United States v. Cunningham ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-26-2006
USA v. Cunningham
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3535
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Cunningham" (2006). 2006 Decisions. Paper 1211.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1211
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3535
UNITED STATES OF AMERICA
v.
TOBIAS A. CUNNINGHAM,
a/k/a TC
Tobias A. Cunningham,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 02-cr-00237)
District Judge: Hon. Sylvia H. Rambo
Submitted Under Third Circuit LAR 34.1(a)
March 30, 2006
Before: SMITH and COWEN, Circuit Judges, and
THOMPSON * , District Judge
(Filed April 26, 2006 )
OPINION OF THE COURT
*
Hon. Anne E. Thompson, United States District Judge for the District of New Jersey,
sitting by designation.
THOMPSON, District Judge.
Tobias A. Cunningham was convicted by a jury of criminal conspiracy, 18 U.S.C.
§ 371; armed bank robbery and bank robbery, 18 U.S.C. § 2113(a) and (d); and use of a
firearm in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(I). The district court
sentenced Cunningham to an aggregate term of 270 months imprisonment, five years
supervised release, and restitution of $388,120. The sentence reflected an upward
departure of one level under U.S.S.G. § 5K2.3 on the ground that the victims of the
robbery suffered extreme psychological injury. Cunningham filed his first timely appeal
to this Court, in which he argued that the district court made erroneous evidentiary rulings
and the prosecutor engaged in misconduct. He did not challenge the sentence or the one
level upward departure. This Court affirmed the district court’s ruling. United States v.
Cunningham, No. 03-4585, 2004 WL 2190957 (3d Cir. Sept. 30, 2004).
Cunningham later brought a motion in this Court for re-sentencing pursuant to the
Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). Consistent
with this Court’s ruling in United States v. Davis, 407 F.3d 162 (3d Cir. 2005),
Cunningham’s sentence was vacated and the matter was remanded to the district court for
re-sentencing. See United States v. Cunningham, No. 03-4585, 2005 U.S. App. LEXIS
10564 (3d Cir. Apr. 25, 2005).
The district court re-sentenced Cunningham on July 12, 2005. At that proceeding,
Cunningham asserted that he should be given a lesser sentence because (1) the facts
-2-
giving rise to the enhancements of the offense level under the Guidelines were required to
be proven beyond a reasonable doubt, and (2) Cunningham had shown positive post-
offense rehabilitation. The district court imposed a sentence identical to the prior
sentence, and Cunningham again appealed to this Court.
I. JURISDICTION AND STANDARD OF REVIEW
This Court has jurisdiction to review the imposition of a sentence that is in
violation of law. 18 U.S.C. § 3742(a)(1). Because Cunningham did not object at
sentencing to the adequacy of the district court’s articulation of the factors set forth at 18
U.S.C. § 3553(a), we review the imposition of sentence for plain error. United States v.
Olano, 507 U.S. 725 (1993).
II. ANALYSIS
A. Consideration of the § 3553(a) Factors
Cunningham alleges that the district court committed plain error by imposing its
sentence without adequately articulating its consideration of the § 3553(a) factors. He
contends that this prevents us from being able to meaningfully assess whether or not the
sentence was unreasonable. In United States v. Cooper, the Third Circuit discussed the
level of consideration that must be given to the § 3553(a) factors. 437 F.3d 324, 329 (3d
Cir. 2006)(citations omitted). Cooper stated that the record must show that the trial court
gave “meaningful consideration” to the § 3553(a) factors. Id. (citations omitted). This
does not require the trial court to discuss and make findings as to each of the factors, nor
-3-
does it require the district court to explicitly state that it considered each of the factors.
Id.; see also United States v. Blackston, 940 F.2d 877, 893-94 (3d Cir. 1991) (holding that
district court is not required to make specific findings with respect to § 3353(a) factors).
The record must make clear, however, that the trial judge considered the § 3553(a)
factors; a district court’s statement that it considered the § 3553(a) factors, by itself, is
insufficient. See Cooper, 437 F.3d at 329 n.6 (disagreeing with United States v. Scott,
426 F.3d 1324, 1329-30 (11th Cir. 2005)); cf. United States v. Cunningham, 429 F.3d
673, 676 (7th Cir. 2005) (citing United States v. Williams, 425 F.3d 478, 479 (7th Cir.
2005)).
Here, the record consists of the transcripts from the sentencing hearings on
November 21, 2003 and July 12, 2005, and the Presentence Investigation Report
(“Report”). For Counts I, II, and III, the Report indicated a base offense level of twenty
and a nine level enhancement for theft of a financial institution’s property, the amount
stolen, and physical restraint of the victims of the robbery, resulting in an adjusted offense
level of 29. The Report also found that the robbery caused extreme psychological injury
to the victims, a ground for upward departure under the guidelines. U.S.S.G. § 5K2.3.
Cunningham disputed certain facts, and objected to the potential upward departure. At
the November 2003 hearing, the district court heard Cunningham’s objection to an
upward departure, and heard from two witnesses that testified about their psychological
injuries. Cunningham was able to cross-examine the witnesses and present his own
-4-
argument against the proposed upward departure. After hearing the arguments, the
district court imposed its sentence, stating that “[t]he following statement of reasons is
placed on the record for the sentence that has been imposed: The Court adopts the factual
findings and the guideline application in the presentence report.” (App. 81.) The district
court then discussed in detail its reason for a one level upward departure from the
sentencing guidelines, and imposed a sentence of 210 months on Counts I-III and an
additional 60 months on Count IV.
At the July 2005 re-sentencing hearing, Cunningham sought a reduced sentence,
arguing that (1) pursuant to Booker, a sentence outside of the guideline range violated the
Ex Post Facto and Due Process Clauses of the Fifth Amendment, and (2) Cunningham
had shown positive post-offense rehabilitation. The district court rejected the
constitutional arguments, and noted that it did consider the upward departure decision
carefully by enhancing Cunningham’s sentence by one level rather than two. The district
court went on to say that “all of the enhancements were clearly evident that would justify
every enhancement that was made.” (App. 98.) The district court again adopted the
factual findings in the Report and entered its statement of reasons into the record. The
statement of reasons said that the court took into consideration the § 3553(a) factors,
particularly the nature of the crime, the criminal history of the defendant, and potential for
recidivism, which the court found likely in view of Cunningham’s involvement with the
criminal justice system since the age of seventeen.
-5-
In this appeal, Cunningham argues that the record in this case is insufficient to
permit us to determine if the district court gave “meaningful consideration” to the §
3553(a) factors, and asks us to consider as exemplars the memoranda prepared in other
districts. Although a more delineated record might be helpful, the present record shows
that the district court devoted considerable time during the sentencing hearings to relevant
facts in the case and the issues raised by the parties. At both sentencing hearings, the
district court discussed, inter alia, the nature of the bank robbery and the effect on the
victims, and the court made extensive findings in these areas relative to the upward
departure, which was itself discussed extensively. The district court also discussed the
seriousness of the offense and what it considered to be egregious facts from the robbery.
These discussions touch upon, and show the court’s consideration of, the § 3553(a)
factors. Accordingly, we find that the district court complied with its duty to consider the
relevant § 3553(a) factors.
B. Plain Error
Cunningham claims that the district court’s failure to provide a detailed discussion
of the § 3553(a) factors constituted plain error. In order for Cunningham to prevail, he
must demonstrate that (1) there was error, (2) the error was plain, i.e., “clear” or
“obvious,” and (3) it affected substantial rights. United States v. Evans, 155 F.3d 245,
251 (3d Cir. 1998). As noted above, the record in this matter is adequate to show that the
district court meaningfully considered the § 3553(a) factors. Accordingly, there is no
-6-
deviation from a legal rule and no error. We need not consider separately whether or not
the sentence is “reasonable,” as Cunningham’s sole argument was that the sentence was
unreasonable because it was unreviewable. We have already concluded, however, that
the record is sufficient to permit review.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
-7-