United States Court of Appeals 

For the Seventh Circuit

Chicago, Illinois 60604

Argued October 6, 2016

Decided November 21, 2016

Before

DIANE P. WOOD, Chief Judge

FRANK H. EASTERBROOK, Circuit Judge

DANIEL A. MANION, Circuit Judge

No. 15‐2656

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

JARVIS WASHINGTON,

Defendant‐Appellant.

Appeal from the United States District

Court for the Northern District of

Illinois, Western Division.

No. 13 CR 50070‐1

Frederick J. Kapala,

Judge.

O R D E R

Jarvis Washington was convicted by a jury of two separate counts under

18 U.S.C. § 922(g)(1) for being a felon in possession of a gun and ammunition. He

complains on appeal that the district court failed to instruct the jury that it could not

return separate convictions unless it concluded that Washington stored the gun and

ammunition at different times or in different places. No such evidence exists, according

to Washington; without it, he says, the convictions should merge. Our review, however,

is for plain error only, because Washington forfeited this point in the district court. We

find no such problem with the conviction and thus we affirm.   

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 15‐2656 Page 2

Washington was being sought for outstanding warrants when, on the morning of

September 24, 2013, someone from the Winnebago County Sheriff’s Police noticed his

car parked outside his ex‐girlfriend’s apartment. Police surrounded the apartment, got

consent from the woman to enter, and found Washington hiding in a bedroom closet.

On the bedroom floor they spotted a box of plastic sandwich bags and another box with

25 rounds of .40 caliber ammunition. Plastic bags with crack cocaine and heroin were

stashed in the dresser. A backpack near the bed contained marijuana and 13 rounds of

.45 caliber ammunition. Police later took a closer look at Washington’s car and noticed

through a window the handle of a handgun protruding from under the driver’s seat.

After obtaining a warrant to search the car, they found a .45 caliber handgun with 12

rounds of ammunition in its magazine.   

A grand jury indicted Washington for (1) possession with intent to distribute

heroin and crack cocaine, 18 U.S.C. § 841(a)(1), (2) possession with intent to distribute

marijuana, id., (3) being a felon in possession of ammunition, 18 U.S.C. § 922(g)(1),

(4) being a felon in possession of a firearm and ammunition, id., and (5) possession of a

firearm in furtherance of a drug trafficking crime, 21 U.S.C. § 924(c)(1). The third of

these counts charged Washington with possessing ammunition on or about

September 24, 2013, and referred to the items found in the bedroom; the fourth charged

him with possessing a gun and ammunition on or about the same date and referred to

the car.   

Without objection from Washington, the district court used the government’s

proposed jury instructions for the two charges under section 922(g)(1). The court

instructed the jury that the government had to prove beyond a reasonable doubt that

(1) Washington knowingly possessed the charged items, (2) had previously been

convicted of a crime punishable by a term of imprisonment exceeding one year, and

(3) the possession affected interstate commerce. The court did not instruct the jury that

it had to find that Washington separately stored or acquired the charged items in order

to convict on both section 922(g) counts.   

The jury convicted him of the first four charges and acquitted him of the fifth.

The district court sentenced Washington to concurrent sentences of 132 months’

imprisonment for the first count, 60 months for the second, and 120 months each for the

third and fourth. The court ordered four years’ supervised release for the first two

counts and three years’ supervised release for the third and fourth, also to run

concurrently. Washington did not argue at sentencing that his section 922(g)(1)

convictions should merge.
No. 15‐2656 Page 3

Washington now contends that his separate section 922(g)(1) convictions violate

the Double Jeopardy Clause and should merge into one because he “simultaneously

possessed” the gun and ammunition found in the car and the apartment. We review

this issue for plain error because Washington raises it for the first time on appeal.

United States v. Parker, 508 F.3d 434, 440 (7th Cir. 2007).

Multiple section 922(g) convictions are justified if the government “can produce

evidence demonstrating that the firearms were stored or acquired separately and at

different times or places.” United States v. Conley, 291 F.3d 464, 470 (7th Cir. 2002)

(quoting United States v. Buchmeier, 255 F.3d 415, 423 (7th Cir. 2001)). But only one

conviction is permitted when the “defendant’s possession of multiple firearms is

‘simultaneous and undifferentiated.’” United States v. Cureton, 739 F.3d 1032, 1041

(7th Cir. 2014) (quoting Buchmeier, 255 F.3d at 422). Acquisition and storage are factual

questions for the jury, but no plain error exists if the undisputed record demonstrates

separate possession. See United States v. Woolsey, 759 F.3d 905, 908–09 (8th Cir. 2014);

United States v. Ankeny, 502 F.3d 829, 838 (9th Cir. 2007).

Washington contends that his dual convictions cannot stand because the jury

was not asked to determine if he acquired or stored the charged items separately and at

different times or places. As he puts it: “[W]hile some of the ammunition was found

inside the duplex while the gun and additional ammunition was [sic] found in the car,

that does not amount to storing the gun and ammunition in different places.” He

develops the point further in his reply brief, suggesting that “most likely” the

ammunition found in the apartment had been in his backpack, which he had

“grabbed”—as if in afterthought—to take inside with him.   

Logically, however, storing some weapons in a vehicle and others in a building

represent separate acts of possession. Both the Ninth and Tenth Circuits have affirmed

separate convictions for weapons stored in a house and a vehicle. See United States v.

Hutching, 75 F.3d 1453, 1460 (10th Cir. 1996) (guns in bedroom, car, and truck were in

“scattered locations”); United States v. Gann, 732 F.2d 714, 717, 721 (9th Cir. 1984)

(shotgun and ammunition in defendant’s car and rifle and ammunition in his house

“were stored separately”); see also United States v. Kennedy, 682 F.3d 244, 256 (3rd Cir.

2012) (affirming two convictions for guns hidden in secret compartments of two cars);

United States v. Verrecchia, 196 F.3d 294, 296, 298 (1st Cir. 1999) (approving of indictment

that grouped firearms into counts based on “the place of possession”; defendant

properly charged separately for possessing some guns in crate in barn and others while

driving them to officers conducting sting operation).
No. 15‐2656 Page 4

Washington relies entirely on cases where all of the defendant’s weapons were

stored within a single structure, whether a car or a building. Ankeny, 502 F.3d at 833–34;

United States v. Dunford, 148 F.3d 385, 390 (4th Cir. 1998); United States v. Oliver, 683 F.2d

224, 226, 232–33 (7th Cir. 1982). Those defendants were armed only inside that structure.

See also United States v. Guice, 238 F. App’x 167, 170 (7th Cir. 2007) (possession

simultaneous when the defendant controlled different areas of the same apartment or

vehicle). But Washington separated his gun and ammunition between a car and an

apartment building. The car allowed Washington easily to drive away with the gun,

and the presence of the weapons in different places allowed him to take shelter in

different structures and still be armed. See Kennedy, 682 F.3d at 256 (weapons stored in

two cars were separated while defendant was driving). Treating Washington’s actions

as a single act of possession could, as other circuits have observed, allow him to

establish an armory and also travel armed while risking only one section 922(g)

conviction. See United States v. Olmeda, 461 F.3d 271, 280 (2nd Cir. 2006); United States v.

Buchmeier, 255 F.3d 415, 423 (7th Cir. 2001).

Finally, we note that, just as in Ray v. United States, 481 U.S. 736 (1987), we are not

faced with any question under the concurrent sentence doctrine. Each count of

conviction carried its own special assessment, and that is enough to warrant separate

review. Parker, 508 F.3d at 441. Accordingly, we conclude that it was not plain error to

enter judgment against Washington for two separate section 922(g)(1) convictions.

AFFIRMED.