CHICAGO (CN) — R&B star R. Kelly had his 15 minutes in front of a Seventh Circuit panel Thursday morning, hoping to overturn his 2022 federal conviction on six child porn and sexual enticement charges in Chicago. Those charges stemmed from sex tapes Kelly reportedly made with girls as young as 14, along with multiple incidents where women said Kelly sexually abused them as minors.
The singer also sought to overturn his sentence. His attorney Jennifer Bonjean spent the majority of her allotted argument time on Thursday claiming U.S. District Judge Harry Leinenweber relied on "nebulous" reasoning to hand Kelly a 20-year sentence in February 2023.
"His comments were too vague for us to find what he relied on," Bonjean told the three-justice appellate panel.
Bonjean argued the sentence Leinenweber handed down was above the recommended guidelines for the charges on which Kelly was convicted, but it was less severe than the sentence federal prosecutors had urged. In their sentencing memo, U.S. attorneys argued Kelly should receive 25 years behind bars, to be served consecutively with the 30-year sentence he received on a 2021 conspiracy conviction in New York. They claimed that keeping Kelly locked up for the rest of his life would be the only way to prevent him from repeating his sexual abuse of young women.
Instead, Leinenweber allowed Kelly to serve all but one year of his Chicago sentence concurrently with his New York sentence, noting that even should the then-56-year-old survive his combined 31 years in prison, he would walk out in his late 80s.
Leinenweber is in his 80s himself, and opined that men in their 80s are interested more "in their prostate and their arthritis" than with pursuing underage girls.
Despite the relative leniency of Leinenweber's sentence compared to the prosecutors' suggestions, Bonjean argued Thursday and in her appellate brief that the judge was too vague in making his determination, leaving Kelly in the dark as to why he received the sentence he did and blunting his ability to appeal. She opined that Leinenweber may have relied on the belief that Kelly obstructed justice in an attempt to cover up his purported sex tapes with minors, but noted that in 2022, Chicago jurors acquitted him of obstruction.
"While obstruction might permit an enhancement of the offense level, the obstruction enhancement relates to obstruction in the instant offense — not for an obstruction charge for which defendant was acquitted," Bonjean argued in Kelly's appellate brief. "There was no claim by any party that defendant attempted in any way to obstruct this prosecution."
U.S. Circuit Judge Amy St. Eve, a Donald Trump appointee, noted that Kelly could actually end up worse off should the panel buy Bonjean's argument. There was nothing barring the lower court from issuing a longer sentence if Kelly got a new sentencing hearing, she said, or deciding that the New York and Chicago sentences should be served consecutively.
"So theoretically if it's remanded for resentencing because of an error and the court gives a guidelines sentence... that entire guidelines sentence could be consecutive, or half of it, or more than a year, which would put your client in a worse position," St. Eve said.
Bonjean acknowledged this was a possibility, but countered that if the lower court issued Kelly a significantly longer sentence in a new hearing, it could constitute illegal retaliation. St. Eve remained skeptical of this argument.
In his own arguments, Assistant U.S. Attorney Brian Williamson said Bonjean was missing "the forest for the trees," pointing out Kelly's "horrific" sex offenses and the lengthy sentence he said they warranted. Williamson also argued Leinenweber was within his rights to consider Kelly's obstruction allegations in formulating a sentence, despite the acquittal.
"Per this court's precedent, it is not in dispute that the district court may consider acquitted conduct, so long as it is proven by a preponderance of the evidence," Williamson said, adding that "Kelly's minions spent hundreds of thousands of dollars and effort trying to get [the minor sex tapes] back" after they leaked to the public.
Both attorneys spent relatively little time discussing Kelly's conviction itself. To the extent it came up Thursday, Bonjean argued that Kelly's reported offenses occurred in the 1990s and should have been considered time-barred years ago. It's an argument she's made multiple times before, always unsuccessfully, in efforts to have Kelly's Chicago case thrown out.
Williamson also briefly touched on this point, repeating the government's position that the relevant law covering sexual abuse of a minor was amended in 2003 — before the statute of limitations expired on the sex abuse allegations Kelly faced — to extend through the life of the victim.
"This is a universal approach to changing the statute of limitations," he said. "It's forward-leaning, and it's backward-leaning."
But Bonjean argued Congress did not intend for the law to be applied retroactively for suspected sex offenses like Kelly's. She claimed that to do so would violate the Constitution's ex-post facto clause. She hinted at a possibility of involving the Supreme Court if the Seventh Circuit disagreed on this point.
"Our position is that the U.S. Supreme Court would see this differently," she said.
The appellate panel, rounded out by Chief U.S. Circuit Judge Diane Sykes and U.S. Circuit Judge Kenneth Ripple, George W. Bush and Ronald Reagan appointees respectively, took the case under advisement but did not say when they would issue a ruling.
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