October 26, 2017
from the United States District Court for the Northern
District of Illinois, Western Division. No. 3:14-cr-50038-2 -
Philip G. Reinhard, Judge.
Flaum, Ripple, and Manion, Circuit Judges.
Ripple, Circuit Judge.
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. 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
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 situation.
Accordingly, we affirm its judgment.
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.
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.Four additional
weapons were dropped in the house during the
robbery. Between January and August of the
following year, Mr. Cunningham sold or disposed of five
weapons and some ammunition to Schaffer and Darrell Reed.
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.
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.
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. The report set his base offense level at
Various enhancements substantially raised this base: more
than twenty-five firearms were involved, resulting in a
six-level increase; firearms were stolen, resulting in a
two-level increase; the stolen firearms were trafficked,
resulting in a four-level increase; and the defendant used a
firearm in connection with another felony offense, resulting
in a four-level increase. After a three-point reduction
for acceptance of responsibility, the resulting total offense
level was 34.
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.
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,  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.
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. Beyond his claimed
calculation errors, he also asked that the court impose a
sentence below the advisory guidelines. He stressed the
impact of a high 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. He also submitted
thirty-seven pages containing more than twenty letters and
various photographs from friends and family. These letters
served as character references and asked for leniency in his
sentence. His wife, Lisa Schwartz-Cunningham, submitted a
lengthy letter describing their long-term relationship and
happy marriage, Mr. Cunningham's contributions to the
home, and his relationship to their three daughters, two of
whom have health issues. Their nine-year-old daughter has a
form of cerebral palsy, and their infant daughter had a
congenital heart defect at birth. His father-in-law, Ronald
Schwartz, wrote about Mr. Cunningham's positive
involvement in the family business, his good work ethic, and
Mr. Schwartz's hope to leave the business to Mr.
Cunningham upon his retirement.
outset of the sentencing hearing, the court noted that it had
received and reviewed the written materials and asked the
parties if they had any additional materials for
consideration. The Government stated that it had nothing
further, and counsel for Mr. Cunningham stated that there was
nothing further "[o]ther than our
witnesses." The court responded that it would
"get to that in a moment." The court then went
through the PSR and the parties' objections and, after
agreeing that mob action was not a crime of violence, arrived
at a total offense level of 33 and a criminal history
category of IV. These calculations resulted in a guidelines
range of 188-235 months' imprisonment, consistent with
the Government's recommendation. After addressing issues
related to restitution and the terms of supervised release,
the court began:
THE COURT: All right. Now, Mr. Richardson, you indicated that
you might have witnesses?
MR. RICHARDSON: Yes.
THE COURT: We don't usually have that because I have
letters that you submitted, which I have read, and so I'm
telling you normally that the lawyers who practice out here
do not present witnesses.
If you are-if your practice-I know you are from Chicago and
it is a little bit different. I understand that. I might let
you have a couple of witnesses testify just very briefly. If
they have submitted letters already, I have read those.
MR. RICHARDSON: I understand, your Honor. It is just-it is my
client's life, and to see it on paper is one thing, to
hear from live and in person is quite another.
We have three witnesses. I don't imagine they would be
terribly long, maybe five minutes or so apiece.
THE COURT: All right. It shouldn't be that long. I will
give you an opportunity to call them, but I just don't
want them to repeat what they have got in their letters. They
can tell me their wishes for the defendant, but I would
rather focus on your arguments and incorporate what you have
got and listen to what he has got to say. I thought the
letters were well written, and I am impressed by them. So
with that in mind -
MR. RICHARDSON: Your Honor, if I could cut it down to two
witnesses, the defendant's father-in-law and his wife,
that would probably save some time. I think that those are
the two most important.
THE COURT: I understand. Cut it down. You don't have to
go through everything that they have gone through. I think
the wife wrote over a three-page letter, and I have read it.
I was impressed with it.
called Mr. Cunningham's father-in-law, Mr. Schwartz, and
then his wife, and both testified at some length about the
positive changes Mr. Cunningham had made and about the impact
of his incarceration on his family and children. Mr. Schwartz
also described Mr. Cunningham as a model employee who had
learned a trade, had been an excellent supervisor, and would
eventually run the business. Mrs. Schwartz-Cunningham spoke
principally about her husband's involved parenting and
his relationship with his daughters. As Mrs.
Schwartz-Cunningham spoke about her fears for her children if
Mr. Cunningham were sentenced to a long prison term, the
court interjected, "If you could wrap it up. It is
emotionally very hard." The court also allowed Mr.
Cunningham's pastor to speak on his behalf, although he
reminded counsel multiple times to be "[v]ery
brief." His pastor then spoke briefly about his
baptism, as well as his attendance and assistance at church.
this testimony, the court asked the parties for their final
arguments and sentencing recommendations. The Government
acknowledged that Mr. Cunningham's sentencing presented a
difficult decision. The Government emphasized that the
offense was a serious and dangerous one; as a result of Mr.
Cunningham's conduct, more than ten weapons and a
significant amount of ammunition, not recovered by law
enforcement, could endanger other families. It acknowledged
the defendant's successful pretrial release, his family
situation, and the positive strides that he had made in the
past two years. The Government also noted that although the
advisory guidelines calculations were correct, Mr.
Cunningham's actual conduct was at the lower end of the
assigned category in two respects. First, Mr. Cunningham had
received a six-level enhancement because the crime involved
between twenty-five and one hundred weapons; his particular
offense involved twenty-six. Similarly, he had the lowest
criminal history score that could qualify him as a category
IV offender. In the Government's view, this situation
similarly counseled a sentence at the low end of the
Cunningham's counsel emphasized Mr. Cunningham's
troubled upbringing, his falling into a bad crowd, the health
and other challenges faced by his children, and his
now-stable home. He noted that his father-in-law planned to
turn over his painting business to Mr. Cunningham at his
retirement in five or six years. He requested a
below-guidelines sentence, which would allow him to inherit
the business and allow the family to keep their home.
Cunningham offered his own brief statement in which he
apologized for his offenses, spoke of his commitment to a
changed life, and thanked the Government for the opportunity
to be out of custody on pretrial release "to prove
myself to society that I can function as an upstanding
citizen and ... provide for my family through this
court then explained its sentencing decision. It first noted
that, despite the strides Mr. Cunningham had made, he had
committed, nearly contemporaneous with this offense, a theft
offense and another mob-action offense. Therefore, while
enjoying a happy home life and a stable job, he still had
engaged in a pattern of criminal behavior. The court then
turned to the § 3553(a) factors. It noted that the
offenses were very serious ones with significant aggravating
factors, including that weapons still were on the street and
had not been recovered by law enforcement. The court also
characterized Mr. Cunningham's criminal history as
significant and aggravated. The court concluded:
So all in all, in looking at this case, I don't see any
sentence that I can impose of imprisonment that would be less
than the lower end of the guideline range. You would have
faced, in my judgment, if you had been incarcerated and not
had an opportunity to show yourself over the last two years,
you would have had-you would have faced the high end of the
guideline range based on your record.
The Court has given consideration to those two years you have
spent without committing a crime, and I am going to sentence
you at the low end of the guideline range, but I see no basis
for a downward variance in this very serious crime.
Accordingly, the Court is going to make the following
sentence: You are convicted of three different offenses, and
I am going to sentence you on Count 1 to 60 months in the
Bureau of Prisons; I am going to sentence him on Count 2 to
12 months in the Bureau of Prisons, consecutive to that in
Count ; and in Count 3, I'm going to sentence him to
116 months in the Bureau of Prisons, consecutive to that in
Counts 2 and 1, and I'm going to recommend that he be
designated to a Bureau of Prisons facility nearest Rockford
so he can be close as possible to his family.
The Court, before it imposes the supervised release-if his
wife or whoever is sobbing, if you want to step outside, you
can. It is a little difficult for him to understand and to
take, I would think, but do what you can.
his sentences were consecutive, the sentence imposed was 188
months, the low end of the guidelines range. After imposing
the conditions of supervised release, the court added,
All right. This has been a very difficult time, Mr.
Cunningham, for you, for your family, for your friends. It
has not been easy for me either. I have imposed a sentence
that I think is appropriate according to law. I encourage
those who are here as his friends to ...