United States v. Lindani Mzembe , 933 F.3d 796 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16-4258, 17-1060, 17-1412, 17-2268 & 17-2269
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
IVAN BRAZIER,
LINDANI MZEMBE, and
DEREK FIELDS,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Indiana, South Bend Division.
Nos. 15-cr-87-3, 15-cr-87-2, and 15-cr-87-1 — Robert L. Miller, Jr., Judge.
____________________
ARGUED APRIL 5, 2018 — DECIDED AUGUST 12, 2019
____________________
Before KANNE, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. In the early hours of September
8, 2015, in South Bend, Indiana, appellants Ivan Brazier, Derek
Fields, and Lindani Mzembe kidnapped, shot, and ruthlessly
beat Adrian Harris as he left his home. Charged with federal
kidnapping and firearms crimes, the three defendants were
tried and sentenced separately, but their appeals have been
2 Nos. 16-4258, 17-1060, 17-1412, 17-2268 & 17-2269
consolidated. The defendants do not challenge their convic-
tions for the underlying crimes of kidnapping or holding Har-
ris for ransom, and the two defendants convicted of being fel-
ons in possession of firearms do not challenge those convic-
tions. Defendants Fields and Mzembe were also convicted
and sentenced under 18 U.S.C. § 924(c) for using and dis-
charging firearms during a crime of violence. The district
court complied with circuit law applicable at the time of its
decisions. Later decisions by the Supreme Court and this
court, however, require us to reverse Fields’ and Mzembe’s
convictions and sentences under § 924(c). We also conclude
both of their cases should be remanded for resentencing.
Those defendants have raised other challenges to their sen-
tences that either are moot in light of our decision on the
§ 924(c) charges or fail to show any error or abuse of discre-
tion by the district court. We also affirm Brazier’s sentence.
I. Factual Background and Procedural History
A. Shooting, Kidnapping, and Ransom Demands
Around 3:30 a.m. on September 8, 2015, Ivan Brazier,
Derek Fields, and Lindani Mzembe attacked Adrian Harris as
he approached his car, which was parked in front of his home.
The defendants demanded money from Harris and beat him
with their guns. While picking Harris up from the ground,
one defendant accidentally shot him. The bullet broke apart
in Harris’s arm. Part of it went through his arm, and other bits
lodged in his elbow.
The defendants drove Harris and his car to Brazier’s house
where they used duct tape to bind, blindfold, and gag him. At
Brazier’s, the defendants continued to pistol-whip Harris and
demanded money. Nearly three hours into the kidnapping,
Nos. 16-4258, 17-1060, 17-1412, 17-2268 & 17-2269 3
the defendants forced Harris to call his sister and ask for a
ransom. He said, “I need some money, they got me.” His sis-
ter collected roughly $3,000 from friends and delivered it to a
house near Brazier’s. As two of the defendants went to get the
ransom, Brazier continued to beat Harris, kicking him, pour-
ing alcohol on his wounds, and twisting his injured arm.
When the other two returned, the defendants demanded
more money from Harris and continued to torture him. Harris
again called his sister, pleading, “Please, Sis. Hurry up. Hurry
up. I can’t take it anymore.”
After the second telephone call, Harris had trouble breath-
ing because of his broken nose and swollen mouth. One at-
tacker noticed Harris taking irregular breaths and became
concerned that he would die in the house. Hearing this, Har-
ris thought he might have a way out. He began “breathing
funny” on purpose, and one defendant said, “He can’t die in
here.” The defendants decided to drop him in an alley. They
cut the duct tape from his hands and feet but kept him blind-
folded. Harris asked a man on the street to help. Police were
dispatched at 8:53 a.m. They arrived, and an ambulance took
Harris to a hospital.
Less than one hour before the defendants released Harris,
a police officer had received a tip from a confidential inform-
ant that Fields had kidnapped someone. As police gathered
more information on the kidnapping, the officer who received
the tip saw a car drive in front of him with Fields and Mzembe
riding as passengers around 9:00 a.m. The officer stopped the
car and detained its passengers. The driver—not Fields or
Mzembe—agreed to allow the police to search the car. They
found a pair of bloody gloves, Harris’s car keys, and a black
4 Nos. 16-4258, 17-1060, 17-1412, 17-2268 & 17-2269
mask. The police also obtained a search warrant for Brazier’s
residence.
B. Trials and Sentencing
A federal grand jury indicted the defendants on charges of
kidnapping, making a ransom demand, possessing a firearm
in furtherance of a crime of violence, and being felons in pos-
session of firearms. See 18 U.S.C. § 875(a) (ransom demand);
§ 922(g)(1) (felon in possession of firearm); § 924(c)(1)(A)(iii)
(possessing firearm during and in furtherance of crime of vi-
olence); § 1201 (kidnapping). In three separate trials, juries
convicted Fields and Mzembe on all counts and convicted
Brazier on only the kidnapping and ransom charges.
Brazier was tried and sentenced first. One issue under the
Sentencing Guidelines was how to categorize Harris’s injuries
under U.S.S.G. §2A4.1(b)(2)(A), which adds four levels for
“permanent or life-threatening bodily injury,” two levels for
“serious bodily injury,” or three levels for something in be-
tween. Brazier argued that he should not receive a four-level
enhancement because the injury Harris suffered was not per-
manent or life-threatening. The court overruled the objection,
explaining that the defendants had denied Harris medical
care for his serious injuries and applying a four-level increase.
The court sentenced Brazier to a total of 444 months in prison,
with consecutive prison terms of 240 months for kidnapping
and 204 months for demanding a ransom.
The court sentenced Mzembe to a total of 528 months in
prison. The sentence included a combined 408 months for kid-
napping, demanding a ransom, and being a felon in posses-
sion of a firearm. The court then added a mandatory
Nos. 16-4258, 17-1060, 17-1412, 17-2268 & 17-2269 5
consecutive term of 120 months (ten years) under § 924(c) for
discharging a firearm in furtherance of a crime of violence.
The court sentenced Fields to a total of 656 months in
prison, with 536 months for the kidnapping, ransom, and
felon-in-possession charges, plus a mandatory consecutive
term of 120 months for his § 924(c) conviction. In imposing
the 536-month prison term, the court applied a two-level en-
hancement under § 2A4.1(b) because “a dangerous weapon
was used” in the crime.
The district court also ordered all three defendants to pay
more than $190,000 in restitution for Harris’s injuries.1 The
court held Fields, Mzembe, and Brazier jointly and severally
liable for that amount. Mzembe and Brazier objected to resti-
tution under the Mandatory Victim Restitution Act on the the-
ory that kidnapping is not a “crime of violence” subject to that
Act. The district court accepted this argument but decided to
order restitution under the Victim and Witness Protection
Act, 18 U.S.C. § 3663.
II. Analysis
The parties have briefed and argued a number of issues.
Developments since the district court’s sentencings and our
oral argument have reduced the number we must decide.
First, we reverse the § 924(c) convictions and sentences for
Mzembe and Fields because recent precedents establish that
the underlying offenses do not qualify categorically as crimes
of violence under that provision. We then reject two Sentenc-
ing Guideline challenges. Brazier alone argues that the district
1Of the total restitution amount, the court held that the first $61,491
should be paid to Harris himself, with any additional funds paid to insur-
ers who paid for his health care and related costs.
6 Nos. 16-4258, 17-1060, 17-1412, 17-2268 & 17-2269
court erred in applying the guideline enhancement for life-
threatening or permanent bodily injury. Fields’ challenge to
the guideline enhancement for possessing a firearm is under-
mined by our reversal of his § 924(c) sentence. Finally, we af-
firm the district court’s restitution orders against all three de-
fendants.
A. Section 924(c), Kidnapping, and Crimes of Violence
Fields and Mzembe challenge their convictions under
§ 924(c). That statute imposes a series of escalating mandatory
minimum sentences for “any person who, during and in rela-
tion to any crime of violence … uses or carries a firearm ….”
18 U.S.C. § 924(c)(1)(A). Section 924(c)(3) provides two alter-
native tests for a crime of violence:
For purposes of this subsection the term “crime
of violence” means an offense that is a felony
and—
(A) has as an element the use, attempted use, or
threatened use of physical force against the
person or property of another, or
(B) that by its nature, involves a substantial risk
that physical force against the person or
property of another may be used in the
course of committing the offense.
Subparagraphs (A) and (B) have become known more com-
monly as the “elements clause” and the “residual clause,” re-
spectively. Fields and Mzembe argue that they cannot be sen-
tenced under § 924(c) since their kidnapping and ransom of-
fenses do not categorically qualify as crimes of violence under
the elements clause and because the residual clause is uncon-
stitutional.
Nos. 16-4258, 17-1060, 17-1412, 17-2268 & 17-2269 7
Fields and Mzembe did not raise this argument at the time
of their trials, so we review for “plain error.” Plain-error re-
view requires the defendants to show (1) an error that has not
been intentionally waived; (2) that the error was “plain—that
is to say, clear or obvious;” (3) that the error “affected the de-
fendant’s substantial rights;” and (4) that the error “seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.” Molina-Martinez v. United States, 136 S. Ct. 1338,
1343 (2016) (internal quotation marks omitted); United States
v. Olano, 507 U.S. 725, 73238 (1993).
The defendants did not intentionally waive this argument,
so we proceed to the second requirement that the error be
plain. That inquiry asks whether the error is plain at the time
of appellate consideration. Henderson v. United States, 568 U.S.
266, 279 (2013). In United States v. Davis, 139 S. Ct. 2319 (2019),
the Supreme Court resolved a circuit split and held that the
residual clause in the § 924(c) definition of a crime of violence
is unconstitutionally vague, so the defendants’ convictions
cannot be upheld on that basis. The other way to satisfy
§ 924(c) is the elements clause, but we explained in United
States v. Jenkins that kidnapping and holding a person for ran-
som does not categorically satisfy the elements clause. 849
F.3d 390, 393 (7th Cir. 2017). In short, kidnapping may be ac-
complished without force, by “inveigling” or “decoying” a
person without a threat of force, and by holding the person
simply by locking him or her in a room, again without threat
of violence. Id., quoting 18 U.S.C. § 1201(a).2
2 The 2017 decision in Jenkins was vacated by the Supreme Court and
remanded for further consideration of the residual clause issue in light of
Sessions v. Dimaya, 138 S. Ct. 1204 (2018). That issue was ultimately re-
solved by the Supreme Court in Davis, and these later developments do
8 Nos. 16-4258, 17-1060, 17-1412, 17-2268 & 17-2269
Under the categorical method of analysis that applies to
both the elements and residual clauses of the definition of
crimes of violence in 18 U.S.C. § 924(c), Mzembe’s and Fields’
convictions for kidnapping and demanding ransom cannot
support the mandatory consecutive sentences imposed under
§ 924(c). The categorical method focuses on the essential ele-
ments of the counts of conviction, requiring courts in essence
to focus on the least culpable conduct that could violate the
relevant statutes, without considering the actual facts of the
defendants’ conduct. In resentencing Mzembe and Fields on
the remaining charges, however, the district court will of
course be free to consider their actual conduct in exercising its
judgment and discretion under 18 U.S.C. § 3553(a).
Mzembe and Fields ask that we limit any remand to vacat-
ing only the sentences for the § 924(c) convictions, leaving in-
tact the sentences for the underlying offenses. That would ef-
fectively cut ten years from Mzembe’s and Fields’ sentences
without giving the district court the opportunity to reconsider
any other aspects of their cases. Sentences for multiple of-
fenses are generally treated as “packages,” so that when part
of the package is removed on appeal, the district court may
reconsider the overall sentencing package on remand. Pepper
v. United States, 562 U.S. 476, 507 (2011), quoting United States
v. White, 406 F.3d 827, 832 (7th Cir. 2005); see also United States
v. Barnes, 660 F.3d 1000, 1007 (7th Cir. 2011); United States v.
not cast any doubt on the Jenkins analysis of the elements clause as applied
to kidnapping and ransom offenses. See United States v. Jackson,—F.3d—,
2019 WL 3423363 (7th Cir. July 30, 2019) (deciding Jenkins’ appeal and re-
lated cases in wake of Supreme Court decision in Davis, ordering resen-
tencing without § 924(c) sentences). We have held these appeals for deci-
sion until the Supreme Court resolved the issue decided in Davis.
Nos. 16-4258, 17-1060, 17-1412, 17-2268 & 17-2269 9
Rivera, 327 F.3d 612, 614–15 (7th Cir. 2003); United States v.
Shue, 825 F.2d 1111, 1114 (7th Cir. 1987).
Mzembe and Fields argue that the general “package” rule
should not apply here because of another feature of circuit
law that has been overruled by the Supreme Court since they
were sentenced. Before 2017, our circuit precedent held that a
judge sentencing a defendant for a § 924(c) offense and other
related offenses was not permitted to take into account the
mandatory consecutive sentence under § 924(c) when decid-
ing the sentence on the other offenses. United States v. Rob-
erson, 474 F.3d 432, 437 (7th Cir. 2007) (prohibiting discounts
based on § 924(c) sentence in sentences for other convictions).
The district court said here that it was complying with that
rule when it sentenced Fields and Mzembe on the kidnap-
ping, ransom, and felon-in-possession convictions. In Dean v.
United States, however, the Supreme Court effectively abro-
gated our holding in Roberson and held that a sentencing court
is not prevented from considering a mandatory minimum
sentence under § 924(c) when deciding the sentence for un-
derlying offenses. 137 S. Ct. 1170, 1178 (2017). Dean held, in
essence, that § 924(c) does not prevent the sentencing judge
from considering multi-count sentences as a package.
Fields and Mzembe argue that because the district judge
complied with the now-abrogated Roberson rule, there is no
need for him to take a fresh look at their sentences on the un-
derlying offenses. The argument has logical force, to the effect
that two errors (each made by complying with controlling law
at the time) offset one another, so that a simple subtraction of
120 months from their total sentences will fix the problem en-
tirely. Complicating matters, though, reversal of the § 924(c)
convictions means that the two-level Sentencing Guideline
10 Nos. 16-4258, 17-1060, 17-1412, 17-2268 & 17-2269
enhancement under U.S.S.G. § 2A4.1(b)(3) for use of a danger-
ous weapon can properly apply to Fields and Mzembe. And
complicating matters still further, the district court did not ap-
ply that enhancement to Mzembe but did apply it to Fields.
At the time of sentencing, it was an error to apply it to Fields
in light of the § 924(c) conviction and sentence. Under U.S.S.G.
§ 2K2.4, cmt. n.4, courts should not impose a weapons en-
hancement on an underlying crime when the defendant has
also been convicted under § 924(c). Now that the § 924(c) con-
victions and sentences are being vacated, however, the dis-
crepancy is reversed: that enhancement will now apply to
both Fields and Mzembe. Looking at the situation in its en-
tirety, we conclude that there have been enough changes in
the legal sentencing frameworks that apply to both Fields and
Mzembe that complete resentencing for both defendants is
the appropriate course here.3
B. Sentencing Guideline Issues
1. Life-Threatening Injury Enhancement for Brazier
Next, we consider the district court’s application of two
guideline enhancements the district court applied to Brazier
and Fields at sentencing. In applying the Sentencing Guide-
line for kidnapping, the district judge applied a four-level sen-
tencing enhancement under U.S.S.G. § 2A4.1(b)(2)(A), finding
that Harris suffered a life-threatening bodily injury. Brazier
argues that he should have received only a two- or three-level
enhancement because Harris’s injuries were not actually life-
3Because the convictions under § 924(c) cannot stand in the wake of
Davis and Jenkins, we need not address defendants’ arguments that the
district court erred under Alleyne v. United States, 570 U.S. 99 (2013), and
Dean v. United States, 137 S. Ct. 1170 (2017).
Nos. 16-4258, 17-1060, 17-1412, 17-2268 & 17-2269 11
threatening. The judge’s characterization of those injuries as
life-threatening at sentencing was a factual finding that we re-
view for clear error. United States v. Snyder, 865 F.3d 490, 499
(7th Cir. 2017).
The district court did not clearly err in finding that Har-
ris’s injuries were life-threatening. The Guidelines define a
life-threatening injury in a way that focuses on the dangers
posed by kidnapping, and which was realized here:
“Permanent or life-threatening bodily injury”
means injury involving a substantial risk of
death; loss or substantial impairment of the
function of a bodily member, organ, or mental
faculty that is likely to be permanent; or an ob-
vious disfigurement that is likely to be perma-
nent. In the case of a kidnapping, for example, mal-
treatment to a life-threatening degree (e.g., by denial
of food or medical care) would constitute life-threat-
ening bodily injury.
U.S.S.G. 1B1.1, cmt. n.1(K) (2018) (emphasis added). Under
this definition, the enhancement in § 2A4.1(b)(2)(A) can apply
even if the injuries inflicted on the victim would not, if
properly treated, cause death on their own. The enhancement
can also apply when defendants have inflicted serious harm
and have exacerbated those injuries to create a risk of death
by denying a victim medical treatment for those injuries.
The facts in this case would not necessarily have required
the full four-level enhancement, but they provide sufficient
support for the district court’s factual finding that it should
apply. One defendant shot Harris in the arm. The defendants
then beat Harris on the head, repeatedly and with their guns,
12 Nos. 16-4258, 17-1060, 17-1412, 17-2268 & 17-2269
and kicked him as he lay helpless and bound on the floor.
They aggravated his gunshot wound by pouring alcohol on it
and yanking on his injured arm. After this abuse, Harris “got
to breathing funny,” and only after one of the defendants said,
“He can’t die in here” did they release him. Even though the
defendants thought Harris might be dying, they did not take
him to a hospital. Instead, they dumped him in an unfamiliar
alley. The person who called for emergency help for Harris
described his appearance: “He was drenched in blood. …
[H]is shirt was all covered and everything. … He was kind of
just walking around in a daze.” Harris’s blood was found in
Brazier’s kitchen on the floor, wall, and refrigerator.
Given the denial of medical care to the gunshot wound,
the beatings, Harris’s trouble breathing, and the blood found
covering his body as well as at several scenes and on items
found by investigators, the district court made the reasonable
determination that Harris sustained life-threatening injuries.4
Brazier contests none of these facts, but he argues in effect
that Harris’s injury could have been worse. He also cites cases
showing that the lines between the different-level enhance-
ments under similar guideline provisions for different levels
of injury are not sharp and that appellate courts stick to the
deferential review of such findings under the clear-error
standard. E.g., United States v. Eubanks, 593 F.3d 645, 651–52
(7th Cir. 2010) (affirming district court’s assessment of
4 On this record, the judge could have found in the alternative that
Harris suffered permanent injury, which the Guidelines treat the same as
a life-threatening injury. The defendants not only shot Harris, they also
aggravated the injury considerably. And at the time of Brazier’s trial, ten
months after the kidnapping, Harris still could not use or straighten his
arm.
Nos. 16-4258, 17-1060, 17-1412, 17-2268 & 17-2269 13
severity); United States v. Samuels, 521 F.3d 804, 816 (7th Cir.
2008) (same, collecting cases, all but one of which affirmed
district court findings). These cases do not show, as Brazier
argues, that Harris’s injuries must be characterized as serious
rather than life-threatening. If the district court had used a
two- or three-level enhancement, that might also have been a
reasonable application of the Guidelines, but the district court
did not clearly err in applying four levels, particularly in light
of the defendants’ denial of medical care to their kidnapping
victim. The court’s factual findings are sufficient to support
the enhancement, and those findings fall squarely in the prov-
ince of the district court.
2. Dangerous-Weapon Enhancement for Fields
As noted above, in sentencing Fields, the district court ap-
plied a two-level guideline enhancement because “a danger-
ous weapon was used” during the crime. U.S.S.G.
§ 2A4.1(b)(3). Fields challenges this enhancement because an
application note directs courts not to apply “any specific of-
fense characteristic for possession, brandishing, use, or dis-
charge of an explosive or firearm” when a sentence is imposed
under § 924(c). U.S.S.G. § 2K2.4, cmt. 4. Because Fields failed
to object to this enhancement at sentencing, we would review
for plain error. Rosales-Mireles v. United States, 138 S. Ct. 1897,
1904 (2018). Because Fields has prevailed in having his con-
viction and sentence under § 924(c) reversed, however, the in-
struction in comment 4 no longer applies and will not prohibit
application of the enhancement upon resentencing.
C. Order of Restitution
Finally, all three defendants challenge the judge’s decision
to order restitution because they are indigent. Brazier raises
14 Nos. 16-4258, 17-1060, 17-1412, 17-2268 & 17-2269
alone a separate issue, a challenge to the district court’s deci-
sion to hold the three defendants jointly and severally liable
for the entire amount of restitution. Brazier and Mzembe ob-
jected to the order in the district court, but Fields did not. We
review restitution imposed under 18 U.S.C. § 3663 for abuse
of discretion, but when a defendant like Fields has forfeited
an argument in district court, we review the district court’s
decision for plain error. United States v. Robers, 698 F.3d 937,
941 (7th Cir. 2012) (abuse of discretion standard); United States
v. Dokich, 614 F.3d 314, 318 (7th Cir. 2010) (plain error). We
need not dwell on the defendants’ different approaches in the
district court or the higher bar for plain-error review for this
issue. The district court did not act contrary to law or abuse
its discretion in imposing restitution, with joint and several
liability, on all three defendants.5
The defendants contend that the district court abused its
discretion by not adequately considering their “financial re-
sources,” “financial needs,” and “earning ability” as required
by § 3663(a)(1)(B) before imposing restitution. As defendants
acknowledge, however, the district court considered in depth
their financial resources. The court expressly recognized it is
unlikely they would pay the restitution in full. The court
chose to order restitution despite their poverty.
The decision to impose restitution despite the defendants’
likely inability to pay was within the district court’s discretion
under § 3663. The court noted that it was not “impossible that
5The government asks that we affirm the district court’s decision un-
der the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A, which makes
restitution mandatory for crimes of violence. We do not reach this issue
because the judge did not abuse his discretion in ordering restitution un-
der § 3663.
Nos. 16-4258, 17-1060, 17-1412, 17-2268 & 17-2269 15
either might win the lottery” and that, in that case, each de-
fendant should “have to share that good fortune with the man
he shot, beat, bound and ransomed in 2015.” The defendants
point to several cases that discouraged imposing restitution
on indigent defendants. See, e.g., United States v. Jaroszenko, 92
F.3d 486 (7th Cir. 1996); United States v. Lampien, 89 F.3d 1316
(7th Cir. 1996). The problem with defendants’ reliance on
these cases is one we acknowledged in United States v. Day,
418 F.3d 746 (7th Cir. 2005): the Mandatory Victim Restitution
Act changed the calculus in these earlier cases because it
amended the Victim and Witness Protection Act provisions at
issue in this case. Section 3664(f)(1)(A) now orders courts im-
posing restitution to order restitution for “the full amount of
each victim’s losses as determined by the court and without
consideration of the economic circumstances of the defend-
ant.” We explained in Day that the amendment made clear
that “the law should be concerned first with the victim’s right
to full restitution and the defendant’s concomitant recogni-
tion of the duty to pay full restitution, albeit a largely sym-
bolic one.” 418 F.3d at 758.
Judge Miller took notice here of both the victim’s right to
restitution and the defendants’ financial circumstances, as re-
quired by § 3663. He also acknowledged the largely symbolic
nature of the restitution order. He then decided to award res-
titution “in the full amount of each victim’s losses as deter-
mined by the court and without consideration of the eco-
nomic circumstances of the defendant” as required by
§ 3664(f)(1)(A). We do not see in this record any indication
that the district judge abused his discretion in imposing a sub-
stantial but likely symbolic order of restitution against all de-
fendants.
16 Nos. 16-4258, 17-1060, 17-1412, 17-2268 & 17-2269
Brazier alone challenges the district court’s decision to
hold all defendants jointly and severally liable for the full res-
titution amount. He argues that he should be on the hook for
only a percentage of the restitution amount that is propor-
tional to his culpability, which he calculates by comparing his
sentence duration to the length of his co-defendants’ sen-
tences. Section 3664(h) provides:
If the court finds that more than 1 defendant has
contributed to the loss of a victim, the court may
make each defendant liable for payment of the
full amount of restitution or may apportion lia-
bility among the defendants to reflect the level
of contribution to the victimʹs loss and economic
circumstances of each defendant.
The district court exercised its discretion under § 3664(h)
and chose to impose joint and several liability for all three de-
fendants. The law did not require the district court to accept
Brazier’s calculation of relative culpability based on compari-
sons of prison sentences. And in an interesting version of try-
ing to turn lemonade back into bitter lemons, Brazier com-
plains that his lighter prison sentence will be unfair to him
because he will probably have to start making monthly resti-
tution payments upon his release, years before Fields and
Mzembe will because of their longer prison terms.
The district court acknowledged Brazier’s arguments but
rejected them, finding that the facts that had led the court to
impose different prison sentences did not justify different res-
titution awards. We find no abuse of discretion here, particu-
larly since the focus of restitution, as distinct from prison
terms, is more on compensation for the victim than on precise
calibration of relative culpability among multiple defendants.
Nos. 16-4258, 17-1060, 17-1412, 17-2268 & 17-2269 17
Brazier was not convicted of a firearm offense like Mzembe
and Fields, but he played an integral part in kidnapping and
torturing Harris. He was present when Harris was shot. He
does not argue that he was unaware that Mzembe and Fields
carried guns, which might have rendered the accidental
shooting unforeseeable to him. And Brazier did nothing to
treat Harris’s wounds. In fact, he intensified Harris’s suffering
by continuing to beat and torture him after the gunshot, or by
at least aiding and abetting Harris’s beatings.
Finally, Fields points out that the district court made a fac-
tual error in setting his restitution amount about $3,000 above
the restitution amount for Mzembe and Brazier. The district
court itself recognized this mistake in ordering restitution for
Fields’ confederates. On remand, the court must adjust the
restitution amount for Fields.
Brazier’s conviction and sentence are AFFIRMED. The
§ 924(c) convictions of Fields and Mzembe are REVERSED.
Fields’ and Mzembe’s sentences are VACATED, and their
cases are REMANDED for resentencing consistent with this
opinion.