NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
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, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of
Illinois, Western Division.
v.
No. 13 CR 50070‐1
JARVIS WASHINGTON,
Defendant‐Appellant. 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.
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.