In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-1725 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

DEMETRISE L. HARPER, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Central District of Illinois. 

No. 16-cr-10052 — James E. Shadid, Judge. 

____________________ 

ARGUED JUNE 12, 2019 — DECIDED AUGUST 8, 2019 

____________________ 

Before WOOD, Chief Judge, and BARRETT and ST. EVE, Circuit 

Judges. 

WOOD, Chief Judge. Demetrise Harper appeals from the 

district court’s denial of his motion to withdraw his plea of 

guilty to three charges: possession of a firearm in furtherance 

of a drug-trafficking crime, 18 U.S.C. § 924(c); possession of a 

firearm by a felon, id. § 922(g); and possession with intent to 

distribute and distribution of a controlled substance, 21 U.S.C. 

§ 841(a)(1), (b)(1)(C). In moving to withdraw his plea, Harper 
2 No. 18-1725 

argued that he was innocent of the first because he never 

“possessed” the gun, and that his plea was not knowing and 

voluntary because he had received ineffective assistance of 

counsel. We affirm the judgment. 

I 

The criminal complaint charges that Harper offered to sell 

crack cocaine to a confidential police informant in exchange 

for a gun. To facilitate the deal, the informant sent Harper a 

photograph of a pistol and two magazines. Harper expressed 

interest and was ready to trade five grams of crack cocaine for 

the pistol and magazines. 

On the day fixed for the deal, the informant and an undercover agent met Harper in a parking lot. The agent, who was 

sitting in the back seat of a truck, opened a toolbox containing 

the gun and handed the gun to Harper, who at that point was 

standing next to the truck. Harper held it, inspected it, and 

voiced doubts that it was the same pistol as in the photograph. 

Even so, he furnished most of the crack cocaine and promised 

the rest within an hour; he got into the front passenger seat to 

wait. After Harper asked for the two magazines, the agent returned the gun to the toolbox, locked it (saying that he was 

doing this so that the police would have “to get a warrant” to 

open it), and placed the toolbox in Harper’s lap. He then left 

the truck, ostensibly to retrieve the magazines. Harper tried 

but was unable to open the toolbox by himself. As the informant reached over to help, the police arrived and arrested Harper. The indictment followed soon thereafter. 

A court-appointed lawyer, Rodney Nordstrom, became 

Harper’s counsel after his first lawyer withdrew. Nordstrom 

also sought leave to withdraw, citing a breakdown in the 
No. 18-1725 3 

attorney-client relationship. Harper complained that 

Nordstrom refused to review evidence or prepare for trial, 

but Nordstrom contested both accusations. The district court 

denied Nordstrom’s motion, and soon after, Harper agreed to 

plead guilty under a written plea agreement pursuant to 

Federal Rule of Criminal Procedure 11(c)(1)(C)—that is, an 

agreement that specified the sentence Harper would receive. 

The plea agreement called for 96 months’ incarceration—60 

months for possession of a firearm in furtherance of a drugtrafficking crime (the mandatory minimum) and 36 months 

for the remaining counts, possession of a firearm by a felon 

and possession with intent to distribute, to be served 

consecutively to the first sentence but concurrently to each 

other. 

Next came a change-of-plea hearing. There Harper told 

the court that he was “willing to plead,” but he complained 

that Nordstrom had not answered his questions about the 

sentence. The district judge explained the sentence to Harper, 

specifying which parts would run consecutively to the others. 

The judge then asked Harper whether 96 months was an “acceptable” sentence. Harper said that it was, confirmed that he 

had no other questions, and asked to proceed with the plea 

colloquy. The judge did so, reviewing all the admonishments 

for a change of plea, including the rights that Harper was giving up by pleading guilty and the plea’s factual basis. See FED.

R. CRIM. P. 11(b). 

After the colloquy, the judge asked the parties for the applicable Sentencing Guidelines range. Nordstrom stated that 

he believed the range was 156 to 162 months. The judge responded that the exact range would be calculated later in the 

presentence report, adding that he would accept the plea 
4 No. 18-1725 

agreement now if Harper was amenable to a 96-month sentence. Harper agreed to that sentence, and on that understanding the district court accepted his guilty plea. 

Three months later, Harper moved to withdraw his guilty 

plea, arguing that the plea was not knowing and voluntary 

because his lawyer was ineffective. This contention prompted 

Nordstrom to renew his request to withdraw as counsel; this 

time, the court granted the motion. Harper obtained new 

counsel, who added a second ground in support of the motion 

to withdraw the plea: actual innocence. Harper argued that 

he did not “possess” a firearm in furtherance of a drugtrafficking crime because the transaction “was incomplete at 

best,” and he never had “full control of th[e] firearm.” 

After hearing the government’s evidence in support of the 

charges, the district court denied Harper’s motion. It ruled 

that the guilty plea was knowing and voluntary because Harper confirmed during the plea colloquy that he understood 

the plea deal and that he was guilty of the offenses. Harper 

could not assert actual innocence, the court said, because that 

would conflict with his previous admission of guilt. 

II 

A defendant “does not have an absolute right to withdraw” a guilty plea, United States v. Cieslowski, 410 F.3d 353, 

358 (7th Cir. 2005), but a court has discretion to allow it if the 

defendant presents “a fair and just reason.” FED. R. CRIM. P.

11(d)(2)(B). 

On appeal, Harper contends that the district court abused 

its discretion in denying his motion to withdraw the guilty 

plea. See United States v. Fard, 775 F.3d 939, 943 (7th Cir. 2015). 

He reprises the two allegedly “fair and just” reasons that he 
No. 18-1725 5 

offered to the district court—that he is innocent of the section 

924(c) charge that he “possessed” a firearm “in furtherance 

of” a drug crime, and that he received ineffective assistance of 

counsel in connection with the plea. 

First, Harper maintains that he did not violate section 

924(c) because he never completed the gun-for-drugs deal. 

“Legal innocence” can be a fair and just reason for withdrawing a guilty plea. See United States v. Hodges, 259 F.3d 655, 661 

(7th Cir. 2001). But section 924(c) does not require a completed transaction, and so it is irrelevant that Harper’s trade 

might have been incomplete. See United States v. Castillo, 

406 F.3d 806, 816 (7th Cir. 2005) (explaining that a completed 

transaction is not a necessary element under section 924(c)). 

Instead, to violate section 924(c), a defendant must acquire 

possession of the gun during a drug deal. “Receiving a gun in 

exchange for drugs,” as Harper did when he sat in the truck 

and handed over most of the promised cocaine, qualifies as 

possession of a firearm in furtherance of a drug-trafficking 

crime. See United States v. Doody, 600 F.3d 752, 755 (7th Cir. 

2010); see also United States v. Dickerson, 705 F.3d 683, 689 

(7th Cir. 2013) (requiring gun and drugs “to change hands,” 

though noting that the order of the exchange is irrelevant). 

Harper responds that because the gun ended up in a 

locked tool box, he never truly “possessed” it as required by 

section 924(c). He is mistaken. Possession of a weapon can be 

either actual or constructive, see United States v. Conley, 

875 F.3d 391, 400 (7th Cir. 2017), and the government supplied 

evidence that Harper possessed the gun both ways. Harper 

conceded that he had, at least briefly, actual possession of the 

firearm when the undercover agent handed it to him. Indeed, 
6 No. 18-1725 

Harper held the gun long enough to inspect its surface details 

and compare it to the gun in the photograph. 

Even if his actual possession was too brief to satisfy the 

statute (and that is not the way we view the facts), Harper had 

constructive possession once the gun was on his lap in the 

locked toolbox. Constructive possession occurs when “the defendant knowingly had the power and intention to exercise 

dominion and control over the [gun], ... establishing a nexus 

between himself and the [gun].” See United States v. Jones, 

872 F.3d 483, 489 (7th Cir. 2017) (internal citations omitted). 

Either exclusive control or a substantial connection to the gun 

can create an “inference that the defendant exercised dominion and control” over it. See United States v. Cejas, 761 F.3d 717, 

728 (7th Cir. 2014). Here, the pre-trade conversations between 

Harper and the informant show Harper’s desire for the gun. 

That desire, and Harper’s proximity to the gun when the box 

rested on his lap, establish the power and intent to control the 

gun as part of the drug sale. See United States v. Webster, 

775 F.3d 897, 905 (7th Cir. 2015) (finding that evidence of motive, in addition to proximity to item, may show constructive 

possession); United States v. Brown, 724 F.3d 801, 804 (7th Cir. 

2013) (same). 

Harper replies that he could not constructively possess the 

gun because it was locked inside the tool box. But when a defendant has close, physical contact with a box containing a 

gun, its locked status does not negate possession of its contents. See Cejas, 761 F.3d at 728 (drug dealer constructively 

possessed gun in locked toolbox because box was physically 

attached to his own truck); cf. United States v. Herrera, 757 F.2d 

144, 150 (7th Cir. 1985) (defendant did not constructively possess contents of a locked footlocker where no fingerprints or 
No. 18-1725 7 

other evidence of his physical contact were found on footlocker). And, for safety reasons, the police understandably 

did not want to leave a suspected drug dealer alone with unfettered access to a gun. Harper’s close connection to the gun 

justified the section 924(c) charge. 

III 

This brings us to Harper’s other “fair and just” reason for 

withdrawing the guilty plea—ineffective assistance of counsel. The district court reasoned that Harper cannot succeed on 

this argument because his admission of guilt during the plea 

colloquy conflicted with a claim of ineffective assistance. But 

“a plea, even one that complies with Rule 11, cannot be 

‘knowing and voluntary’ if it resulted from ineffective assistance of counsel.” Hurlow v. United States, 726 F.3d 958, 967 

(7th Cir. 2013). Thus, if the record shows that Harper received 

ineffective assistance of counsel, his admission of guilt does 

not bar him from withdrawing the guilty plea. 

To establish ineffective assistance of counsel in the context 

of a guilty plea, a defendant must show that counsel’s performance fell below an objective standard of reasonableness, and 

there is a reasonable probability that, but for the errors, the 

defendant would not have pleaded guilty. Hill v. Lockhart, 

474 U.S. 52, 57–59 (1985). Harper sees three deficiencies in 

Nordstrom’s performance: (1) he ignored an obvious and 

meritorious defense of actual innocence on the section 924(c) 

charge; (2) he misstated the guidelines sentencing range; and 

(3) during plea discussions, he did not explain the sentence to 

Harper. None of these amounts to ineffective assistance. 
8 No. 18-1725 

We begin with Harper’s argument that counsel should 

have argued that Harper did not possess the gun in furtherance of the drug crime. Counsel’s failure to raise a “plainly 

meritorious objection could constitute deficient performance 

if proven.” See Brock-Miller v. United States, 887 F.3d 298, 310 

(7th Cir. 2018); see also Hinton v. Alabama, 571 U.S. 263, 274 

(2014) (“An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform 

basic research on that point is a quintessential example of unreasonable performance.”). The government concedes that 

Nordstrom did not argue Harper’s innocence, and that Harper complained on the record that Nordstrom expressed no 

interest in researching or raising any argument. But by omitting this argument, Nordstrom was not constitutionally deficient; as we already have explained, the argument that Harper 

did not “possess” a gun is fatally flawed—the opposite of 

“plainly meritorious.” 

Harper’s remaining two arguments are not persuasive either, because he cannot show prejudice. Harper correctly observes that Nordstrom overstated the guidelines range for an 

unconditional plea when he said that it was approximately 

156 to 162 months when, the parties agree, the correct range 

might have been as low as 101 to 111 months, or 117 to 131 

months if he had gone to trial. Harper has not said, either in 

his motion to withdraw or on appeal, that, but for this error, 

he would not have pleaded guilty. Without prejudice from 

this error, his claim of ineffective assistance fails. See Hill, 

474 U.S. at 57–59. 

A similar problem plagues Harper’s argument that 

Nordstrom did not adequately explain to him the sentencing 

sequence (i.e. what is concurrent and what is consecutive) on 
No. 18-1725 9 

his three counts. The district court cured any possible prejudice from this omission by providing Harper with a thorough 

explanation of the sentencing sequence, after which Harper 

affirmed that he understood and had no further questions. See

Hays v. United States, 397 F.3d 564, 568–69 (7th Cir. 2005). Because of this intervention, Harper cannot establish prejudice 

from any ineffective assistance. 

IV 

We AFFIRM the district court’s judgment.