U.S. v. Cherry

Dist. Ct. did not err in sentencing defendant to 106-month term of incarceration, after defendant had pleaded guilty to four counts of drug and firearm offenses, where said sentence was based, in part, on enhancement under section 2K2.1(a)(3) of USSG arising out of defendant’s possession of Smith & Wesson pistol that had 16 rounds in magazine. Three grouped offenses that formed basis of sentence did not allege defendant’s possession of said pistol, and while defendant argued that instant enhancement should not apply because he only constructively possessed said pistol that was actually possessed by co-conspirator, record showed that defendant had pleaded guilty to knowing possession of said pistol in fourth charge in indictment, which made said possession relevant conduct for purposes of sentencing under section 1B1.3(a)(1)(A) of USSG. As such, Dist. Ct. could properly apply instant enhancement.