                            In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-1206

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

T YRONE R EYNOLDS,
                                            Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
               No. 2:10cr164-002—Rudy Lozano, Judge.



      A RGUED O CTOBER 3, 2012—D ECIDED M AY 8, 2013




 Before F LAUM, R IPPLE, and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. Tyrone Reynolds and seven
confederates held a drug dealer captive for more than
12 hours while they robbed his home, transported him
across state lines, and demanded that he give them
money and drugs. Reynolds was later caught, convicted
by a jury of kidnapping, 18 U.S.C. § 1201(a)(1), among
other offenses, and sentenced to life imprisonment.
On appeal Reynolds argues that the district court clearly
2                                            No. 12-1206

erred in its guidelines calculations by finding that he
was a “leader or organizer” of the criminal activity, see
U.S.S.G. § 3B1.1(a), and that he and the other assailants
made a “ransom demand” during the crime, see id.
§ 2A4.1(b)(1). We uphold the leadership adjustment
due to the overwhelming evidence in support of it.
However, because we hold that the “ransom demand”
provision of § 2A4.1(b)(1) requires, at a minimum,
that the ransom demand be “made” to a third party,
and because nothing in the record suggests such a
demand was made, we vacate Reynolds’s sentence and
remand for resentencing.


                  I. BACKGROUND
  On an evening in October 2006, Reynolds and
seven other men drove from Chicago to Gary, Indiana,
to rob Glenford Russell at his home. All nine are
natives of Belize. Russell, an admitted marijuana dealer,
had previously lived in Chicago but moved to Gary
after being robbed twice by other Belizeans. Reynolds
had discovered the new location after previously fol-
lowing Russell home.
  Reynolds’s group ambushed Russell outside his house,
demanding that he give them his “money and weed.”
Russell led Reynolds inside to a bathroom and turned
over $15,000 he had hidden there on behalf of his em-
ployer, a drug lord. Reynolds believed there was more,
though, and repeatedly demanded that Russell tell
him where he had stashed drugs or “the rest of the
money.” When Russell denied having anything else,
No. 12-1206                                              3

Reynolds and a cohort beat him and cut him with a
knife. Reynolds and two other men then tied up
Russell with duct tape and electrical cord. Over the
next three hours the assailants continued to interrogate
Russell about the whereabouts of more money or drugs
and eventually moved him to the basement, where
Reynolds and another man beat him further. In the base-
ment Reynolds was overheard telling Russell that
he used to work for Russell’s employer and was still
owed money.
  The events took a turn after Russell hatched a plan to
get out of his house. Russell testified that the assailants
seemed to think he was holding out on them and that
he feared he would be killed if he did not satisfy
their demands. To create an opportunity for escape, he
proposed to Reynolds that he could take the group to
a cache of 50 pounds of marijuana being stored at a car-
repair garage in Chicago. The proposal was a ploy
(Russell knew there was no marijuana at the garage), but
Reynolds believed him and decided that the group
would travel to Chicago the next morning in three
separate vehicles, including a car owned by Russell.
The assailants made the trip with Russell tied up in
one vehicle, but shortly before they reached the garage
Russell convinced the others to untie him and let him
drive his own car so that employees at the garage
would not become suspicious. As he drove toward
the garage (all the while being held at gunpoint),
Russell flung open his car door and dove onto the pave-
ment. The car crashed into a parked vehicle, the as-
sailants fled, and Russell escaped.
4                                           No. 12-1206

  All eight assailants then regrouped at Reynolds’s
home, where Reynolds divided up the $15,000 taken
from Russell’s house. He gave $650 to Tynon Thompson,
who criticized the cut as unfair. Jermaine Gentle
received $700 and disparaged his share as “measly.”
Another assailant also complained about receiving
only $700 and was told by Reynolds to “shut up” be-
cause “this was his move and his name that’s going
to get caught.” The men then went their separate
ways but were later arrested after Russell reported
the crime to authorities.
  Throughout the trial, Russell, Gentle, and Thompson
repeatedly fingered Reynolds as the leader of the
group. Russell asserted that Reynolds had been the
“main one” interrogating him and appeared to be
the leader because he had taken possession of the
money, decided that the group would go to Chicago in
the morning, and otherwise “called all the shots.”
Gentle testified that Reynolds had called him on the
night of the attack (as well as the previous night, when
the group made an aborted attempt to capture Russell)
and was the group’s leader because he handled and
distributed the $15,000. Thompson said that he per-
ceived Reynolds as the leader because he was the “loud-
est” and had the “bag of money.”
  Gentle and Thompson also testified that the group
did not intend to release Russell until he coughed up
more money or drugs. Gentle described Russell as their
“hostage” and said that while no one intended to kill
him, the group would not have allowed him to leave
No. 12-1206                                             5

until he provided the 50 pounds of marijuana he had
promised. Gentle agreed with the prosecutor’s state-
ment at trial that Russell “had to come up with some-
thing in order to be freed.”
  Reynolds testified in his defense and denied knowing
of or participating in the forced transport of Russell to
Chicago to retrieve marijuana. He admitted going to
Russell’s home to rob him, striking him, and remaining
in the home overnight with the other men, but in-
sisted that he and Thompson departed before everyone
else in the morning and had not known of the plan to
take Russell to Chicago. Reynolds also denied having
any leadership role in the crimes in which he admit-
ted participating.
  After the jury convicted Reynolds of kidnapping,
18 U.S.C. § 1201(a)(1), conspiracy to possess with intent
to distribute marijuana, 21 U.S.C. §§ 846, 841(a)(1), and
brandishing a firearm during a crime of violence or
drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(ii), a
probation officer calculated Reynolds’s guidelines range
as life imprisonment plus a consecutive term of seven
years for the firearm conviction. Reynolds’s offense level
included a four-level increase because of his role as an
organizer or leader, U.S.S.G. § 3B1.1(a), and a six-level
increase because the probation officer believed that a
ransom demand had been made during the crime, id.
§ 2A4.1(b)(1). Reynolds objected to those adjustments,
arguing that Gentle and Thompson lied about his role
and insisting that no one ever told Russell that he
would be released if he provided money or drugs.
6                                              No. 12-1206

  The district court denied Reynolds’s objections and
adopted the probation officer’s presentence report. Re-
garding § 3B1.1(a), the court credited the trial testimony
of Gentle, Thompson, and Russell. The court found
that Reynolds located Russell’s home in Gary and
decided to rob it; “took charge” of the $15,000 and
divided up the money; tied up, beat, and questioned
Russell; and decided that the group would go to
Chicago the next morning in multiple vehicles to
retrieve the marijuana. Regarding § 2A4.1(b)(1), the
court concluded that the assailants had made a ransom
demand because they had insisted that Russell give
them more money or drugs and did not intend to
release him until he gave them something more. The
court also noted, as the prosecutor had pointed out
earlier in the hearing, that all of Reynolds’s cohorts had
agreed to the application of § 2A4.1(b)(1) when they
pled guilty and their guideline ranges had included
that adjustment. The court sentenced Reynolds to life
imprisonment on his kidnapping conviction, 20 years
on his drug conspiracy, to run concurrently with his life
sentence, and 7 years on his firearm conviction, to run
consecutively to his life sentence.


                     II. ANALYSIS
    A. Ample Evidence Supported the District Court’s
       Finding that Reynolds Was a Leader or Organizer
  On appeal Reynolds first challenges the district
court’s finding that he was an “organizer or leader of a
criminal activity that involved five or more participants.”
No. 12-1206                                               7

U.S.S.G. § 3B1.1(a). He contends that he was not an
“organizer or leader” because there is no evidence that
(1) his relative responsibility for the crimes was any
greater than the other seven participants, (2) he exer-
cised control over any assailant, or (3) he coordinated
the other participants toward a common objective.
  When determining whether a defendant’s role in a
crime reaches the level of a leader or organizer, a
district court must consider, among other factors,
the nature of the defendant’s participation in the
offense, his claimed right to a larger share of the fruits
of the crime, his degree of participation in planning or
organizing the offense, and his degree of control and
authority exercised over other participants. See U.S.S.G.
§ 3B1.1 cmt. n.4; United States v. Knox, 624 F.3d 865, 874
(7th Cir. 2010). The defendant must have organized or
led at least one participant, U.S.S.G. § 3B1.1 cmt. n.2;
United States v. Vasquez, 673 F.3d 680, 685 (7th Cir. 2012),
but the “central concern” of the adjustment is the de-
fendant’s relative responsibility for the crime, United
States v. Mendoza, 576 F.3d 711, 717 (7th Cir. 2009).
  Here, the trial testimony amply supported a finding
that Reynolds was the leader of the group. Gentle
testified that Reynolds not only discovered the location
of Russell’s home but also determined the timing of the
crime (as well as the timing of the unsuccessful attempt
the previous night), the group’s plan once Russell told
them of his supposed marijuana stash in Chicago, and
each participant’s cut of the share. Russell in turn
fingered Reynolds as the primary man who beat and
8                                               No. 12-1206

interrogated him, and Thompson testified that Reynolds
believed that Russell and his employer owed him a per-
sonal debt. This testimony demonstrated Reynolds’s
significant level of planning, involvement in the crime,
and degree of control over others. And though the testi-
mony did not establish what portion each participant
received from the $15,000 held by Reynolds throughout
the crime, it strongly suggested that Reynolds kept a
large share for himself because of his belief that the
crime was “his move.” Finally, the court’s finding was
largely based on its determination that the testimony of
Russell, Gentle, and Thompson was credible, and we
will almost never disturb a district court’s credibility
determinations. See, e.g., United States v. Kamoga, 177 F.3d
617, 622 (7th Cir. 1999). The evidence was simply over-
whelming that Reynolds oversaw the scheme and had
greater relative responsibility than the other participants.


    B. “Ransom Demand” Under § 2A4.1(b)(1) Requires
       that a Demand Be Made to a Third Party
  Reynolds also disputes the district court’s finding
that during the crime “a ransom demand . . . was made.”
U.S.S.G. § 2A4.1(b)(1). Pointing to the definition of “ran-
som” in Black’s Law Dictionary—“[m]oney or other
consideration demanded or paid for the release of a
captured person or property”—he contends that the
finding was erroneous because no one testified that
Russell was told he would be released if he provided
more money or drugs.
  This issue is difficult because “ransom” is not defined in
the guidelines, and the commentary to U.S.S.G. § 2A4.1
No. 12-1206                                             9

gives no insight into what conduct the Sentencing Com-
mission intends § 2A4.1(b)(1) to punish. Furthermore,
the definition proposed by Reynolds (and endorsed by
the government) is overinclusive: under the Black’s
Law definition, even a simple mugging would include
a “ransom” demand if at some point during the attack
the assailant offered to let the victim go in exchange for
her valuables or some other benefit. Dictionaries should
be used as sources of statutory meaning only with
great caution, United States v. Costello, 666 F.3d 1040,
1043 (7th Cir. 2012), and here we think that the Black’s
entry does not comport with an ordinary understanding
of what a “ransom” demand is.
   We conclude instead that § 2A4.1(b)(1) may be
applied only if kidnappers’ demands for “money or
other consideration” reach someone other than the
captured person. In reaching this conclusion we look
first to the language of the guideline, which presup-
poses the existence of a third party. The adjustment
applies if “a ransom demand or a demand upon gov-
ernment was made.” U.S.S.G. § 2A4.1(b)(1) (emphasis
added). Those are distinct actions, and yet the Sen-
tencing Commission has chosen to group them
together and treat them as equally culpable offenses.
Since a “demand upon government” cannot be made
during a kidnapping without the communication of
demands to people other than those held captive, we
think that “ransom demand” is fairly read to also in-
clude this third-party element. Section 2A4.1(b)(1) is a
10                                                No. 12-1206

substantial1 adjustment, and additional punishment is
warranted when demands reach third parties because
those who are contacted will experience great stress
and may attempt a rescue, escalating the threat of vio-
lence. Moreover, kidnapping someone in order to
compel others to act, as a substitute for confronting or
attempting to rob those others in person, can be a
very effective way to accomplish crime that merits
heightened deterrence. But when a kidnapping is con-
ducted without the knowledge of anyone except for
the victim, the scope of the crime and risk of harm to
others, while undoubtedly extensive, is nonetheless not
as great. Cf. United States v. Alvarez-Cuevas, 415 F.3d 121,
126-27 (1st Cir. 2005) (construing § 2A4.1(b)(6) to apply
only to situations involving third parties even though
the section makes no explicit reference to them, because
of additional harm implicated in such situations).
  We also find it significant that U.S.S.G. § 2A4.1
appears to be the only Guidelines provision that applies
the Hostage Taking Act (“HTA”), see 18 U.S.C. § 1203;
U.S.S.G. § 2A4.1 Commentary (Statutory Provisions),
which can only be violated if a person kidnaps another
in order to influence a third party. See United States v.
Rodriguez, 587 F.3d 573, 580 (2d Cir. 2009); United States
v. Ibarra-Zelaya, 465 F.3d 596, 602 (5th Cir. 2006); United
States v. Fei Lin, 139 F.3d 1303, 1306 (9th Cir. 1998). Enacted



1
  A defendant’s offense level rises to 38 after application
of § 2A4.1(b)(1) (including the base offense level of 32 in
§ 2A4.1(a)).
No. 12-1206                                                 11

only three years before § 2A4.1(b)(1) was created along
with the first Guidelines in 1987, see Pub. L. No. 98-473,
§ 2002(a), 98 Stat. 2186 (1984), the HTA punishes
“whoever . . . seizes or detains and threatens to kill, to
injure, or to continue to detain another person in order to
compel a third person or a governmental organization to do or
abstain from doing any act as an explicit or implicit condi-
tion for the release of the person detained.” 18 U.S.C.
§ 1203(a) (emphasis added). Thus, one violates the HTA
by either communicating demands to the government
during a kidnapping or by demanding that a third
party “do or abstain from doing any act as an explicit
or implicit condition for the release of the person de-
tained”: in other words, making a ransom demand. Given
these similarities in language and parallel structure,
§ 2A4.1(b)(1) appears to paraphrase the language of the
HTA, and we therefore believe it is meant to apply
only when a kidnapper issues demands in order to
compel a third party (either the government or private
citizen) to act. Cf. James v. United States, 550 U.S. 192, 206
(2007) (construing § 4B1.2(a)(2) in light of a provision of the
Armed Career Criminal Act, whose language it tracks).2
  Finally, we find it telling that although no appellate
court has considered whether § 2A4.1(b)(1) requires the


2
  We further note that the Background of the U.S.S.G. § 2A4.1
Commentary refers to “kidnapping for ransom or political
demand,” which appears to also paraphrase the Hostage
Taking Act with a similar parallel structure: “ransom” would
seem to refer to a demand made upon a third party, while
“political demand” would seem to refer to a demand made
upon the government.
12                                              No. 12-1206

communication of demands to third parties,3 we have
not found a single appellate decision where the adjust-
ment had been applied to a defendant who did not
intend for his demands to reach a third party. Thus,
practitioners seemingly have not regarded defendants
convicted of kidnapping as making “ransom” demands
when they do no more than force a victim to escort
them to some stash of money or drugs before letting
the victim go. We adopt the same interpretation today.
  Because the demands issued by Reynolds’s group did
not reach a third party, we must reverse the district
court’s finding that a “ransom demand” had been made.
The trial testimony was sufficient for the district court
to find that Reynolds’s group had demanded money or
drugs from Russell in exchange for his release, but the
demands were conveyed only to Russell and there is
no evidence that anyone else learned of them before he
escaped. In fact, the evidence shows that the group
did not want Russell’s capture to be discovered because


3
   The Ninth Circuit has actually stated that § 2A4.1(b)(1)
“applies anytime a defendant demands money from a third
party for a release of a victim, regardless of whether that
money is already owed to the defendant.” United States v.
Sierra-Velasquez, 310 F.3d 1217, 1221 (9th Cir. 2002) (empha-
sis added). Though this language is likely dicta because
the only issue before the court was whether a kidnapper
demands “ransom” if he is owed the money he has de-
manded, id. at 1220-21, the court’s apparent assumption
that “ransom” means a demand to third parties supports
our view of the word’s conventional understanding.
No. 12-1206                                        13

the men allowed him to drive his own vehicle to the
car-repair garage, untied, so that the employees there
would not think anything was amiss. On this record,
the application of § 2A4.1(b)(1) cannot be upheld.


                 III. CONCLUSION
  Accordingly, we V ACATE Reynolds’s sentence and
R EMAND for resentencing without application of
§ 2A4.1(b)(1).




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