United States v. Cunningham

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4235
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEROME LEMARIO CUNNINGHAM,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
Senior District Judge. (1:05-cr-00061-FWB)
Submitted: March 14, 2007 Decided: March 26, 2007
Before WILKINSON, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Clifton T. Barrett, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerome Lemario Cunningham pled guilty, pursuant to a plea
agreement, to one count of attempting to take and obtain currency
by threatening with a firearm an employee of a convenience store,
in violation of 18 U.S.C. §§ 1951 & 2 (2000); one count of
carjacking, in violation of 18 U.S.C. §§ 2119 & 2 (2000); and one
count of carrying and use of a firearm during a crime of violence,
in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (2000), and was
sentenced to concurrent terms of seventy months’ imprisonment,
followed by a 120 month consecutive sentence. Cunningham now
appeals his sentence.
On appeal, Cunningham asserts that the district court
engaged in impermissible double counting by adding a two point
enhancement under U.S.S.G. § 2B3.1(b)(5) to Cunningham’s base
offense level because the offense involved carjacking. Whether
impermissible double counting occurred is a legal issue that is
reviewed de novo. United States v. Rohwedder, 243 F.3d 423, 426-27
(8th Cir. 2001). Double counting is permissible under the
sentencing guidelines except where it is expressly prohibited.
United States v. Reevey, 364 F.3d 151, 158 (4th Cir. 2004)
In determining the offense level, the district court
committed no double counting error by adding two levels pursuant to
U.S. Sentencing Guidelines Manual § 2B3.1(b)(5) (2004). See United
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States v. Naves, 252 F.3d 1166 (11th Cir. 2001). Cunningham has
not otherwise shown that his sentence is unreasonable.
We therefore affirm the judgment of the district court.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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