Denial of Batson challenge, sentencing appropriate for kidnapper, 7th Circuit affirms

A man who went on a violent crime spree with four accomplices across three states wasn’t improperly denied a Batson challenge, and the enhanced sentence imposed on the kidnapper wasn’t inappropriate, the 7th Circuit Court of Appeals has affirmed.

In April 2017, Christian Lovies and Jaleel Schultz stole a car that someone had left running outside a restaurant in Milwaukee. Shortly thereafter, after removing a toddler from the car and abandoning the child at an intersection, they crashed and totaled the vehicle.

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

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

As the group drove through Indianapolis, the Infiniti broke down.

At a gas station, after splitting up, Lovies and L.M. approached Emily Butler at a gas pump. Lovies, brandishing the gun he had stolen from the Infiniti, demanded and took Butler’s car keys and entered the driver’s seat of her car.

L.M. ensured Butler remained near the car, then pushed her in the back, taking her hostage. The group drove toward Cincinnati in Butler’s car. After the group reached Cincinnati, Hudson released Butler, who drove away in her car. Law enforcement agents later apprehended Lovies, L.M., Schultz and Hudson.

During jury selection, the government moved to strike Juror No. 9 for cause, stating he “ke[pt] falling asleep” and “ke[pt] nodding off.” The trial judge denied the government’s motion, instead encouraging the attorneys to speed up their questioning to avoid putting the prospective jurors to sleep.

Later, the government exercised a peremptory strike to remove Juror No. 9 from the jury pool. Lovies raised a Batson challenge to this peremptory strike, arguing the government engaged in racial discrimination when it struck Juror No. 9, whom Lovies noted was “a black gentleman” who “didn’t say a word the whole time we were here.”

After hearing the parties’ arguments, the court decided Lovies had failed to make a prima facie case of discrimination at Batson’s first step. The court found that the government’s contention that Juror No. 9 was falling asleep was a race-neutral reason for the peremptory strike.

Further, the court stated it would have overruled the Batson challenge even if Lovies had made a prima facie case because the “demeanor of the prosecutors” indicated they were not engaged in purposeful discrimination.

At trial, Hudson and Butler testified about the kidnapping and carjacking. The government also introduced video evidence of Lovies and L.M. kidnapping and carjacking Butler. After a two-day trial, the jury convicted Lovies of kidnapping, carjacking and brandishing a firearm during and in relation to a crime of violence.

On appeal, the 7th Circuit’s review didn’t find any clear error in the denial of the Baston challenge.

“Two significant considerations support the district court’s credibility determination,” Judge Michael Brennan wrote for 7th Circuit. “First, the district judge implied he believed Juror No. 9 was falling asleep during the proceedings, which denotes the absence of purposeful discrimination on the government’s part. Although Lovies argues otherwise, the district judge did not reject the government’s assertions that Juror No. 9 was falling asleep during the proceedings.

“… Second, even if the district judge did not believe Juror No. 9 was falling asleep during jury selection, the judge specifically evaluated the prosecutors’ credibility and found them credible in their belief that Juror No. 9 was at least disinterested in the proceedings, if not falling asleep,” Brennan continued. “The trial judge stated, ‘I certainly have seen the demeanor of the prosecutors, and I don’t think that there’s purposeful discrimination here. They seem earnest in their belief that he’s disinterested.’”

Lovies also raised arguments on appeal comparing Juror No. 9 with non-stricken white jurors. However, Lovies forfeited those juror-comparison arguments by not presenting them to the district court.

In addition to the resolution of his Batson challenge, Lovies disputed the district court’s calculation of his offense level and, thus, the applicable range of imprisonment under the sentencing guidelines. The 7th Circuit dismissed the challenges.

Even if there was error with the enhancements, they would’ve been harmless, the 7th Circuit opined.

“At the sentencing hearing, the district court stated it would have imposed the same sentence on Lovies even if it were to conclude the § 3B1.1 enhancement did not apply, considering the § 3553(a) factors: the nature and circumstances of Lovies’s offense; the need to promote respect for the law and provide just punishment; the need to afford adequate deterrence to criminal conduct; and the need to avoid unwarranted sentencing disparities among similarly situated defendants,” Brennan wrote.

“Thus, any remand to the district court for it to impose the same sentence on Lovies would be a ‘pointless step,’” the judge continued. “… We would decline to order such a remand even if we were to conclude the district court erred in applying the role enhancement to Lovies.”

The case is United States of America v. Christian M. Lovies, 20-2463.

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