In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2898
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ANTWON JENKINS,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:12‐CR‐30239‐DRH‐1 — David R. Herndon, Judge.
____________________
ARGUED MAY 18, 2015 — DECIDED FEBRUARY 24, 2017
____________________
Before KANNE and SYKES, Circuit Judges, and ELLIS, Dis‐
trict Judge.*
ELLIS, District Judge. Defendant‐Appellant, Antwon Jen‐
kins, was arrested and charged with Kidnapping, 18 U.S.C. §
1201(a), and Using or Carrying a Firearm to Commit a Fed‐
* The Honorable Sara L. Ellis, of the United States District Court for
the Northern District of Illinois, sitting by designation.
2 No. 14‐2898
eral Crime of Violence, 18 U.S.C. § 924(c)(1)(A)(ii).1 Follow‐
ing his arrest, Jenkins agreed to cooperate with the Govern‐
ment’s investigation of these crimes and give a proffer inter‐
view. Prior to the interview, the Government and Jenkins en‐
tered into a proffer agreement, the terms of which prohibited
the Government from making direct use of any statements
or information Jenkins provided during the interview in its
case‐in‐chief, but permitted the Government to derivatively
use such information. During the interview, Jenkins told the
Government where he hid the gun he used during the kid‐
napping. The Government used this information to recover
the gun and then introduced both physical evidence of the
gun, as well as the testimony of the agents who found the
gun (collectively, the “gun evidence”), during its case‐in‐
chief. A jury convicted Jenkins on all counts and he received
a sentenced of 308 months in prison—188 months for kid‐
napping and 120 months for using a firearm to commit a
federal crime of violence, to run consecutively. On appeal,
Jenkins argues that the Government breached the proffer
agreement by directly using the information he provided
during the proffer interview against him during its case‐in‐
chief.
After Jenkins filed his appeal and the parties argued the
case before this panel, but before we decided the appeal, the
Supreme Court issued its opinion in Johnson v. United States,
‐‐‐ U.S. ‐‐‐‐, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), which
held the residual clause of the Armed Career Criminals Act
(“ACCA”), 18 U.S.C. § 924(e), to be unconstitutionally vague.
1 While not explicitly addressed by either party, Jenkins’ appeal re‐
lates only to evidence admitted in support of the firearm count, Count II
of the indictment. We limit our analysis accordingly.
No. 14‐2898 3
Jenkins then filed a supplemental appellate brief challenging
his conviction under 18 U.S.C. § 924(c) for using a weapon
during a “crime of violence,” in this case kidnapping under
18 U.S.C. 1201(a), arguing that in light of the ruling in John‐
son, kidnapping is no longer a “crime of violence” as defined
under § 924(c), and therefore his conviction under § 924(c)
must be overturned as a matter of law. The Government ar‐
gues that the ruling in Johnson should not be extended to the
Residual Clause of § 924(c), and even if it were, kidnapping
would still be a crime of violence under the Force Clause,
§ 924(c)(3)(A), which Johnson did not implicate. Because the
Residual Clause, § 924(c)(3)(B), is unconstitutionally vague
and kidnapping under § 1201(a) does not have, as an ele‐
ment, the use, threatened use, or attempted use of physical
force, we reverse Jenkins’ conviction under § 924(c). Because
Jenkins’ conviction under § 924(c) is the only issue on ap‐
peal, we need not reach the original appellate issue of
whether the Government breached the proffer agreement.
I. ANALYSIS
A jury convicted Jenkins of using or possessing a weapon
during the commission of a crime of violence, namely, kid‐
napping, under 18 U.S.C. § 924(c). Section 924(c)(3) defines a
crime of violence as:
[A] felony and—
(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
4 No. 14‐2898
property of another may be used in the course
of committing the offense.
18 U.S.C. § 924(c)(3)(A), (B). Subsection A is commonly re‐
ferred to as the “Force Clause” and Subsection B is referred
to as the “Residual Clause.”
Jenkins now challenges his conviction under § 924(c), ar‐
guing that in light of Johnson, the Residual Clause is uncon‐
stitutionally vague and that the Force Clause does not apply
to kidnapping because kidnapping under § 1201(a) does not
include the use of physical force as an element. The Gov‐
ernment responds that kidnapping is a crime of violence
under the Force Clause and, in the alternative, under the Re‐
sidual Clause and that we should not extend Johnson to
§ 924(c)(3)(B). Additionally, the Government argues that we
should not even consider the vagueness challenge to
§ 924(c)(3)(B) because Jenkins has not brought it as an as ap‐
plied challenge.
The parties agree that because Jenkins did not raise his
challenge to § 924(c) in the district court, the proper standard
of review is plain error. To reverse a trial court ruling for
plain error, there must be “(1) an error or defect (2) that is
clear or obvious (3) affecting the defendant’s substantial
rights (4) and seriously impugning the fairness, integrity, or
public reputation of judicial proceedings.” United States v.
Jenkins, 772 F.3d 1092, 1097 (7th Cir. 2014) (quoting United
States v. Goodwin, 717 F.3d 511, 518 (7th Cir. 2013), cert. de‐
nied, ‐‐‐ U.S. ‐‐‐‐, 134 S. Ct. 334, 187 L. Ed. 2d 234 (2013)). An
error is plain if it is plain at the time the appellate court re‐
views the error, regardless of whether it was settled or un‐
settled at the time the district court ruled. Henderson v. Unit‐
No. 14‐2898 5
ed States, ‐‐‐ U.S. ‐‐‐‐, 133 S. Ct. 1121, 1130–31, 185 L. Ed. 2d 85
(2013).
A. Force Clause
There is no question as to the constitutionality of the
Force Clause; Jenkins simply argues that it does not apply to
kidnapping. The Force Clause defines a crime of violence as
any felony that “has as an element the use, attempted use, or
threatened use of physical force against the person or prop‐
erty of another.” 18 U.S.C. § 924(c)(3)(A). In determining
whether a crime fits this definition, a court may only look at
the elements of the offense, not the underlying facts of con‐
viction. United States v. Yang, 799 F.3d 750, 752 (7th Cir. 2015)
(interpreting the functionally identical force clause of the
Armed Career Criminal Act). Therefore, in evaluating
whether kidnapping under § 1201(a) is a crime of violence
under § 924(c)(3)(A), the kidnapping statute must have as an
element the use, attempted use, or threatened use of physical
force; it is irrelevant whether a defendant actually used force
in the commission of the crime. Id.
Section 1201(a) punishes for kidnapping:
[w]hoever unlawfully seizes, confines, invei‐
gles, decoys, kidnaps, abducts, or carries away
and holds for ransom or reward or otherwise
any person … when the person is willfully
transported in interstate or foreign commerce
…
18 U.S.C. § 1201(a).
The Government does not argue that the first element—
unlawfully seizing, confining, inveigling, decoying, kidnap‐
ping, abducting, or carrying away—requires the use of force
6 No. 14‐2898
and rests its argument on the second element, “hold[ing] for
ransom or reward or otherwise.” Id. The Government argues
that because the holding must be unlawful, it necessarily re‐
quires at a minimum the threat of physical force. This is in‐
correct. Holding can be accomplished without physical
force. For example, a perpetrator could lure his victim into a
room and lock the victim inside against his or her will. This
would satisfy the holding element of kidnapping under
§ 1201(a) without using, threatening to use, or attempting to
use physical force. See United States v. Swanson, 55 Fed.
App’x 761, 762 (7th Cir. 2003) (“[O]ur sister circuits have
held that the similar crimes of false imprisonment and kid‐
napping by deception … do not have physical force as an
element[.]“ (citing United States v. Zamora, 222 F.3d 756, 764–
65 (10th Cir. 2000); United States v. Williams, 110 F.3d 50, 52–
53 (9th Cir. 1997); United States v. Kaplansky, 42 F.3d 320, 324
(6th Cir. 1994) (en banc))).
The Government argues that even in cases where no
force is actually used there is an ever‐present risk that the
situation will devolve to the point that the perpetrator will
need to use force. But this argument conflates the Force
Clause and the Residual Clause. The Force Clause only de‐
fines crimes of violence by the elements of those crimes, not
by any inherent risk associated with the crime. While kid‐
napping very well may carry such inherent risks, one
properly analyzes that argument only under the Residual
Clause, rather than the Force Clause.
We are aware of this Court’s recent decision in United
States v. Cureton, 845 F.3d 323, 326 (7th Cir. 2017), in which
we found, applying the plain error standard, that it is a de‐
batable question whether the ransom demand statute, 18
No. 14‐2898 7
U.S.C. § 875(a), “has as an element the … threatened use of
physical force against the person … of another.” The Cureton
Court determined that because the law is not settled on that
issue and further, because the defendant failed to carry his
burden to demonstrate that his conviction under the statute
affected his substantial rights, he could not prevail under the
plain error standard.2 Id. at 326‐27. We find Cureton distin‐
guishable because without the conviction on Count II, Jen‐
kins’ sentencing guidelines range would be 151 to 188
months on Count I. R. 246. He received a sentence of 308
months, which was 120 months longer than the top end of
the sentencing guidelines range for Count I. R. 261. Unlike
the defendant in Cureton, Jenkins has clearly demonstrated
harm from this error.
Finally, the Government attempts to bolster its argument
by citing to pre‐Johnson cases that held kidnapping to be a
crime of violence. However, none of these cases found that
kidnapping had physical force as an element, and one even
expressly stated that it does not. See Delgado‐Hernandez v.
Holder, 697 F.3d 1125, 1130 (9th Cir. 2012) (“The federal kid‐
napping statute has no force requirement … .”). Therefore,
we find that kidnapping is not a crime of violence under the
Force Clause.
2 The Cureton Court found that reversing the defendant’s conviction
for the ransom demand would not affect the sentencing guidelines range
for the remaining offenses and the district court would be well within its
discretion to impose the same sentence on remand even without that
conviction; therefore, the defendant failed to demonstrate that any error
was harmful. Id. at 327.
8 No. 14‐2898
B. Residual Clause
Jenkins also argues that in light of the Supreme Court’s
decision in Johnson, 135 S. Ct. 2551, and our subsequent ex‐
tension of Johnson’s holding in United States v. Vivas‐Ceja, 808
F.3d 719 (7th Cir. 2015), the Residual Clause of § 924(c)(3)(B)
is unconstitutionally vague and therefore we should vacate
his § 924(c) conviction. After the parties submitted their
supplemental briefs, we decided this very issue in United
States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016), holding
that § 924(c)(3)(B) is unconstitutionally vague. Therefore,
kidnapping under 18 U.S.C. § 1201(a) is not a crime of vio‐
lence as defined in § 924(c).
C. Plain Error Analysis
Because § 1201(a) does not satisfy the Force Clause and
the Residual Clause is unconstitutionally vague, we must
determine if this error satisfies the plain error standard for
reversing the conviction on the basis of an argument the de‐
fendant did not previously raise before the district court.
First we must determine if there was an error and if that
error is clear and obvious. Jenkins, 772 F.3d at 1097. In light
of the Supreme Court ruling in Johnson and our subsequent
extension of Johnson to § 924(c)(3)(B) in Cardena, the uncon‐
stitutionality of § 924(c)(3)(B) is plain. Additionally, kidnap‐
ping as defined in 18 U.S.C. § 1201(a) does not require the
use of force as an element, therefore Jenkins’ conviction un‐
der § 924(c) cannot be sustained under the Force Clause ei‐
ther. Thus, Jenkins’ conviction under § 924(c) was in error
and that error is plain at the time of this review.
Next, we must determine whether this error affected Jen‐
kins’ substantive rights and seriously impugned the fairness
No. 14‐2898 9
of the judicial proceedings. Id. An error affects a defendant’s
substantive rights if it resulted in the defendant receiving a
longer sentence than he otherwise would have without the
error. See id. at 1098–99 (sentencing a defendant to a longer
prison term based on an improperly calculated sentencing
guideline range affected defendant’s substantive rights).
Here, Jenkins received a sentence of 120 months in prison for
his § 924(c) conviction, to run consecutively to his 188 month
sentence for kidnapping. Therefore, this erroneous convic‐
tion directly resulted in the district court increasing Jenkins’
sentence by 120 months. See, e.g., United States v. Armour, 840
F.3d 904, 910 (7th Cir. 2016) (plain error standard satisfied
where defendant was given a consecutive seven‐year man‐
datory minimum sentence for brandishing where there was
no jury verdict finding him guilty of brandishing). There is
no set of alternative facts that the government could have
presented that would have resulted in a valid conviction
under § 924(c) for using or carrying a firearm during the
commission of a federal kidnapping offense because, as dis‐
cussed above, kidnapping is not a crime of violence under §
924(c)(3). And a 120‐month prison sentence for a non‐
existent crime undermines the fairness of the judicial pro‐
ceedings and cannot stand. Therefore, Jenkins has satisfied
the high burden for reversal under the plain error standard
and we reverse his conviction under § 924(c)(1)(A)(ii).
10 No. 14‐2898
II. CONCLUSION
For the foregoing reasons, we REVERSE Jenkins’ convic‐
tion for Using or Carrying a Firearm to Commit a Federal
Crime of Violence, 18 U.S.C. § 924(c)(1)(A)(ii), and REMAND
for further proceedings consistent with this opinion.