United States v. Cunningham

883 F.3d 690
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 21, 2018
DocketNo. 16-3543
StatusPublished
Cited by41 cases

This text of 883 F.3d 690 (United States v. Cunningham) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cunningham, 883 F.3d 690 (7th Cir. 2018).

Opinion

Ripple, Circuit Judge.

Teovonni Cunningham pleaded guilty to one count of conspiracy to possess stolen firearms and ammunition, in violation of 18 U.S.C. §§ 371 and 922(j) ; one count of possession of stolen firearms and ammunition, in violation of § 922(j) ; and one count of possession of firearms by a felon, in violation of § 922(g)(1). The district court sentenced him to 60 months on the conspiracy count, 12 months on the § 922(j) count, and 116 months on the felon-in-possession count, all to run consecutively; his total sentence, therefore, was 188 months' imprisonment.1 Mr. Cunningham appeals his sentence, contending that the district court's limitation on his presentation of character witness testimony at sentencing violated Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) and that the resulting sentence is substantively unreasonable.2

We affirm the judgment of the district court. Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) does not govern the calling of character witnesses at sentencing, and the district court did not abuse its discretion in its consideration of Mr. Cunningham's mitigation evidence. The sentence imposed was the product of the district court's careful and compassionate consideration of all the evidence in this very difficult sentencing *693situation. Accordingly, we affirm its judgment.

I

BACKGROUND

In December 2012, Michael Schaffer learned that an acquaintance, G.W., kept a private collection of firearms, ammunition, and accessories in his home in Rockton, Illinois. Schaffer showed Mr. Cunningham where G.W. lived and where he kept the weapons. Schaffer also told Mr. Cunningham that G.W. and his family would be away from the home for a period on December 31, 2012. Mr. Cunningham and a third accomplice, Michael Tapia, agreed to break in and steal the collection. All three men-Schaffer, Tapia, and Mr. Cunningham-then agreed to store, sell, and otherwise dispose of the weapons.

Mr. Cunningham and Tapia later broke into G.W.'s home through a window and stole a total of twenty-two firearms along with ammunition. This stash included two semiautomatic firearms, which were in close proximity to magazines that could accept more than fifteen rounds of ammunition.3 Four additional weapons were dropped in the house during the robbery.4 Between January and August of the following year, Mr. Cunningham sold or disposed of five weapons and some ammunition to Schaffer and Darrell Reed.

The Government charged Mr. Cunningham, along with Tapia and Reed, in July 2014. Shortly after his arrest, the district court released him on bond. The conditions of release initially required him to remain on home detention except for employment, educational, legal, medical, or religious obligations and to remain within the Northern District of Illinois. The court later modified these conditions to allow him to travel outside of the district with his employer, to attend school events for his daughters, and to travel to a medical appointment with one of his daughters.

He and his codefendants, now including Schaffer, subsequently were charged in a five-count superseding indictment. Mr. Cunningham pleaded guilty to counts 1 through 3, possession by a felon, possession of stolen firearms, and conspiracy. His written plea included the factual basis for the offense.

The Probation Office prepared a presentence investigation report ("PSR"). The report determined that Mr. Cunningham's offense involved a semiautomatic firearm capable of accepting a large capacity magazine and concluded that his prior felony constituted a crime of violence.5 The report set his base offense level at 22.6 Various enhancements substantially raised this base: more than twenty-five firearms were involved, resulting in a six-level increase;7 firearms were stolen, resulting in a two-level increase;8 the stolen firearms were trafficked, resulting in a four-level increase;

*6949 and the defendant used a firearm in connection with another felony offense, resulting in a four-level increase.10 After a three-point reduction for acceptance of responsibility, the resulting total offense level was 34.

The calculation of Mr. Cunningham's criminal history also produced a very significant score. Prior criminal convictions, including a 2004 felony conviction for mob action in Illinois, a 2006 misdemeanor possession with intent to distribute cannabis, a 2013 misdemeanor theft, and a second mob action in 2014, resulted in 9 criminal history points. Consequently, the PSR calculated his criminal history category as IV. The advisory sentencing range therefore became 210-262 months.

The Government's sentencing memorandum disagreed with the PSR's base offense level. The Government contended that Mr. Cunningham's first mob-action offense was not a crime of violence under Illinois law, and thus that U.S.S.G. § 2K2.1(a)(3) was inapplicable. Instead, the Government believed that § 2K2.1(a)(4) provided the proper offense level, two levels lower than that recommended by the PSR. The Government therefore recommended an offense level calculation of 33,11 and a sentencing range of 188-235 months' imprisonment. In proposing a sentence, the Government pointed to multiple aggravating factors: the seriousness of the offense; at least three of the stolen weapons were recovered from known gang members in the community; and more than half of the weapons had not yet been recovered. The Government also noted that Mr. Cunningham had a prior affiliation with the Latin Kings gang and had two convictions for felony mob action based on personal attacks, one of which involved a shooting. In mitigation, the Government invited the court's attention to Mr. Cunningham's strong relationship with his daughters, his involvement in his church, and his clean record while on pretrial release. The Government requested a sentence within the revised guideline range.

Mr. Cunningham's sentencing memorandum agreed with the Government that mob action was not a crime of violence. In addition, he objected to two criminal history points because they were based on his being under a criminal justice sentence at the time of the instant offense; he noted that he was on bond and had not been convicted or sentenced in connection with that prior offense.12 Beyond his claimed calculation errors, he also asked that the court impose a sentence below the advisory guidelines. He stressed the impact of a *695high sentence on his family, his reliable and continued successful employment in his father-in-law's specialized paint company, and his other efforts at rehabilitation following his arrest.

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Bluebook (online)
883 F.3d 690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cunningham-ca7-2018.