United States v. Cherry, 16-1891
| Decision Date | 04 May 2017 |
| Docket Number | No. 16-1891,16-1891 |
| Citation | 855 F.3d 813 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Taron CHERRY, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Donald S. Boyce, Attorney, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff–Appellee.
Thomas C. Gabel, Attorney, Office of the Federal Public Defender, East St. Louis, IL, for Defendant–Appellant.
Before Flaum, Easterbrook, and Williams, Circuit Judges.
Taron Cherry was indicted for various charges involving heroin distribution and gun possession. 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 application of 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. Cherry argues that he constructively possessed the firearm at issue as it was actually possessed by an alleged co-conspirator. However, Cherry pled guilty to possessing the firearm and never stated that his possession was merely constructive. This is fatal to his appeal, so we affirm the district court's sentence.
On May 16, 2015 in East St. Louis, Illinois, an off-duty police 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 passenger 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 heroin, 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 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 charged possession with intent to distribute heroin, in violation 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 violation 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).
The probation officer submitted a presentence investigation 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 violence. The base offense level was then adjusted upward by two for obstruction of justice and downward by three for acceptance of responsibility resulting in a total offense level of 21. With a criminal history category of III, the guideline imprisonment 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 calculated according to § 2K2.1(a)(3) as his possession of the Smith & Wesson was constructive because it was his alleged co-conspirator, 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 magazine was reasonably foreseeable to Cherry and was in furtherance 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 adjustments, 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, because 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 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.
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 citations 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 review 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 hearing. 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 & Wesson
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, conspiracy, 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 range for the grouped offenses is only permissible if its possession 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 includes "all reasonably foreseeable acts...
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