United States v. Cherry, No. 16-1891 (7th Cir. 2017)
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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).
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 1891 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TARON CHERRY, Defendant Appellant. ____________________ Appeal from the United States District Court for the Southern District of Illinois. No. 15 cr 30101 MJR — Michael J. Reagan, Chief Judge. ____________________ ARGUED OCTOBER 26, 2016 — DECIDED MAY 4, 2017 ____________________ Before FLAUM, EASTERBROOK, and WILLIAMS, Circuit Judges. WILLIAMS, Circuit Judge. Taron Cherry was indicted for various charges involving heroin distribution and gun pos session. Without a plea agreement, he pled guilty to all four counts of the indictment and was sentenced to 106 months’ imprisonment. Cherry now challenges the district court’s ap plication of U.S.S.G. § 2K2.1(a)(3), which enhanced his base 2 No. 16 1891 offense level for possession of a firearm capable of accepting a large capacity magazine. Cherry argues that he construc tively possessed the firearm at issue as it was actually pos sessed by an alleged co conspirator. However, Cherry pled guilty to possessing the firearm and never stated that his pos session was merely constructive. This is fatal to his appeal, so we affirm the district court’s sentence. I. BACKGROUND On May 16, 2015 in East St. Louis, Illinois, an off duty po lice officer observed a gray Dodge Charger driving slowly down a line of parked cars as a passenger engaged in what appeared to be hand to hand drug transactions. When marked police cars responded to the area, the Charger sped away. After crashing into another car, the four occupants got out of the Charger and attempted to run away. But the officers caught two occupants, Taron Cherry (the driver), and a pas senger and alleged co conspirator, Detrell Crews. In the Charger, the officers found hundreds of individual capsules of heroin, numerous effects related to the sale of her oin, and a Glock Model 23, .40 caliber pistol. They also found a Smith & Wesson 9 mm pistol with sixteen rounds in the magazine and one round in the chamber, in a trash can where Crews had been observed throwing an object. The trash can was a few feet from where Crews was arrested. A. Indictment and Plea A grand jury indicted Cherry on four counts and he pled guilty to all four counts without a plea agreement: Count 1 charged conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 21 U.S.C. § 846, Count 2 No. 16 1891 3 charged possession with intent to distribute heroin, in viola tion of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2, Count 3 charged possession of a firearm in furtherance of a drug trafficking crime (“a Glock, Model 23, .40 pistol … and a Smith & Wesson, 9 mm pistol”) (emphasis added), in viola tion of 18 U.S.C. § 924(c)(1)(A), and Count 4 charged being a felon in possession of a firearm (referencing only the Glock), in violation of 18 U.S.C. § 922(g)(1). B. Sentencing The probation officer submitted a presentence investiga tion report prior to the sentencing hearing. Consistent with the sentencing guidelines, Counts 1, 2, and 4 were grouped. See U.S.S.G. §§ 3D1.3(a) and (b) (2014). The report stated that the base offense level was 22 for the grouped offenses under § 2K2.1(a)(3), which applies “if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine … and (B) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of … a crime of violence.” A semiautomatic firearm capable of accepting a large capacity magazine is one that “had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition.” U.S.S.G. § 2K2.1 cmt. n.(2). It is uncontested that the Smith & Wesson meets this definition as it had attached to it a magazine loaded with sixteen rounds of ammunition. Also, there is no dispute that § 2K2.1(a)(3)(B) is satisfied as the offense was committed after Cherry was convicted of First Degree Assault, a crime of vio lence. The base offense level was then adjusted upward by two for obstruction of justice and downward by three for ac ceptance of responsibility resulting in a total offense level of 4 No. 16 1891 21. With a criminal history category of III, the guideline im prisonment range was 46 to 57 months. Cherry filed an objection to the report, arguing his offense level for the grouped offenses should not have been calcu lated according to § 2K2.1(a)(3) as his possession of the Smith & Wesson was constructive because it was his alleged co con spirator, Crews, who actually possessed the Smith & Wesson. Cherry argued that because his constructive possession was based on his participation in the conspiracy, a finding had to made that the firearm’s ability to hold a large capacity maga zine was reasonably foreseeable to Cherry and was in further ance of the jointly undertaken criminal activity under § 1B1.3(a)(1)(B). The government responded that no such finding was required and that the enhancement was correctly applied since Cherry pled guilty to knowingly possessing the Smith & Wesson in Count 3, making it relevant conduct under § 1B1.3(a)(1)(A). The district court agreed with the government and found a base offense level of 22 for the grouped offenses. After ad justments, it found a total offense level of 21 and sentenced Cherry to 46 months on the grouped offenses. Because Count 3 required a mandatory minimum sentence of 60 months to be served consecutively, Cherry was sentenced to a total of 106 months’ imprisonment. Cherry appeals his sentence, alleging that application of the sentencing enhancement under U.S.S.G. § 2K2.1(a)(3) to the grouped offenses was improper. Cherry argues that, be cause his possession of the Smith & Wesson was constructive, the district court was required, pursuant to U.S.S.G. § 1B1.3(a)(1)(B), to find he could reasonably foresee that the Smith & Wesson was capable of accepting a large capacity No. 16 1891 5 magazine and that such capability was in furtherance of the jointly undertaken criminal activity before it could apply the base offense level enhancement, and that its failure to do so means he should receive a new sentencing hearing. II. ANALYSIS Generally, we review a district court’s legal application of the sentencing guidelines de novo and its factual findings supporting a sentencing enhancement for clear error. United States v. Shamah, 624 F.3d 449, 458 (7th Cir. 2010) (internal ci tations omitted). Here, however, the government argues that Cherry forfeited his argument requiring foreseeability of the firearm’s capability to accept a large capacity magazine by not clearly raising the issue in district court. If forfeited, we re view for plain error. United States v. Martin, 692 F.3d 760, 763 (7th Cir. 2012). Cherry contends that the argument was clearly presented to the district court, both indirectly through his written objection and more specifically at the sentencing hear ing. We need not resolve the issue of forfeiture, however, as Cherry’s appeal fails under either standard of review. A. Cherry Pled Guilty to Possessing the Smith & Wes son When calculating the correct advisory guidelines range for an offense, the sentencing guidelines instruct district courts to consider “the offense of conviction and all relevant conduct under § 1B1.3.” U.S.S.G. § 1B1.1 cmt. n.(1)(H). Here, the grouped offenses of conviction were for drug possession, con spiracy, and possession of the Glock. Importantly, none of the grouped offenses included the Smith & Wesson. So inclusion of the Smith & Wesson when determining the guidelines 6 No. 16 1891 range for the grouped offenses is only permissible if its pos session qualifies as relevant conduct under § 1B1.3. Cherry argues that because Crews actually possessed the Smith & Wesson, the district court was required to apply § 1B1.3(a)(1)(B), which applies only to jointly undertaken criminal activity. Under § 1B1.3(a)(1)(B), relevant conduct in cludes “all reasonably foreseeable acts … of others in further ance of the jointly undertaken criminal activity that occurred during the commission of the offense of conviction.”(2014).1 So Cherry argues that the district court was first required to find that Crews’s possession of a firearm was reasonably fore seeable to Cherry. If it found it was reasonably foreseeable, Cherry argues that the district court would then have to find that the firearm’s capability to hold a large capacity magazine was reasonably foreseeable to Cherry and in furtherance of the jointly undertaken criminal activity before applying the sentencing enhancement under § 2K2.1(a)(3) to the grouped offenses. Cherry is correct that had the Smith & Wesson been pos sessed by Crews and not by Cherry, the district court would have been required to “make an individualized determina tion that the defendant should have foreseen” his co con spirator’s possession before finding Cherry’s constructive possession was relevant conduct. See United States v. Ramirez, 1 Cherry was sentenced under the 2014 version of the sentencing guidelines. In 2015 § 1B1.3(a)(1)(B) was updated, though no substantive changes were made. It now states that relevant conduct in the case of jointly undertaken criminal activity includes “all acts and omissions of others that were … in furtherance of that criminal activity, and … reason ably foreseeable … that occurred during the commission of the offense of conviction.” No. 16 1891 7 783 F.3d 687, 689 (7th Cir. 2015). However, Cherry knowingly and voluntarily pled guilty to possession of the Smith & Wes son in Count 3 without any agreement or reservation that his possession was merely constructive. Instead, Cherry admit ted that he actually (not constructively) possessed the Smith & Wesson. As Cherry’s counsel acknowledged at oral argument, counsel “should’ve done a better job [and] blocked out the fact that the weapon was the co defendant’s,” because lack of any such caveat forecloses Cherry’s opportunity to now argue his possession was constructive. Since Cherry admitted his possession was actual, it is clearly relevant conduct under § 1B1.3(a)(1)(A) as it was an act committed by Cherry that oc curred at the same time as the commission of the offense of conviction (i.e., the grouped offenses). See U.S.S.G. § 1B1.3(a)(1)(A). Because Cherry’s possession of the Smith & Wesson is relevant conduct under § 1B1.3(a)(1)(A), we need not consider whether § 1B1.3(a)(1)(B) requires a district court to make findings that a firearm’s capability to accept a large capacity magazine was reasonably foreseeable to a construc tive possessor and in furtherance of jointly undertaken crimi nal activity before applying the § 2K2.1(a)(3) enhancement to the constructive possessor’s base offense level. Cherry wisely concedes that his constructive possession argument does not rely on the notion that it must be foresee able to or known by a defendant personally liable for posses sion of a firearm capable of accepting a large capacity maga zine that it had such capacity. Though we have not yet con sidered whether application of the enhancement requires that an actual possessor have knowledge or reason to believe that 8 No. 16 1891 the semiautomatic firearm is capable of accepting a large ca pacity magazine, see United States v. Rice, 673 F.3d 537 (7th Cir. 2012) (defendant did not appeal district court’s conclusion that possession alone is sufficient for enhancement where de fendant argued he was unaware of firearm’s large capacity magazine), the plain language of the guideline – that “the of fense involved a semiautomatic firearm that is capable of ac cepting a large capacity magazine” – suggests no such knowledge requirement. U.S.S.G. § 2K2.1(a)(3)(A)(i). We also see no reason to distinguish the firearm’s capabil ity of accepting a large capacity magazine from the character istics contained in the § 2K2.1(b)(4) enhancement (i.e., stolen or altered or obliterated serial number), which apply “regard less of whether the defendant knew or had reason to believe” the firearm had such characteristic. U.S.S.G. § 2K2.1 cmt. n.(8)(B). The difference between the enhancements is simply that § 2K2.1(a)(3) applies only where the defendant’s posses sion occurred subsequent to sustaining a felony conviction for a crime of violence or a controlled substance offense. It would be peculiar to enhance a first time offender’s sentence for pos session of a firearm with an altered serial number regardless of his knowledge of such characteristic, but then require that a defendant who has previously been convicted of a crime of violence have knowledge that the firearm possessed in the of fense was capable of accepting a large capacity magazine to apply the enhancement under § 2K2.1(a)(3). Because Cherry admitted that he knowingly possessed the Smith & Wesson, a semiautomatic firearm with a large capac ity magazine, during the commission of the grouped offenses of conviction, and because no knowledge that the firearm had No. 16 1891 9 the capability of accepting a large capacity magazine is re quired, Cherry’s actual possession of the Smith & Wesson was relevant conduct and the district court correctly applied the § 2K2.1(a)(3) sentencing enhancement. III. CONCLUSION We AFFIRM the judgment of the district court.
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