In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 15‐3575 & 15‐3581
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
THOMAS CURETON,
Defendant‐Appellant.
____________________
Appeals from the United States District Court for the
Southern District of Illinois.
Nos. 3:10‐CR‐30106‐DRH‐1 & 3:10‐CR‐30200‐DRH‐1 —
David R. Herndon, Judge.
____________________
ARGUED NOVEMBER 16, 2016 — DECIDED JANUARY 5, 2017
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Before EASTERBROOK, KANNE, and HAMILTON, Circuit
Judges.
HAMILTON, Circuit Judge. Thomas Cureton appeals his con‐
viction for using a firearm during a crime of violence. He con‐
tends that the crime of making a ransom demand in violation
of 18 U.S.C. § 875(a) does not qualify as a “crime of violence”
under 18 U.S.C. § 924(c). Because Cureton did not raise this
2 Nos. 15‐3575 & 15‐3581
challenge in the district court, we examine it through the de‐
manding lens of plain‐error review. We see no plain error in
interpreting the federal crime of demanding ransom as neces‐
sarily including at least an implied threat of physical force.
Because a crime that includes a threat of physical force as an
element qualifies as a crime of violence, we affirm.
I. Factual and Procedural Background
While Thomas Cureton was under investigation for deal‐
ing crack cocaine, he used a gun to demand ransom. A room‐
mate of his, Ashley Lawrence, failed to bring him some
money he expected. Cureton tied her up, choked her, beat her,
pointed a gun to her head, and made her call family members
to ask for ransom money. Lawrence’s grandfather agreed in a
telephone call to wire Cureton $4,500. The police were waiting
for Cureton at his home when he returned there with Law‐
rence.
A jury convicted Cureton on four federal charges: one
count of interstate communication of a ransom demand or re‐
quest under 18 U.S.C. § 875(a), one count of attempted extor‐
tion under 18 U.S.C. § 1951(a), and two counts of possessing
a firearm during a crime of violence under 18 U.S.C. § 924(c).
The first § 924(c) charge, Count 2, was based on the ransom
demand. The second one, Count 4, was based on attempted
extortion. In the district court, this case (Case No. 3:10‐CR‐
30200‐DRH‐1 or Case 200) was consolidated for trial and sen‐
tencing with another case against Cureton involving drug
possession (Case No. 3:10‐CR‐30106‐DRH‐1 or Case 106).
At sentencing, the guideline range in the drug case (Case
106) was 360 to 720 months; the guideline range for the ran‐
som demand and attempted extortion (Case 200) was 240
Nos. 15‐3575 & 15‐3581 3
months, the statutory maximum sentence. The district court
imposed a sentence of 360 months for the drug counts in Case
106 to run concurrently with a 240 month sentence for the ran‐
som and attempted extortion in Case 200. The court then
added consecutive sentences in Case 200 for the convictions
on the two § 924(c) counts—84 months on Count 2 and 300
months on Count 4. That increased the total sentence from 360
months to 744 months (62 years).
In his first appeal, United States v. Cureton, 739 F.3d 1032,
1039–45 (7th Cir. 2014) (Cureton I), this court ruled that two
§ 924(c) charges against Cureton for a single course of conduct
involving only one use of one firearm were multiplicitous. We
vacated Cureton’s sentence and remanded for resentencing.
739 F.3d at 1045. On remand the district court sentenced Cu‐
reton to 444 months (37 years) in prison, eliminating the 300
months originally imposed on Count 4 in Case 200, the
§ 924(c) charge based on attempted extortion.
Cureton appealed again. We vacated the sentence again
because the district court set conditions of supervised release
without complying with United States v. Thompson, 777 F.3d
368 (7th Cir. 2015). United States v. Cureton, Nos. 14‐2576 & 14‐
2586 (7th Cir. June 30, 2015) (Cureton II). On remand the dis‐
trict court imposed the same 444‐month sentence. Cureton
has now appealed for a third time.
II. Analysis
Cureton challenges only his § 924(c) conviction on
Count 2. That conviction is based on his having demanded a
ransom and accounts for 84 months of his 444‐month sen‐
4 Nos. 15‐3575 & 15‐3581
tence. Section 924(c)(1)(A) applies to the use of a firearm dur‐
ing or in connection with the commission of a “crime of vio‐
lence.”
An offense may qualify as a “crime of violence” under
§ 924(c) in one of two ways. First, under the “elements”
clause, an offense qualifies if it is a felony that “has as an ele‐
ment the use, attempted use, or threatened use of physical
force against the person or property of another.”
18 U.S.C. § 924(c)(3)(A). Second, under the “residual” clause,
the predicate offense qualifies if it is a felony that “by its na‐
ture, 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)(B).
Cureton’s primary argument on appeal is that the residual
clause is unconstitutionally vague and thus cannot render his
ransom‐demand offense a “crime of violence.” He contends
that Johnson v. United States, 576 U.S. —, 135 S. Ct. 2551 (2015),
which held that a similar residual clause in the Armed Career
Criminal Act, 18 U.S.C. § 924(e), is unconstitutionally vague,
applies to render § 924(c)(3)(B) unconstitutional as well.
We recently adopted the position that Cureton advances.
In United States v. Cardena, 842 F.3d 959, 995–96 (7th Cir. 2016),
we described § 924(c)’s residual clause as “virtually indistin‐
guishable from the clause in Johnson that was found to be un‐
constitutionally vague.” We also explained that our decision
in United States v. Vivas‐Ceja, 808 F.3d 719, 721 (7th Cir. 2015),
invalidated the residual clause found in 18 U.S.C. § 16(b),
which is identical to the clause in § 924(c)(3)(B). Accordingly
we concluded that § 924(c)(3)(B) suffers from the same consti‐
tutional infirmities that invalidated the residual clauses in
Johnson and Vivas‐Ceja. Cardena, 842 F.3d at 996.
Nos. 15‐3575 & 15‐3581 5
Even without the residual clause, however, Cureton loses
under the elements clause of 18 U.S.C. § 924(c)(3)(A). The is‐
sue is whether the ransom‐demand statute, 18 U.S.C. § 875(a),
“has as an element the use, attempted use, or threatened use
of physical force against the person or property of another.”
See Cardena, 842 F.3d at 996, citing Dawkins v. United States,
809 F.3d 953, 954 (7th Cir. 2016).
The government appears to accept Cureton’s assertion on
appeal that the ransom‐demand statute does not include the
threat of force as an element. That apparent concession does
not end our inquiry. Cureton did not challenge his § 924(c)
conviction in the district court on this ground, so we review
the district court’s judgment on the § 924(c) conviction for
plain error. United States v. Seals, 813 F.3d 1038, 1045 (7th Cir.
2016). To show plain error, Cureton must show us that “(1)
there was error, (2) it was plain rather than subject to reason‐
able dispute, (3) it affected his substantial rights, and (4) the
court should exercise its discretion to correct the error because
it seriously affected the fairness, integrity, or public reputa‐
tion of the judicial proceedings.” Id.
Cureton has not shown that the district court plainly
erred. Here is the statute: “Whoever transmits in interstate or
foreign commerce any communication containing any de‐
mand or request for a ransom or reward for the release of any
kidnapped person, shall be fined under this title or impris‐
oned not more than twenty years, or both.” 18 U.S.C. § 875(a).
To prevail on plain‐error review, Cureton must show that it is
plain that “a demand or request for ransom” does not neces‐
sarily involve a threat of violence against the kidnapped per‐
son if payment is not made.
6 Nos. 15‐3575 & 15‐3581
We think the opposite is rather plain: a demand or request
for ransom necessarily includes at least an implied threat that
the kidnapper will use force against the captive if the demand
is not satisfied. The content of the implied threat “Or else!” in
a ransom demand is understood as a threat of violence. Oth‐
erwise a kidnapper’s demand or request for a “ransom”
would be meaningless.1
In any event, Cureton loses on plain‐error review if it is at
least debatable whether the statute “has as an element the …
threatened use of physical force against the person … of an‐
other.” 18 U.S.C. § 924(c)(3)(A). See, e.g., United States v. Hos‐
seini, 679 F.3d 544, 552 (7th Cir. 2012) (no plain error where
relevant legal issue was unsettled). Cureton has not cited case
law that gives substantial support, let alone definitive sup‐
port, to his side of the debate. Cureton cites United States
v. Brika, 487 F.3d 450 (6th Cir. 2007), but that case does not help
1 In some contexts one might speak of “ransoming” a prisoner, such
as a prisoner of war, where the alternative to payment might be continued
imprisonment rather than violence or death. The modern cyber‐scourge
of “ransomware” threatens interference with computer systems, not phys‐
ical violence against a person. In this criminal law context of kidnapping,
though, it is surely very rare for kidnappers to signal they are willing to
hold their victims indefinitely without harming them if a ransom demand
is not met. The threat of violence, explicit or implicit, is why kidnapping
is treated as a crime of violence as a matter of law. See, e.g., United States
v. Morgan, 748 F.3d 1024, 1035 (10th Cir. 2014); United States v. Patino, 962
F.2d 263, 267 (2d Cir. 1992); see also United States v. Godinez, 998 F.2d 471
(7th Cir. 1993). For purposes of comparison, consider blackmail, where the
threat is not physical harm but harm to someone’s reputation if a demand
is not met. See United States v. Lewis, 405 F.3d 511, 514 (7th Cir. 2005) (state
robbery statute requiring use or threat of force or “putting any person in
fear” required fear of physical injury, not injury to reputation).
Nos. 15‐3575 & 15‐3581 7
him. There the Sixth Circuit recognized that a person may vi‐
olate § 875(a) even without participating in an actual kidnap‐
ping. 487 F.3d at 455–56. We assume that is correct, but the
force that makes § 875(a) a crime of violence is not force that
might or might not be used to capture someone but the force
threatened if a ransom demand is not met. See United States v.
Heller, 579 F.2d 990, 998 (6th Cir. 1978) (“In a kidnapping case,
the threat to the kidnapped person makes a ‘demand’ for ‘ran‐
som’ extortionate.”). Section 875(a) does not require proof that
the person making the threat be able to or actually follow
through on the implied threat of violence. The same applies
when a violation of § 875(a) is used as the predicate for a con‐
viction under § 924(c).
The cases we are aware of point toward treating a ransom
demand as necessarily involving at least an implied threat of
violence. Section 875(a) has been the subject of few reported
decisions, but convictions under it have involved threats of
deadly violence. See, e.g., United States v. Sanchez, No. 89‐2674,
1991 WL 17993, *1 (7th Cir. Feb. 15, 1991) (defendant convicted
under § 875(a) after threatening to kill kidnapped person if
ransom not paid); United States v. Escobar‐Posado, 112 F.3d 82,
83 (2d Cir. 1997) (same); United States v. Seale, 20 F.3d 1279,
1281 (3d Cir. 1994) (same); Chen v. United States, No. 01‐787,
2005 WL 1869472, *1 (E.D. Pa. July 27, 2005) (same); United
States v. Lopez‐Flores, 592 F. Supp. 1302, 1304 (W.D. Tex. 1984)
(same). We see no plain error in the district court’s judgment
treating Cureton’s crime of demanding a ransom as a “crime
of violence” under the elements clause of § 924(c)(3)(A). See
Seals, 813 F.3d at 1045.
Even if this analysis were wrong, there is a second reason
that Cureton cannot show plain error: retaining the § 924(c)
8 Nos. 15‐3575 & 15‐3581
conviction based on the ransom demand does not affect his
substantial rights. See United States v. Lawson, 810 F.3d 1032,
1040 (showing an effect on substantial rights requires demon‐
strating that error “affected the outcome of the district court
proceedings”).
Cureton contends that the alleged error was harmful be‐
cause the § 924(c) conviction added 84 months to the 360
months he is serving on his other convictions. The problem
with this contention is that even if we vacated the § 924(c) sen‐
tence, the guideline range of 360 to 720 months for his remain‐
ing offenses in his two consolidated cases would remain the
same. In addition, there is no doubt that Cureton as a matter
of fact threatened his victim with force with a gun literally to
her head. The district court is perfectly entitled to consider
that fact in exercising its sentencing discretion. See 18 U.S.C.
§ 3661. With an unchanged guideline range, the district court
could readily impose the same 444‐month sentence that it has
already ruled twice is appropriate. Cureton gives us no reason
to believe the district court would do anything different if we
were to remand once more. Because that sentence would be
within the guideline range, this court would presume it to be
reasonable. United States v. Dachman, 743 F.3d 254, 263 (7th Cir.
2014). Under these circumstances, Cureton could not show
that any supposed error was harmful, as is his burden. See
Cardena, 842 F.3d at 998; Lawson, 810 F.3d at 1040.
We AFFIRM the defendant’s conviction for using a firearm
during the commission of a crime of violence, namely, inter‐
state communication of a ransom demand under 18 U.S.C.
§ 875(a).