In the
United States Court of Appeals
For the Seventh Circuit
Nos. 16‐2208, 16‐2676 & 16‐3975
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
TOBY JONES, MARIO WHITFIELD, and
KELSEY JONES,
Defendants‐Appellants.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 CR 155 — Amy J. St. Eve, Judge.
ARGUED MAY 25, 2017 — DECIDED SEPTEMBER 20, 2017
Before WOOD, Chief Judge, and BAUER and HAMILTON,
Circuit Judges.
BAUER, Circuit Judge. In December 2013, a confidential
informant (“CI”) informed the Bureau of Alcohol, Tobacco,
Firearms, and Explosives about Defendant Toby Jones, the
leader of a drug‐distribution operation on Chicago’s West Side.
2 Nos. 16‐2208, 16‐2676 & 16‐3975
The CI introduced Toby and his brother, Defendant Kelsey
Jones, to ATF Agent Christopher Labno, who posed as a
firearms and drug dealer. During several controlled drug
purchases, Toby negotiated a drugs‐for‐guns transaction with
Agent Labno. Eventually, Toby instructed one of his drug
workers, Wesley Fields, to complete the transaction; Fields
was arrested immediately after the exchange. Thereafter, Toby
and Kelsey engaged in a week‐long effort to track down and
kill the CI who arranged the deal, resulting in two separate
shootings. In the later shooting, Kelsey fled the scene in a
getaway car driven by Defendant Mario Whitfield, whose
counsel filed an Anders brief that we consider later on.
Toby and Kelsey were later arrested, charged, and con‐
victed of several crimes based on these events. Now, they both
raise challenges to those convictions; Kelsey also challenges his
sentence. We affirm.
I. BACKGROUND
A. Facts
Kelsey was tried by jury, and Toby proceeded to a bench
trial. At this joint trial, the government established the follow‐
ing facts, which we view in the light most favorable to the
prosecution. See United States v. Resnick, 823 F.3d 888, 893 (7th
Cir. 2016).
1. Kelsey’s Role
Kelsey worked for Toby, selling crack cocaine and heroin
to customers. He used a cell phone, which Toby provided, to
take orders from and make deliveries to customers; he and
Fields worked the drug phone in alternating shifts. After
Nos. 16‐2208, 16‐2676 & 16‐3975 3
Kelsey completed a drug sale, he brought the money back to
Toby. Kelsey also packaged drugs for Toby and provided
security to him during drug sales. Particularly, he provided
security for Toby and packaged the drugs that were sold to
Agent Labno on March 19, 2014. In addition, Kelsey allowed
Toby to store drugs in his apartment.
2. Drugs‐For‐Guns Exchange
Between December 2013 and March 2014, the CI and Agent
Labno met with Toby six times to purchase crack cocaine with
all purchases taking place near the CI’s apartment building
located at 464 North Austin Boulevard, Oak Park, Illinois. All
these meetings were audio and video recorded. At several of
these meetings, Toby discussed the purchase of guns.
On January 15, 2014, Toby told Agent Labno that he wanted
to purchase a handgun capable of holding 30 rounds of
ammunition in the magazine, but not to discuss guns over the
phone. On February 4, 2014, Agent Labno showed Toby
pictures of guns that he said he had for sale. When shown the
picture, Toby specifically asked Agent Labno about the cost
of the Glock with an extended magazine and extended clip
(“Glock”). Agent Labno responded that he wanted approxi‐
mately $450 or “six jabs” of crack cocaine. (One jab is a package
that typically contains 10 to 12 individual use amounts of crack
cocaine or heroin.) Toby responded, “Yeah,” and told Agent
Labno to bring the Glock to him. He also told Agent Labno
that he wanted to purchase the Glock for himself and the
Beretta pistol for “somebody else.”
On February 26, 2014, the CI and Agent Labno met with
Toby to conduct another controlled purchase of crack cocaine.
4 Nos. 16‐2208, 16‐2676 & 16‐3975
There, Toby confirmed his intention to purchase the Glock in
exchange for crack cocaine. Similarly, Toby, who was accompa‐
nied by Kelsey, confirmed that same intention to Agent Labno
at a controlled purchase of crack cocaine on March 19, 2014.
On March 25, 2014, Agent Labno and the CI placed a
recorded call to Toby. The CI asked Toby if he still wanted to
purchase guns from Agent Labno. Toby responded, “Hell yeah
I want them.” Further, Toby stated, “I just want that [Glock],
man.” Agent Labno confirmed with Toby that the price was six
jabs for the Glock.
On March 26, 2014, Toby sent a text message to Agent
Labno, explaining that he was sending Fields to conduct the
guns‐for‐drugs exchange. Agent Labno confirmed that the
price was six jabs of crack cocaine for the Glock. Toby re‐
sponded, “Yep.”
Around the same time, Toby called Fields to meet him at
Kelsey’s apartment to pick up the crack cocaine to pay for the
Glock. Toby gave Fields six jabs of crack cocaine and approxi‐
mately $450 in cash; he instructed Fields to purchase the Glock
for him and an additional gun for himself. He further in‐
structed Fields to bring the Glock “straight to him” after
purchasing it.
Upon Toby’s instruction, Fields then met with Agent Labno
and the CI. Agent Labno presented Fields with multiple
guns. Fields picked out the Glock for Toby and the Beretta for
himself. He was immediately arrested after he gave the crack
cocaine and cash to Agent Labno in exchange for the guns.
Nos. 16‐2208, 16‐2676 & 16‐3975 5
About an hour after Fields’ arrest, the CI called Toby,
asking about his payment for arranging the drugs‐for‐guns
transaction. Toby told the CI that Fields had not returned from
the drugs‐for‐guns transaction, and he asked the CI when he
had last seen Fields. Toby assured the CI that he would be
paid for arranging the deal.
ATF agents placed the CI in a hotel room where he was
instructed to stay until Toby was in custody. Despite these
instructions, the CI drove back to his apartment. During the
drive, the CI received an incoming call from Toby who
sounded agitated and repeatedly asked the CI about the CI and
Fields’ whereabouts. The CI told Toby that he was driving
back to his apartment and that he had completed the gun deal
with Fields earlier that day, but he did not know Fields’
current location. Toby placed a total of 12 outgoing calls to
Fields and 15 outgoing calls to the CI in the hours after Fields’
arrest. Toby sent Fields a text message, telling him to “Call me
let me know you alright.”
3. Retaliation Conspiracy
On March 27, 2014, shortly after midnight, Kensha Barlow
was shot in his apartment located at 464 North Austin Boule‐
vard, Oak Park, Illinois (the CI lived in the same building, but
in the unit on the floor below). Barlow heard someone knock
on his door and asked who was there. A male voice responded:
“It’s me … You know who it is, open the fucking door.”
Barlow looked through the door’s peephole, but the person
in the hallway covered the peephole with a finger. Once the
other person removed his finger from the peephole, Barlow
saw two males standing in the hallway; he did not know who
6 Nos. 16‐2208, 16‐2676 & 16‐3975
either of the individuals were. Shortly after, Barlow heard
shots ring out, and he was shot in the leg. (He later identified
Toby as one of these two males.)
Around March 30, 2014, Kelsey called Marty Smith, one of
his drug customers, and asked Smith to come to his apartment.
Smith and the CI knew each other and lived in the same
apartment building. When Smith arrived at Kelsey’s apart‐
ment, Toby and Kelsey were there. Kelsey questioned Smith
about the CI’s whereabouts and what kind of car he drove.
Smith told Kelsey that he had not seen the CI recently.
On April 2, 2014, the CI’s brother (“Mark”) and sister‐in‐
law (“Christy”) came to Chicago to stay with the CI in his hotel
room. Mark, Christy, and the CI drove around the CI’s
neighborhood. Near the CI’s apartment building, the CI saw
Kelsey wearing a black‐hooded sweatshirt. The CI observed
that Kelsey “looked right at” him.
Around 7:24 p.m. that evening, Kelsey called Smith and
asked him if there were any cameras in the parking lot outside
of the CI’s (and Smith’s) apartment building. At approximately
8:55 p.m., the CI drove back to his apartment with Mark and
Christy. Once the CI parked his vehicle, Kelsey exited a red
minivan nearby, approached the CI’s vehicle, and fired three
shots at the CI. Kelsey fired a fourth shot, which struck
through the CI’s shoulder and grazed Mark’s head.
The CI, Mark, and Christy exited the CI’s vehicle and ran
in different directions. Christy ran towards the red minivan
and saw Whitfield in the driver’s seat. Whitfield drove into the
alleyway behind the apartment building, picked up Kelsey,
and fled the scene with him. Before and after this shooting,
Nos. 16‐2208, 16‐2676 & 16‐3975 7
there were many phone calls between Kelsey and Toby, and
between Toby and Whitfield.
On April 5, 2014, Kelsey was arrested at his residence.
During a search of Kelsey’s apartment, agents recovered four
dark sweatshirts on Kelsey’s bedroom floor. Several of the
sweatshirts tested positive for the presence of gunshot residue.
Toby was arrested on April 20, 2014.
B. Procedural History
On September 17, 2015, Toby and Kelsey were charged in
a fifteen‐count third superseding indictment. They were both
charged with conspiracy to distribute cocaine base, in violation
of 21 U.S.C. § 846 (Count 1); distribution of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (Count 7) (based on the
March 19, 2014, drug deal); and conspiracy to kill another
person with intent to retaliate against an informant, in viola‐
tion of 18 U.S.C § 1513(f) (Count 10). Toby was charged with
additional counts of distributing cocaine base, in violation of
21 U.S.C. § 841(a)(1) (Counts 2 through 8); possession of a
firearm in furtherance of a drug crime, in violation of 18 U.S.C.
§ 924(c) (Count 9) (based on the March 26, 2014, drugs‐for‐guns
exchange); attempt to kill another person with intent to
retaliate against an informant, in violation of 18 U.S.C.
§ 1513(a)(1)(B) (Count 11) (based on the March 27, 2014,
shooting of Barlow); and discharging a firearm during a crime
of violence, in violation of 18 U.S.C. § 924(c) (Count 12) (same).
Kelsey was also charged with violations of § 1513(a)(1)(B)
and § 924(c) (Counts 13 and 14, respectively) (based on the
April 2, 2014, attempted murder of the CI).
8 Nos. 16‐2208, 16‐2676 & 16‐3975
Prior to trial, Toby moved to suppress Barlow’s identifica‐
tion of him. The court denied the motion, finding that the
agent’s identification procedure was not suggestive. Thereaf‐
ter, Toby pleaded guilty to Counts 1 through 7 and proceeded
to a bench trial; the court found him guilty on Counts 8
through 12. Toby moved for a judgment of acquittal or a new
trial; the court denied the motion. At sentencing, Toby was
sentenced to a total of 40 years’ imprisonment. Toby appealed.
Kelsey moved to suppress evidence found at his apartment.
After a suppression hearing, the court denied the motion,
finding that Kelsey had given oral consent to the search. At
trial, Kelsey requested that a buyer‐seller instruction be given
to the jury. The court denied this request but, in the alternative,
proposed that the jury be instructed that Kelsey had obtained
drugs for personal use, and that such evidence could not be
used to prove the existence of a conspiracy or to prove that he
became a member of a conspiracy. Kelsey accepted the court’s
proposed alternative instruction, but preserved his objection to
the denial of his request.
On January 26, 2016, the jury returned guilty verdicts on all
counts against Kelsey. Kelsey moved for judgment of acquittal
or a new trial. The court denied the motion.
The Probation Office prepared the Presentence Investiga‐
tion Report, recommending a two‐level sentencing enhance‐
ment for obstruction of justice based on perjured testimony at
the suppression hearing, see U.S.S.G. § 3C1.1, and a two‐level
sentencing enhancement for causing a serious bodily injury to
the CI and Mark, see U.S.S.G. § 2A2.1(b)(1)(B). Kelsey filed
objections to the PSR, arguing that his testimony did not
Nos. 16‐2208, 16‐2676 & 16‐3975 9
amount to an obstruction of justice and that the shooting of the
CI and Mark did not constitute a serious bodily injury. At
sentencing, the court rejected these two objections and sen‐
tenced Kelsey to a total of 35 years’ imprisonment. Kelsey
appealed.
II. DISCUSSION
A. Toby’s Challenges
Toby raises two main arguments on appeal: first, he argues
that there was insufficient evidence to support his conviction
for possession of a gun in furtherance of a drug trafficking
crime;1 second, he challenges the district court’s denial of his
motion to suppress Barlow’s eyewitness identification of him.
1. Sufficiency of the Evidence
“When reviewing a challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable to
the prosecution and ask whether any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Moshiri, 858 F.3d 1077, 1081
(7th Cir. 2017) (citation and quotation marks omitted). In
conducting this evaluation, we neither assess credibility
determinations nor reweigh the evidence. Id. A defendant who
challenges the sufficiency of the evidence against him “faces a
1
Toby also argues that there was insufficient evidence to support his
convictions based on his involvement in the Barlow shooting. He contends
that the evidence of the shooting stems from unreliable testimony. We
decline his invitation to second‐guess the trier of fact’s credibility determi‐
nations.
10 Nos. 16‐2208, 16‐2676 & 16‐3975
formidable burden.” United States v. Goree, 756 F.3d 522, 525
(7th Cir. 2014) (citation omitted).
Section 924(c)(1)(A) prescribes an enhanced penalty for a
person who possesses a gun “in furtherance of” a drug
trafficking crime. 18 U.S.C. § 924(c)(1)(A). Toby argues that the
evidence was insufficient to find that he was in possession of
a gun and, even if he had been, the possession was not “in
furtherance of” a drug trafficking crime. See id.
To establish that Toby possessed a gun, the government
relied on a theory of constructive possession. See United States
v. McAnderson, 914 F.2d 934, 947 (7th Cir. 1990) (“Possession of
a firearm may be either actual or constructive.”). “Constructive
possession is a legal fiction whereby a person is deemed to
possess [a gun] even when he does not actually have immedi‐
ate, physical control of the [gun].” United States v. Schmitt, 770
F.3d 524, 534 (7th Cir. 2014) (quoting United States v. Griffin, 684
F.3d 691, 695 (7th Cir. 2012)). “Constructive possession may be
established by demonstrating that the defendant knowingly
had the power and intention to exercise dominion and control
over the [gun], either directly or through others, thus establish‐
ing a nexus between himself and the [gun].” United States v.
Katz, 582 F.3d 749, 752 (7th Cir. 2009) (collecting cases).
The government presented sufficient evidence to show that
Toby was in constructive possession of a gun. On several
occasions, Toby explicitly communicated his intention to
acquire the Glock from Agent Labno. The terms of the agree‐
ment between Toby and Agent Labno were clear: six jabs of
crack cocaine for the Glock. Toby repeatedly confirmed that he
wanted to purchase the Glock and agreed to the terms of the
Nos. 16‐2208, 16‐2676 & 16‐3975 11
deal, such as the confirmation he gave Agent Labno on
March 19 and March 25, 2014.
Toby exercised control over the gun through Fields. As
characterized by the district court, Fields was simply Toby’s
“middleman.” Toby informed Agent Labno that he was
sending Fields to complete the transaction. Fields testified that
Toby gave him six jabs of crack cocaine and $450 on March 26,
2014. He also testified that he was instructed to take the drugs
and cash to the transaction with Agent Labno to purchase the
Glock and a gun for himself. Toby instructed Fields to bring
the Glock to him immediately after the exchange. Moreover,
Toby’s calls with the CI shortly after Field’s arrest demon‐
strated that Toby expected Fields to bring the Glock to him.
Accordingly, the government provided sufficient evidence to
establish that Toby constructively possessed a gun.
Since we have concluded that Toby constructively pos‐
sessed the gun, we now consider whether he possessed the gun
“in furtherance of” a drug trafficking crime. See 18 U.S.C.
§ 924(c). We have previously concluded that, “when a defen‐
dant receives a gun for drugs, he takes possession of the
firearm in a way that furthers, advances, or helps forward the
distribution of drugs.” United States v. Doody, 600 F.3d 752, 755
(7th Cir. 2010) (quotations and brackets omitted). That is what
occurred here.
Toby claims that there is insufficient evidence to establish
the in‐furtherance‐of element because Fields exchanged drugs
for one gun and cash for the other, and there was insufficient
evidence to show which gun was purchased with cash and
which with drugs. This argument is unavailing. The evidence,
12 Nos. 16‐2208, 16‐2676 & 16‐3975
including the conversations between Toby, Agent Labno, and
the CI, makes it clear that Toby intended to purchase the Glock
for himself in exchange for six jabs of crack cocaine. We agree
with the district court that it does not matter whether Fields
was aware of the specifics of the deal. Instead, what matters is
that Toby agreed to exchange six jabs of crack cocaine for a
Glock.
Toby’s constructive possession of the gun, through Fields,
was an essential component of the drugs‐for‐guns transaction.
The transaction would not have occurred if it was not for
taking possession of the gun. Because Toby, through Fields,
received a gun for drugs, the government presented sufficient
evidence that he possessed the gun in a way that furthered his
distribution of drugs.
2. Photo Lineup
Next, Toby challenges the district court’s denial of his
motion to suppress Barlow’s identification of him. We review
a district court’s denial of a motion to suppress an identifica‐
tion de novo, with “due deference to [its] findings of historical
fact.” United States v. Sanders, 708 F.3d 976, 984 (7th Cir. 2013)
(citation omitted).
Due process forbids law enforcement from using an
“identification procedure that is both suggestive and unneces‐
sary.” Perry v. New Hampshire, 565 U.S. 228, 239 (2012). Even
when such a procedure is used, suppression of the identifica‐
tion is not the inevitable result. Id. Suppression follows “only
when there is a very substantial likelihood of irreparable
misidentification … .” United States v. Johnson, 745 F.3d 227, 229
(7th Cir. 2014) (citation and quotation marks omitted). To
Nos. 16‐2208, 16‐2676 & 16‐3975 13
determine whether a specific identification procedure offends
due process, we follow a two‐prong approach: (1) we consider
whether the defendant has established that the procedure was
“both suggestive and unnecessary[;]” and, if so, (2) “we
examine the ‘totality of the circumstances’ to determine
whether other indicia of reliability outweigh the corrupting
effect of law enforcement suggestion.” Sanders, 708 F.3d at
983–984 (citations, alterations, and quotation marks omitted).
During the suppression hearing, five witnesses were called
to testify, and the parties stipulated to the testimony of two
other witnesses. According to the testimony presented, Barlow
went to the Oak Park Police Station and met with Detective
Robert Taylor on April 2, 2014. Detective Taylor testified that
he assembled two color photo lineups based on information he
obtained from the ATF. He also testified that, when he showed
Barlow the lineup, Barlow paused over Toby’s arrest photo
twice. Barlow’s testimony corroborated that he paused at
Toby’s photo because he recognized him as the shooter.
According to Barlow, he denied any recognition because he did
not want to get involved and feared for his safety.
The evidence at the suppression hearing also established
that Barlow was arrested for drug activity unrelated to this
case and was interviewed by Agent Labno on June 2, 2014. At
the ATF offices, Barlow told the agents that he viewed a photo
lineup at the Oak Park Police Station on March 28, 2014, and
stated that his shooter was depicted in that lineup. Agent
Labno printed large scale pictures of each of the six individuals
in the photo lineup, intending to display the photos for Barlow
in the same order as the previous lineup.
14 Nos. 16‐2208, 16‐2676 & 16‐3975
When Agent Labno entered the room where Barlow was
sitting, he held the six photos in the order of the previous
lineup. However, the top three photos were more prominent
than the other photos in the stack. Toby’s arrest photo was the
third photo from the top and just as visible to Barlow as the top
two photos. Before Agent Labno had the opportunity to place
the individual photos on the table, Barlow identified his
shooter as the person in Toby’s arrest photo. Agent Labno
realized that the identification was not ideal, so he placed the
photos on the table in the same order as the previous photo
lineup as he initially intended to do. Barlow identified Toby
again. Agent Labno then printed off a black and white copy of
the photo lineup that Detective Taylor had shown him; Barlow
again identified Toby.
First, Toby claims that the identification procedure was
unduly suggestive because Agent Labno showed Barlow the
same arrest photo of Toby that was contained in the array first
administered by Detective Taylor. We disagree. As an initial
matter, “there is nothing per se impermissible about placing
the same suspect in two different identification procedures.”
United States v. Griffin, 493 F.3d 856, 865 (7th Cir. 2007) (citation
omitted). The “danger to be avoided in identification proce‐
dures is that of orchestrating the procedure so that … the
procedure implicitly suggests to the witness that ‘this is the
man.’” Gregory‐Bey v. Hanks, 332 F.3d 1036, 1045 (7th Cir. 2003).
Here, Toby’s argument ignores the fact that, in both identifica‐
tion procedures, Barlow was shown not only the same arrest
photo of Toby, but the same arrest photo of five other individ‐
uals. Given that the six photos were the same in both identifi‐
cation procedures, we do not see how Toby can seriously claim
Nos. 16‐2208, 16‐2676 & 16‐3975 15
that the use of the same arrest photo implicitly suggested that
he was the shooter.
Second, Toby argues that the officers failed to use best
practices when conducting the identification procedures. Toby
observes that we have previously suggested that an officer
should show photos sequentially rather than as part of an
array. See United States v. Ford, 683 F.3d 761 (7th Cir. 2012).
However, we have noted that “some recent research has called
into question the view that sequential presentation of photo‐
graphs is superior to photo spreads.” Johnson, 745 F.3d at 228.
Because Toby does not address Johnson, we find his argument
unpersuasive. Toby’s other “best practices” challenges are
undeveloped or have been addressed in Johnson.
Third, Toby contends that it was unduly suggestive for
Agent Labno to display Toby’s photo on top of the stack of
photos. As the government notes, this is a mischaracterization
of the record. The record shows that Agent Labno walked into
the room where Barlow was waiting with six individual photos
in his hand, while the top three were more prominent than the
others. Toby’s photo was included in the three photos that
were more prominent, but it was no more prominently
displayed than the other two more prominent photos. More‐
over, Toby’s photo, like the other two, was previously viewed
at the initial identification procedure.
Lastly, Toby argues that the two months elapsed time
between the identifications made it unduly suggestive. We
disagree. We have previously held that two months between
identification procedures mitigated the suggestiveness of an
identification procedure. Griffin, 493 F.3d at 865–866; see also
16 Nos. 16‐2208, 16‐2676 & 16‐3975
Sanders, 708 F.3d at 989 (collecting cases). We conclude that the
identification procedure was not unduly suggestive.
B. Kelsey’s Challenges
Kelsey challenges the sufficiency of the evidence to sustain
his convictions on several counts. He also argues that the
district court erred in its application of two sentencing en‐
hancements.
1. Sufficiency of the Evidence
Kelsey contends that the government presented insufficient
evidence to sustain his convictions on Count 10, Count 13, and
Count 14. Specifically, he argues that there was insufficient
evidence to prove that he shot the CI on April 2, 2014, and that
he had the retaliatory intent as required for Count 10 and
Count 13.
A defendant is guilty of retaliating against a witness if he
attempts to kill a person with intent to retaliate against that
person for “providing to a law enforcement officer any infor‐
mation relating to the commission or possible commission of
a Federal offense … .” 18 U.S.C. § 1513(a)(1)(B). Section 1513(f)
makes it a crime to conspire to commit the offense of retalia‐
tion. Section 924(c)(1)(A)(iii) prescribes an enhanced penalty
for anyone who discharges a firearm “during and in relation
to” any crime of violence.
Here, the government presented sufficient evidence to
establish that Kelsey was the person who shot the CI on
April 2, 2014. The CI and Mark testified that they got a clear
view of Kelsey’s face on the day that they were shot and they
both identified him in court as the person who shot them.
Nos. 16‐2208, 16‐2676 & 16‐3975 17
Kelsey simply challenges those witnesses’ credibility, noting
Mark’s drug use and inconsistencies with the CI’s initial
description of the person who shot him. These concerns were
addressed at trial, and the jury still determined that Kelsey was
the shooter.
The government also provided sufficient evidence to
establish Kelsey’s intent to retaliate against the CI for provid‐
ing information to law enforcement. The evidence illustrated
that Kelsey and Toby knew the CI before he was shot on
April 2, 2014. The CI introduced Agent Labno to Toby to help
arrange the drugs‐for‐guns transaction. Toby made repeated
attempts to contact the CI and ultimately blamed the CI for the
set up.
Smith, the CI’s neighbor, testified that Kelsey inquired
about the CI’s location and car, and asked him to report back
if he saw the CI. Smith also testified that on the evening of
April 2, 2014, Kelsey called him to ask whether there were any
cameras in the parking lot of the apartment building where the
CI lived.
Barlow and the CI resided at the same address; Barlow was
shot on March 27, 2014, and the CI was shot on April 2, 2014.
The evidence established that Toby mistakenly shot Barlow
at his apartment because he thought the CI lived there. After
realizing his mistake, Kelsey went back to the building on
April 2, 2014, and shot the CI. A jury could have reasonably
inferred that Toby and Kelsey wanted to kill the CI in retalia‐
tion for the CI’s cooperation with law enforcement, which
resulted in Fields’ arrest and a foiled drugs‐for‐guns transac‐
tion.
18 Nos. 16‐2208, 16‐2676 & 16‐3975
Next, Kelsey argues that there was insufficient evidence to
support his drug‐conspiracy conviction, see 21 U.S.C. § 846. We
decline his invitation to “second‐guess the jury’s credibility
determinations.” United States v. Cardena, 842 F.3d 959, 994 (7th
Cir. 2016). We have already detailed Kelsey’s role in the
conspiracy. We conclude that the government’s evidence was
sufficient. Relatedly, we note that Kelsey also challenges the
court’s denial of his request for a buyer‐seller jury instruction.
See United States v. Lomax, 816 F.3d 468, 476 (7th Cir. 2016). His
argument lacks merit, especially in light of all the evidence the
government presented and the court’s alternative instruction.
2. Sentencing Enhancements
Kelsey challenges the two‐level obstruction of justice
enhancement under U.S.S.G. § 3C1.1. We review a district
court’s factual findings underlying this enhancement for clear
error, and we review de novo whether these findings ade‐
quately support the enhancement. United States v. Nichols, 847
F.3d 851, 858 (7th Cir. 2017).
The Guidelines permit a two‐level upward adjustment if a
defendant “willfully obstructed or impeded, or attempted to
obstruct or impede” the prosecution of the offense of convic‐
tion. U.S.S.G. § 3C1.1. In applying this enhancement based on
perjury, the district court should indicate it has found the
elements of perjury: falsity, materiality, and willfulness. United
States v. Brown, 843 F.3d 738, 742 (7th Cir. 2016) (citation
omitted).
Kelsey argues that the false testimony he provided at the
suppression hearing was not willful. He claims that he testified
to the best of his ability as to his interactions with law enforce‐
Nos. 16‐2208, 16‐2676 & 16‐3975 19
ment agents on April 5, 2014. He argues that his testimony at
the suppression hearing was along the lines of simply not
being able to recall being shown a consent‐to‐search form and
that he never gave oral consent to the search.
We disagree. The district court found that Kelsey gave
more than just misstatements but “intentionally false responses
that were made in an effort to get the evidence suppressed.”
The court referenced its findings from its order denying
Kelsey’s suppression motion, which detailed his internally
inconsistent testimony. For example, Kelsey submitted an
affidavit in which he denied giving the agents oral consent to
search his apartment and represented that he refused to sign a
consent‐to‐search form. In contrast, he testified that Agent
Labno never showed him a document and that he never saw a
consent‐to‐search form. But this was not the end of the contra‐
dictions. On cross‐examination, Kelsey testified that he did not
recall having a conversation with Agent Labno about consent
to search his apartment. Contrary to this claim, he testified that
Agent Labno asked him to sign a consent‐to‐search form and
that he told Agent Labno that “there’s nothing in my apart‐
ment. I’m not signing no consent.” The district court found that
Kelsey’s testimony was contradictory, evasive, and not
credible. Accordingly, the district court properly applied the
enhancement for obstruction of justice under § 3C1.1.2
2
In light of this discussion, we note that Kelsey also challenges the denial
of his suppression motion, arguing that the district court erred in finding
that he gave consent to the search of his apartment. It is well established
that a search conducted pursuant to voluntary consent from the person
(continued...)
20 Nos. 16‐2208, 16‐2676 & 16‐3975
Next, Kelsey contends that there was insufficient evidence
to support the two‐level enhancement under U.S.S.G.
§ 2A2.1(b)(1)(B). He also argues that the injuries the CI and
Mark suffered did not constitute a “serious bodily injury.”
Because Kelsey argues that the district court misinterpreted the
Guidelines, our review is de novo. United States v. Bogan, 267
F.3d 614, 624 (7th Cir. 2001). We review for clear error a district
court’s factual findings at sentencing. Id. at 623.
The Guidelines permit a two‐level sentencing enhancement
when a victim sustains a “serious bodily injury” in the course
of an attempted murder. U.S.S.G. § 2A2.1(b)(1)(B). A serious
bodily injury is as an “injury involving extreme physical pain
or the protracted impairment of a function of a bodily member,
organ, or mental faculty; or requiring medical intervention
such as surgery, hospitalization, or physical rehabilitation.”
U.S.S.G. § 1B1.1, cmt. n.1(L).
The district court applied the enhancement based on
injuries that the CI and Mark suffered as a result of Kelsey
shooting them. First, the court credited the CI’s testimony that
Kelsey shot him “point‐blank” in the back of his left shoulder
and the bullet hit his jaw as it exited. The court further noted
2
(...continued)
whose property is searched is not a violation of the Fourth Amendment. See
Georgia v. Randolph, 547 U.S. 103, 109 (2006). “Whether consent was given
is a factual issue that we review for clear error.” United States v. Gonzalez‐
Ruiz, 794 F.3d 832, 835 (7th Cir. 2015). Kelsey fails to show that the court
committed clear error in finding that he gave consent or that its decision to
credit the agent’s testimony over his own was “completely without
foundation.” Id. The court properly denied Kelsey’s motion.
Nos. 16‐2208, 16‐2676 & 16‐3975 21
that the CI had to go to the hospital and that he was in physical
pain. Second, the court also credited Mark’s testimony that he
had to go to the hospital to have his head stapled after the
bullet lacerated his scalp. Mark described his extreme physical
pain, testifying that, on a level from one to ten, his pain was a
ten.
Kelsey denies that the two victims suffered a serious bodily
injury because they were released from the hospital within
hours of arriving. In Bogan, we rejected the argument that a
serious bodily injury necessarily requires a prolonged hospital
stay. 267 F.3d at 624. Hospitalization is only one aspect of what
may be considered in determining whether a victim’s injury
constitutes a serious bodily injury. See U.S.S.G. § 1B1.1, cmt.
n.1(L). The court considered the victim’s extreme physical
pain, not hospitalization.
The question here is whether the government proved by a
preponderance of the evidence that the CI or Mark suffered a
serious bodily injury. The district court observed the CI’s and
Mark’s testimony and photographs presented at trial. The
court had an adequate basis to support its finding as to the
nature of the injuries.
C. Anders Brief
Last, we address the Anders brief submitted by counsel for
Whitfield. Whitfield waived his right to a jury trial and
proceeded to a bench trial. He was convicted of being an
accessory after the fact, in violation of 18 U.S.C. § 3. The district
court denied his renewed motion for a judgment of acquittal or
a new trial. Prior to sentencing, Whitfield objected to the
presentence investigation report. At sentencing, the district
22 Nos. 16‐2208, 16‐2676 & 16‐3975
court rejected Whitfield’s objections to the PSR and sentenced
him to 84 months’ imprisonment.
Whitfield’s attorney filed an Anders brief in support of his
motion to withdraw as appointed counsel. We agree with
counsel that it would be frivolous to challenge the denial of
Whitfield’s motion for acquittal or a new trial, the district
court’s evidentiary determinations, or the denial of his request
for new appointed counsel.
We also agree with counsel that it would be frivolous to
challenge the sentence; the district court stated that it would
have imposed the same sentence even if it was incorrect about
the sentencing enhancement; the district court departed from
the Guidelines based on strong evidence that Whitfield was
the getaway driver for the April 2, 2014, shooting of the CI.
Finally, we also note that Whitfield made further argu‐
ments in his response to the Anders brief that are without merit.
We therefore grant counsel’s motion to withdraw and dismiss
Whitfield’s appeal.
III. CONCLUSION
For the reasons mentioned above, we AFFIRM Toby Jones’
conviction and Kelsey Jones’ conviction and sentence. We
GRANT Whitfield’s counsel’s motion to withdraw and
DISMISS Whitfield’s appeal.