In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1449
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT SYLVESTER KELLY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:19-cr-00567-1 — Harry D. Leinenweber, Judge.
____________________
ARGUED FEBRUARY 22, 2024 — DECIDED APRIL 26, 2024
____________________
Before SYKES, Chief Judge, and RIPPLE and ST. EVE, Circuit
Judges.
ST. EVE, Circuit Judge. For years, Robert Sylvester Kelly
abused underage girls. By employing a complex scheme to
keep victims quiet, he long evaded consequences. In recent
years, though, those crimes caught up with him at last. But
Kelly—interposing a statute-of-limitations defense—thinks
he delayed the charges long enough to elude them entirely.
The statute says otherwise, so we affirm his conviction.
2 No. 23-1449
I. Background
The conduct underlying Mr. Kelly’s conviction dates to
the late 1990s and early 2000s. In those days, he worked in the
music industry, primarily as a singer. Kelly sometimes
worked with a singer called Sparkle. The two were also ro-
mantically involved.
The pair were not exclusive. To the contrary, Sparkle
seems to have introduced Kelly to her teenage niece, starting
Kelly along the yearslong process of grooming the young
teenager. The niece, who had her own interest in a recording
career, goes by “Jane” in this case. (She, like other victims dis-
cussed below, used a pseudonym at trial.) When Jane was
thirteen or fourteen years old, she started visiting the Chicago
studio where Kelly and Sparkle worked. Sparkle encouraged
Jane to form a bond with Kelly. As part of that plan, one day
she advised Jane to sit on Kelly’s lap, rub his head, and ask
him to be her godfather. Jane complied and Kelly agreed to
take on the role.
In 1996 Kelly began taking advantage of his relationship
with Jane. He started with explicit phone calls. Then when
Jane was fourteen, Kelly began subjecting her to oral sex. That
escalated to intercourse by age fifteen. The abuse continued
throughout Jane’s teenage years, and all the while Kelly me-
morialized his misconduct in a series of video recordings.
For much of this time Jane had a close friend, Pauline, who
would sometimes visit Kelly’s home. On one such visit she
discovered Kelly abusing an undressed Jane. Kelly claimed he
was checking Jane for bruises and then pressured Pauline to
join in. Kelly proceeded to abuse both girls together, and
would continue to do so for years, often calling both to his
No. 23-1449 3
studio and frequently recording these encounters. When the
victims were sixteen, Jane discovered that Pauline had been
seeing Kelly without Jane present. This spelled the end of Jane
and Pauline’s friendship. But Kelly continued his abuse of
both girls, maintaining sexual contact with Pauline until after
she finished college.
Around that same time, Kelly also groomed a girl named
Nia, whom he had met while on tour in Atlanta. She was fif-
teen then. He gave her an autograph that included his phone
number, later arranging for her to attend his concert in Min-
nesota. Kelly put Nia up in a nearby hotel and, the morning
after the show, visited her room and sexually abused her. The
next summer, when Nia was sixteen, she arranged to stay
with family in Chicago and met Kelly twice at his studio.
Kelly fondled her both times.
The government identified more abuse involving two
other underage girls, here called Brittany and Tracy. Brittany
was friends with Jane and Pauline; her story closely resembles
Pauline’s, down to the frequent group sex on camera. Tracy
met Kelly through an internship and suffered abuse at Kelly’s
studio.
Some years after Kelly’s abuse of these young girls began,
Illinois law enforcement officials took an interest in Kelly.
Their efforts culminated in a 2008 criminal trial for similar
conduct Kelly allegedly committed against different victims.
That jury acquitted Kelly. In the leadup to that trial—and af-
terward—Kelly and others worked to keep his abuse under
wraps. For example, Kelly’s production company cut checks
to Jane’s father before and after the 2008 trial. And going back
to 2001, Kelly’s associates had worked to recover some of
Kelly’s videotapes, hiring private investigators and paying off
4 No. 23-1449
third parties who possessed the tapes. Twice the group paid
$200,000 or more in cash for tapes.
In 2019, federal prosecutors secured an indictment against
Kelly. The thirteen counts included in the superseding indict-
ment comprised four for producing child pornography, three
for receiving child pornography, five for inducing each of
Jane, Pauline, Nia, Brittany, and Tracy to engage in sexual ac-
tivities, and one for obstructing justice in the state case. At the
trial, the government put three videos of Jane and Kelly into
evidence. Each depicted oral sex. The jury convicted Kelly of
inducing Jane, Pauline, and Nia to engage in sexual activities,
and convicted him on the three child pornography produc-
tion counts corresponding to the three videos in evidence. The
jury acquitted Kelly on the other seven counts.
At Kelly’s sentencing, the district court calculated a Guide-
lines range of 135 to 168 months’ imprisonment based on
Kelly’s criminal history category (III) and his offense level
(31). A significant factor at sentencing was Kelly’s 2022 con-
viction for similar conduct in New York and corresponding
30-year sentence. The district court grappled at length with its
discretion to run its sentence concurrently or consecutively
with the New York sentence. After considering Kelly’s likely
lifespan, the nature and circumstances of his crimes, Kelly’s
history and characteristics, deterrence, the need to protect the
public from Kelly, and mitigating factors like Kelly’s own
childhood abuse, the district court varied upwards from the
Guidelines to impose a sentence of 240 months. As a practical
matter, though, the sentence added just twelve months to
No. 23-1449 5
Kelly’s incarceration. The district court ordered the other 228
months to run concurrently with the New York sentence. 1
Kelly appealed.
II. Analysis
Kelly raises three arguments on appeal: (1) a statute of lim-
itations excuses him from liability on these six counts; (2) the
district court should have severed his trial so that one jury de-
cided the charges relating to Jane and another the rest of the
charges; and (3) his sentence is improper both procedurally
and substantively.
A. Statute of Limitations
Today, the statute of limitations for sex crimes against chil-
dren extends through the life of the victim. The text could not
be clearer on that:
No statute of limitations that would otherwise
preclude prosecution for an offense involving
the sexual or physical abuse, or kidnaping, of a
child under the age of 18 years shall preclude
such prosecution during the life of the child, or
for ten years after the offense, whichever is
longer.
18 U.S.C. § 3283. Jane, Pauline, and Nia are still alive—indeed,
all three testified at trial. So if the present-day statute applies
here, the verdict against Kelly is safe from a statute of limita-
tions challenge.
1 Kelly has also appealed that sentence. See Notice of Criminal Appeal,
United States v. Kelly, No. 22-1481 (2d Cir. July 12, 2022).
6 No. 23-1449
Kelly, though, asks us not to apply it, instead submitting
that a previous version of the statute with a shorter limitations
period governs his case. Recall that Kelly’s abuse of these vic-
tims took place in the 1990s and early 2000s. At that time pros-
ecutors had to move faster: the statute of limitations barred
prosecutions after the victim’s 25th birthday. The law
changed to the above-quoted version in 2003 with the
PROTECT Act, thereby extending the window to the life of
the victim. See Pub. L. 108–21, title II, § 202, Apr. 30, 2003. By
that time Jane, Pauline, and Nia had all turned eighteen,
though none had yet turned 25. Therefore, when the
PROTECT Act passed in 2003, the government could have
prosecuted Kelly for the abuse he had perpetrated against
Jane, Pauline, and Nia while they were underage, even
though the ongoing contact was not the illegal inducement of
a minor.
Putting the pieces together, Kelly maintains that the old,
pre-2003 statute of limitations should control. All the induce-
ment of minors in this case, he points out, took place when he
could expect a more generous statute of limitations.
The law does not support Kelly’s position.
As a threshold matter, it is not unconstitutional to apply a
newer statute of limitations to old conduct when the defend-
ant was subject to prosecution at the time of the change, as
Kelly was in 2003. Similarly situated defendants have argued
the Constitution’s prohibition on retroactive punishment bars
this sort of change—without success. See, e.g., United States v.
Gibson, 490 F.3d 604, 609 (7th Cir. 2007). Kelly has no consti-
tutional argument that survives those cases.
No. 23-1449 7
Instead, he argues the district court misinterpreted the
statute to reach conduct (like his) that predated its passage—
a contention that hinges on the “presumption against statu-
tory retroactivity.” Landgraf v. USI Film Prods., 511 U.S. 244,
273 (1994). We assess arguments like this one in two stages. A
“court’s first task is to determine whether Congress has ex-
pressly prescribed the statute’s proper reach.” Id. at 280. If so,
we carry out Congress’s wishes. If not, we “must determine
whether the new statute would have retroactive effect,” and
if it would, the “traditional presumption teaches that it does
not govern.” Id. By way of example, a statute that “would im-
pair rights a party possessed when he acted” or “increase a
party’s liability for past conduct” brings that presumption
into play. Id.
Here, Congress has spoken clearly, instructing us to apply
the statute across the board. “No statute of limitations that
would otherwise preclude prosecution for [child sexual
abuse] shall preclude such prosecution during the life of the
child.” 18 U.S.C. § 3283. If we agreed with Kelly, we would be
applying the pre-2003 statute to “preclude prosecution dur-
ing the life of the child.” Id. The statute commands otherwise,
unambiguously and with no reservations. It is not for us to
second-guess that directive.
None of Kelly’s arguments to the contrary persuade us.
First, he points to the “shall” language in the statute: “shall
preclude such prosecution.” Id. (emphasis added). Seizing on
that one word, he urges that “[t]he word shall is a sign of the
future tense.” Martin v. Hunter’s Lessee, 14 U.S. 304, 314 (1816).
While “shall” does point to the future, here it points to a fu-
ture “prosecution” rather than future conduct. § 3283. The
“prosecution” Kelly complains of took place twenty years
8 No. 23-1449
after the PROTECT Act passed. It thus falls well within the
statute’s forward-looking scope.
Second, Kelly directs us to the statute’s legislative history.
But “legislative history can never defeat unambiguous statu-
tory text.” Bostock v. Clayton County, 590 U.S. 644, 674 (2020).
This statute is unambiguous. And even if some ambiguity lin-
gered, the legislative history does not help Kelly. He points
out that an earlier version of the bill used different language,
providing that “the amendments made by this section shall
apply to the prosecution of any offense committed before, on,
or after the date of enactment of this section.” Child Abduc-
tion Prevention Act, H.R. 1104, 108th Cong. § 202 (2003). The
final version of the law did not include that language. Though
Kelly asserts this proves Congress did not want the statute to
apply to his case, a fuller picture of the statute’s history belies
that notion. Senator Leahy, who pushed to cut the language,
did so to alleviate his doubts about the bill’s “constitutional-
ity,” since it “would have revived the government's authority
to prosecute crimes that were previously time-barred.” 149
Cong. Rec. S5137, S5147 (Apr. 10, 2003) (statement of Sen.
Leahy). Because Kelly was subject to prosecution in 2003, the
Constitution was never at issue here, so this change to the bill
does not help him.
By reaching this conclusion about § 3283’s temporal range,
we find ourselves in good company. Faced with the same stat-
ute, the Ninth Circuit held that “Congress evinced a clear in-
tent to extend … the statute of limitations applicable to sexual
abuse crimes.” United States v. Leo Sure Chief, 438 F.3d 920, 924
(9th Cir. 2006). In like vein, the Eighth Circuit reached the
same conclusion about a precursor statute of limitations un-
der what was then 18 U.S.C. § 3509(k), which used nearly
No. 23-1449 9
identical language. (This is the pre-2003 version of the statute
Kelly asks us to apply.) See United States v. Jeffries, 405 F.3d
682, 683 (8th Cir. 2005) (“No statute of limitation that would
otherwise preclude prosecution for an offense involving the
sexual or physical abuse of a child under the age of 18 years
shall preclude such prosecution before the child reaches the
age of 25 years.”). See also United States v. Maxwell, 534 F. Supp.
3d 299, 314–16 (S.D.N.Y. 2021).
Because Congress specified that § 3283 reaches Kelly’s
conduct, we need not opine on the second step. We turn, then,
to his second point of error.
B. Severance
Kelly faults the district court for conducting a singular
trial on all the charges against him and denying his motion to
sever the counts involving Jane from the rest, including his
abuse of Pauline and Nia. Kelly complains of a prejudicial
spillover impact of the video evidence relating to Jane on the
other counts. He also asserts a “coerced testimony” theory,
claiming that he would have liked to testify about the Nia and
Pauline conduct but opted not to for fear of cross-examination
about the Jane videos.
The Federal Rules of Criminal Procedure contemplate
joinder of charges in most cases. “The indictment or infor-
mation may charge a defendant in separate counts with 2 or
more offenses.” Fed. R. Crim. P. 8(a). Sometimes, though, sev-
erance is in order. If the joinder “appears to prejudice a de-
fendant or the government, the court may order separate tri-
als of counts.” Fed. R. Crim. P. 14(a). District court judges en-
joy “wide discretion in determining when the prejudice of
joinder outweighs the benefits of a single trial.” United States
10 No. 23-1449
v. Jett, 908 F.3d 252, 275 (7th Cir. 2018) (citations omitted).
Kelly’s spillover and coerced testimony theories are two ways
a defendant might show the prejudice Rule 14 requires. But
here, neither theory prevails—especially under the applicable
abuse of discretion standard of review. See United States v.
Maggard, 865 F.3d 960, 970 (7th Cir. 2017).
A heavy burden falls on Kelly, who must “establish that
the denial of severance actually prejudiced him by preventing
the jury from arriving at a reliable judgment as to guilt or in-
nocence.” United States v. Ervin, 540 F.3d 623, 629 (7th Cir.
2008).
At the outset, the spillover theory faces two hurdles: “the
dual presumptions that a jury will capably sort through the
evidence and will follow limiting instructions from the court
to consider each count separately.” United States v. Turner, 93
F.3d 276, 284 (7th Cir. 1996). Kelly can surmount neither.
When the trial reached its end, the jury did “capably sort
through the evidence”—it acquitted Kelly on seven counts.
And “where, as here, the jury returns a guilty verdict on only
some of the counts charged in the indictment, we can be con-
fident that the jurors were able to sift the evidence and to
weigh the merits of each count separately.” United States v. Pe-
terson, 823 F.3d 1113, 1124 (7th Cir. 2016) (cleaned up). Further
still, the district court instructed the jury: “You must consider
each charge separately. Your decision on one charge, whether
it is guilty or not guilty, should not influence your decision on
any other charge.” We presume juries follow instructions, Sa-
mia v. United States, 599 U.S. 635, 646 (2023), and nothing here
suggests otherwise. The jury was properly instructed and dis-
charged its duty with care, acquitting on seven counts.
No. 23-1449 11
The coerced testimony theory fares no better. A defendant
advancing such a theory must make “a convincing showing
that he has both important testimony to give concerning one
count and the strong need to refrain from testifying on the
other.” Ervin, 540 F.3d at 629 (cleaned up). Kelly never identi-
fies what testimony he would have given about Pauline and
Nia. In the same way, he never explains why there was an es-
pecially strong need not to testify about Jane. Kelly has failed
to make any showing, much less a convincing one.
The district court did not abuse its discretion. The court
took care to properly instruct the jury to consider the evidence
for each count on its own merits. In turn, the jury did its part,
convicting Kelly on six of the thirteen counts.
C. Sentencing
That leaves the sentence, which Kelly challenges on three
fronts: two procedural, one substantive. First, Kelly disagrees
with the district court’s discussion of acquitted obstruction of
justice conduct at sentencing. Second, he takes issue with the
district court’s reference to present-day Guidelines ranges,
which punish sex crimes more harshly than those in place
when he committed the offenses, in imposing the variance up
to 240 months. Finally, and more generally, he contends that
the sentence is too harsh as a substantive matter.
On acquitted conduct, Kelly concedes—as he must—that
district courts may include such conduct in the calculation
without offending due process. See United States v. McClinton,
23 F.4th 732, 735 (7th Cir. 2022). Instead his quarrel lies with
the district court’s statement at sentencing that “there cer-
tainly was evidence that I could find by preponderance that
he obstructed justice.” As Kelly notes, relevant conduct at
12 No. 23-1449
sentencing “may include uncharged or acquitted conduct as
long as the court makes specific findings identifying the rele-
vant conduct based on a preponderance of the evidence.”
United States v. Oros, 578 F.3d 703, 711 (7th Cir. 2009).
Kelly’s argument boils down to a complaint that the dis-
trict court included acquitted conduct without making those
“specific findings.” Like other procedural challenges to sen-
tencing, we review de novo. United States v. Rollerson, 7 F.4th
565, 570 (7th Cir. 2021). The transcript defies Kelly’s charac-
terization, for the district court never relied on any obstruc-
tion of justice as relevant conduct. Rather, it soundly
grounded the sentence in the 18 U.S.C. § 3553(a) factors: the
district court expounded on “the seriousness of the offense,”
Kelly’s “history and characteristics,” and the prospects of de-
terring Kelly and protecting the public from similar offenses
in the future. The district court’s aside that it “could find” ob-
struction by a preponderance does not undermine the district
court’s evaluation of the § 3553(a) factors, which justifies the
sentence and supplies an adequate rationale. The district
court thought it unnecessary to make such a finding precisely
because it had chosen not to rely on obstruction of justice in
imposing Kelly’s sentence.
The district court’s variance from the advisory Guidelines
range is likewise free from error. After correctly calculating
Kelly’s Guidelines range using the Guidelines in place at the
time Kelly committed the offenses, the court gestured at the
current version of the Guidelines. It stated: “because of the
increase in the current Guidelines … in all probability, if I was
sentencing Mr. Kelly … I would probably give him a sentence
in the neighborhood of 240 months.” It explained that this
represents “a variance upwards from the top end of the
No. 23-1449 13
Guidelines, which was 168.” So the district court properly cal-
culated the range and then used the current Guidelines to jus-
tify a variance.
We have held—as Kelly acknowledges—that “a sentenc-
ing court may consider subsequent Guideline amendments”
for certain purposes. United States v. Coe, 220 F.3d 573, 578 (7th
Cir. 2000). These, Coe established, include considering later-
added aggravating elements and “consider[ing] later amend-
ments as guides for determining how much of a departure is
warranted.” Id. We went so far as to add that “reference to
subsequent amendments may be one of the best ways a sen-
tencing court can be assured that the magnitude of a depar-
ture is consistent with the sentencing scheme envisioned by
Congress.” Id. By extension, changes to the Guidelines may
also inform a variance. Variances have supplanted the depar-
tures Coe envisioned now that “the concept of a departure …
is obsolete and beside the point after United States v. Booker,
543 U.S. 220 (2005).” United States v. Gardner, 939 F.3d 887, 891
(7th Cir. 2019) (cleaned up). Yet “district courts can still take
guidance from the departure provisions and apply them by
way of analogy.” United States v. Pankow, 884 F.3d 785, 793 (7th
Cir. 2018) (cleaned up). It follows that updates to the Guide-
lines may justify a variance—as the district court did here, ty-
ing its variance to “the sentencing scheme envisioned by Con-
gress” in “one of the best ways” possible. Coe, 220 F.3d at 578.
That was no error.
We review the substantive reasonableness of Kelly’s sen-
tence only for abuse of discretion. Rollerson, 7 F.4th at 570. A
sentence’s substantive reasonableness turns on “the totality of
the circumstances, including the extent of any variance from
the Guidelines range.” Gall v. United States, 552 U.S. 38, 51
14 No. 23-1449
(2007). Kelly challenges the 72 months added to the high end
of his Guidelines range. That challenge is beside the point.
What matters most is the 30-year New York sentence, which
the district court called “the elephant in the room” at sentenc-
ing. The sentence Kelly ultimately received was fashioned
with the New York sentence in mind. Kelly’s nominal above-
Guidelines sentence cannot be fairly assessed without refer-
ence to its running concurrently with the New York sen-
tence—what looks like 240 months for this Illinois conduct is,
with that context, more like twelve.
Even without that, though, the district court did not abuse
its discretion in imposing an above-Guidelines sentence. In its
words, “the nature of [Kelly’s] offense is horrible, horrific.” It
considered Kelly’s arguments in mitigation and weighed the
18 U.S.C. § 3553(a) factors in detail. We will not second-guess
that exercise of discretion.
III. Conclusion
An even-handed jury found Kelly guilty, acquitting him
on several charges even after viewing those abhorrent tapes.
No statute of limitations saves him, and the resulting sentence
was procedurally proper and—especially under these appal-
ling circumstances—substantively fair.
AFFIRMED.