United States v. Antionne Cherry

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 3, 2026
• Docket: 24-4540
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-4540

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ANTIONNE DARNELLE CHERRY, a/k/a Antionne Nicholas Cherry, a/k/a Antionne Nicholas Darnelle Cherry

Defendant – Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:23-cv-00127-WO-1)

Submitted: December 2, 2025 Decided: March 3, 2026

Before WYNN, HEYTENS, and BERNER, Circuit Judges.

Affirmed by unpublished opinion. Judge Heytens wrote the opinion, which Judge Wynn and Judge Berner joined.

ON BRIEF: Louis C. Allen, Federal Public Defender, Kathleen A. Gleason, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Randall S. Galyon, Acting United States Attorney, Julie C. Niemeier, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. USCA4 Appeal: 24-4540 Doc: 36 Filed: 03/03/2026 Pg: 2 of 6

Unpublished opinions are not binding precedent in this circuit.

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TOBY HEYTENS, Circuit Judge:

Antionne Cherry appeals his sentence of 151 months’ imprisonment. Seeing no

reversible error, we affirm.

In 2023, police officers in Salisbury, North Carolina responded to a report that four

people—including Cherry—were caught on video breaking into a home. When the officers

arrived at the scene, Cherry fled on foot. Despite commands to “get on the ground,” Cherry

continued running and the officers gave chase. JA 11. What happened next is disputed. A

pursuing officer testified that Cherry “turn[ed] to his right” and “physically reache[d] into

his waistband,” at which point the officer saw a “gun come up. . . . in an upward motion.”

JA 46. For his part, Cherry asserts the gun accidentally fell from his waistband and that a

“video of the event . . . shows . . . [his] empty hands were in the air above his waist when

the gun 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.4th 159, 161 (4th Cir. 2024). At sentencing, the district court credited the pursuing

officer’s testimony and applied a six-point enhancement to Cherry’s offense level because

Cherry assaulted that officer by attempting “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-point enhancement under Guidelines § 2K2.1(b)(6)(B) (2024), which is triggered if

the defendant “used or possessed any firearm . . . in connection with another felony

offense.”

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On appeal, Cherry makes two interrelated arguments. First, he contends the district

court made a factual error “when it discounted the unambiguous video of the events and

instead credited testimony that contradicted what was shown to have happened.” Cherry

Br. 6. Second, Cherry asserts that the district court committed a legal error when it

concluded (based on that factual error) that the Guidelines 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 States v. Miller, 54 F.4th 219, 229 (4th Cir.

2022) (“[W]hen an officer’s testimony is clearly contradicted by video evidence, the court

should normally discount the testimonial statements.”). But we need not decide whether

the district court’s contrary factual finding is clearly erroneous because we conclude any

error in calculating Cherry’s Guidelines range was harmless. See United States v.

Gomez‑Jimenez, 750 F.3d 370, 382 (4th Cir. 2014) (discussing the “assumed error

harmlessness inquiry”).

An error in calculating a defendant’s advisory Guidelines range is harmless when

the record shows: “(1) the district court would have reached the same result even if it had

decided the Guidelines issue the other way, and (2) the sentence would be reasonable even

if the Guidelines issue had been decided in the defendant’s favor.” United States v. Mills,

917 F.3d 324, 330 (4th Cir. 2019) (alterations and quotation marks removed). We conclude

both requirements are met here.

First, the district court left little doubt that it would have imposed the same sentence

regardless of whether it had calculated Cherry’s Guidelines range correctly. See JA 164

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(stating that even if the challenged enhancements had not been “properly applied, then

alternatively I would still land at 151 months” and explaining the grounds for that alternate

sentence). Cherry’s only response to this point is an assertion in his reply brief that “[t]he

district court’s mistaken belief about [his] actions inextricably informed its sentencing

decision.” Cherry Reply Br. 3. Even assuming that is sufficient to preserve the issue for our

review, but see Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017), we

disagree. In announcing its alternate variant sentence, the district court considered and

discussed the dangerousness of the offense and Cherry’s criminal history, among other

3553(a) factors. JA 162–63. The court’s explanation contains no reference to the disputed

assault or whether Cherry drew a firearm before being apprehended. Thus, even if the

Guidelines issue had been decided in Cherry’s favor, we are confident “the result at

sentencing would have been the same.” United States v. Montes-Flores, 736 F.3d 357, 370

(4th Cir. 2013).

Second, we conclude the district court’s alternate variant sentence was both

procedurally and substantively reasonable. In explaining why a 151-month sentence was

warranted, the district court cited Cherry’s “eight felonies that ha[d] not been counted

toward[s] [criminal history] points in this case,” JA 162; that “he was under the influence

of marijuana, cocaine, and alcohol at the time of the instant offense conduct,” JA 161; and

“the need for specific deterrence,” JA 163. The court also explained why it deemed

Cherry’s attempts to excuse his behavior “neither credible nor accurate in any respect.”

JA 161. As a reviewing court, we must “give due deference to the district court’s decision

that the § 3553(a) factors, on a whole, justify the extent of the variance,” and Cherry makes

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no argument that the district court’s alternate variant sentence would have been overturned

“under a deferential abuse-of-discretion standard” of review. Gall v. United States,

552 U.S. 38, 41, 51 (2007). We thus conclude any error here was harmless.

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before us and argument would not aid the decisional

process. The judgment is

AFFIRMED.