United States v. Christian Lovies ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2463
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTIAN M. LOVIES,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:17-cr-254-JRS-MJD — James R. Sweeney II, Judge.
____________________
ARGUED SEPTEMBER 15, 2021 — DECIDED OCTOBER 21, 2021
____________________
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
2 No. 20-2463
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
No. 20-2463 3
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.
4 No. 20-2463
§ 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.
No. 20-2463 5
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
6 No. 20-2463
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 (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 (1995)). The
persuasiveness of the proponent’s justification for the
peremptory strike is not relevant at the second step. See id.No. 20-2463 7
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 (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
peremptory strike, including interpreting the demeanor of the
attorney who initiates the strike and evaluating the
explanation’s plausibility with reference to its basis in
“accepted trial strategy.” See id. at 807; Miller-El v. Cockrell, 537
U.S. 322, 339 (2003). The court may employ one or some of
several possible methods to make credibility determinations.
See United States v. Rutledge, 648 F.3d 555, 558 (7th Cir. 2011).
We review a district court’s Batson findings for clear error.
Cruse, 805 F.3d at 806. “Deference is necessary because a
reviewing court, which analyzes only the transcripts from
voir dire, is not as well positioned as the trial court to make
credibility determinations.” Rutledge, 648 F.3d at 558 (quoting
Miller-El, 537 U.S. at 339). Thus, we will affirm unless “we
arrive at a definite and firm conviction that a mistake has been
made.” Cruse, 805 F.3d at 806 (quoting McMath, 559 F.3d at
670). Our review is “highly deferential.” United States v.
Hunter, 932 F.3d 610, 617 (7th Cir. 2019) (quoting Flowers v.
Mississippi, 139 S. Ct. 2228, 2244 (2019)).
8 No. 20-2463
A. Step Three
We begin with step three because, in our review, that is
where the district court primarily rested its decision denying
Lovies’s Batson challenge.
Step three, at which the trial court weighs the evidence
and determines whether the strike’s opponent has proved
purposeful discrimination, is “the heart of the matter.” Cruse,
805 F.3d at 807. We review a finding that a peremptory strike’s
proponent is credible for clear error, and we defer greatly to
the district court’s credibility determinations. See Morgan v.
City of Chicago, 822 F.3d 317, 327 (7th Cir. 2016) (citing
Hernandez v. New York, 500 U.S. 352, 364–65 (1991)); accord
United States v. Taylor, 509 F.3d 839, 845 (7th Cir. 2007) (“Only
the district judge, who observed the voir dire firsthand, can
make [the credibility] determination in the first instance.”).
Under this standard of review, we cannot say the district
court’s finding—that the prosecutors were credible in their
belief that Juror No. 9 was either falling asleep or at least
disinterested in the proceedings—was clearly erroneous. “[I]t
is the district court’s job, not ours, to weigh the credibility of
the government’s reason for the peremptory challenge and
decide whether the defendant[] met [his] burden of
establishing discrimination.” Taylor, 509 F.3d at 845. The trial
court observed the voir dire and expressly found that the
prosecutors’ demeanor showed they were credible. The court
also concluded that the prosecutor’s reasoning for the strike
was race neutral and suggested that reasoning was plausible.
Because the trial court’s finding was consistent with the
record, it was sufficient to resolve the Batson challenge at step
three.
No. 20-2463 9
Two significant considerations support the district court’s
credibility determination. First, the district judge implied he
believed Juror No. 9 was falling asleep during the
proceedings, which denotes the absence of purposeful
discrimination on the government’s part. Although Lovies
argues otherwise, the district judge did not reject the
government’s assertions that Juror No. 9 was falling asleep
during the proceedings.
In its ruling, the trial judge said, “[The government] raised
the concern that [Juror No. 9] was falling asleep. They wanted
it to be a cause. I didn’t allow that just because I thought I
could keep him awake[.]” In context, the judge’s statement—
that he only denied the government’s request to strike Juror
No. 9 for cause because he believed he could hold Juror No.
9’s attention—suggests he credited the prosecutors’ assertion
that Juror No. 9 was falling asleep as the attorneys conducted
jury-selection proceedings. This is so even though the trial
judge did not personally observe Juror No. 9 asleep.
Precedent likewise forecloses Lovies’s argument on this
point. Our decision in United States v. Jones, 224 F.3d 621 (7th
Cir. 2000), holds that we will not reject the explanation of a
juror’s drowsiness as a pretext for a discriminatory strike
merely because the district judge did not observe the juror
asleep. See id. at 624–25. Lovies argues this case differs from
Jones because here the court did not allow the government to
strike Juror No. 9 for cause when the government asserted—
at that stage—Juror No. 9 was falling asleep. But the judge did
not reject the government’s assertions of Juror No. 9’s
drowsiness; rather, he said he thought he could keep Juror
No. 9 awake. Thus, the judge cast no doubt on the
prosecutors’ explanation for the peremptory strike. And we
10 No. 20-2463
must defer to the district court’s factual findings where the
record does not contradict them.
A trial judge’s firsthand observations of a juror’s
demeanor are important where a peremptory strike’s
proponent refers to that demeanor. But a judge need not
personally observe the juror’s demeanor to uphold the
peremptory strike against a Batson challenge. In Thaler v.
Haynes, the Supreme Court clarified that a trial judge may
accept a prosecutor’s demeanor-based explanation for
striking a juror even where the judge does not personally
recall the prospective juror’s demeanor. See 559 U.S. 43, 47–49
(2010). Thus, the trial judge did not commit reversible error in
rejecting the Batson challenge at step three without personally
observing Juror No. 9’s drowsiness.
Second, even if the district judge did not believe Juror No.
9 was falling asleep during jury selection, the judge
specifically evaluated the prosecutors’ credibility and found
them credible in their belief that Juror No. 9 was at least
disinterested in the proceedings, if not falling asleep. The trial
judge stated, “I certainly have seen the demeanor of the
prosecutors, and I don’t think that there’s purposeful
discrimination here. They seem earnest in their belief that he’s
disinterested.”
From his firsthand vantage point, the district judge was in
the best position to make the determination that the
prosecutors were sincere. We accord the district judge’s
credibility determination great deference on appeal. See
Morgan, 822 F.3d at 327; Hernandez, 500 U.S. at 364–65. Here,
the judge observed the proceedings and the attorneys, and he
found the prosecutors’ explanation for striking Juror No. 9 to
be honest. See Cruse, 805 F.3d at 808; Lamon, 467 F.3d at 1101.
No. 20-2463 11
Reviewing these voir dire transcripts, we have no basis on
which to question the district court’s credibility
determination.
Lovies asks us to rely on McMath, where this court
remanded for the district court to make further findings on
the Batson issue. See 559 F.3d at 666. But in that case, the
district court had made “no evaluation of the prosecutor’s
credibility.” Id. Here, the district court made credibility
findings on the record, so we affirm.
Lovies also raises new arguments on appeal comparing
Juror No. 9 with non-stricken white jurors. But Lovies
forfeited these juror-comparison arguments by not presenting
them to the district court. Even if we were to determine that
they were not forfeited, we would still conclude that the
record is insufficient to permit us to determine the non-
stricken white jurors were comparable to Juror No. 9.
During jury selection, “[i]t is the defendant’s burden to
raise specific arguments that the government’s justification
[for a peremptory strike] was pretextual so that the court can
properly address them.” United States v. Brown, 809 F.3d 371,
374 (7th Cir. 2016). In Brown, we left open the question of
whether a “similarly situated” argument regarding
prospective jurors is forfeited where the defendant fails to
raise it before the trial court. See id. at 374 n.1. When a
defendant does not properly raise challenges based on
prospective jurors’ purported shared characteristics, the
appellate court “loses the benefit” of the trial judge’s firsthand
evaluation of prospective jurors. United States v. Gooch, 665
F.3d 1318, 1331 (D.C. Cir. 2012) (citing Snyder, 552 U.S. at 477).
Thus, to permit thorough appellate review, “similarly
situated” arguments should be raised before trial courts,
12 No. 20-2463
affording them the opportunity to address any juror-
comparison issues the defendant identifies.
Other circuits have held that where a defendant fails to
argue for comparative juror analysis at trial, the appellate
court need not conduct such an analysis. See United States v.
Gibson, 105 F.3d 1229, 1232 (8th Cir. 1997) (“[A] ‘similarly
situated’ argument is untimely and cannot be made if it is
raised for the first time on appeal rather than at the trial
level.”); Gooch, 665 F.3d at 1330–32 (holding unpreserved
“similarly situated” arguments are reviewed only for plain
error); United States v. Mahbub, 818 F.3d 213, 229 (6th Cir. 2016)
(“[O]ur case law explains that this court is by no means
compelled to conduct a comparative juror analysis when a
defendant failed to preserve the issue.”). We do not decide
today whether a “similarly situated” argument is subject to
review on appeal, or if it may be reviewed only for plain error.
Rather, we just conclude that Lovies’s juror-comparison
argument is unconvincing.
Even if Lovies’s juror-comparison arguments were
considered on their merits, we would bear in mind the
Supreme Court’s admonition that “a retrospective
comparison of jurors based on a cold appellate record may be
very misleading when alleged similarities were not raised at
trial.” Snyder, 552 U.S. at 483.
Given the limited scope of our review in this context, we
cannot determine that the non-stricken white jurors were
similar to Juror No. 9. Lovies argues the prospective jurors at
issue are similar because—like Juror No. 9—several of the
non-stricken white jurors also failed to give verbal responses
to questions on the record. But prospective jurors can
demonstrate their attentiveness through non-verbal means.
No. 20-2463 13
The district court presided over jury selection and is best
positioned to determine whether prospective jurors are
similar. The court did not find the non-stricken white jurors
in the venire panel to be similar to Juror No. 9. So the record
is insufficient to reach the conclusion Lovies advances.
Lovies also takes issue with what he describes as a “quota-
like assertion” by the prosecutor. One of the prosecutors told
the trial judge, “[w]e left other African Americans on the
panel, and striking one African American is not sufficient to
make out the prima facie case versus Batson.” To Lovies, this
statement demonstrated a discriminatory intent,
strengthening Lovies’s Batson challenge. But the prosecutor’s
statement lacks the discriminatory significance Lovies
suggests. We have noted that the ultimate racial composition
of a jury is relevant to a Batson challenge, although it is not
dispositive. See Cruse, 805 F.3d at 808–09; Morgan, 822 F.3d at
336–37. The prosecutor’s comment that a black juror remained
on the panel was therefore relevant and not indicative of a
prejudicial motive.
The third step resolves Lovies’s Batson challenge in the
government’s favor because the district court found the
prosecutors to be credible. Reviewing the record, we lack any
basis on which to second-guess that credibility finding.
B. Step One
We next discuss step one, on which the district court also
ruled. Lovies argues step one, the prima facie case, is moot in
this case because the trial court ruled that Lovies failed to
demonstrate intentional discrimination at the third Batson
step. “Once a prosecutor has offered a race-neutral
explanation for the peremptory challenges and the trial court
14 No. 20-2463
has ruled on the ultimate question of intentional
discrimination, the preliminary issue of whether the
defendant had made a prima facie showing becomes moot.”
Hernandez, 500 U.S. at 359; see also McMath, 559 F.3d at 664;
United States v. White, 582 F.3d 787, 801 (7th Cir. 2009).
We agree. The district court ruled here on the ultimate
question of purposeful discrimination. Relying on the
prosecutors’ demeanor and the plausibility of their
explanation for the challenged peremptory strike, the district
court found there was no purposeful discrimination. Thus,
Batson step one is technically moot in this case. At the same
time, we take this opportunity to emphasize that it was
proper for the district court to consider step one and to make
a finding on it.
Lovies does not contest the district court’s finding at step
two that the government had offered a race-neutral reason for
its strike, instead arguing the government’s explanation—
Juror No. 9’s demeanor—was invalid.
C. Batson Procedure
We encourage district courts to follow each of Batson’s
three steps in sequence and to develop a comprehensive
record as to each step. The Supreme Court has designed the
three Batson steps as a bulwark to protect against racial
discrimination. See generally Johnson v. California, 545 U.S. at172–73. By methodically working through each step of a
Batson challenge, and not collapsing them into a single
inquiry, a crystal-clear record is developed for the benefit of
No. 20-2463 15
all, including to facilitate appellate review. See Rutledge, 648
F.3d at 559–60.
When faced with a Batson challenge, a district court should
first consider whether the challenger has presented evidence
that is sufficient to permit an inference of racial
discrimination. If the court concludes the challenger has not
presented such evidence, the Batson challenge should be
rejected at step one. But a district court need not pronounce
its ruling on step one before the Batson inquiry proceeds to the
next two steps.
Rather, typically the better course will be for the district
court to “delineate each of the steps explicitly, reserving
judgment on the challenge until all of the steps have been
performed.” United States v. Cecil, 615 F.3d 678, 687 n.3 (6th
Cir. 2010). A trial court may choose to terminate the Batson
inquiry at either step one or step two—if it concludes the
challenger or proponent, respectively, failed to meet the
applicable burden at either of those steps—but it is not
obligated to do so. Instead, the district court may hear
argument from each party on each step, take the parties’
submissions under advisement while proceeding to the
subsequent steps, and then issue its rulings with respect to
each step after it has heard each party’s position on all Batson-
related issues. See id.Where the trial court proceeds to Batson step two, it should
state on the record whether it believes the peremptory strike’s
proponent has articulated a race-neutral reason for striking
the prospective juror at issue. At this stage, the district court
should bear in mind that step two sets a low bar for the
strike’s proponent to clear. See Stephens II, 514 F.3d at 710;
Purkett, 514 U.S. at 768.
16 No. 20-2463
At step three, the district court should state its finding as
to whether the challenger has shown the proponent’s
peremptory strike was motivated by racial discrimination.
Like the district court did here, explicit findings should be
made on the record about the credibility of the strike’s
proponent if the proponent’s credibility is important to the
district court’s Batson analysis.
III.
In addition to the resolution of his Batson challenge, Lovies
disputes the district court’s calculation of his offense level and
thus the applicable range of imprisonment under the
Sentencing Guidelines. First, he contends the evidence that he
directed L.M. or partnered with her to commit the charged
offenses was insufficient to permit the application of a
sentencing enhancement for use of a minor to commit the
offense under U.S.S.G. § 3B1.4. Second, Lovies argues the
district court should not have imposed a two-level
enhancement under U.S.S.G. § 3B1.1(c) for his role in the
offense because the group’s members were coequals. The
enhancement applies where a defendant was “an organizer,
leader, manager, or supervisor” of criminal activity involving
fewer than five participants. U.S.S.G. § 3B1.1(c).
We review whether a district court’s factual
determinations adequately support a sentencing
enhancement’s application de novo, but we review those
factual determinations for clear error. United States v. Hodges,
315 F.3d 794, 801 (7th Cir. 2003); see also United States v. House,
883 F.3d 720, 723 (7th Cir. 2018) (citation omitted). “We
reverse a district court’s application of a Guidelines
enhancement only if we are left with a definite and firm
No. 20-2463 17
conviction that a mistake has been made.” House, 883 F.3d at
723 (internal quotation marks and citations omitted).
A. Sentencing Enhancement for Use of a Minor
U.S.S.G. § 3B1.4 provides for a two-level increase in the
defendant’s offense level “[i]f the defendant used or
attempted to use a person less than eighteen years of age to
commit the offense or assist in avoiding detection of, or
apprehension for, the offense.” Application Note 1 to U.S.S.G.
§ 3B1.4 clarifies that “‘[u]sed or attempted to use’ includes
directing, commanding, encouraging, intimidating,
counseling, training, procuring, recruiting, or soliciting.”
Under our case law, a defendant “who partners with a
minor will be found to have used that minor to commit his
crime in the sense contemplated by Section 3B1.4.” United
States v. Ramsey, 237 F.3d 853, 859 (7th Cir. 2001) (citing United
States v. Benjamin, 116 F.3d 1204, 1206 (7th Cir. 1997)). “By
forming a partnership with a minor, a criminal defendant is
undeniably encouraging that minor to commit a crime.” Id.Lovies attempts to distinguish Ramsey by contending the
defendant there recruited the minor himself, whereas Lovies
did not actively recruit L.M. to the group. But that distinction
does not affect whether Lovies partnered with L.M. in
committing the carjacking and kidnapping of Butler. We must
resolve whether the district court’s decision that Lovies
partnered with L.M. to carjack and kidnap Butler was clearly
erroneous.
We look first to the record. At sentencing the district court
relied on trial testimony and video evidence that L.M. acted
alongside Lovies as he took Butler’s keys and she pushed
Butler into the car, rendering Butler a hostage. Lovies argues
18 No. 20-2463
the district court improperly relied on his mere physical
proximity to L.M. during the kidnapping, but the video
evidence and trial testimony showed that Lovies and L.M.
committed the carjacking and kidnapping together.
Despite Lovies’s arguments to the contrary, § 3B1.4 does
not require a defendant to provide any specific direction to
the minor to encourage the minor’s participation in the
offense. Even if L.M. was a “voluntary participant” in the
carjacking and kidnapping of Butler, as Lovies contends, her
voluntary participation does not negate evidence of a
partnership between Lovies and L.M. See Ramsey, 237 F.3d at
859. Lovies partnered with L.M. when he brandished the gun
at Butler and took her keys while L.M. kept Butler close to her
car and pushed her into the back. Lovies encouraged L.M. to
commit the crimes of carjacking and kidnapping, and the
district court’s findings were therefore sufficient to support
the two-level enhancement. So, the record supports only one
conclusion: the district court’s factual findings on the § 3B1.4
enhancement were not clearly erroneous and Lovies
partnered with L.M.
We have also considered Lovies’s arguments that the
district court created an unwarranted sentencing disparity
when it applied the § 3B1.4 enhancement to Lovies but not to
his codefendants. According to Lovies, the district court
violated 18 U.S.C. § 3553(a)(6) and United States v.
Cunningham, 429 F.3d 673 (7th Cir. 2005), by failing to
sufficiently explain the reasons for the disparity.
Assuming without deciding that Lovies did not waive
these arguments by failing to include them in his opening
brief, we cannot adopt his position. The district court imposed
a within-Guidelines sentence, which necessarily accounts for
No. 20-2463 19
concerns of unwarranted sentencing disparities. See United
States v. Sanchez, 989 F.3d 523, 540–41 (7th Cir. 2021) (citations
omitted). Additionally, the district judge considered and
rejected Lovies’s argument that he was equally culpable
relative to his codefendants. Thus, there was no violation of
either § 3553(a)(6) or Cunningham.
B. Sentencing Enhancement for Role in the Offense
Lovies also contends the district court committed
reversible error when it applied a two-level increase for his
aggravating role in the offense. “If the defendant was an
organizer, leader, manager, or supervisor” in criminal activity
involving fewer than five participants, his offense level is
increased by two levels. U.S.S.G. § 3B1.1(c). To qualify for this
enhancement, the defendant “must have been the organizer,
leader, manager, or supervisor of one or more other
participants.” Id. cmt. n. 2.
First, Lovies argues the district court committed legal
error by determining that the role enhancement could apply
to a member of an ad hoc, loosely organized group engaged in
criminal activity. Lovies seeks to cabin the enhancement’s
application to defendants who had clearly defined roles in
organized criminal conspiracies. But we disagree with this
interpretation as our case law is to the contrary.
The test for whether a defendant is a manager or
supervisor in a criminal organization under § 3B1.1 is
practical, not formal. A manager or supervisor “should be
straightforwardly understood as simply someone who helps
manage or supervise a criminal scheme.” House, 883 F.3d at
724 (quoting United States v. Grigsby, 692 F.3d 778, 790 (7th Cir.
2012)). Where there is a dispute about whether the role
20 No. 20-2463
enhancement applies to a defendant, the court should make a
“commonsense judgment about the defendant’s relative
culpability given his status in the criminal hierarchy.” United
States v. Dade, 787 F.3d 1165, 1167 (7th Cir. 2015) (quoting
United States v. Weaver, 716 F.3d 439, 443 (7th Cir. 2013)).
We have also noted that a defendant is a “supervisor” or
“manager” in a criminal enterprise if he “tells people what to
do and determines whether they’ve done it.” United States v.
Anderson, 988 F.3d 420, 428 (7th Cir. 2021) (quoting United
States v. Figueroa, 682 F.3d 694, 697 (7th Cir. 2012)). The district
court here made a commonsense judgment about Lovies’s
relative culpability, noting that he told people what to do and
determined whether they did it. So, the trial court did not
commit a legal error in analyzing whether the § 3B1.1
enhancement applied to Lovies.
Although Lovies argues otherwise, the defendant’s
criminal organization is not required to have a formal
structure for the role enhancement to apply. United States v.
Zuno, 731 F.3d 718, 723 (7th Cir. 2013). In fact, a defendant
need only control one other participant in the criminal
conspiracy to qualify for the enhancement. Id.; see also United
States v. Herrera, 878 F.2d 997, 1002 (7th Cir. 1989). Thus, the
role enhancement can apply in even an amorphous, poorly
defined criminal organization. With these principles in
mind—and having rejected Lovies’s legal objection to the role
enhancement—we consider whether the district court clearly
erred in reaching the factual findings that supported applying
the enhancement to Lovies.
As trial testimony established, the district court found at
the sentencing hearing that Lovies directed others in the
commission of the charged offenses. The court stated that “all
No. 20-2463 21
of the action and direction seemed to be coming from Mr.
Lovies” during the carjacking and kidnapping. In so finding,
the district court relied on video evidence, trial testimony,
and text messages showing Lovies recruited Hudson and
initiated the plan to travel to Indiana.
We agree with the government that the evidence
adequately supported the findings that Lovies recruited
Hudson, selected Indiana as a destination, and provided the
group with transportation by stealing cars in both Wisconsin
and Indiana. At the sentencing hearing, the district court also
found that Lovies brandished the firearm at Butler during the
carjacking, which was consistent with Butler’s testimony.
There was no clear error in the district court’s findings on any
of these points.
A key consideration is the district court’s finding that
Lovies brandished the gun at Butler and took her keys while
Hudson and Schultz stood by. We have noted that “relative
culpability is a central concern of Guideline 3B1.1.” Weaver,
716 F.3d at 442 (internal quotation marks and citations
omitted). As the district court found, Lovies was relatively
more culpable than his codefendants because he showed the
gun to Butler and took her keys while L.M. kept Butler near
the car and Hudson and Schultz waited. In the carjacking of
Butler, Lovies played a greater role than the group’s other
members.
Lovies’s role in the decision to kidnap Butler—in which he
overruled Hudson—further demonstrates that Lovies acted
as a manager or supervisor in this loose criminal organization.
Trial testimony was sufficient to establish that Lovies and
L.M. decided the group would abduct Butler. The district
court’s conclusion that Lovies was a manager or supervisor
22 No. 20-2463
also could have properly rested on the conclusion that he
“t[old] people what to do” and dictated what would happen
during the kidnapping of Butler. Anderson, 988 F.3d at 428.
Like his brandishing of the gun during the carjacking,
Lovies’s role in Butler’s kidnapping supports the court’s
application of the enhancement.
Lovies also argues that this enhancement should not apply
where a criminal organization’s members are not part of an
ongoing conspiracy involving several transactions or more.
But his argument lacks a basis in § 3B1.1’s text, and our
precedents have rejected it.
“[S]ingular events are not categorically excluded from
qualifying for the section 3B1.1 enhancement.” Anderson, 988
F.3d at 428 (citing United States v. Collins, 877 F.3d 362, 367 (7th
Cir. 2017)). Even where, as here, the criminal acts are “one-
time transactions,” “[o]rchestrating or coordinating activities
performed by others makes a particular defendant a manager
or supervisor” and renders the enhancement applicable. Id.(quoting United States v. Martinez, 520 F.3d 749, 752 (7th Cir.
2008)). The district court did not clearly err in finding that
Lovies orchestrated or coordinated L.M.’s actions during the
kidnapping of Butler.
Although Lovies cites Collins to support his contention
that the role enhancement does not apply to singular
transactions, that case does not resolve the dispute in Lovies’s
favor. In Collins—an “atypical drug case”—we held that the
district court erred in applying the role enhancement where
the defendant made only an “isolated, one-time request to
another independent dealer to cover for him on a sale.” 877
F.3d at 364. In contrast, here there is no indication that the
group’s other members were engaged in “independent”
No. 20-2463 23
criminal enterprises divisible from the series of crimes at
issue. Rather, the district court found that Lovies directed and
supervised L.M. in the crime spree that included the
carjacking and kidnapping of Butler. That factual finding was
not clearly erroneous, so we uphold the role enhancement’s
application to Lovies.
Finally, even if Lovies were correct that the facts do not
support the conclusion that the enhancement applies to him,
we would still affirm his sentence because any error in
applying the enhancement would be harmless. This follows
because the district court said it would have imposed the
same sentence even if we later ruled that this enhancement
did not apply.
A district court’s error in calculating a Sentencing
Guidelines range is harmless if it “did not affect the district
court’s selection of the sentence imposed.” United States v. Jett,
982 F.3d 1072, 1078 (7th Cir. 2020), cert. denied, 2021 WL
4508201 (U.S. Oct. 4, 2021) (citations omitted). We recently
reaffirmed that any error in calculating a total offense level is
harmless when the district court makes clear that—
considering the sentencing factors under 18 U.S.C. § 3553(a)—
it would have imposed the same sentence even if we were to
conclude it had incorrectly calculated the Guidelines range.
United States v. Alvarez-Carvajal, 2 F.4th 688, 693 (7th Cir. 2021).
The district court so specified here, which renders any
error harmless. At the sentencing hearing, the district court
stated it would have imposed the same sentence on Lovies
even if it were to conclude the § 3B1.1 enhancement did not
apply, considering the § 3553(a) factors: the nature and
circumstances of Lovies’s offense; the need to promote respect
for the law and provide just punishment; the need to afford
24 No. 20-2463
adequate deterrence to criminal conduct; and the need to
avoid unwarranted sentencing disparities among similarly
situated defendants. Thus, any remand to the district court for
it to impose the same sentence on Lovies would be a
“pointless step.” Jett, 982 F.3d at 1078 (quoting United States v.
Abbas, 560 F.3d 660, 667 (7th Cir. 2009)). We would decline to
order such a remand even if we were to conclude the district
court erred in applying the role enhancement to Lovies.
* * *
For these reasons, we AFFIRM Lovies’s convictions and his
sentence.