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United States v. Cunningham

December 27, 1996

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

KENNETH A. CUNNINGHAM,

DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 95 CR 417

Before CUMMINGS, RIPPLE and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Elaine E. Bucklo, Judge.

ARGUED NOVEMBER 13, 1996

DECIDED DECEMBER 27, 1996

Kenneth Cunningham appeals the decision of the district court denying him a downward sentencing departure for acceptance of responsibility. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I.

BACKGROUND

Kenneth Cunningham robbed four banks. He was apprehended as he fled from the fourth robbery, and shortly after his arrest he confessed to the other three. A grand jury indicted Mr. Cunningham on four counts of bank robbery. See 18 U.S.C. sec. 2113(a). Mr. Cunningham was willing to stipulate, but not to plead guilty, to three of the robberies. The government, however, was not willing to enter into a plea agreement unless Mr. Cunningham pleaded guilty to all four robberies. Without a judgment of guilt with respect to three robberies, Mr. Cunningham would not have been eligible in the future for the sanctions available under 18 U.S.C. sec. 924(e). *fn1 If Mr. Cunningham had been convicted of only one of the four robberies in the present case, and then convicted in the future of a federal firearm offense in violation of 18 U.S.C. sec. 922(g), *fn2 the recidivist statute, sec. 924(e), would not be implicated, and he would not receive the fifteen-year minimum sentence contemplated by sec. 924(e). Mr. Cunningham submitted that the government's policy of requiring violent repeat offenders to plead guilty to all counts because of the possibility of future offenses and resulting enhanced sentences for recidivism was arbitrary and unfair.

Because Mr. Cunningham refused to plead guilty to the remaining three counts, a jury trial was held. The defense offered no evidence, contested no arguments, raised no objections, and stipulated to virtually all of the government's submissions. Mr. Cunningham was convicted by the jury. At sentencing on February 8, 1996, *fn3 the government refused to endorse a reduction for acceptance of responsibility; the district court agreed. In the district court's view, Mr. Cunningham refused to plead guilty in an effort to avoid the multiple convictions that would invoke the significantly enhanced sentence of the recidivist statute if he were to commit, in the future, a federal firearm offense. Relying upon United States v. Gomez, 24 F.3d 924 (7th Cir.), cert. denied, 115 S. Ct. 280 (1994), the court reasoned that "a defendant who admits to guilt but refuses to plead guilty on the ground that he might be subject to a heavier penalty if he commits another crime of violence" has not accepted responsibility. R.51. The court believed that "one aspect of acceptance of responsibility is a decision not to engage in additional criminal conduct." Id.

The district court also relied upon Mr. Cunningham's behavior at sentencing. The court found that Mr. Cunningham "indicated no remorse, berated both his attorney and the court, and stated that he had not committed any violent crimes and that that was the reason he robbed banks. He found all of the proceedings involving him to be unfair." Id.

II.

DISCUSSI ...


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