Petition for Writ of Certiorari — James Michael Kerns, Petitioner v. United States

Supreme Court briefAug 18, 2021

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NO.

SUPREME COURT OF THE UNITED STATES

JAMES KERNS

Petitioner

- VS. UNITED STATES OF AMERICA

Respondent.

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PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

/s Michael Losavio

Michael M. Losavio

1642 Jaeger Avenue

Louisville, Kentucky 40205

losavio@losavio.win.net

(502) 417-4970

Counsel of Record for Petitioner

James Kerns

1

QUESTION PRESENTED FOR REVIEW

Question I. If Count 3 charging a violation of 18 U.S.C. § 924 is without legal, constitutional

foundation as it alleges a crime of violence in Count 2, interstate domestic violence in relation to

Count 1, kidnapping, which was not a crime of violence pursuant to United States v. Davis, 588

U.S. ___ (2019), how can that be a proper relational predicate “crime of violence” as to sustain a

conviction for Count 3?

And Count 2 references the “crime of violence” as defined by 18 USC 16, whose residual clause

was found unconstitutionally vague in Sessions v. Dimaya, 584 U.S. ___ (2018).

Shouldn’t Kerns’ conviction for Count 3 be reversed, vacated and dismissed with prejudice?

Question II – Was the plea taken erroneously and Kerns’ sentence flawed where the elements of

the offense of kidnapping were not established therein or there was confusion as to those

elements, especially given the ill-defined “otherwise” residual provision of the kidnapping

statute. Is that plea constitutionally infirm as the residual “otherwise” clause is unconstitutionally

vague and a conviction under it error?

Shouldn’t Kerns judgment based on this infirm plea to an unconstitutionally vague element be

reversed and vacated?

2

LIST OF ALL PARTIES TO THE PROCEEDING IN THE COURT

WHOSE JUDGMENT IS SOUGHT TO BE REVIEWED

James Kerns, Appellant, Petitioner

United States of America, Appellee, Respondent

,

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TABLE OF CONTENTS

Questions Presented For Review .....................................................................................................3

Opinion Below .................................................................................................................................6

Grounds of Jurisdiction ....................................................................................................................6

Constitutional Provisions and Other Authorities Involved in This Case .........................................7

Statement of the Case.......................................................................................................................8

Reasons For Granting the Writ ......................................................................................................10

Question I. – If Count 3 charging a violation of 18 U.S.C. § 924 is without legal, constitutional

foundation as it alleges a crime of violence in Count 2, interstate domestic violence in relation to

Count 1, kidnapping, which was not a crime of violence pursuant to United States v. Davis, 588

U.S. ___ (2019), how can that be a proper relational predicate “crime of violence” as to sustain a

conviction for Count 3? And Count 2 references the “crime of violence” as defined by 18 USC

16, whose residual clause was found unconstitutionally vague in Sessions v. Dimaya, 584 U.S.

___ (2018).

Shouldn’t Kerns’ conviction for Count 3 be reversed, vacated and dismissed with prejudice?

Question II –Was the plea taken erroneously and Kerns’ sentence flawed where the elements of

the offense of kidnapping were not established therein or there was confusion as to those

elements, especially given the ill-defined “otherwise” residual provision of the kidnapping

statute. Is that plea constitutionally infirm as the residual “otherwise” clause is unconstitutionally

vague and a conviction under it error?

Shouldn’t Kerns judgment based on this infirm plea to an unconstitutionally vague element be

reversed and vacated?

Conclusion .....................................................................................................................................17

Certification of Word and Page Length ………………………………………………………….18

Certificate of Service……….………………………..…………………………………………..19

Appendix…………………………………………..……………………………..………………19

Opinion Affirming of the United States Court of Appeals for the Sixth Circuit ....... A 1-17

United States v. James Kerns, Case # 20-1563

Judgment of the U.S. District Court for the Western District of Michigan………..…B 1-7

United States v. James Kerns, Case # 1-19-CR- 32

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TABLE OF AUTHORITIES

Cases

Boykin v. Alabama, 395 U.S. 238 (1969) ............................................................................... 13, 14

Kolender v. Lawson, 461 U.S. 352, 1983); ................................................................................... 16

Sessions v. Dimaya, 584 U.S. ___ (2018) ..................................................................................... 13

United States v. Davis, 588 U.S. ___ (2019) ................................................................................ 12

United States v. L. Cohen Grocery Co., 255 U.S. 81, 89–91 (1921); ........................................... 16

United States v. Reese, 92 U.S. 214, 221 (1876). ......................................................................... 16

Statutes

18 U.S.C. § 924(c) ........................................................................................................................ 12

18 U.S.C. §3231 .............................................................................................................................. 8

18 USC §16 ................................................................................................................................... 12

18 USC §2261 ............................................................................................................................... 12

18 USC 2261 ................................................................................................................................. 12

28 U.S.C. §1291 .............................................................................................................................. 8

28 U.S.C. §1294 .............................................................................................................................. 8

OPINIONS AND ORDERS BELOW

The opinion below of the United States Court of Appeals for the Sixth Circuit was rendered in

United States v. James Kerns, Case number 20-1563; that opinion affirmed the judgment of the

United States District Court for the Western District of Michigan in case number 1-19-CR- 32

where the original sentence committed Kerns to the custody of the Bureau of Prisons to a total

term of 192 months imprisonment.

JURISDICTION

i.

The opinion of the United States Court of Appeals for the Sixth Circuit was

entered on 12 August 2021; pursuant to Rule 13.1 of the rules of this Court, the

Petition is timely filed.

ii.

No petition for a rehearing was filed in this matter; no extension of time within

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which to file a petition for a writ of certiorari has been made.

iii.

This is not a cross-Petition pursuant to Rule 12.5.

iv.

The statutory provision conferring jurisdiction upon this Court to review upon a

writ of certiorari the judgment or order in question is 28 U.S.C. §1254.

Constitutional Provisions And Other Authorities Involved In This Case

Fourteenth Amendment to the Constitution of the United States

Fifth Amendment to the Constitution of the United States

Kidnapping, 18 U.S. Code § 1201.

(a)Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries

away and holds for ransom or reward or otherwise any person, except in the case of a

minor by the parent thereof, when—

(1)… the offender travels in interstate or foreign commerce … in committing or in

furtherance of the commission of the offense…(emphasis added)

Interstate domestic violence, 18 U.S. Code § 2261:

A person who travels in interstate or foreign commerce…with the intent to kill, injure,

harass, or intimidate a spouse, intimate partner, or dating partner, and who, in the course

of or as a result of such travel or presence, commits or attempts to commit a crime of

violence against that spouse, intimate partner, or dating partner, shall be punished as

provided in subsection (b).

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STATEMENT OF THE CASE

Jurisdiction in the First Instance

Subject matter jurisdiction vested in the U.S. District Court for the Western District of

Michigan pursuant to 18 U.S.C. §3231; Kerns was indicted for offenses against the laws of the

United States and was convicted upon a plea of guilty within that district.

Appellate jurisdiction vested in the United States Court of Appeals for the Sixth Circuit

pursuant to 28 U.S.C. §1291 and 28 U.S.C. §1294.

Presentation of Issues in the Courts Below and Facts

James Kerns is a young man with a history of mental illness that first presented in

childhood. It continued into early adulthood, leading to in-patient treatment while in the U.S. Air

Force and ultimately leading to his discharge. He began working back home in Kentucky and

had a relationship that led his travel from Kentucky to his domestic partner’s family’s home in

Michigan and to the instant charges of kidnapping, interstate domestic violence and brandishing

a firearm in the commission of a felony.

Kerns’ changed his plea to guilty of Counts 1 and 3 without a plea agreement.

During the plea colloquy the magistrate judge told Kerns what the government would

need to prove if he went to trial, including:

THE COURT: All right. If you decided to go to trial

on Counts 1 and 3 rather than pleading guilty there are certain things the government

would have to prove. Those would include the fact that you kidnapped A.C., held her for

ransom, and traveled in interstate commerce, that is, you traveled from Kentucky to

Michigan in the commission of that crime….

…Do you understand what the government would have to prove to convict you on

Counts 1 and 3 if you went to trial?

THE DEFENDANT:

Yes.

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The plea proffer of the prosecution details the events leading to the charges against Mr.

Kerns, though they conflict with the magistrate judge’s statement to Kerns,

Thereafter, despite a plea for leniency and consideration of his mental illness, the District

Court sentenced Kerns to 108 months imprisonment on Count I, the top of the guidelines range

as calculated, in addition to the consecution 84 months for brandishing a firearm.

He appealed this conviction. The Court of Appeals affirmed, as to all issues raised.

But in a concurring opinion Judge Readler noted that

…the statute’s deployment of the term “otherwise” does raise a fair question as to

what conduct Congress in fact criminalized. The Supreme Court answered that question

many years ago, at least in part. See Gooch v. United States, 297 U.S. 124 (1936). But its

manner of doing so may well have failed the test of time. For the decision employed

now-disfavored a textual interpretive methods, and in the process dramatically expanded

the reach of federal criminal jurisdiction, leaving separation-of-powers and federalism

concerns in its wake. Opinion, p 11.

This Petition follows.

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REASONS FOR GRANTING THE WRIT

Question I. – If Count 3 charging a violation of 18 U.S.C. § 924 is without legal, constitutional

foundation as it alleges a crime of violence in Count 2, interstate domestic violence in relation to

Count 1, kidnapping, which was not a crime of violence pursuant to United States v. Davis, 588

U.S. ___ (2019), how can that be a proper relational predicate “crime of violence” as to sustain a

conviction for Count 3?

And Count 2 references the “crime of violence” as defined by 18 USC 16, whose residual clause

was found unconstitutionally vague in Sessions v. Dimaya, 584 U.S. ___ (2018).

Shouldn’t Kerns’ conviction for Count 3 be reversed, vacated and dismissed with prejudice?

Count 3 punishes Kerns for brandishing a firearm in furtherance of the crime of violence

as charged in Count 2, interstate domestic violence (18 U.S.C. § 924(c) (1)(a)(ii); 18 USC 2261).

Via Superseding Information, this was an amendment to the charges, changing the predicate

crime of violence referenced in the § 924 (c) brandishing charge from kidnapping (Count 1)

interstate domestic violence (Count 2). This reflected the holding in United States v. Davis, 588

U.S. ___ (2019) that the residual clause for qualifying an offense as a “crime of violence” was

unconstitutionally vague and could not be used to establish that predicate under

§924(c)(1)(a)(ii).

Yet this doesn’t remedy the fundamental problem that Count 2 itself, interstate domestic

violence, is not automatically a “crime of violence” as required by 924 (c)(3) It doesn’t

automatically support a conviction under 18 USC §924(c)(1)(a)(ii). This is because the 18 USC

§2261 element of “crime of violence” is undefined within the statute and thus defaults to the

definition of 18 USC §16, “Crime of violence defined.”

But 18 USC §16 suffers from the same infirmity as the Armed Career Criminal Act and

924 (c): it includes a residual clause that is unconstitutionally vague and illegal, as so held in

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Sessions v. Dimaya, 584 U.S. ___ (2018)

The predicate Count 2 alleged that Kerns’:

…traveled in interstate commerce, from Kentucky to Michigan, with the intent to kill,

injure, harass, and intimidate A.C., his intimate partner, and as a result of such travel,

committed and attempted to commit a crime of violence against A.C. through use of a

dangerous weapon.

But there was no crime of violence to support Count 2, which means Count 3 must fail.

In the alternative, Kerns’ plea colloquy was erroneous and inadequate to sustain a valid

plea per Boykin v. Alabama. The failure to establish that Kerns understood that to which he was

pleading, and that to which he was pleading did establish a crime as supported by the

government’s proffer, requires a reversal and remand in this matter.

As the elements required to establish Count 3 were not established, Kerns’

conviction and sentence on Count 3 must be reversed and vacated and dismissed.

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Question II –Was the plea taken erroneously and Kerns’ sentence flawed where the elements of

the offense of kidnapping were not established therein or there was confusion as to those

elements, especially given the ill-defined “otherwise” residual provision of the kidnapping

statute. Is that plea constitutionally infirm as the residual “otherwise” clause is unconstitutionally

vague and a conviction under it error?

Shouldn’t Kerns judgment based on this infirm plea to an unconstitutionally vague element be

reversed and vacated?

Mr. Kerns plea was taken erroneously due to insufficiency as to the facts and Kerns’

understanding of that to which he was pleading.

The plea colloquy with Kerns demonstrated insufficiency and a lack of clarity as to

i)

what Kerns thought he was pleading to and

ii)

what the prosecution said he did and

iii)

the requirements of the kidnapping statute

such as to assure a valid, constitutional plea to Count 1, Kidnapping, in accordance with Fed. R.

Crim. Proc. 11 and as to the constitutionality of that conviction due the overly vague “otherwise”

residual clause as applied here. Boykin v. Alabama, 395 U.S. 238 (1969) and Brady v. United

States, 397 U.S. 742 (1970); See United States v. Davis, 588 U.S. ___ (2019), Sessions v.

Dimaya, 584 U.S. ___ (2018), as to unconstitutionally vague residual language.

Count 1 of the Superseding Information alleged Kerns’:

..unlawfully seized, confined, kidnapped, abducted, or carried away A.C. and held her for

ransom, reward or otherwise, after traveling in interstate commerce, from Kentucky to

Michigan, in furtherance of the commission of the offense.

During the plea colloquy the magistrate judge told Kerns what the government would

need to prove if he went to trial, to wit:

THE COURT: All right. If you decided to go to trial

on Counts 1 and 3 rather than pleading guilty there are certain things the government would have

to prove. Those would include the fact that you kidnapped A.C., held her for ransom, and

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traveled in interstate commerce, that is, you traveled from Kentucky to Michigan in the

commission of that crime…. (emphasis added)

…Do you understand what the government would have to prove to convict you on Counts 1 and

3 if you went to trial?

THE DEFENDANT:

Yes.1

Here the record does not disclose that Kerns knowingly and voluntarily entered a valid guilty

plea as he was not told the correct elements of the offense to which he must admit nor did he

admit to all the necessary elements of his intention/mental state/motivation:

1) That Kerns pled to kidnapping for ransom, where ransom was never a factor here in this

case and there was no evidence anywhere of that, demonstrates this.

2) That the proffer of facts by the prosecution does not establish abduction for ransom, nor

any other included motivation, demonstrates this.

3) That the residual motivation clause of the kidnapping statute – “otherwise”- is implicated

here demonstrates this as both a sufficiency or constitutional infirmity as the “otherwise”

fact/motivation was never mentioned and may itself be insufficiently defined due to

vagueness.

The proffer to which Kerns agreed was lacking in all legal elements of the offense.

Kerns’ Charge and Conviction Are Constitutionally Infirm

The kidnapping (Count 1) was not a crime of violence, as agreed by the parties, reflecting

United States v. Davis, 588 U.S. ___ (2019) where the Supreme Court held that the residual

clause for qualifying an offense as a “crime of violence” was unconstitutionally vague and could

not be used to establish that predicate under §924(c)(1)(a)(ii).) This is part of an ongoing review

1 There was never an issue with “ransom” in this matter other than it appears in the statute, the

Information copied the statute, and the magistrate judge erroneously repeated the inapplicable

language from the Information.

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of constitutionally vague, infirm statutes that include a residual clause that is unconstitutionally

vague and illegal, such as 18 USC §16, as so held in Sessions v. Dimaya, 584 U.S. ___ (2018),

the Armed Career Criminal Act (Johnson v. United States, 576 U. S. 591 (2015)) and 924 (c).

As Justice Gorsuch noted in United States v Davis, “In our constitutional order, a vague

law is no law at all. Only the people’s elected representatives in Congress have the power to

write new federal criminal laws. And when Congress exercises that power, it has to write statutes

that give ordinary people fair warning about what the law demands of them. Vague laws

transgress both of those constitutional requirements.” Id, at 1

The Fifth Amendment and Fourteenth Amendment to the US Constitution assure due

process of law. That due process requires proper notice to a citizen of what is prohibited and

proper limits to police power as to what can be enforced.

As the Supreme Court noted in Davis :

Vague statutes threaten to hand responsibility for defining crimes to relatively

unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the

creation of the laws they are expected to abide. See Kolender v. Lawson, 461 U.S. 352,

357–358, and n. 7 (1983); United States v. L. Cohen Grocery Co., 255 U.S. 81, 89–91

(1921); United States v. Reese, 92 U.S. 214, 221 (1876).

Yet here we have a related case with an internal “residual” clause that equally violates the

Constitution due to vagueness.

Count 1 alleged violation of 18 U.S. Code § 1201.Kidnapping, which makes it a crime

where three (3) elements are met:

(a)Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries

away and holds for ransom or reward or otherwise any person, except in the case of a

minor by the parent thereof, when—

(1)… the offender travels in interstate or foreign commerce … in committing or in

furtherance of the commission of the offense…(emphasis added)

But there is no statutory guidance as to what it means to “…holds for …or otherwise any

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person,” (emphasis added)

Count 1 of the Superseding Information alleged Kerns’:

..unlawfully seized, confined, kidnapped, abducted, or carried away A.C. and held her for

ransom, reward or otherwise, after traveling in interstate commerce, from Kentucky to

Michigan, in furtherance of the commission of the offense. (emphasis added)

“Otherwise” is constitutionally vague and insufficient in and of itself. But in 1936 the

Supreme Court attempted to save this through an interpretation that related to a showing of

“benefit” to the defendant: “[I]t is sufficient for the government to show that the defendant acted

for any reason which would in any way be of benefit.” Gooch v. United States, 297 U.S. 124,

128, 56 S.Ct. 395, 397, 80 L.Ed. 522 (1936) 2 That issue of “any way be of benefit” is still

simply too vague and open to interpretation without any limits on prosecutorial discretion.

What was the “benefit” Kerns sought, under the vague notion that defendant’s reason

must be of some benefit? There is no benefit to Kerns in his actions, only a manifestation of his

mental illness. The proffer by the prosecution at the plea colloquy made no reference to this

factor or reason for this element of the statute, a crucial omission. The plea colloquy focused on

this all being for ransom, which it certainly was not.

THE COURT: All right. If you decided to go to trial on Counts 1 and 3 rather

than pleading guilty there are certain things the government would have to prove.

Those would include the fact that you kidnapped A.C., held her for ransom, and

traveled in interstate commerce, that is, you traveled from Kentucky to Michigan

in the commission of that crime.… (emphasis added)

THE DEFENDANT:

Yes.

None of the evidentiary documents mention ransom, and the essential prosecution’s

proffer never mentions ransom; that proffer never mentions ransom nor reward nor “otherwise”

2 See also Chatwin v. United States, 326 U.S. 455, 459, 66 S.Ct. 233, 235, 90 L.Ed. 198 (1946)

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benefit to Kerns, and the proffer fails to establish a factual basis for the federal kidnapping

charge.

The proffer by the prosecution did not establish all the elements of kidnapping as it did

not detail any impermissible motive, even under the reasoning of Gooch v. United States; that

proffer only states:

We'd be able to prove that beginning in or about January or February of 2018, the

Defendant got in a romantic relationship with a young woman by the name of Alissa

Colby, who is from South Boardman, Michigan. They relocated to Louisville,

Kentucky. Stayed there until approximately June of 2018. They were engaged in

intimate relations during that time.

The relationship was violent, and as a result, Ms. Colby eventually was able to get the

Defendant to return her home supposedly just for a short visit. .And he agreed to do that.

He returned her to South Boardman. And then he himself went back to Louisville to

work.

When she got to South Boardman, she told him that they were breaking up. She didn't

want to see him again. They communicated back and forth by text and cell phone and

things of that nature.

In July, specifically July 23rd, the Defendant drove unbeknownst to Ms. Colby back

up from Louisville to the Kalkaska County area, and by now he had this Hi-Point

firearm that he had bought down in Louisville, and contacted her once he got near

her house and asked her to talk to him. She thought he was still in Louisville. And

then during their talk he said, well, can we video conference? Can I least see you by

video one more time? And he convinced her to go out on the deck of her family's

home so that they could get better reception. And he was out there with the gun and

a ski mask and grabbed her off the porch. She says that he threatened to kill her and

her family if he didn't do what she said -- she didn't do what he said, and then

forced her into a car that he had nearby.

So they drove way from her family's

home. She saw a deputy sheriff in a speed trap by the side of the road as they were

driving away. She grabbed the wheel and the deputy noticed that and started

chasing the car, and a short time later pulled the Defendant over and this case

unravelled and that's what brings us here.

So that's what we could prove. We believe that that establishes all of the elements of the

offense.

This fails to set out the requisite “otherwise” benefit to Kerns. Kerns’ was not a valid plea

15

nor is this sufficient to prove a crime of federal kidnapping, as well as implicate an

unconstitutional prosecution that is too vague to withstand scrutiny.

The District Court did not comply with its obligations under Rule 11 by verifying that Mr.

Kerns admitted to the required elements of the offense.

And that plea was constitutionally infirm due to the vagueness of the “otherwise” element

of kidnapping.

As such, Kerns' judgment and sentence should be vacated and reversed and this matter

remanded so that his plea of guilty be set aside and dismissed.

CONCLUSION

The judgment and sentence were erroneous and this Petition for Writ of Certiorari should

be granted and Mr. Kerns given the relief he has argued for herein.

Respectfully submitted,

/s Michael Losavio

Michael M. Losavio

1642 Jaeger Avenue

Louisville, Kentucky 40205

(502) 417-4970

Counsel of Record for

Petitioner James Kerns

16

Certification of Word Count and Petition Length

The undersigned certifies that this Petition for a Writ of Certiorari does not exceed 5000 words nor

17 pages in length, not counting the appendix materials, and is in compliance with the length rules

of Supreme Court Rule 33.

/s Michael Losavio

Michael Losavio

1642 Jaeger Avenue

Louisville, Kentucky 40205

losavio@losavio.win.net

(502) 417-4970

Counsel of Record for Petitioner

pursuant to the Criminal Justice Act

Certificate of Service

A copy of the foregoing Petition for a Writ of Certiorari has been served this day by U.S. Postal

Mail or via a private expedited service on Hon. Brian Fletcher, Solicitor General of the United

States, Department of Justice, 950 Pennsylvania Ave., N. W., Washington, DC 20530-0001.

This 18th day of August, 2021

/s Michael Losavio

Michael Losavio

1642 Jaeger Avenue

Louisville, Kentucky 40205

losavio@losavio.win.net

(502) 417-4970

Counsel of Record for Petitioner

pursuant to the Criminal Justice Act

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Opinion Affirming of the United States Court of Appeals for the Sixth Circuit ... A 1-17…

United States v. James Kerns,

Judgment of the U.S. District Court for the Western District of Michigan………B 1-7…

United States v. James Kerns,

Statutes Involved in this Petition

Fourteenth Amendment to the Constitution of the United States

Fifth Amendment to the Constitution of the United States

Kidnapping, 18 U.S. Code § 1201.

(a)Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries

away and holds for ransom or reward or otherwise any person, except in the case of a

minor by the parent thereof, when—

(1)… the offender travels in interstate or foreign commerce … in committing or in

furtherance of the commission of the offense…(emphasis added)

Interstate domestic violence, 18 U.S. Code § 2261:

A person who travels in interstate or foreign commerce…with the intent to kill, injure,

harass, or intimidate a spouse, intimate partner, or dating partner, and who, in the course

of or as a result of such travel or presence, commits or attempts to commit a crime of

violence against that spouse, intimate partner, or dating partner, shall be punished as

provided in subsection (b).

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

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File Name: 21a0181p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

│

Plaintiff-Appellee, │

UNITED STATES OF AMERICA,

>

│

│

│

│

Defendant-Appellant. │

┘

v.

JAMES MICHAEL KERNS,

No. 20-1563

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:19-cr-00032-1—Janet T. Neff, District Judge.

Decided and Filed: August 12, 2021

Before: SUTTON, Chief Judge; COLE and READLER, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Michael M. Losavio, Louisville, Kentucky, for Appellant. Timothy VerHey, Kathryn

Dalzell, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.

COLE, J., delivered the opinion of the court in which SUTTON, C.J., and READLER, J.,

joined. READLER, J. (pp. 11–17), delivered a separate concurring opinion.

_________________

OPINION

_________________

COLE, Circuit Judge. James Michael Kerns pleaded guilty to one count of kidnapping

and one count of possession of a firearm in furtherance of a crime of violence. The district court

imposed a 192-month sentence.

On appeal, Kerns challenges his guilty plea and sentence.

For the reasons that follow, we affirm.

19

No. 20-1563

United States v. Kerns

Page 2

I.

On July 24, 2018, a sheriff’s deputy observed a vehicle swerving in traffic and initiated a

stop. Kerns was operating the vehicle. When the car came to a halt, the passenger, Kerns’s prior

romantic partner Alissa Colby, exited and yelled that Kerns had kidnapped her at gunpoint. Kerns

was immediately arrested. He admitted to driving from Kentucky to Colby’s Michigan residence

and threatening to kill Colby and her family if she did not leave with him. Colby later explained

that she had jerked the wheel of the car to get the attention of the deputy.

Kerns was indicted on three counts: kidnapping (18 U.S.C. § 1201(a)(1)), interstate

domestic violence (§ 2261(a)(1)), and possession of a firearm in furtherance of a crime of violence

(§ 924(c)(1)(a)(ii)). Kerns requested and obtained a competency and sanity evaluation, which

found he suffered from major depressive disorder and borderline personality disorder. He was

nonetheless found to have the capacity for criminal responsibility and to be competent to stand

trial.

On February 12, 2020, Kerns pleaded guilty before a magistrate judge to kidnapping and

possession of a firearm in furtherance of a crime of violence without the benefit of a plea

agreement. Kerns confirmed that he understood the nature of the charges and the maximum prison

time he could face, that his decision to plead guilty was voluntary, and that he was waiving certain

constitutional rights. Both parties agreed that there was a sufficient factual basis to support Kerns’s

plea. Having found that Kerns’s plea was knowing and intelligently made, the magistrate judge

recommended that the district judge accept the plea. On February 28, the district judge adopted

the magistrate judge’s report and recommendation and accepted Kerns’s guilty plea.

The district court sentenced Kerns on May 27. At sentencing, Kerns confirmed he had

reviewed the presentence-investigation report and had no objection to its findings. The court

explained that the recommended sentencing range for the kidnapping count was 87 to 108 months’

imprisonment and that the firearm count under § 924(c) carried a mandatory minimum sentence

of 84 months’ imprisonment, to be served consecutively. Kerns’s counsel asked for lenience in

sentencing based on his substantial mental-health history. The court ultimately

20

No. 20-1563

United States v. Kerns

Page 3

sentenced Kerns to 108 months’ imprisonment on the kidnapping count, the top of the Guidelines

range, in addition to a consecutive mandatory minimum sentence of 84 months’ imprisonment on

the firearm count. The court recommended mental-health treatment in light of the issues raised by

Kerns’s counsel.

The court also indicated that Kerns and his counsel had reviewed and signed an order

noting additional sentencing conditions prior to sentencing. This signed order noted, among other

things, that Kerns “must pay a below advisory guideline fine of $1,000.00 on Counts One and

Three, for a total of $2,000.00.” (Order, R. 79, PageID 293.) The court summarized this order from

the bench, noting that “[t]he additional conditions include a fine of $1,000 on which interest is

waived.” (Sent’g Hr’g Tr., R. 86, PageID 338.)

Neither party raised any objections to Kerns’s sentence. This appeal timely followed.

II.

A.

SENTENCING INCONSISTENCY

Kerns first contends that an inconsistency exists between the court’s oral reference to a fine

of $1,000 and its imposition of a total fine of $2,000. Kerns asserts “that when an oral sentence

conflicts with the written sentence, the oral sentence controls.” United States v. Schultz, 855 F.2d

1217, 1225 (6th Cir. 1988). But there was no genuine ambiguity as to the total fine Kerns would

be required to pay. Prior to sentencing, Kerns and his counsel reviewed and signed additional

sentencing conditions that provided he would pay a fine of $1,000 per count for a total of $2,000.

When considered in context, the court’s failure to specify that the $1,000 fine applied to each count

could not have reasonably misled Kerns.

B. PROCEDURAL AND SUBSTANTIVE REASONABLENESS

Next, Kerns purports to challenge both the procedural and substantive reasonableness of

his sentence, but his arguments implicate only substantive reasonableness. Procedural

reasonableness challenges, unlike substantive ones, focus on whether the district court “fail[ed] to

calculate (or improperly calculate[ed]) the Guidelines range, treat[ed] the Guidelines as

mandatory, fail[ed] to consider the § 3553(a) factors, select[ed] a sentence based on clearly

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erroneous facts, or fail[ed] to adequately explain the chosen sentence.” Gall v. United States, 552

U.S. 38, 51 (2007); United States v. McBride, 434 F.3d 470, 476 n.3 (6th Cir. 2006). Kerns does

not identify any procedural error in the district court’s sentencing decision. Nor could he. The court

calculated Kerns’s sentencing range correctly, consulted the 15 U.S.C. § 3553(a) factors in

ordering a 192-month sentence, and carefully explained its reasoning. To succeed in challenging

his sentence, Kerns’s arguments must thus go to his sentence’s substantive reasonableness.

The district court’s sentencing decision is reviewed for abuse of discretion. United States

v. Lanning, 633 F.3d 469, 473 (6th Cir. 2011). A sentence is assessed for substantive

reasonableness by asking whether it is “proportionate to the seriousness of the circumstances of

the offense and offender, and sufficient but not greater than necessary, to comply with the purposes

of § 3553(a).” United States v. Solano-Rosales, 781 F.3d 345, 356 (6th Cir. 2015) (quoting United

States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008)). Our review is “highly deferential” though not

“without limit.” United States v. Boucher, 937 F.3d 702, 707–08 (6th Cir. 2019) (quoting United

States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018)).

Kerns argues that the district court failed to give sufficient weight to his mental-health

history in weighing the § 3553(a) factors, and consequently his sentence was greater than

necessary. First, Kerns’s sentence fell within his Guidelines range and therefore is presumptively

reasonable. Boucher, 937 F.3d at 707. Second, the court considered Kerns’s significant mentalhealth issues but concluded that the seriousness of his offense, which was supported by a victimimpact statement, deterrence, and the need to protect the public favored a sentence at the top of the

Guidelines range. At the same time, the court rejected the government’s request for an above-theGuidelines sentence as “greater than necessary to comply with the statute[.]” (Sent’g Hr’g Tr., R.

86, PageID 337.) A district court does not commit reversible error when it simply assigns more

weight to certain § 3553(a) factors than others and arrives at a presumptively reasonable sentence.

United States v. Robinson, 892 F.3d 209, 214 (6th Cir. 2018) (“[A] district court does not commit

reversible error simply by ‘attach[ing] great weight’ to a few factors.” (quoting Gall, 552 U.S. at

57)). Kerns’s sentence was not substantively unreasonable.

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C. VALIDITY OF THE GUILTY PLEA

Kerns also challenges the validity of his guilty plea. First, he argues that his guilty plea to

the kidnapping charge was invalid because the court improperly advised him of its elements. He

also argues that the district court failed to determine a factual basis for his plea to both the

kidnapping and firearm charges.

Because Kerns did not object contemporaneously to these purported errors, we apply plainerror review. United States v. Lalonde, 509 F.3d 750, 757 (6th Cir. 2007). To prevail, Kerns must

show that the district court committed an “(1) error, (2) that is plain, and

(3) that affects substantial rights,” and if those elements exist, we may grant relief for the error “if

(4) the error seriously affects the fairness, integrity, or reputation of judicial proceedings.” Id.

at 757–58. An error affects a defendant’s substantial rights if there is a “a reasonable probability

that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez,

542 U.S. 74, 76 (2004).

1. Violation of Rule 11(b)(1)(G)

Kerns’s argument that he was improperly advised of the elements of the kidnapping offense

implicates Federal Rule of Criminal Procedure 11(b)(1)(G). Under that rule, district courts “must

inform the defendant of, and determine that the defendant understands . . . the nature of each charge

to which the defendant is pleading” before accepting the defendant’s guilty plea. Fed. R. Crim. P.

11(b)(1)(G). The “district court must be satisfied, after discussion with the defendant in open court,

that the defendant understands the elements of the offense.” Lalonde, 509 F.3d at 760 (quoting

United States v. McCreary-Redd, 475 F.3d 722, 723 (6th Cir. 2007)). “Where a defendant is

represented by competent counsel, the court usually may rely on that counsel’s assurance that the

defendant has been properly informed of the nature and elements of the charge to which he is

pleading guilty.” Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). And “[t]he Supreme Court has

suggested that providing the defendant with a copy of the indictment prior to his plea of guilty

creates a presumption that the defendant was informed of the nature of the charge against him.”

Lalonde, 509 F.3d at 760 (citing Bousley v. United States, 523 U.S. 614, 618 (1998)).

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Upon carefully reviewing the record, we conclude that the district court properly

determined that Kerns understood the elements of kidnapping. The federal kidnapping statute

provides, in relevant part, that a person is guilty of kidnapping where he “unlawfully seizes,

confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or

otherwise any person” while traveling in interstate commerce. 18 U.S.C. § 1201(a). Kerns’s

superseding felony information—which the district court, through the magistrate judge, read

verbatim during the plea hearing—parroted these elements, noting that Kerns “unlawfully seized,

confined, kidnapped, abducted, or carried away [Colby] and held her for ransom, reward or

otherwise, after traveling in interstate commerce[.]” (Supers. Felony Info., R. 53, PageID 139.)

Kerns’s sole objection is to the fact that later in the plea hearing, the judge commented that if he

were to go to trial, the government would have to prove that he “kidnapped [Colby], held her for

ransom, and traveled in interstate commerce.” (Plea Hr’g Tr., R. 66, PageID 196.) Kerns claims

that this caused him to misunderstand the full nature of his charge because the court’s comment

omitted the statutory language specifying that a defendant can be convicted of kidnapping that is

motivated by “ransom or reward or otherwise.” § 1201(a) (emphasis added).

We are not persuaded. The record reveals that the court fully apprised Kerns of the elements

of kidnapping as described in the superseding felony information and that Kerns consulted with

his lawyer about the nature of his charges. And the court fully described the elements of § 1201(a)

in another portion of the plea hearing. Further, Kerns confirmed at his plea hearing multiple times

that he had read the superseding felony information, discussed it with his attorney, and understood

the nature of his charges, including the kidnapping charge. We, therefore, cannot conclude that the

district court’s failure to restate the full language of § 1201(a) caused Kerns to misunderstand the

essential elements of the kidnapping offense to which he pleaded guilty. Much less did this

omission “seriously affect[] the fairness, integrity, or reputation of [his] judicial proceedings.” See

Lalonde, 509 F.3d at 759–61 (citation omitted) (an “omission alone” of an element of an offense

did not demonstrate the defendant lacked awareness of the charges against him). Moreover, Kerns

has not presented any plausible argument that, but for the court’s alleged failure to inform him of

the motive element in one portion of his plea hearing, he would have not entered the plea. See

United States v. Hobbs, 953 F.3d 853, 857–58 (6th Cir. 2020). In fact, omitting the “otherwise”

language from § 1201(a)

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suggested to Kerns that the government had a more onerous burden that it did in reality, and yet

he pleaded guilty nonetheless. He thus fails to show that the error affected his substantial rights.

2. Violation of Rule 11(b)(3)

Under Federal Rule of Criminal Procedure 11(b)(3), district courts “must determine that

there is a factual basis for the plea” before entering judgment. The “purpose of this rule is to protect

a defendant who is in the position of pleading voluntarily with an understanding of the nature of

the charge but without realizing that his conduct does not actually fall within the charge.” Lalonde,

509 F.3d at 762 (internal citations and quotations omitted). Kerns argues that Rule 11(b)(3) was

not satisfied with respect to both his kidnapping and firearm charges. We disagree.

Kerns claims that the district court did not establish facts showing that Kerns’s kidnapping

was motivated by “ransom or reward or otherwise.” We have held that the federal kidnapping

statute’s “otherwise” clause is satisfied where the government “show[s] that the defendant acted

for any reason which would in any way be of benefit” to the defendant. United States v. Small, 988

F.3d 241, 250 (6th Cir. 2021). Here, during Kerns’s plea hearing, the government detailed at length

the evidence it would produce were the case to go to trial, including evidence suggesting that

Kerns’s actions were motivated by his emotional ties to the victim. And Kerns agreed that the

evidence described was sufficient to support a conviction. Based on these representations, the

district court did not plainly err in concluding that his actions provided a sufficient factual basis to

support the kidnapping charge. Lalonde, 509 F.3d at 762 (noting “even a summary of the charges

in the indictment and an admission by the defendant” may be “sufficient to establish a factual

basis” (internal quotations omitted)).

Kerns also claims the district court did not confirm there was a factual basis for his guilty

plea to possession of a firearm in furtherance of a crime of violence under 18 U.S.C. §

924(c)(1)(A)(ii). Section 924(c)(1)(A)(i) provides that any person who possesses a firearm in

furtherance of a crime of violence is subject to a mandatory-minimum sentence of 60 months’

imprisonment. But if the firearm is “brandished,” the mandatory-minimum sentence increases to

84 months’ imprisonment. § 924(c)(1)(A)(ii). Kerns contends that the facts

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proffered by the government show only that “he possessed a firearm in relation to a crime of

violence, not that he brandished a firearm.” (Appellant Br. at 43.)

This argument contradicts the record. At Kerns’s plea hearing, the government noted that

it would be able to prove Kerns brandished a firearm because “he had it out and pointed it at [the

victim] when he grabbed her off the porch.” (Plea Hr’g Tr., R. 66, PageID 205.) Kerns expressly

agreed to that factual representation. Therefore, the court correctly determined a factual basis for

Kerns’s guilty plea to § 924(c)(1)(A)(ii).

Finally, Kerns suggests that his firearm conviction lacks a factual basis because the

government failed to set forth facts establishing that he possessed a firearm in furtherance of a

“crime of violence.” This claim is belied by the record as well. At the plea hearing the court

informed Kerns—as did the superseding felony information—that the “crime of violence”

furthered by his possession of a firearm was interstate domestic violence under 18 U.S.C. §

2261(a), a charge that the government promised to dismiss in exchange for his plea. Moreover,

Kerns confirmed his understanding that the “crime of violence” for purposes of the

§ 924(c)(1)(A) count was interstate domestic violence. And he agreed that the government’s

description of the evidence that it would present at trial would be sufficient to support a conviction

on that count.

Kerns contends that § 2261(a) does not “automatically” establish a factual basis for the

“crime of violence” element of § 924(c)(1)(A) because § 2261(a) has its own “crime of violence”

element. (Appellant Br. at 48–49.) True enough. We have summarized the elements of a §

2261(a)(1) claim as follows:

[T]he Government must show that the defendant: (1) traveled in interstate

commerce (2) with the intent to kill, injure, harass, or intimidate (3) a spouse or

intimate partner (4) and that, in the course of or as a result of such travel (5) the

defendant committed or attempted to commit a crime of violence against that

spouse or intimate partner.

United States v. Utrera, 259 F. App’x 724, 731 (6th Cir. 2008). But Kerns fails to explain why this

embedded “crime of violence” element affects the nature of his guilty plea. Nor does he identify

any authority suggesting that the court was required to inform him of the specific “crime of

violence” the government believes he committed or attempted to commit under § 2261(a)(1).

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In any event, as the government points out in its briefing, Kerns’s conduct could constitute

felonious assault under Michigan Law, see Mich. Comp. Laws § 750.82(1). The elements of

felonious assault in Michigan are: “(1) an assault, (2) with a dangerous weapon, and (3) with the

intent to injure or place the victim in reasonable apprehension of an immediate battery.” People v.

Avant, 597 N.W.2d 864, 869 (Mich. Ct. App. 1999). The facts established at the plea hearing—

that Kerns threatened Colby at gunpoint and forced her into a nearby car—would support a

conviction under this statute and, thus, be a “crime of violence” under § 2261(a). Even if we

concluded that the court should have informed Kerns that felonious assault could serve as a “crime

of violence” for purposes of § 2261(a), Kerns has not pointed to any record evidence suggesting

that he would have not entered his guilty plea to § 924(c)(1)(A) had he been supplied with this

information. See Dominguez Benitez, 542 U.S. at 76.

While the government devotes much briefing to the issue of whether § 2261(a) can as a

matter of law serve as a predicate “crime of violence” for Kerns’s violation of § 924(c)(1)(A),

Kerns fails to articulate an argument on this issue. We therefore decline to address it. See

McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“[I]ssues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation, are deemed waived.”

(quotations omitted)).

D. VAGUENESS

Kerns argues that the term “or otherwise” in the federal kidnapping statute, 18 U.S.C.

§ 1201, is unconstitutionally vague. “The void-for-vagueness doctrine requires that [a] statute

define the criminal offense with sufficient definiteness that ordinary people can understand what

conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory

enforcement.” United States v. Farah, 766 F.3d 599, 614 (6th Cir. 2014) (quotations omitted).

Kerns’s argument lacks merit. Section 1201 criminalizes kidnapping committed in

interstate commerce where the victim is held “for ransom or reward or otherwise.” 18 U.S.C. §

1201(a). The Supreme Court has explained that “or otherwise” encompasses any benefit which a

captor might attempt to obtain for himself. Gooch v. United States, 297 U.S. 124, 128 (1936); see

also United States v. Healy, 376 U.S. 75, 82 (1964) (explaining that § 1201

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was concerned not with the “ultimate purpose sought to be furthered by a kidnaping” but with the

“undesirability of the act of kidnaping itself”); Small, 988 F.3d at 250. Given the expansive reach

of the term “otherwise,” we conclude that Kerns was given sufficient notice that his conduct—

which included driving from Kentucky to Michigan to seize Colby against her will at gunpoint—

was prohibited under § 1201. Indeed, we have rejected Kerns’s exact argument once before. See

Daulton v. United States, 474 F.2d 1248, 1248–49 (6th Cir. 1973) (per curiam) (“The obvious

purpose of Sec. 1201 is too plain to warrant the assertion that any person of ordinary intelligence

would fail to understand what conduct it forbids.”).

Finally, Kerns appears to challenge his firearm conviction on the grounds that its predicate

crime of violence (Kerns’s since-dropped Count 2 for § 2261 interstate domestic violence, see

supra) itself contains a “crime of violence” element that is unconstitutionally vague. Kerns is

correct that the Supreme Court has invalidated one of the statutory definitions of “crime of

violence” as unconstitutionally vague, namely 18 U.S.C. § 16(b)’s “residual clause” definition of

the term. See Sessions v. Dimaya, 138 S. Ct. 1204, 1223, 1234 (2018). But Kerns fails to explain

how the unconstitutional vagueness of § 16(b)’s residual clause affects the validity of his sentence.

His predicate act of assaulting Colby with a firearm falls comfortably within the still-valid

definition of crime of violence in § 16(a), that is, “an offense that has as an element the use,

attempted use, or threatened use of physical force” against another. 18 U.S.C. § 16(a).

III.

For the foregoing reasons, we affirm the district court’s conviction and sentence.

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_________________

CONCURRENCE

_________________

CHAD A. READLER, Circuit Judge, concurring. James Kerns was charged with violating

the federal kidnapping statute. That statute, once again, prohibits one, while traveling in interstate

or foreign commerce, from “kidnap[ping] . . . and “hold[ing] for ransom or reward or otherwise

any person . . . .” 18 U.S.C § 1201(a)(1). Characterizing the statute’s use of the term “otherwise”

as “simply too vague and open to interpretation,” Kerns contends that the statute is void for

vagueness. See Appellant’s Br. at 39. Especially as Kerns raises this argument for the first time on

appeal, which dramatically lowers his chances of success, I agree that the argument fails. Puckett

v. United States, 556 U.S. 129, 135 (2009). But the statute’s deployment of the term “otherwise”

does raise a fair question as to what conduct Congress in fact criminalized. The Supreme Court

answered that question many years ago, at least in part. See Gooch v. United States, 297 U.S. 124

(1936). But its manner of doing so may well have failed the test of time. For the decision employed

now-disfavored atextual interpretive methods, and in the process dramatically expanded the reach

of federal criminal jurisdiction, leaving separation-of-powers and federalism concerns in its wake.

A bit of history helps frame today’s issue. At common law, kidnapping entailed an obscure

form of false imprisonment—abducting and sending one into another country to avoid the initial

country’s jurisdiction. See 4 William Blackstone, Commentaries *219; see also Model Penal Code

§ 212.1 cmt. 210 (1980) (describing common-law kidnapping as a “relatively unknown and

inconsequential offense”). Originally, kidnapping was a misdemeanor offense. But as states began

to enact kidnapping statutes, many states made it a felony to engage in false imprisonment when

the perpetrator had a particularly nefarious motive, such as holding the victim for ransom or using

the victim as a hostage. 2 Wharton’s Criminal Law § 207 (15th ed. 2020).

The federal government, on the other hand, went many years without enacting a federal

kidnapping statute. That changed in 1932 with the passage of what was then-called the “Federal

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Kidnaping Act.” See Pub. L. No. 72-189, 47 Stat. 326 (1932). (Congress amended Title 18 in 1994

so that the statute is now called the “Federal Kidnapping Act,” the name I will use here. See Pub.

L. No. 103-322, § 330021, 108 Stat. 1796, 2150 (1994)). The Act was seemingly inspired by the

well-published abduction for ransom and murder of aviator Charles Lindbergh’s infant son. See

Robert C. Finley, Lindbergh Law, 28 Geo. L.J. 908, 910 (1940). Enactment of the so-called

“Lindbergh Law” followed extensive debates in Congress over the risks of federalizing kidnapping

law. See id. at 910–12. As enacted, the law prohibited the kidnapping and holding of a person for

“ransom or reward” while transporting that person in interstate or foreign commerce. See 47 Stat.

326. Two years later, amidst a flurry of legislative enactments pursued by President Franklin

Roosevelt’s Justice Department, see Homer Cummings, Progress Toward a Modern

Administration of Criminal Justice in United States, 22 A.B.A. J. 345, 346 (1936), Congress

amended the Act. See Pub. L. No. 73-232, 48 Stat. 781 (1934). At the time, observers believed

Congress’s most significant handiwork was redrafting the law to allow for the imposition of the

death penalty for certain kidnapping offenses. See Horace L. Bomar, Jr., The Lindbergh Law, 1

Law & Contemp. Probs. 435, 440 (1934) (discussing the “major” amendments to the Act); see also

Hugh A. Fisher & Matthew F. McGuire, Kidnapping and the So-Called Lindbergh Law, 12 N.Y.U.

L. Q. Rev. 646, 655 (1935) (similar); cf. United States v. Jackson, 390 U.S. 570, 587 & n.31 (1968)

(describing the 1934 legislative debate and noting that—save for a provision allowing for

imposition of the death penalty—the statute left the 1932 law “substantially unchanged”). Yet

history arguably would prove otherwise.

While perhaps unknown to the Seventy-Third Congress, let alone an ordinary English

speaker in 1934, a cosmetic change to the Act—adding the phrase “or otherwise” to the clause

containing “ransom or reward”—would prove consequential. Indeed, the Supreme Court would

soon seize upon that term to vastly expand the Act’s scope. That opportunity came in the case of

Arthur Gooch, an Oklahoman convicted under the Federal Kidnapping Act and sentenced to death.

See Gooch, 297 U.S. at 124 –25. Two years earlier, Gooch and a compatriot were in the midst of

a month-long crime spree when two officers encountered them in Texas. Id. at 125. To avoid arrest,

the pair disarmed the officers, forced them into a car, and proceeded to drive several hours into

southern Oklahoma. Id. But upon arriving in the Sooner state, Gooch, in an act of mercy, released

the two officers largely unharmed. Id.

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Challenging his conviction, Gooch argued that the Act’s use of the phrase “or otherwise”

should be interpreted to imply some sort of pecuniary benefit, making his motive for the

kidnapping—to prevent his arrest—insufficient to violate the Act. Id. A unanimous Supreme Court

disagreed. Two considerations informed that conclusion. One was Congress’s purported purpose

in amending the Act, which the Supreme Court described as “enlarg[ing] the earlier” statute’s

reach. Id. at 126. Another was the statute’s legislative history, which in significant part parroted

the Department of Justice’s views that federal jurisdiction should generally extend to kidnappings

done “not only for reward, but for any other reason.” Id. at 127–28 & n.1 (quoting S. Rep. 73-534

(1934) and H.R. Rep. 73-1457 (1934)). Embracing this purpose-based approach, Gooch concluded

that “[h]olding an officer to prevent the captor’s arrest” is an act done to “benefit . . . the

transgressor,” meaning Gooch’s conduct fell “within the broad term, ‘otherwise.’” Id. at 128.

Judged by modern interpretative orthodoxy, Gooch’s sins were many. Chief among them,

the Supreme Court elevated purpose and legislative history over reliance on the statute’s text. The

Supreme Court charted that perilous course first by promoting the views of the Justice Department

(documented in a House and Senate report) to the status of law. See id. at 128 n.1 (describing a

Senate report that consisted almost entirely of a memorandum from the Department of Justice).

Gooch in turn utilized that legislative history to divine a grand purpose to the 1934 amendments,

id. at 126, even though legislation, we now rightly acknowledge, is the “art of compromise,” with

“no statute yet known pursu[ing] its stated purpose at all costs.” Henson v. Santander Consumer

USA Inc., 137 S. Ct. 1718, 1725 (2017) (cleaned up). Gooch then elevated the statute’s supposed

purpose at the expense of the contemporary, ordinary meaning of the phrase “or otherwise.” See

Gooch, 297 U.S. at 128. In 1934 (as today), the phrase was well understood in a “restrictive sense”

to “refer[] to such matters as are kindred to the classes before mentioned.” See 6 Judicial and

Statutory Definitions of Words and Phrases 5105 (1904); see also Walker v. Jack, 88 F. 576, 581

(6th Cir. 1898) (Taft, J.) (interpreting “or otherwise” to mean “in a manner similar” to the

preceding language in the statute). That understanding, moreover, aligned with the familiar canon

of statutory construction that general terms that follow specific ones are limited to “matters similar

to those specified.” United States v. Aguilar, 515 U.S. 593, 615 (1995) (Scalia, J., concurring in

part and dissenting in part) (discussing the

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ejusdem generis canon); see also Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 199 (2012) (observing that when a list of specific words is followed

by the catchall phrase “other,” ejusdem generis “implies the addition of similar after the word

other”). Employing this canon, the use of the phrase “or otherwise” following “ransom or reward”

customarily would indicate that the Act criminalizes kidnapping done with a motive akin to a

ransom or reward—that is, a pecuniary motive. Yet Gooch read “or otherwise” to mean “any other

reason,” rendering the listed motives of ransom or reward entirely superfluous, violating yet

another settled rule of statutory interpretation. See Corley v. United States, 556 U.S. 303, 314

(2009) (recognizing the “basic interpretive canon[]” that a “statute should be construed so that

effect is given to all its provisions, so that no part will be inoperative or superfluous, void or

insignificant” (citation omitted)).

Over time, Gooch’s disregard for the Act’s text has led the lower courts to find a “wide

variety of purposes” to be encompassed by the “or otherwise” phrase. 3 Wayne R. LaFave,

Substantive Criminal Law § 18.2(a) (3d ed. 2020) (surveying circuit case law); see, e.g., United

States v. Vickers, 578 F.2d 1057, 1058 (5th Cir. 1978) (per curiam) (holding that a defendant who

drove his estranged wife against her will to “discuss their marital affairs” violated the Federal

Kidnapping Act); United States v. Cavallaro, 553 F.2d 300, 302 (2d Cir. 1977) (holding that a

defendant who forced a woman into his car and tried to extract information from her satisfied the

Federal Kidnapping Act’s motive clause); Brooks v. United States, 199 F.2d 336, 336 (4th Cir.

1952) (holding that members of the Ku Klux Klan who seized a couple to tell them to “stop living

together and making liquor” and to instead “attend church” violated the Federal Kidnapping Act).

We too have been swept up in that interpretive tidal wave, extending the Act to encompass

kidnappings done for the purpose of assaulting another individual, see United States v. Sensmeier,

2 F. App’x 473, 476 (6th Cir. 2001); see also United States v. Ingram, 846 F. App’x 374, 382 (6th

Cir. 2021), or to execute a robbery more effectively, United States v. Small, 988 F.3d 241, 250

(6th Cir. 2021), among other reasons. Despite the limiting fashion in which its text would

otherwise be understood today, federal courts functionally amended the Act to have “little or no

realistic analysis of the motives involved.” Finley, supra, at 914.

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Allowing federal courts to expand Congress’s work in such sweeping fashion pays little

heed to the principle of the separation of powers, a founding cornerstone of our system of

government. Mistretta v. United States, 488 U.S. 361, 380 (1989) (“[T]he central judgment of the

Framers of the Constitution [is] that, within our political scheme, the separation of governmental

powers into three coordinate Branches is essential to the preservation of liberty.”). After all, as

every middle school American history student understands, the legislative branch, not the

judiciary, is tasked with writing the laws that govern us. Wis. Cent. Ltd. v. United States, 138 S.

Ct. 2067, 2074 (2018) (“Congress alone has the . . . constitutional authority to revise statutes . . . .

Until it exercises that power, the people may rely on the original meaning of the written law.”);

Henson, 137 S. Ct. at 1725 (“[W]hile it is of course our job to apply faithfully the law Congress

has written, it is never our job to rewrite a constitutionally valid statutory text ....”).

Gooch similarly disregarded federalism principles, another bedrock of our federal system.

See Gregory v. Ashcroft, 501 U.S. 452, 457–59 (1991) (recognizing the “system of dual

sovereignty between the States and the Federal Government” as critical to check “abuses of

government power” and to secure the “promise of liberty”). Gooch’s dubious interpretive methods

functionally created a federal false imprisonment statute. By all accounts, the only remaining

distinction between the Federal Kidnapping Act and the broadest state laws criminalizing

kidnapping is the federal jurisdictional hook. And that “hook,” it bears noting, has “substantially

expanded” in recent years and, as merely a basis for jurisdiction, can be satisfied without “any

proof” the defendant knew his crime implicated interstate commerce. See LaFave, supra § 18.2(a);

see also United States v. Burnette, 170 F.3d 567, 571 (6th Cir. 1999) (recognizing that after

amendments to the Federal Kidnapping Act in 1972, “knowledge of interstate transportation” is

no longer “an element of the offense” and “interstate transportation now serves merely as a

jurisdictional basis for federal prosecution of kidnapping”); see generally Rehaif v. United States,

139 S. Ct. 2191, 2196 (2019) (noting that jurisdictional elements are not subject to the presumption

in favor of scienter). The result is expanding federal criminalization, here and elsewhere, which,

more often than not, leaves state and local law enforcement at the behest of their federal

counterparts. See Stephen F. Smith, Federalization’s Folly, 56 San Diego L. Rev. 31, 55–64 (2019)

(discussing how the federalization of criminal law “interferes with the

33

No. 20-1563

United States v. Kerns

Page 16

effective functioning of the state [criminal legal] system”); see also Brief of Senator Orrin Hatch

as Amicus Curiae in Support of Petitioner at 28, Gamble v. United States, 139 S. Ct. 1960 (2018)

(No. 17-646), 2018 WL 4358114 (observing that the “expansion of federal criminal law has come

at the expense of states’ traditionally exclusive jurisdictions,” eroding states’ ability to “punish

behavior falling within [overlapping] areas of interest”).

For better or worse, the expansion of federal criminal jurisdiction has many fathers.

Congress, to be sure, has driven much of that evolution. See, e.g., John G. Malcolm, Criminal

Justice Reform at the Crossroads, 20 Tex. Rev. L. & Pol. 249, 278–81 (2016); Robert Alt, You

Might Be Committing a Federal Crime, Heritage Found. (Dec. 17, 2010), https://perma.cc/WT9S8WPT; Alex Kozinski & Misha Tseytlin, You’re (Probably) a Federal Criminal, in In the Name

of Justice 43–45 (Timothy Lynch ed., 2009). But those of us in the federal judiciary should be

careful about casting too many stones in Congress’s direction. After all, at least some of the blame

lies at the doorstep of the glass house we occupy. In cases like Gooch, we have “perform[ed]

Congress’s” job by “defin[ing] a crime and ordain[ing] its punishment.’” United States v. Bond,

572 U.S. 844, 867 (2014) (Scalia, J., concurring in judgment) (quoting United States v. Wiltberger,

5 Wheat. 76, 95 (1820)). Doing so threatens individual liberty, a virtue that “is always at stake

when one or more of the branches seek to transgress the separation of powers.” Clinton v. City of

New York, 524 U.S. 417, 450 (1998) (Kennedy, J, concurring). Arthur Gooch understood these

concerns better than most: he died at the gallows three months after his conviction was affirmed,

suffering the ignominious fate of being the first person executed under the statute (and the only

one for where the crime did not result in someone’s death). See Leslie Tara Jones, Arthur Gooch:

The Political, Economic, and Social Influences that Led Him to the Gallows (2010) (M.A.

dissertation, University of Central Oklahoma), https://perma.cc/B4RL-VP7X.

Despite the many flaws in our modern kidnapping jurisprudence, however, vagueness

seemingly is not one of them. Back to today’s case, where Kerns argues that the term “otherwise”

is too vague to allow him to enter a knowing and voluntary guilty plea. See Appellant’s Br. at 41.

Yet Gooch effectively forecloses such an argument. A law violates the “constitutional requirement

of definiteness” where it fails to provide a “person of ordinary

34

No. 20-1563

United States v. Kerns

Page 17

intelligence fair notice” of what conduct is forbidden by the statute. See United States v. Harriss, 347 U.S. 612,

617 (1954). Gooch, however, concluded that it was “obvious” what Congress’s amendment to the Federal

Kidnapping Act criminalized: any act of kidnapping, so long as that act provided some sort of “benefit to the

transgressor.” 297 U.S. at 128; see also Wainwright v. Stone, 414 U.S. 21, 22 (1973) (observing that the “judgment

of federal courts as to the vagueness” of a statute “must be made in light” of prior judicial constructions of the

statute). In other words, after Gooch, there was no doubt as to the import of the “or otherwise” phrase in the Act.

Gooch merely obviated the Act’s motive element—something the government typically need not prove as part of

a criminal offense, see 1 Wayne R. LaFave, Substantive Criminal Law § 5.3(a) (3d ed. 2020)—leaving in its place

a federal criminal law largely indistinguishable from any state false imprisonment law. The mere fact that a law

that is “marked by . . . reasonable breadth, rather than meticulous specificity,” does not make it unconstitutionally

vague. Grayned v. City of Rockford, 408 U.S. 104, 110 (1972) (citations omitted). Accordingly, we (and other

circuits too) have rejected challenges similar to Kerns’s, albeit sometimes on somewhat imprecise grounds. See

Daulton v. United States, 474 F.2d 1248, 1249 (6th Cir. 1973) (per curiam) (rejecting a vagueness challenge on

standing grounds and noting in dicta the purpose of § 1201 is “too plain to warrant the assertion that any person

of ordinary intelligence would fail to understand what conduct it forbids”); see also United States v. Walker, 137

F.3d 1217, 1219 (10th Cir. 1998) (noting that at least five circuits have rejected vagueness challenges to the “or

otherwise” portion of § 1201).

True, a law can also be considered unconstitutionally vague where its definitiveness is so insufficient that

it “encourage[s] arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983); see

also Johnson v. United States, 576 U.S. 591, 595 (2015). That said, whether the Federal Kidnapping Act “invite[s]

the exercise of arbitrary power” by “allowing prosecutors and courts to make . . . up” when the law is enforced is

left largely unexplored by Kerns. See Sessions v. Dimaya, 138 S. Ct. 1204, 1223–24 (2018) (Gorsuch, J.,

concurring). It is thus best left for another day to resolve whether the Act’s “otherwise” clause raises such

constitutional concerns and, more broadly, whether Gooch’s errors can be corrected.

Accordingly, I concur in full in the majority opinion.

35

Case 1:19-cr-00032-JTN ECF No. 77, PageID.280

Filed 05/27/20 Page 1 of 7

AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case

UNITED STATES DISTRICT COURT

Western District of Michigan

UNITED STATES OF AMERICA

JUDGMENT IN A CRIMINAL CASE

-vsCase Number: 1:19-cr-32

JAMES MICHAEL KERNS

USM Number: 22484-040

Helen Nieuwenhuis

Defendant’s Attorney

THE DEFENDANT:

§

pleaded guilty to Counts One and Three the Superseding Felony Information.

1

pleaded nolo contendere to Count(s) _______ , which was accepted by the court.

2

was found guilty on Count(s) _______ after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title & Section

18 U.S.C. § 1201(a)(1)

Kidnapping

18 U.S.C. § 924(c)(1)(A)(ii)

Possession of a Firearm in Furtherance of a Crime of Violence

Offense Ended

July 23, 2018

Count

One

July 23, 2018

Three

The defendant is sentenced as provided in the following pages of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

D

The Indictment and Count Two of the Superseding Felony Information are dismissed on the motion of

the United States.

IT IS ORDERED that the defendant must notify the United States attorney for this district within 30 days of any

change of name, residence, or mailing address until all fines, restitution, costs, and special assessments

imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and the

United States attorney of material changes in economic circumstances.

Date of Imposition of Sentence: May 27, 2020

DATED: May 27, 2020

/s/ Janet T. Neff

JANET T. NEFF

UNITED STATES DISTRICT JUDGE

36

Case 1:19-cr-00032-JTN ECF No. 77, PageID.281 Filed 05/27/20

Page 2 of 7

AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case

Judgment – Page 2

Defendant: JAMES MICHAEL KERNS

Case Number: 1:19-cr-32

IMPRISONMENT

The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total

term of ONE HUNDRED EIGHT (108) MONTHS as to Count One and EIGHTY-FOUR (84) MONTHS as to

Count Three, to run consecutively.

D

The court makes the following recommendations to the Bureau of Prisons:

that the defendant continue to receive intensive mental health treatment at either FMC Lexington in

Lexington, Kentucky or FMC Butner in Butner North Carolina; and

that the defendant receive educational and vocational programming.

E

The defendant is remanded to the custody of the United States Marshal.

§

The defendant shall surrender to the United States Marshal for this district:

at _______ on _______

as notified by the United States Marshal.

§

The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

before 2:00 P.M. on _______

as notified by the United States Marshal.

as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on

at

to

, with a certified copy of this judgment.

United States Marshal

By:

Deputy United States Marshal

37

Case 1:19-cr-00032-JTN ECF No. 77, PageID.282

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AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case

Judgment – Page 3

Defendant: JAMES MICHAEL KERNS

Case Number: 1:19-cr-32

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be placed on supervised release for a term of FIVE (5)

YEARS as to Count One and FIVE (5) YEARS as to Count Three, to run concurrently.

MANDATORY CONDITIONS

A. You must not commit another federal, state, or local crime.

B. You must not unlawfully possess a controlled substance.

C. You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within

15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the

court.

The above drug testing condition is suspended, based on the court’s determination that you

pose a low risk of future substance abuse. (check if applicable)

C. ☒ You must cooperate in the collection of DNA as directed by the probation officer.

D. ☐ You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C.

20901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender

registration agency in the location where you reside, work, are a student, or were convicted of a qualifying

offense. (check if applicable)

E. ☐ You must participate in an approved program for domestic violence. (check if applicable)

F.

☐ You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing

a sentence of restitution. (check if applicable)You must comply with the standard conditions that have been adopted by this

court as well as with any other conditions on the attached page.

38

Case 1:19-cr-00032-JTN ECF No. 77, PageID.283

Filed 05/27/20 Page 4 of 7

AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case

Judgment – Page 4

Defendant: JAMES MICHAEL KERNS

Case Number: 1:19-cr-32

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions

are imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum

tools needed by probation officers to keep informed, report to the court about, and bring about improvements in your conduct

and condition.

§

You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours

of your release from imprisonment, unless the probation officer instructs you to report to a different probation office or

within a different time frame.

§

After initially reporting to the probation office, you will receive instructions from the court or the probation officer about

how and when you must report to the probation officer, and you must report to the probation officer as instructed.

§

You must not knowingly leave the federal judicial district where you are authorized to reside without first getting

permission from the Court or the probation officer.

§

You must answer truthfully the questions asked by your probation officer.

§

You must live at a place approved by the probation officer. If you plan to change where you live or anything about your

living arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the

change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, you must notify

the probation officer within 72 hours of becoming aware of a change or expected change.

You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation

officer to take any items prohibited by the conditions of your supervision that he or she observes in plain view.

You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you

from doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer

excuses you from doing so. If you plan to change where you work or anything about your work (such as your position or your

job responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer

at least 10 days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72

hours of becoming aware of a change or expected change.

§

§

§

You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone

has been convicted of a felony, you must not knowingly communicate or interact with that person without first getting

the permission of the probation officer.

§

If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

§

You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e.,

anything that was designed, or was modified for the specific purpose of causing bodily injury or death to another person

such as nunchakus or tasers).

§

You must not act or make any agreement with a law enforcement agency to act as a confidential human source or

informant without first getting the permission of the court.

§

If the probation officer determines that you pose a risk to another person (including an organization), the probation

officer may require you to notify the person about the risk and you must comply with that instruction. The probation

officer may contact the person and confirm that you have notified the person about the risk.

§

You must follow the instructions of the probation officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy

of this judgment containing these conditions. For further information regarding these conditions, see Overview of Probation

and Supervised Release Conditions, available at www.uscourts.gov.

Defendant’s Signature

Date

39

Case 1:19-cr-00032-JTN ECF No. 77, PageID.284

Filed 05/27/20 Page 5 of 7

AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case

Judgment – Page 5

Defendant: JAMES MICHAEL KERNS

Case Number: 1:19-cr-32

SPECIAL CONDITIONS OF SUPERVISION

A. You must participate in a program of testing and treatment for substance abuse, as directed by the probation officer,

and follow the rules and regulations of that program until such time as you are released from the program by the

probation officer, and must pay at least a portion of the cost according to your ability, as determined by the probation

officer.

B. You must participate in a program of mental health treatment, as directed by the probation officer, and follow the

rules and regulations of that program until such time as you are released from the program by the probation officer,

and must pay at least a portion of the cost according to your ability, as determined by the probation officer.

C. If you are unemployed after the first 60 days of supervision, or for 60 days after termination or layoff from

employment, you must perform at least 20 hours of community service work per week, as directed by the probation

officer until gainfully employed full-time.

D. You will be monitored by a form of location monitoring technology at the discretion of the probation officer for a

period of 12 months. During that time, you must abide by all technology requirements, the location monitoring

program rules, and pay all or part of the costs of participation in the location monitoring program as directed by the

U.S. Probation Office.

A form of location monitoring technology will be utilized to monitor the following restriction on your movement in

the community as well as other court-imposed conditions of release:

( X ) Home Detention: You are restricted to your residence at all times except for employment; education; religious

services; medical, substance abuse or mental health treatment; attorney visits; court appearances; court-ordered

obligations; or other activities as preapproved by the U.S. Probation Officer.

E. You must not have contact with the victim(s) in this case. This includes any physical, visual, written, electronic or

telephonic contact with such persons. Additionally, you must not directly cause or encourage anyone else to have

such contact with the victim(s).

F. You must provide the probation officer with all usernames, email addresses, passwords, social media accounts,

and any other forms of internet identification, and must not create additional accounts, unless approved in advance

by the probation officer.

G. You must participate in the Computer/Internet Monitoring Program and must comply with the rules of the program

as directed by the U.S. Probation Office. You must pay the cost of computer monitoring as directed by the probation

officer, and advise anyone in your household that any computer(s) in the household may be subject to computer

monitoring.

H. You must submit your person, property, house, residence, vehicle, papers, computers (as defined in 18 U.S.C. §

1030(e)(1)), other electronic communications or data storage devices or media, or office, to a search conducted by

a United States probation officer. Failure to submit to a search may be grounds for revocation of release. You must

warn any other occupants that the premises may be subject to searches pursuant to this condition.

The probation officer may conduct a search under this condition only when reasonable suspicion exists that you

have violated a condition of supervision and that the areas to be searched contain evidence of this violation. Any

search must be conducted at a reasonable time and in a reasonable manner.

B. You must reside in a residence approved in advance by the probation officer.

C. You must not possess any replicas of handguns, pellet guns, air soft guns, or items in the likeness of firearms.

D. You must not work in any type of employment without the prior approval of the probation officer.

40

Case 1:19-cr-00032-JTN ECF No. 77, PageID.285

Filed 05/27/20 Page 6 of 7

AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case

Judgment – Page 6

Defendant: JAMES MICHAEL KERNS

Case Number: 1:19-cr-32

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the Schedule of Payments on the following

pages.

Assessment

Fine

Restitution

$200.00

$2,000.00

-0-

($100.00 per count)

($1,000.00 per count)

C. The determination of restitution is deferred until _______. An Amended Judgment in a Criminal Case

(AO 245C) will be entered after such a determination.

D. The defendant must make restitution (including community restitution) to the following payees in the

amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment,

unless specified otherwise in the priority order or percentage payment column below. However, pursuant to 18

U.S.C. § 3664(I), all nonfederal victims must be paid before the United States is paid.

Name of Payee

Total Loss*

Restitution Ordered

TOTALS

$ 0.00

$ 0.00

Priority or Percentage

§ Restitution amount ordered pursuant to plea agreement.

§ The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or

fine is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f).

All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant

to 18 U.S.C. § 3612(g).

1. The court determined that the defendant does not have the ability to pay interest and it is ordered that:

the interest requirement is waived for the fine.

(2) the interest requirement is waived for the restitution.

(3) the interest requirement for the fine is modified as follows: __________

(4) the interest requirement for the restitution is modified as follows: __________

a.

Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses

committed on or after September 13, 1994, but before April 23, 1996.

41

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AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case

Judgment – Page 7

Defendant: JAMES MICHAEL KERNS

Case Number: 1:19-cr-32

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as

follows:

A

☒ Lump sum payment of $200.00 due immediately, balance due

(1) not later than ________, or

b. in accordance with ☐ C, ☐ D, ☐ E, or ☒ F below; or

B

☐ Payment to begin immediately (may be combined with C, D, or F below); or

C

☐ Payment in equal ________ installments of $________ over a period of ________, to commence ________

after the date of this judgment; or

D

☐ Payment in equal ________ installments of $________ over a period of ________, to commence ________

after release from imprisonment to a term of supervision; or

E

☐ Payment during the term of supervised release will commence within ________ after release from imprisonment.

The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or

F

☒ Special instructions regarding the payment of criminal monetary penalties:

Any balance due upon incarceration must be paid in minimum quarterly installments of $25.00

based on IFRP participation, or minimum monthly installments of $20.00 based on UNICOR

earnings, during the period of incarceration, to commence 60 days after the date of this

judgment. Any balance due upon commencement of supervision must be paid, during the term

of supervision, in minimum monthly installments of $100.00, to commence 60 days after release

from imprisonment. You must apply all monies received from income tax refunds, lottery

winnings, judgments, and or any other anticipated or unexpected financial gains to any

outstanding court-ordered financial obligations.

Unless the court has expressly ordered otherwise in the special instructions above, if this judgment imposes

imprisonment, payment of criminal monetary penalties is due during the period of imprisonment. All criminal

monetary penalties, except those payments made through the Federal Bureau of Prisons’ Inmate Financial

Responsibility Program, are made to the Clerk of the Court, 399 Federal Building, 110 Michigan N.W.,

Grand Rapids, MI 49503, unless otherwise directed by the court, the probation officer, or the United States

Attorney.

The defendant shall receive credit for all payments previously made toward any criminal monetary

penalties imposed.

•

Joint and Several

Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total

Amount, Joint and Several Amount and corresponding payee, if appropriate.

42

•

The defendant shall pay the cost of prosecution.

•

The defendant shall pay the following court cost(s):

defendant shall forfeit the defendant’s interest in the following property to

2. The

the United States: Hipoint C9 9mm firearm bearing serial number P883796 and

associated ammunition.

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4)

fine principal, (5) fine interest, (6) community restitution, (7) JVTA assessment, (8) penalties, and (9) costs, including

cost of prosecution and court costs.

43

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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