United States v. Quasim Cunningham ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-2612
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UNITED STATES OF AMERICA
v.
QUASIM CUNNINGHAM,
a/k/a Quasim Escada
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-15-cr-00170-001)
District Judge: Honorable Paul S. Diamond
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Submitted Under Third Circuit L.A.R. 34.1(a)
on July 9, 2018
Before: GREENAWAY, JR., RESTREPO, and BIBAS, Circuit Judges
(Filed: August 1, 2018)
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OPINION*
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BIBAS, Circuit Judge.
While a sentencing judge may not simply presume a defendant dangerous, he may draw
that conclusion after weighing all the evidence. That is what happened here.
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not
constitute binding precedent.
In 2013, the mother of a 13-year-old boy found sexually explicit photos and text mes-
sages from Quasim Cunningham on her son’s cellphone. After investigating, the police
found that Cunningham had tried to seduce this boy as well as two others. Over the course
of two years, Cunningham had used the Internet and text messages to discuss sexually
explicit subjects with all three boys, to send them pornography, to try to get them to send
him pictures of their genitalia, and to solicit sex from them. Based on the evidence at sen-
tencing, the judge found that Cunningham could not adequately control his behavior and
that the public needed to be protected “from further crimes this defendant might commit.”
App. 104. So the judge sentenced him to 20 years’ imprisonment followed by 15 years’
supervised release, a sentence near the low end of the Guidelines range. The sentencing
court had original jurisdiction under 18 U.S.C. § 3231, and we have appellate jurisdiction
under 28 U.S.C. § 1291. Because Cunningham’s sentence was neither procedurally nor
substantively unreasonable, we will affirm.
We review the reasonableness of a sentence for abuse of discretion by assessing
whether the sentencing judge “meaningful[ly] consider[ed] all of the sentencing factors in
18 U.S.C. § 3553(a).” United States v. Olhovsky, 562 F.3d 530, 546 (3d Cir. 2009) (internal
quotation marks omitted). The record must also confirm that the sentencing judge truly
engaged in a “considered exercise of discretion” and “recogni[zed], and respon[ded] to, the
parties’ non-frivolous arguments.” Id. (internal quotation marks omitted). We are con-
vinced that the sentencing judge did so. Thus, even if Cunningham preserved his reasona-
bleness challenge (which the Government disputes), the sentencing judge did not abuse his
discretion.
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Cunningham contends that his sentence was procedurally unreasonable because it
“rested on an unfounded, and apparently unrebuttable, presumption that [he] is likely to
reoffend.” Appellant’s Br. 22. He claims that “the court did not point to any evidence that
[he] presents a high risk of recidivism.” Id. Rather, because Cunningham had a “ ‘hidden
side,’ ” the judge “mus[ed] that ‘I don’t know that the defendant can even control what it
is that drives him to do these things.’ ” Id. (quoting App. 105, 107).
That claim mischaracterizes the sentencing hearing. The record shows that the sentenc-
ing judge rooted his decision in the statutory sentencing factors, quoting § 3553(a)(2)’s
justifications for punishment. At the start of the hearing, the judge shared his concerns with
defense counsel so she could address them. He acknowledged that “the fifteen-year man-
datory minimum is a significant sentence.” App. 68. He understood that Cunningham had
“ha[d] no contact with the criminal justice system at all except for this.” Id. But “[w]hat
bother[ed]” him is that Cunningham got access to “two of these three victims . . . because
of his work” at their schools. App. 69. As these comments reflect, the judge knew the facts
well and considered the sentencing factors thoughtfully.
In context, Cunningham’s selected quotations do not show that the sentencing judge
presumed recidivism. For example, Cunningham quotes the judge’s “simpl[e]” refusal to
accept “that [Cunningham] will not offend again.” Appellant’s Br. 23 (quoting App. 107).
But the judge made that statement after reciting the facts. Only after considering all the
evidence and the parties’ arguments did he conclude that, “if the defendant were at liberty
today, the conduct that he’s being punished for he would simply be continuing.” App. 103.
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Ample evidence supports the judge’s conclusion that Cunningham was likely to
reoffend. First, his crimes were not isolated encounters. He preyed on the first and second
boys for years, repeatedly sent all three boys pornography, and several times asked for
pictures of their genitals.
Second, he engaged in a scheme of lying to, manipulating, and trying to intimidate the
boys. For instance, he posed as a girl who wanted to have sex. He offered to buy one boy
an iPhone and food from McDonald’s and offered another boy liquor. And he sent one boy
an aerial image of the boy’s home, telling him: “If you want some [sex] then come and get
it and stop making excuses.” App. 44.
Third, all of Cunningham’s jobs situated him near children. He was fired from one of
these jobs for “inappropriate contact” after being found in a dark classroom with a teenage
girl (though she denied any improper contact). App. 52, 97. The sentencing judge reason-
ably concluded that he chose these jobs to “giv[e] him access to small children.” App. 104.
The judge “listened very carefully” to Cunningham’s mother, sister, and godmother, who
described his interest in children as innocent and loving. Id. But the judge found that they
never “really kn[e]w [Cunningham] at all” and that his crimes reflected “this defendant’s
hidden side.” App. 104-05.
Finally, many of Cunningham’s efforts to mitigate his blameworthiness were double-
edged swords, as they simultaneously betrayed his lack of self-control. For instance, he
was diagnosed as suffering from uncontrolled alcoholism, severe depression, and develop-
mental disabilities. Collectively, these maladies greatly impaired his ability to behave ap-
propriately and make decisions. Even his own lawyer admitted that Cunningham was
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“drunk on vodka, talking to thousands of men, . . . making poor decisions, . . . [and] living
in a fantasy world” online. App. 78.
In short, the record supports the sentencing judge’s conclusion that Cunningham could
not control himself and was likely to reoffend. So we cannot say that the judge presumed
without evidence that Cunningham posed a threat to the public.
Nor was his sentence substantively unreasonable. Some of Cunningham’s offenses
carry a mandatory minimum sentence of 15 years, and the Guidelines recommended 235
to 293 months’ imprisonment. So his 240-month sentence sits near the low end of the
Guidelines range.
Still, Cunningham argues that his sentence is disproportionate because his conduct was
less serious than that of the typical child-pornography case. He claims it was less serious
because he never touched a child or revealed a child’s identity. But the judge specifically
considered both points. And it was his prerogative to weigh other factors more heavily,
finding “it especially troubling that the defendant exploited his position as a teacher’s
aide.” App. 104. “The District Court’s decision to accord less weight to mitigation factors
than that urged by [the defendant] does not render the sentence unreasonable.” United
States v. Young, 634 F.3d 233, 243 (3d Cir. 2011).
Nor were Cunningham’s crimes limited to attempts to produce child pornography. They
amounted to “repeated innumerable years-long attempts to solicit sexual relations from
three minor children.” App. 102.
Given all this, we cannot say that the sentencing judge abused his discretion. So we will
affirm the judgment.
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