### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 1891

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee,

v.

T ARON C HERRY

, 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

.

____________________

A RGUED O CTOBER 26, 2016

— D ECIDED M AY 4, 2017

____________________

Before F LAUM

, E ASTERBROOK

, and W ILLIAMS

, Circuit Judges

.

W ILLIAMS

, 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 base2 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 2No. 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 of4 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 capacityNo. 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 guidelines6 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 that8 No. 16

‐ 1891

the semiautomatic firearm is capable of accepting a large ca

‐ pacity magazine, s ee 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 hadNo. 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 A FFIRM the judgment of the district court.