐
ing structural errors).
A similar quandary was presented in the aftermath of
Apprendi in federal narcotics prosecutions when courts had
to decide whether resentencing was necessary in cases
where the drug quantity was not charged in the indictment
and the jury did not find an amount triggering the statutory
maximum. See Nance, 236 F.3d at 824–26 (finding no plain
error given strength of evidence); cf. United States v. Noble,
246 F.3d 946, 955–56 (7th Cir. 2001) (vacating sentence on
plain error review given minimal corroborating testimony
and evidence). Then came United States v. Cotton, 535 U.S.
625 (2002), which confirmed that an “indictment’s failure to
allege a fact, drug quantity, that increased the statutory max‐
imum sentence rendered respondents’ sentences erroneous
under the reasoning of Apprendi,” id. at 632, but such an er‐

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No. 12‐2765 13
ror cannot be said to “seriously affect the fairness, integrity,
or public reputation of judicial proceedings” when the evi‐
dence against the defendant is “overwhelming” and “essen‐
tially uncontroverted.” Id. at 632–33; see also Washington v.
Recuenco, 548 U.S. 212, 218 (2006) (holding trial court’s appli‐
cation of mandatory 3‐year firearm enhancement based on
its own factual findings in violation of Blakely v. Washington,
542 U.S. 296 (2004), not subject to automatic reversal).
We have similarly declined to find a miscarriage of jus‐
tice on plain error review in cases in which we were “con‐
vinced that upon a properly worded indictment, a properly
instructed jury would have found the defendants guilty of
distributing the requisite threshold quantities of narcotics.”
United States v. Mansoori, 304 F.3d 635, 658 (7th Cir. 2002); see
also Knox v. United States, 400 F.3d 519, 523 (7th Cir. 2005)
(concluding that “judicial resolution of a factual dispute that
should have been presented to the jury is not a ‘structural
error’ that requires automatic reversal” under Apprendi giv‐
en the “strength of the evidence”); Nance, 236 F.3d at 826 (“If
it is clear beyond a reasonable doubt that a properly worded
indictment and a properly instructed jury would have found
[the defendant] guilty absent th[e] error, then we cannot say
that the error was so serious that it requires us to set aside
the judgment.”), cert. denied, 534 U.S. 832 (2001).
Applying these principles to the case at hand, we cannot
conclude that the district court’s sentencing error affected
“the fairness, integrity, or public reputation” of the proceed‐
ings below given the significant amount of evidence of
brandishing a firearm in the record. Remember that Kirklin
was charged with aiding and abetting the use and carrying
of a firearm during the bank robbery. From the very outset,

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14 No. 12‐2765
he made it clear to Jones that he “had something” to prevent
customers from leaving the bank and that she should use the
revolver because it would not leave any shell casings. Jones’s
testimony at trial on this point was very clear and she also
described pointing guns at customers in the bank. Two other
witnesses, including a bank teller and a customer, also testi‐
fied that Kirklin’s accomplices brandished firearms during
the robbery. Moreover, several instances of Jones and Kirklin
brandishing their weapons are visible on the surveillance
video that was played for the jury at trial. It therefore seems
highly unlikely that the jury would have found Kirklin
guilty on Count 2, but reach a different conclusion from the
district court on the brandishing factor if it had been asked
to make such a finding. As a result, we decline to remand for
resentencing on Count 2.
III. CONCLUSION
For these reasons, we A FFIRM Kirklin’s conviction and
sentence.

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