United States Court of Appeals For the Seventh Circuit
Sentencing — right to jury
Although it was error to find that a firearm was brandished during a bank robbery without submitting the issue to the jury, the error is harmless where the evidence was overwhelming.
“[W]e cannot conclude that the district court’s sentencing error affected ‘the fairness, integrity, or public reputation’ of the proceedings below given the significant amount of evidence of brandishing a firearm in the record. Remember that Kirklin was charged with aiding and abetting the use and carrying of a firearm during the bank robbery. From the very outset, he made it clear to Jones that he ‘had something’ to prevent customers from leaving the bank and that she should use the revolver because it would not leave any shell casings. Jones’s testimony at trial on this point was very clear and she also described pointing guns at customers in the bank. Two other witnesses, including a bank teller and a customer, also testified that Kirklin’s accomplices brandished firearms during the robbery. Moreover, several instances of Jones and Kirklin brandishing their weapons are visible on the surveillance video that was played for the jury at trial. It therefore seems highly unlikely that the jury would have found Kirklin guilty on Count 2, but reach a different conclusion from the district court on the brandishing factor if it had been asked to make such a finding. As a result, we decline to remand for resentencing on Count 2.”
Appeal from the United States District Court for the Northern District of Illinois, Kennelly, J., Williams, J.