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United States v. Cunningham

United States Court of Appeals, Seventh Circuit

February 21, 2018

United States of America, Plaintiff-Appellee,
Teovonni Cunningham, Defendant-Appellant.

          Argued October 26, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 3:14-cr-50038-2 - Philip G. Reinhard, Judge.

          Before Flaum, Ripple, and Manion, Circuit Judges.

          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 situation. Accordingly, we affirm its judgment.



         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;[9] 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 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.

         At the 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."[13] The court responded that it would "get to that in a moment."[14] 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?
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.[15]

         Counsel 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."[16] The court also allowed Mr. Cunningham's pastor to speak on his behalf, although he reminded counsel multiple times to be "[v]ery brief[]."[17] His pastor then spoke briefly about his baptism, as well as his attendance and assistance at church.

         After 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 guidelines.

         Mr. 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.

         Mr. 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 excruciating time."[18]

         The 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 [1]; 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.[19]

         Because 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 ...

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