United States of America v. Kirklin

Filing 28

MEMORANDUM Opinion and Order: For the foregoing reasons, the Court denies Kirklin's motion to vacate the judgment [dkt. no. 17 ]. Signed by the Honorable Matthew F. Kennelly on 12/9/2016. Mailed notice(vcf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

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Plaintiff,
vs.
TYRONE KIRKLIN,
Defendant.

Case No. 15 C 9537

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Tyrone Kirklin was convicted in federal court of aiding and abetting an armed
bank robbery and other charges. Kirklin then filed a petition under 28 U.S.C. § 2255,
which the Court denied. Kirklin now asks this Court to vacate that judgment, arguing
that the statute under which he was convicted is void for vagueness. For the reasons
stated below, the Court denies this motion and affirms its earlier ruling on Kirklin's
section 2255 petition.
Background
Kirklin was convicted of aiding and abetting an armed bank robbery in violation of
18 U.S.C. §§ 2113 and 2 (count 1). He was also convicted of aiding and abetting the
use and carrying of a firearm during and in relation to that robbery in violation of 18
U.S.C. § 924(c) (count 2). Kirklin was sentenced to 87 months imprisonment on count 1
and 84 months imprisonment on count 2, to run consecutively. Kirklin appealed, and
the Seventh Circuit affirmed his conviction and sentence. See United States v. Kirklin,

727 F.3d 711, 717 (7th Cir. 2013). His petition for writ of certiorari was denied on
November 3, 2014. Kirklin v. United States, 135 S. Ct. 464 (2014).
In October 2015, Kirklin filed a § 2255 petition before this Court, claiming
ineffective assistance of trial counsel. Dkt. no. 1. On May 9, Kirklin mailed from prison
a motion to amend his petition, claiming that the statute under which he was convicted
was void for vagueness based on Johnson v. United States, 135 S. Ct. 2551 (2015).
Dkt. no. 17. The Court did not receive the motion nor enter it onto the docket until May
13. In the meantime, however, the Court entered judgment on May 10, denying Kirklin's
motion under § 2255. Dkt. no. 15. Because Kirklin mailed his motion to amend before
the Court entered judgment, the Court decided to consider Kirklin's filing as a motion to
vacate the judgment of May 10. Dkt. no. 20.
Kirklin argues that his conviction on count 2 under 18 U.S.C. § 924(c) was
unconstitutional. Specifically, he argues that the Supreme Court's holding in Johnson
extends to section 924(c) and therefore that the statute is void for vagueness. Because
of this, Kirklin claims that his conviction under § 924(c) constitutes a denial of due
process.
Discussion
The Fifth Amendment guarantees to each individual due process of law.
Johnson, 135 S. Ct. at 2556. This protection prevents the government from convicting
someone "under a criminal law so vague that it fails to give ordinary people fair notice of
the conduct it punishes, or so standardless that it invites arbitrary enforcement." Id. In
Johnson, the Supreme Court considered a conviction under 18 U.S.C. § 924(e).
Section 924(e) imposes a mandatory minimum on certain offenders who have three

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prior convictions for a "violent felony." 18 U.S.C. § 924(e)(1). The statute then defines
"violent felony" as any crime that "(i) has as an element the use, attempted use, or
threatened use of physical force against the person of another; or (ii) is burglary, arson,
or extortion, involves use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). The Court
held that the phrase "involves conduct that presents a serious potential risk of physical
injury"—now known as the "residual clause"—is unconstitutionally vague. Johnson, 135
S. Ct. at 2556.
Kirklin was not convicted under § 924(e). He argues, however, that the language
in § 924(c) is substantially similar and thus is also unconstitutionally vague. Section
924(c) imposes a mandatory minimum for any person who "during and in relation to any
crime of violence" uses or carries a firearm. 18 U.S.C. § 924(c)(1)(A). The statute then
defines "crime of violence" as a felony that:
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against
the person or property of another may be used in the course of committing
the offense.
18 U.S.C. § 924(c)(3). Kirklin was convicted under this statute on the ground that bank
robbery, the subject of count 1, constitutes a crime of violence. Kirklin now argues that
the Supreme Court's ruling in Johnson requires this Court to invalidate section 924(c).
In Johnson, the Supreme Court concluded that the residual clause in section
924(e)(2)(B)(ii) required courts to engage in a "wide-ranging inquiry" that was too
indeterminate to be constitutional. Johnson, 135 S. Ct. at 2557. The standard of the
residual clause required a court "to picture the kind of conduct that the crime involves in
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'the ordinary case,' and to judge whether that abstraction presents a serious potential
risk of physical injury." Id. In concluding that this standard was unconstitutionally
vague, the Court distinguished it from the elements standard of subsection (i), noting
that the residual clause required the court to "go[ ] beyond deciding whether creation of
risk is an element crime." Id. at 2557. The Supreme Court suggested that determining
whether the crime has as an element the use of force is noticeably different from the
standard of the residual clause. See id.
Applying the same analysis here, section 924(c)(3)(A) indicates that a crime
qualifies as a "crime of violence" when it has as an element the use of force. Thus
subsection (c)(3)(A) does not mirror the residual clause. Rather, it mirrors the elements
language that the Supreme Court implicitly approved. It is therefore unlikely that the
Court would apply the reasoning of Johnson to invalidate section 924(c)(3)(A).
The Seventh Circuit recently upheld the constitutionality of section 924(c)(3)(A) in
United States v. Armour, 840 F.3d 904 (7th Cir. 2016). The court assumed that the
holding in Johnson would extend "to the residual clause . . . in § 924(c)(3)," and yet it
upheld Armour's conviction because it fell under "the elements clause" of section
924(c)(3). Armour, 840 F.3d at 908. The Seventh Circuit therefore indicated that
convictions for crimes that have as an element the use or threat of physical force are
not unconstitutional in the wake of Johnson. What's more, the court in Armour
addressed the particular crime of bank robbery and concluded that it qualified as a
crime of violence under the elements clause. Id. Armour argued that bank robbery
does not qualify as a crime of violence under the elements definition because, under the
statutory definition, a person can commit robbery by "intimidation," as distinct from "by

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force or violence." Id. The Seventh Circuit rejected this argument, indicating that
intimidation itself means threat of force and therefore robbery by intimidation meets the
threshold for violent force required under the elements clause. Id. at 909.
Armour makes clear that a proper conviction for bank robbery by force or by
intimidation qualifies as a crime of violence under the elements language of section
924(c)(3) and is therefore unaffected by Johnson. Kirklin's conviction must be upheld,
so long as the Court gave proper instructions on the meaning of intimidation such that
the jury was required to find force as an element of Kirklin's crime.
In Kirklin's case, this Court instructed the jury that one element of bank robbery is
that the individual acted to take money by force and violence, or by intimidation. The
Court defined intimidation as to "say or do something that would make a reasonable
person feel threatened under the circumstances." This definition is sufficient to require
the jury to find force as an element of the offense and therefore ensure that Kirklin's
conviction was based on section 924(c)(3)(A). The Seventh Circuit in Armour stated
that "[t]he intimidation element is satisfied if an ordinary person would feel reasonably
threatened under the circumstances." Id. The jury instructions in Kirklin's case track
this language. The jury therefore must have determined that Kirklin engaged in the use
of force before convicting him under section 924(c). Thus Kirklin's conviction falls
squarely under section 924(c)(3)(A) and remains unaffected by the Supreme Court's
ruling in Johnson.
Conclusion
For the foregoing reasons, the Court denies Kirklin's motion to vacate the

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judgment [dkt. no. 17].

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: December 9, 2016

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