United States O F America v. Demetrius Harvey

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2538
U NITED S TATES O F A MERICA,
Plaintiff-Appellee,
v.
DEMETRIUS HARVEY ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18-cr-00482-1 — Virginia M. Kendall, Judge.
____________________
A RGUED M AY 31, 2023 — DECIDED F EBRUARY 8, 2024
____________________
Before R OVNER , HAMILTON , and S CUDDER , Circuit Judges.
R OVNER , Circuit Judge. Demetrius Harvey pled guilty, in
conjunction with a plea agreement, to a charge of knowingly
possessing a firearm after having previously been convicted
of a crime punishable by a term of imprisonment exceeding
one year, in violation of 18 U.S.C. §§ 922(a)(1)(A) and (g)(1).
In the plea agreement, Harvey acknowledged that he sold
three firearms in a series of three transactions to a confidential
source (“CS”) who, unbeknownst to Harvey, was working for

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2 No. 22-2538
the government. He also acknowledged, “for the purpose of
computing his sentence under the Sentencing Guidelines,” to
engaging in a firearm sale on February 12, 2018, as follows:
On February 12, 2018, at approximately 9:54
a.m., defendant exited his residence in Dolton,
Illinois and entered the front passenger seat of
the CS’s vehicle. Inside the CS’s car, defendant
sold the CS a Rohm GMBH Model RG-10 .22 cal-
iber revolver bearing serial number 665735 (the
“Rohm firearm”) and three live rounds of .22
caliber ammunition in exchange for $250. The
CS asked defendant about defendant’s friend
who had a gun card, indicating that the CS
wanted the defendant’s friend to straw pur-
chase firearms. Defendant said that, if they
straw purchased firearms, the defendant would
have to charge the CS more money. The CS said,
“It don’t matter, I’m a felon, I can’t get those
motherfuckers.” Defendant replied “And, I’m a
hitter. I got throwaways, everything I got, got
murders on them motherfuckers damn near
that’s why I hurry up and get them bitches out
my hand. If I don’t need them. If I ain’t at war
with nobody, ain’t no need to have them moth-
erfuckers bro.”
Plea Agreement, Doc. 98 at 4.
In Harvey’s initial sentencing for that offense, the Proba-
tion Office determined that a 4-level enhancement was proper
under USSG § 2K2.1(b)(5) because Harvey transferred two or
more firearms to a person for whom possession was unlawful
—here, because that person was a felon. On appeal, Harvey

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No. 22-2538 3
argued that while the evidence showed the transfer of two or
more firearms, it was insufficient to support the enhancement
because the purchaser (a confidential source) did not tell the
defendant that he was a felon until the third firearm sale, and
therefore there was insufficient evidence to show that he was
willing to sell to a prohibited person for at least two of the
firearms. We remanded for resentencing as to that enhance-
ment because the parties and the court had failed to recognize
that the defendant had to have knowledge that the pur-
chaser’s felony was for a crime of violence or a controlled sub-
stance offense. United States v. Harvey, 2022 WL 887577 (7th
Cir. 2022). On resentencing, an updated Presentence Report
(PSR) was prepared which did not impose that enhancement,
but the government argued that the PSR should have in-
cluded an alternative 4-level enhancement, under USSG
§ 2K2.1(b)(6), based on Harvey’s transfer of a firearm to a per-
son he had reason to believe was a felon. Under that provi-
sion, a defendant’s offense level is increased by four levels if
he “possessed or transferred any firearm or ammunition with
knowledge, intent, or reason to believe that it would be used
or possessed in connection with another felony offense.”
USSG § 2K2.1(b)(6)(B). In United States v. Jackson, 741 F.3d 861,
863 (7th Cir. 2014), we recognized that the requirements of
§ 2K2.1(b)(6) are satisfied and the enhancement applies
“when a defendant guilty of being a felon-in-possession has
transferred the firearm to another prohibited person.” The
updated PSR did not recommend that enhancement because
it concluded that the § 2K2.1(b)(6)(B) enhancement required
evidence of defendant’s knowledge that the purchaser would
use the gun for a felony offense other than merely a felon-in-
possession offense—an argument adopted by no one on

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4 No. 22-2538
appeal and inconsistent with our decision in Jackson, 741 F.3d
at 863.
In the court below, Harvey’s counsel objected to the en-
hancement, arguing that the purchaser’s statement that he
was a convicted felon was an insufficient basis for Harvey to
conclude that the purchaser was in fact a convicted felon for
purposes of the enhancement. His counsel noted that there
are circumstances in which someone’s right to purchase a fire-
arm might be restored, and based on that possibility argued
that Harvey should not be expected to believe the purchaser
was a convicted felon. The court sought to clarify the argu-
ment by Harvey in the following colloquy:
Court: So, it’s your opinion that because some-
one could be restored, that that conversation
would not be enough to put him on notice that
the man he was selling to was a convicted felon?
Is that your position?
[Defense counsel]: It is, Judge. I mean, as we sit
here now, I don’t know if this confidential
source was a convicted felon or not. I appreci-
ate it, and we acknowledged in the plea agree-
ment that he told Mr. Harvey that he was. So I
don’t think we are disputing that basic fact. I
just don’t think that the inference can be drawn
from that fact alone. I think there needs to be
something more.
[emphasis added] Sentencing Transcript, Doc. 13 at 8. Defense
counsel further discussed the conversation in the vehicle at
the time of the firearm transaction, arguing that there was a

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No. 22-2538 5
suggestion that the fees would be higher if he was a convicted
felon, but that no renegotiation of the fees then ensued.
The district court applied the 4-level enhancement, and
Harvey now appeals that determination. On appeal, however,
Harvey argues against imposition of the enhancement on a
different factual ground. For the first time, Harvey argues that
he was not told that the confidential source was a felon until
the transaction was complete. This is a departure from his ar-
gument below. In that challenge, defense counsel acknowl-
edged that Harvey was told that the confidential source was
a convicted felon, but instead argued that “when all we have
is a statement by somebody that he can’t possess a firearm, I
don’t think Mr. Harvey should be expected to necessarily be-
lieve that.” Sentencing Transcript, Doc. 13 at 7–8. Defense
counsel maintained that Harvey would not necessarily be-
lieve that the purchaser was a convicted felon or could believe
that the purchaser’s right to possess a firearm had been re-
stored.
“’We review de novo whether the factual findings of the
district court adequately support the imposition of the en-
hancement.’” United States v. Barker, 80 F.4th 827, 834 (7th Cir.
2023), quoting United States v. Brown, 843 F.3d 738, 742 (7th
Cir. 2016). The factual findings underlying that enhancement,
however, are reviewed for clear error. Id. The government ar-
gues that plain error review applies because the argument
was not made below, but citing our decision in United States
v. Billups, 536 F.3d 574, 578 (7th Cir. 2008), Harvey argues that
he challenged the enhancement below and that a new twist
on a challenge on appeal does not trigger plain error scrutiny.
In the court below and on appeal, defense counsel argued that
the facts were insufficient to support the enhancement, but

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6 No. 22-2538
the focus of that challenge differed in each instance. In the dis-
trict court, defense counsel conceded that Harvey was in-
formed that the purchaser was a convicted felon and argued
that Harvey would not necessarily believe that, whereas on
appeal, defense counsel asserts that the information as to the
convicted felon status was conveyed after the purchase had
concluded. The timing of the disclosure of the convicted felon
status was neither explicitly conceded nor challenged in the
arguments against the enhancement in the court below.
We need not pause to consider whether plain error review
applies, however, because the standard of review is irrelevant
to the outcome of the appeal here. Even under the less oner-
ous standard, Harvey’s claim cannot succeed. The enhance-
ment was proper if the evidence before the district court sup-
ported the determination that the transfer of the firearm by
the defendant occurred “with knowledge, intent, or reason to
believe that it would be used or possessed in connection with”
the felon-in-possession offense. In the plea agreement, Har-
vey admitted that he entered the car to complete the transac-
tion, and that the CS had a conversation in that vehicle in
which he declared his status as a felon. Harvey maintains,
however, that the plea agreement established that he was not
informed that the confidential source was a felon until after
the sale. But the language of the plea agreement does not sup-
port that characterization, because that language does not
contain any language establishing the timing at all. For in-
stance, it does not state that the sale of the firearm took place,
and that the purchaser revealed he was a convicted felon “af-
ter that sale,” “following the transaction”, “subsequently,” or
any other denotation of timing. The plea agreement merely
relates the actions and conversations that occurred in the ve-
hicle; the agreement notes that he sold the gun inside the

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No. 22-2538 7
vehicle, and sets forth a discussion that occurred in the vehicle
relating that the purchaser was a felon. The mere order of the
sentences does not establish the timing. Imagine for instance,
if the first sentence declared that “inside the CS’s car, defend-
ant sold the CS a … revolver,” and the second sentence stated
“the CS examined the revolver and found it acceptable and
handed the cash to Harvey in an envelope.” No one would
argue that the transaction was completed before the actions in
the second sentence relating to that transaction occurred. In-
stead, the second sentence clearly provides details as to how
the transaction proceeded. The mere order of the sentences
alone, absent clarifying language, does not establish whether
the actions were simultaneous or sequential. Harvey can
point to no language establishing that the placement of the
sentences was meant to convey sequential actions, rather than
to describe generally all of the actions that occurred during
the time in the vehicle. Absent words relating to timing indi-
cating that the conversation regarding his felon status oc-
curred following the transaction, the language establishes only
that both the sale and the conversation occurred in the vehicle
before Harvey exited it—which is the clearest point at which
the sale would have concluded.
At best, then, the plea agreement is ambiguous as to the
timing issue. But the initial PSR in this case provided clearer
language as to the timing, stating that on February 12, 2018,
the defendant sold the revolver and three rounds of live am-
munition to the CS for $250, and then stating that “during this
transaction,” the CS asked about the friend who had a gun
card and the potential for a straw purchase, and that “during
the exchange,” the confidential source stated that he was a
felon which prevented him from legally purchasing firearms.
Harvey did not raise any objection to that characterization of

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8 No. 22-2538
the facts in either sentencing hearing, which clarifies the time-
line. Nothing in that characterization conflicts with the lan-
guage in the plea agreement, and in fact it was consistent with
the characterization of the facts made by counsel in argu-
ments to the district court in the sentencing proceedings be-
low. Therefore, Harvey cannot rely upon that plea agreement
to establish a contrary timeline. The district court could
properly rely on the explicit timeline set forth in the initial
PSR—which was updated, not superseded, by the subsequent
one—and was never challenged by Harvey. Therefore, under
any standard of review, the district court did not err in impos-
ing the enhancement based on the defendant’s knowledge of
recipient’s felon status.
The decision of the district court is AFFIRMED.

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