Kirklin v. United States, No. 17-1056 (7th Cir. 2018)
Annotate this CaseIn 2010, Kirklin drove Jones and McCallister to rob a bank and gave Jones firearms. The two left with stolen money but were arrested near the scene. Kirklin was convicted of aiding and abetting the robbery and aiding and abetting the use or carrying of a firearm during a crime of violence. His 171-month sentence included an 84‐month consecutive sentence under 18 U.S.C. 924(c); such sentences vary based on whether the defendant was responsible for merely carrying or using the weapon, or for brandishing it, or for discharging it. Video evidence showed that Jones and McCallister had brandished weapons. The court did not instruct the jury to make a specific finding as to whether the government had proved beyond a reasonable doubt that Kirklin was responsible for the brandishing but made that determination at sentencing. The Supreme Court's 2002 Harris decision held that whether a firearm was brandished was a sentencing factor, not an element of the offense, and need not be submitted to the jury or proved beyond a reasonable doubt. Three months after Kirklin’s sentencing, the Court granted certiorari in Alleyne, eventually holding that juries must make factual determinations that increase mandatory minimum sentences and that brandishing is an element of the conduct criminalized by the seven‐year mandatory minimum and must be determined by a jury beyond a reasonable doubt. The Seventh Circuit affirmed Kirklin’s sentence and later upheld a denial of relief under 28 U.S.C. 2255. Kirkland's attorney’s performance was not objectively unreasonable for failing to anticipate the overruling of Harris and failing to object to having the court make the factual finding. Given the strength of the evidence against Kirklin, even after certiorari was granted in Alleyne, a defense lawyer might have made a reasonable strategic decision not to challenge the brandishing issue.
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