US v. Antionne Cherry - Sentencing Appeal

UNPUBLISHED UNITED ST A TES C OUR T OF APP EALS FOR TH E FOUR TH CIRCUIT No. 24- 4540 UNITED ST A TES OF AMERICA, P laintiff – Appellee, v. ANTIONNE DARNELLE C HERR Y, a/k/a Antionne Nicholas Cherry, a/k/a Antionne Nicholas Darnelle Cherry Defendant – Appellan t. Appeal from the United States District Co urt for the Middle District of North Carolina, at Greensboro. W illiam L. Osteen, Jr., District Jud ge. (1:23 - cv - 0012 7 - WO -1) Submitted: December 2, 202 5 D ecided: March 3, 2026 Before WY NN, HEYTENS, and BERNER, Circuit Ju dges. Affirmed by unpublish ed opinion. Judge Heytens wrote the opinion, which J udge W ynn and Judge Berner joined. ON BRIEF: Louis C. Allen, Federal Public Defender, Kathleen A. Gleason, Assistant Federal Pu blic Defen der, OFF ICE OF THE FEDERA L PUBLIC DEFENDER, Greensboro, North Carolin a, for Appellant. Randall S. Galyon, Acting United States Attorney, Julie C. Niemeier, Assistant United States Attorn ey, OFFICE OF THE UNITED ST A TES A TTORNEY, Greensboro, North Carolina, for Appellee.

2 Unpublished opinions are not binding p recedent in this circuit.

3 TOBY HEYTENS, C ircuit Judge: Antionne Cherry appeals his se ntence of 151 m onths’ imprisonment. Seei ng no reversible error, we affirm. In 202 3, police of ficers in Salisbury, No rth Carolina responded to a rep ort that four people — including Cherry — were caught on video breaking into a home. When the offi cers arrived at t he scene, Cherry fled on foot. D espite commands to “get on the ground,” Cherry continue d runnin g and the officers gave chase. JA 11. What happened next is disputed. A pursuin g officer testified that Cherry “turn[ed] to his right” and “physically reache[d] into his waistband,” at which p oint the officer saw a “gun come up. . .. in an upward motion.” JA 46. For his part, Cherry asserts th e gun accidentally fell from his waistban d and that a “video of the event. .. shows ... [his] empty hands were in the air above his waist wh en the g un fell to the ground.” Cherry Br. 9. Following his arrest, Cherry pleaded guilty to violating 18 U.S.C. § 922(g)(1), which “is often called the ‘felon - in - possession’ offense.” United States v. Canada, 123 F.4t h 159, 161 (4t h Cir. 2 024). At sentencing, the district court c redited the pursuing officer ’ s testimo ny and applied a six - point enhance ment to Cherry’ s o ffense lev el because Cherry assaulted th at officer by att empting “ to draw the firearm.” JA 96; see U.S.S.G. § 3A1.2(c)(1) (2024). Based on the same facts, the district court also applied a four - poi nt enhancement under Guidelines § 2K2.1(b)(6)(B) (2024), which is triggered if the defendant “used or possessed any firearm ... in connection w ith another felony offense.”

4 On appeal, Cherry mak es two interrelated arguments. First, he contends the district court made a factual error “ when it discounte d the unam biguous vi deo of the events and instead credited testimony that contradicted what was shown to have happened.” Cherry B r. 6. S econd, Cherry asserts that the d istrict court committed a legal error wh en it conclude d (based on that factual erro r) that the G uidelines enhancements described above applied in his case. See id. at 6– 7. Having reviewed the video ourselves, we understand Cherry’ s doubts about how it squares with the officer ’ s testimony. See United Sta tes v. Miller, 54 F.4th 219, 229 (4th C i r. 2022) (“[W]hen an officer ’ s testimony is clearly co ntradicted by video eviden ce, the court should normally discount the testimonial statemen ts.”). But we need not decide wheth er the district court’ s contrary factual finding is clearly err oneous because we conclude any error in calculating Cherry ’ s Guidelines rang e was harmless. See Uni ted States v. Gomez ‑ Jimenez, 750 F.3d 370, 382 (4t h C i r. 2014) (discuss ing the “assumed error harmlessness inquiry ”). An error in calculating a defend ant ’ s advisory Guid elines range is harmless when the record shows: “(1) the district cou rt would have reached the same result even if it had decided the Guidelines issue the o ther way, and (2) the se ntence would be reasonable even if the Guidelines issue had been decided in the defendant’ s favor.” United States v. M ills, 917 F.3d 3 24, 330 (4t h Cir. 2019) (alterations and quotation marks removed). W e conclude both require ments are met here. First, the district court left li ttle doubt that it would have imposed the same sentence regardless of whether it had calculated Cherry’ s Guidelines ran ge correctly. See JA 16 4

5 (stating that even if the challenged enhancements had not been “properly applied, then alternatively I would still land at 15 1 months” and explaining the grounds for that alternat e sentence). Cherry’ s only response to this point is an assertio n in his reply brief that “[t]he district court’ s mistak en belief about [his] actions inextricab ly informed its sentencing decision.” Cherry Reply Br. 3. E ven assuming that is sufficie nt to preserve the issu e for our review, but see Grayson O Co. v. Agadi r Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017), w e disagree. In announcing its altern ate variant sentence, the district cou rt considered and discussed the dangerousness of th e offense and Cherry’ s criminal history, among other 3553(a) factors. JA 162 – 63. Th e co urt’ s ex planation contains no reference to the disputed assault or whether Cherry drew a firearm before being apprehended. Thus, e ven if th e G uidelines issue had been decid ed in Cherry’ s favo r, we are con fident “the result at sentencing would have been the same. ” United States v. Montes - Flor es, 736 F. 3d 357, 370 (4th Cir. 2013). Second, we conclude the district court’ s alternate variant senten ce was both procedurally and substantively reasonable. In explaining why a 151 - month sentence was warranted, the district cou rt cited Cherry’ s “eight felonies that ha [d] not been coun ted toward [s] [criminal history] points in this case,” JA 162; th at “h e was under the influence of marijuana, cocaine, and alcohol at the time of the instant offense conduct,” JA 161; and “the need for specific deterrenc e,” JA 163. The court also explained w hy it deemed C herry’ s attempts to excuse his behavior “neither credible nor accurate in any respect.” JA 16 1. As a reviewing cou rt, we must “g ive due deference to the di strict court’ s decision that the § 3553(a) factors, on a whole, justify the extent of the variance, ” and Cherry makes

6 no argumen t that the district court’ s alternate varian t sentence would have been overturned “under a deferential abuse - of - discretion stand ard” of review. Gall v. United States, 552 U.S. 38, 41, 51 (20 07). W e thus conclude any erro r here was harmless. W e dispense with oral ar gu ment because the facts and legal contentions are adequately presented in the materials befo re us and argument would not aid the decisional process. The judgment is AFFIRMED.