United States v. Cherry
2017 U.S. App. LEXIS 7955
7th Cir.2017Background
- On May 16, 2015, police stopped a Dodge Charger; officers found heroin distribution evidence and two handguns (a Glock .40 and a Smith & Wesson 9mm) — the S&W had a 16‑round magazine. Cherry and co‑defendant Detrell Crews were arrested.
- A grand jury charged Cherry with conspiracy to distribute heroin, possession with intent to distribute, possession of a firearm in furtherance of a drug trafficking crime (listing both the Glock and the S&W), and being a felon in possession (referencing only the Glock). Cherry pled guilty to all counts without a plea agreement.
- The PSR applied U.S.S.G. § 2K2.1(a)(3) (higher base offense level where the offense involved a semiautomatic capable of accepting a large‑capacity magazine and the defendant had a prior violent felony), treating the S&W as relevant conduct because it held 16 rounds.
- Cherry objected, arguing his possession of the S&W was only constructive (Crews actually possessed it), so the court had to find foreseeability under U.S.S.G. § 1B1.3(a)(1)(B) before applying the § 2K2.1(a)(3) enhancement.
- The district court overruled the objection, concluding Cherry pled guilty to possession of the S&W and admitted actual possession, so the S&W was relevant conduct under § 1B1.3(a)(1)(A); it applied the enhancement and sentenced Cherry to a total of 106 months (consecutive 60‑month § 924(c) mandatory minimum plus other terms).
Issues
| Issue | Plaintiff's Argument (Cherry) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Whether § 2K2.1(a)(3) enhancement may be applied when the firearm was supposedly constructively possessed via a co‑conspirator | Cherry: Possession was constructive; court had to apply § 1B1.3(a)(1)(B) and find S&W possession and its large‑capacity capability were reasonably foreseeable and in furtherance of the conspiracy | Gov't: Cherry pled guilty to knowing possession of the S&W (Count 3); possession is relevant conduct under § 1B1.3(a)(1)(A), so no foreseeability finding needed | Held: Cherry admitted actual possession in his plea; S&W is relevant conduct under § 1B1.3(a)(1)(A); enhancement properly applied |
| Whether a defendant must know a firearm is capable of accepting a large‑capacity magazine before § 2K2.1(a)(3) applies | Cherry argued foreseeability is required for constructive possession scenarios | Gov't argued no knowledge requirement; enhancement depends on the firearm’s capability, not defendant’s knowledge | Held: No knowledge requirement; plain guideline language and analogies to § 2K2.1(b)(4) support application without defendant knowledge |
| Whether Cherry forfeited his foreseeability argument by not preserving it below | Cherry contends he raised the issue in objection and at sentencing | Gov't asserts forfeiture; appellate review should be plain‑error if forfeited | Held: Court avoided deciding forfeiture because Cherry’s plea admission defeats the claim under either standard |
| Whether individualized foreseeability findings are necessary when a co‑conspirator actually possessed the firearm | Cherry relied on precedents requiring individualized foreseeability findings for constructive possession | Gov't: Not applicable because Cherry admitted actual possession | Held: Because Cherry admitted actual possession, Ramirez and foreseeability analysis need not be reached here |
Key Cases Cited
- United States v. Shamah, 624 F.3d 449 (7th Cir. 2010) (standard of review for guideline application and factual findings)
- United States v. Martin, 692 F.3d 760 (7th Cir. 2012) (forfeiture and plain‑error review principles)
- United States v. Ramirez, 783 F.3d 687 (7th Cir. 2015) (requirement to make individualized foreseeability determination for constructive‑possession scenarios)
- United States v. Rice, 673 F.3d 537 (7th Cir. 2012) (discusses that defendant did not appeal where enhancement applied based on possession without knowledge of magazine capacity)
Outcome
Affirmed: the district court correctly applied U.S.S.G. § 2K2.1(a)(3) because Cherry pled guilty and admitted actual possession of the Smith & Wesson with a 16‑round magazine, so no foreseeability or knowledge finding was required.