United States v. Lovies

16 F.4th 493

UNITED STATES of America, Plaintiff-Appellee,

v.Christian M. LOVIES, Defendant-Appellant.

No. 20-2463

United States Court of Appeals, Seventh Circuit.

Argued September 15, 2021

Decided October 21, 2021

Brian L. Reitz, Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before Brennan, Scudder, and St. Eve, Circuit Judges.

Brennan, Circuit Judge.

Christian Lovies, wielding a gun, stole Emily Butler's car as she was filling it with gasoline. Along with three other individuals, including a minor, Lovies kidnapped Butler and took her from Indianapolis to Cincinnati while threatening to kill her.

A federal grand jury indicted Lovies for kidnapping, carjacking, and brandishing a firearm during and in relation to a crime of violence. After a trial, a jury found Lovies guilty on all counts, and the district judge sentenced him to an imprisonment term within the applicable Sentencing Guidelines range. Lovies appeals his conviction, arguing the district court improperly denied a Batson challenge he raised during jury selection. He also contends the trial court erred in applying two sentencing enhancements: one for use of a minor to commit the offense, and one for his role in the offense.

In rejecting Lovies's Batson challenge, the district court found the prosecutors credible and their explanation for exercising the challenged peremptory strike to be plausible. We owe great deference to the district court's credibility determinations, and we cannot say its factual findings were clearly erroneous, so we affirm the denial of Lovies's Batson challenge and his conviction. The district court's factual findings were also adequate to support the application of the two sentencing enhancements, and any error with respect to the calculation of Lovies's Guidelines range would be harmless. We therefore affirm Lovies's sentence as well.

I.

A. Factual Background

On April 27, 2017, Lovies and Jaleel Schultz stole a car that someone had left running outside a restaurant in Milwaukee. They discovered a toddler inside the vehicle and abandoned the child at an intersection. Shortly thereafter, they crashed and totaled the vehicle.

Fearing authorities were closing in to arrest him for the vehicle theft, Lovies recruited his friend, Armone Hudson, to leave the city with him. Lovies, Hudson, Schultz, and Schultz's minor girlfriend, L.M., met up to leave Milwaukee on May 1, 2017.

Lacking adequate transportation, the group relied on Lovies to provide it. He and L.M. located an Infiniti sport utility vehicle that had been left running in a parking lot and stole it. Lovies and L.M. then picked up Hudson and Schultz, and the group began its journey. Inside the Infiniti, Lovies discovered a firearm, which he kept.

As the group drove through Indianapolis, the Infiniti broke down. They eventually arrived at a hotel, where they tried to rent a room under L.M.’s name, but they were unsuccessful because she did not have her driver's license. So they walked to a gas station, where they split up: Lovies went with L.M., and Hudson went with Schultz.

There, Lovies and L.M. approached Emily Butler at a gas pump. Lovies, brandishing the gun he had stolen from the Infiniti, demanded and took Butler's car keys and entered the driver's seat of her car. L.M. ensured Butler remained near the car and then pushed her in the back, taking her hostage.

The group then drove toward Cincinnati, a destination Schultz suggested, in Butler's car. Lovies and L.M. discussed killing Butler, but Hudson objected. Butler began crying because she believed Lovies and L.M. planned to kill her, but Hudson prevailed. After the group reached Cincinnati, Hudson released Butler, who drove away in her car. Law-enforcement agents later apprehended Lovies, L.M., Schultz, and Hudson.

B. Procedural History

Lovies, Schultz, and Hudson were charged for the kidnapping and carjacking of Butler in violation of 18 U.S.C. § 1201(a) and 18 U.S.C. § 2119, respectively. The government also charged Lovies under 18 U.S.C. § 924(c)(1)(A) with brandishing a firearm during and in relation to a crime of violence. Schultz and Hudson pleaded guilty, and Lovies proceeded to trial.

During jury selection, the government moved to strike Juror No. 9 for cause, stating he "ke[pt] falling asleep" and "ke[pt] nodding off." The trial judge denied the government's motion, instead encouraging the attorneys to speed up their questioning to avoid putting the prospective jurors to sleep. Later, the government exercised a peremptory strike to remove Juror No. 9 from the jury pool. Lovies raised a Batson challenge to this peremptory strike, arguing the government engaged in racial discrimination when it struck Juror No. 9, whom Lovies noted was "a black gentleman" who "didn't say a word the whole time we were here."

After hearing the parties’ arguments, the district court decided that Lovies had failed to make a prima facie case of discrimination at Batson ’s first step. The court found that the government's contention that Juror No. 9 was falling asleep was a race-neutral reason for the peremptory strike. Further, the court stated, it would have overruled the Batson challenge even if Lovies had made a prima facie case because the "demeanor of the prosecutors" indicated they were not engaged in purposeful discrimination.

At trial, Hudson and Butler testified about the kidnapping and carjacking. The government also introduced video evidence of Lovies and L.M. kidnapping and carjacking Butler. After a two-day trial, the jury convicted Lovies on all three counts.

The presentence investigation report yielded a Guidelines imprisonment range for Counts One and Two, the kidnapping and carjacking charges, of 292 to 365 months. For Count Three, the gun charge, the Guidelines sentence was the mandatory-minimum sentence of 84 months, which was required to run consecutive to the sentences imposed on the first two counts.

At sentencing Lovies objected to the two-level enhancement for use of a minor under U.S.S.G. § 3B1.4. Neither Schultz nor Hudson received the enhancement, and Lovies contended Schultz was the one who brought L.M. to the group and that she acted as an equal partner during the crime spree. Lovies also objected to the application of a two-level enhancement for being an organizer, leader, manager, or supervisor of criminal activity under U.S.S.G. § 3B1.1(c), asserting he played no greater role in the crime spree than any other group member and challenging the quantum of evidence as to how long he possessed the firearm and whether he threatened to kill Butler.

The district court overruled both of Lovies's objections. First, the court found by a preponderance of the evidence that Lovies at least partnered with L.M. to commit the carjacking and kidnapping of Butler, so the use-of-a-minor sentencing enhancement was proper. Second, the court found by a preponderance of the evidence that Lovies was an organizer, leader, manager, or supervisor of a "loose organization" engaged in criminal activity.

Next, the court calculated Lovies's offense level to include a two-level enhancement for use of a minor and a two-level enhancement for his role in the offense. Lovies was sentenced to 304 months’ imprisonment on Counts One and Two and 84 months’ imprisonment on Count Three, which resulted in an aggregate sentence of 388 months. Lovies timely appealed.

II.

On appeal, Lovies first argues the district court erred in denying his Batson challenge. To prevail on his Batson claim, Lovies must show the government had a racially discriminatory intent in exercising its peremptory strike to remove Juror No. 9. See United States v. Cruse , 805 F.3d 795, 806 (7th Cir. 2015).

There are three steps to a Batson challenge. First, a challenger must make a prima facie case that the peremptory strike was racially motivated. Id . (citing Snyder v. Louisiana , 552 U.S. 472, 476, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) ). The challenger's burden at this step is low, requiring "only circumstances raising a suspicion that discrimination occurred." Id . at 807 (quoting United States v. Stephens , 421 F.3d 503, 512 (7th Cir. 2005) (" Stephens I ")). To meet this burden at the first step, however, the strike's opponent cannot merely point to the stricken juror's race. See United States v. McMath , 559 F.3d 657, 664 (7th Cir. 2009) (citing Anderson v. Cowan , 227 F.3d 893, 901–02 (7th Cir. 2000) ). One way for the challenger to meet this burden involves comparing the stricken black juror to the non-stricken white juror and showing that nothing differentiated the prospective jurors except for race. See id . at 664–65 (citations omitted).

The second Batson step requires only that the explanation offered in defense of the strike be non-discriminatory. United States v. Stephens , 514 F.3d 703, 710 (7th Cir. 2008) (" Stephens II ") (citing Purkett v. Elem , 514 U.S. 765, 767–68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) ). The persuasiveness of the proponent's justification for the peremptory strike is not relevant at the second step. See id .

At the third and final step, the trial court must determine "whether the opponent of the strike has carried his burden of proving purposeful discrimination." Cruse , 805 F.3d at 807 (quoting Johnson v. California , 545 U.S. 162, 171, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) ). "The relevant question during the third step of the Batson inquiry is whether a strike was racially motivated. It follows that Batson and its progeny direct trial judges to assess the honesty —not the accuracy—of a proffered race-neutral explanation." Id. at 808 (quoting Lamon v. Boatwright , 467 F.3d 1097, 1101 (7th Cir. 2006) ).

The trial court may consider all relevant circumstances when assessing the honesty of a proffered explanation for a...