United States v. Cherry, No. 16-1891 (7th Cir. 2017)Annotate this Case
Enhancement for possession of a firearm capable of accepting a large-capacity magazine was appropriate, despite defendant’s claim that he only constructively possessed the gun at issue. After a police officer observed an apparent drug transaction, Cherry and Crews fled. They crashed their car, in which the officers found hundreds of individual capsules of heroin, numerous effects related to the sale of heroin, and a Glock .40 caliber pistol. They also found a 9 mm pistol with 16 rounds in the magazine and one round in the chamber, in a trash can where Crews had been observed throwing an object. Cherry pleaded guilty to four counts involving heroin distribution and gun possession, without a plea agreement. The district court applied U.S.S.G. 2K2.1(a)(3), which enhanced his base offense level for possession of a firearm capable of accepting a large-capacity magazine. He was sentenced to 106 months’ imprisonment. The Seventh Circuit affirmed, rejecting Cherry’s argument that he constructively possessed the firearm at issue as it was actually possessed by Crews. Cherry pled guilty to knowingly possessing the gun, making it relevant conduct under section 1B1.3(a)(1)(A).