United States v. Kevin Ingram ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1403
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN INGRAM,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:18-cr-00044-1 — Tanya Walton Pratt, Judge.
____________________
ARGUED JANUARY 8, 2020 — DECIDED JANUARY 17, 2020
____________________
Before FLAUM, ROVNER, and SCUDDER, Circuit Judges.
FLAUM, Circuit Judge. A federal jury convicted Kevin In-
gram of three counts of Hobbs Act robbery (Counts 1–3), one
count of attempted Hobbs Act robbery (Count 4), and four
counts of possession of a firearm in furtherance of those
crimes of violence (Counts 5–8). Ingram now appeals, arguing
(1) that there was insufficient evidence on Count 5 for the jury
to return a conviction and (2) that his conviction on Count 8
cannot stand because attempted Hobbs Act robbery does not
2 No. 19-1403
qualify as a crime of violence. For the following reasons, we
affirm.
I. Background
Over the course of eight days in October 2017, Ingram
committed three robberies and one attempted robbery in In-
dianapolis, Indiana. Police eventually identified Ingram as
the culprit based on his social media postings and two anon-
ymous tips. The government charged Ingram with three
counts of Hobbs Act robbery and one count of attempted
Hobbs Act robbery under 18 U.S.C. § 1951(a), as well as four
counts of brandishing a firearm in connection with each of
those crimes of violence under 18 U.S.C. § 924(c).
At trial, Ingram admitted guilt as to Counts 1–4, but con-
tested the four § 924(c) charges. In support of those charges,
the government submitted testimony, video surveillance foot-
age, digital photographs, and other physical and electronic
evidence, showing the following:
The first robbery—the basis of Counts 1 and 5—took place
on October 16. Ingram entered an “Eyes by India” salon and
shoved into the store clerk’s back what she believed was a
gun. Ingram then ordered her to give him all the money in the
cash register. After the clerk handed Ingram the cash, he
forced her into a breakroom and fled. The clerk did not see,
and the security cameras in the store did not capture an image
of, the object that Ingram shoved against her back. But the
clerk testified that she believed it was a gun because the object
felt “hard” and like “metal.”
The next day, while on an errand with his girlfriend, Vyc-
torya Cobb, Ingram robbed the DJ Beauty Supply (Counts 2
No. 19-1403 3
& 6). Approaching the store clerk at the counter, Ingram sud-
denly pulled out a gun and demanded money from the regis-
ter. After receiving about $450, Ingram fled in Cobb’s car.
While driving away, Cobb noticed Ingram remove a large
amount of cash and a small black gun from his hoodie. After
Cobb pulled the car over and confronted Ingram about what
he had done, Ingram confessed to robbing the store.
Three days later, Ingram robbed another Eyes by India sa-
lon, threatening both a store clerk and other customers with a
gun (Counts 3 & 7). Finally, three days after the second Eyes
by India robbery, Ingram ran out of luck when he tried to rob
a Dollar Tree (Counts 4 & 8). Despite her terror at Ingram’s
weapon, the clerk could not open the register and Ingram left
empty-handed. 1
At the close of the government’s case-in-chief, Ingram
moved for a directed verdict on Counts 5–8 under Federal
Rule of Criminal Procedure 29. He argued that the govern-
ment had not proven beyond a reasonable doubt that the ob-
ject he had brandished during the robberies was in fact a fire-
arm. The district court rejected that argument, and the case
was submitted to the jury, which returned a guilty verdict on
all eight counts. This appeal followed.
II. Discussion
Ingram contends there was insufficient evidence that he
brandished a firearm to support his conviction on Count 5,
1 A military veteran present at the fourth attempted robbery testified that
she was convinced that Ingram had brandished a real firearm based on
the sound the object in his hand made when he pulled the slide back to
chamber a round.
4 No. 19-1403
and that his conviction on Count 8 cannot stand because at-
tempted Hobbs Act robbery is not a crime of violence.
A. Count Five
We first address Ingram’s argument that the government
presented insufficient evidence for a jury to convict him on
Count 5: brandishing a firearm in furtherance of the first rob-
bery at the Eyes by India on October 16, 2017. Although we
review a district court’s denial of a motion for acquittal under
Rule 29 de novo, we ask only “whether evidence exists from
which any rational trier of fact could have found the essential
elements of a crime beyond a reasonable doubt.” United States
v. Johnson, 874 F.3d 990, 998 (7th Cir. 2017) (quoting United
States v. Doody, 600 F.3d 752, 754 (7th Cir. 2010)). Reversal is
therefore only appropriate where “no rational trier of fact
could have found the defendant guilty.” Doody, 600 F.3d at
754.
Section 924(c)(1)(A) requires courts to impose certain man-
datory sentences on any person who “during and in relation
to any crime of violence … uses or carries a firearm.” 18 U.S.C.
§ 924(c)(1)(A). Ingram asserts that his conviction on Count 5
must be overturned because the evidence was insufficient—
without making improper inferences from evidence submit-
ted in support of other counts—to conclude that the object he
brandished during the robbery on October 16 was a firearm.
The parties’ arguments regarding Count 5 raise difficult
questions about what evidence jurors may properly consider
and the inferences they may draw in cases where a defendant
has allegedly committed multiple crimes in a short period of
time. We need not answer those questions, however, because
the evidence that the parties agreed was properly before the
No. 19-1403 5
jury on Count 5 was sufficient for a reasonable jury to find
that Ingram brandished a firearm during the robbery on Oc-
tober 16, 2017. That evidence was:
1. Security camera images showing Ingram entering
the store and then pushing the store clerk toward
the back of the store while holding something
against her back.
2. The clerk’s testimony that Ingram held something
against her back and that she believed the item was
a gun because it felt “really hard” and like “metal.”
3. Cobb’s testimony that on October 17, she saw In-
gram with a small firearm while he was in her car.
First, as a general matter, when a witness can testify that a
defendant brandished a firearm, “[t]here is no requirement
that the government produce the firearm or other corroborat-
ing evidence to sustain a conviction” under § 924(c). United
States v. Lawson, 810 F.3d 1032, 1039–40 (7th Cir. 2016). Indeed,
the government need not “produce an expert witness” or
even “more than one lay witness” to prove a defendant used
a firearm during the commission of a crime. Id. at 1040. Thus,
Cobb’s testimony is sufficient by itself to establish that Ingram
had a firearm on October 17.
Second, as Ingram conceded in his opening brief, 2 the jury
could properly consider Cobb’s testimony that Ingram had a
2 At oral argument Ingram’s counsel seemed to suggest the jury could not
consider this evidence. However, Ingram’s opening brief stated: “Other
than the testimony of Ms. Patel, the only evidence regarding Mr. Ingram’s
use of a firearm in Count 1 was Ms. Cobb’s testimony that he had a firearm
on the dates of other robberies. … That’s as far as the evidence goes on
Count 1.”
6 No. 19-1403
firearm on October 17 as circumstantial evidence that he had
a firearm during the robbery on October 16. Cf. Ojile v. Smith,
779 F. App’x 288, 298 (6th Cir. 2019) (concluding that “[g]iven
[the] high degree of similarity across multiple robberies, a rea-
sonable jury could infer the presence of a gun in the facially
identical attempted robberies from the fact that the pair used
a gun in all their completed robberies”).
Third, a reasonable inference from this circumstantial evi-
dence is that when the clerk felt a hard, metal object shoved
against her back the night of October 16, she was feeling the
firearm Cobb saw the next day. Accord United States v. Wilson,
166 F.3d 1219 (9th Cir. 1999) (unpublished table decision) (af-
firming § 924(c) conviction where, mid-robbery, defendant
said he had gun, but never displayed it, given he committed
two other robberies within weeks where he was seen with a
firearm at the time or shortly thereafter).
Finally, there is absolutely no evidence to support the no-
tion that the object in question was anything other than a gun.
Consequently, we conclude that a reasonable jury could find
that Ingram brandished a firearm in commission of the Octo-
ber 16 robbery.
B. Count Eight
We now turn to Ingram’s assertion that his conviction on
Count 4 for attempted Hobbs Act robbery cannot serve as the
predicate offense for his conviction on Count 8 under 18
U.S.C. § 924(c)(1)(A). As an initial matter, the parties dispute
whether we should review Ingram’s conviction on Count 8
for plain error or de novo. As Ingram acknowledges, he never
raised this argument before the district court. Thus, our re-
view must proceed under the plain error standard. See, e.g.,
No. 19-1403 7
United States v. Cureton, 739 F.3d 1032, 1045 (7th Cir. 2014) (ex-
plaining that because the defendant had not raised the issue
before the district court, his claim for unconstitutional sen-
tencing could only be reviewed for plain error). Regardless of
the standard of review, however, application of our precedent
requires us to affirm Ingram’s conviction on Count 8.
First, we have previously held, and Ingram does not disa-
gree, that Hobbs Act robbery constitutes a crime of violence
under the elements test contained in 18 U.S.C. § 924(c)(3)(A).
See, e.g., United States v. Rivera, 847 F.3d 847, 848–49 (7th Cir.
2017) (holding that, under the categorical approach, Hobbs
Act robbery qualifies as a crime of violence).
Second, a jury must find that a defendant had the specific
intent to commit Hobbs Act robbery to convict him of at-
tempted Hobbs Act robbery. See United States v. Villegas, 655
F.3d 662, 668 (7th Cir. 2011).
Third, in Hill v. United States, we explained that “[w]hen a
substantive offense would be a violent felony under
[18 U.S.C.] § 924(e) and similar statutes, an attempt to commit
that offense also is a violent felony” so as long as the attempt
offense “requires proof of intent to commit all elements of the
completed crime.” 877 F.3d 717, 719 (7th Cir. 2017); see also
United States v. D.B.B., 903 F.3d 684, 691–93 (7th Cir. 2018) (ex-
plaining that attempted robbery under Indiana law did not
qualify as a crime of violence under Hill because its elements
did not include the intent to commit robbery). And, given
§ 924(e) and § 924(c) use almost identical language, we extend
Hill’s ruling to § 924(c) as well. 3
3Although § 924(e)(2)(B)(i) only prohibits force against the person of an-
other, while § 924(c)(1)(A)(ii) prohibits force against both the person or
8 No. 19-1403
Thus, given (1) Hobbs Act robbery constitutes a crime of
violence and (2) the jury had to find that Ingram intended to
commit Hobbs Act robbery in order to convict him for at-
tempt, we conclude that Count 4 was a valid predicate offense
for Ingram’s conviction in Count 8.
III. Conclusion
For the foregoing reasons, we AFFIRM Ingram’s convic-
tions.
property of another, the difference is inconsequential. See generally 18
U.S.C. § 1951(b)(1). Ingram does not contend otherwise.