United States v. Nile L. Cunningham

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2885
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Nile L. Cunningham, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 10, 2007
Filed: January 29, 2007
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Before LOKEN, Chief Judge, BYE and SHEPHERD, Circuit Judges.
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PER CURIAM.
Nile L. Cunningham appeals the thirty-seven month sentence imposed by the
district court1 after he pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) and to being a person convicted of a misdemeanor
crime of domestic violence in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(9). He argues the district court erroneously calculated his offense level and
criminal history category based on a flawed finding as to when his possession of the
1
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
firearms began and imposed an unreasonable sentence after improperly applying the
factors set forth in 18 U.S.C. 3553(a). We affirm.
In calculating Cunningham’s base offense level under the advisory United
States Sentencing Guidelines (U.S.S.G. or Guidelines), the district court found he
possessed the firearms within ten years of a 1991 Nebraska state court sentence (five
years of probation) imposed after he pleaded guilty to felony manufacturing of a
controlled substance. As a result of including the 1991 conviction in the calculation,
Cunningham’s base level was set at level twenty rather than level fourteen; he was not
eligible for a “lawful sporting purpose” reduction which, if he otherwise qualified,
would have capped his base offense level at level six; and he received an additional
criminal history point, which placed him at the lowest end of criminal history category
III. See U.S.S.G. §§ 2K2.1(a)(4), (b)(2), 4A1.1, 4A1.2(e)(2) (2005).
"On appeal of a sentence, we review de novo the district court's application of
the sentencing guidelines and its factual findings for clear error." United States v.
Davidson, 437 F.3d 737, 739-40 (8th Cir. 2006). Cunningham does not challenge the
district court’s application of the Guidelines. The 1991 conviction can be used in
calculating Cunningham’s sentence if the firearm offenses commenced within ten
years of the date his 1991 sentence was imposed. U.S.S.G. § 4A1.1 (establishing,
when read with § 4A1.2(e)(2), a ten-year period for certain offenses), referenced in
§ 2K2.1 cmt. n.12 (noting applicable felony convictions for establishing base offense
level for firearm offenses are those receiving criminal history points under § 4A1.1).
His firearm offenses commenced when he first engaged in any “act or omission”
occurring “during the commission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or responsibility for that
offense.” U.S.S.G. § 1B1.3 (enumerating the factors considered in determining
“relevant conduct”), cited in § 4A1.2 cmt. n.8 (noting “commencement of the instant
offense” includes any relevant conduct under § 1B1.3); see also United States v.
Rosenkrans, 236 F.3d 976, 977-78 (8th Cir. 2000) (applying the “relevant conduct”
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definition in the Guidelines to determine the “commencement” date of the “instant
offense”).
Cunningham challenges the district court’s factual finding he possessed
firearms within ten years of 1991. The evidence at sentencing showed on June 20,
2005, Alcohol, Tobacco, and Firearms (ATF) special agents recovered four firearms
from a kitchen cupboard in Cunningham’s residence. One of the firearms, a
combination .410/.22 caliber shotgun/rifle was purchased by Cunningham’s ex-wife
while they were still married; they divorced sometime in 1999. Three of the firearms,
a 12-gauge shotgun, a 20-gauge youth-model shotgun, and a .22 caliber rifle were
purchased in 2000 by Cunningham’s current wife. When informed by ATF special
agents it was unlawful to transfer a firearm to a prohibited person, Cunningham’s
current wife stated, “I didn’t realize how much trouble you could get into until after
I had done it.” In addition, Cunningham admitted to the ATF special agents he:
coerced his current wife into purchasing the firearms, knew the firearms were in his
house, and had used the firearms to teach his sons how to hunt with firearms. In 2000,
Cunningham’s children were ages four and six. An ATF special agent testified at
sentencing the 12-gauge shotgun would be “very difficult for a young boy or most
women to handle” as it was “full-size” and had a twenty-eight inch barrel. Given the
above, we find the district court did not commit clear error in finding a preponderance
of the evidence established Cunningham engaged in conduct relevant to the firearm
possession offense at least as early as 2000 when Cunningham coerced his wife into
purchasing three of the firearms. See United States v. Urick, 431 F.3d 300, 303 (8th
Cir. 2005) (“Possession under [18 U.S.C.] § 922(g) can be actual or constructive. . . .
While mere physical proximity to a firearm is insufficient for possession, ‘knowledge
of presence’ combined with ‘dominion over the premises in which the contraband is
concealed’ will amount to constructive possession.” (quotation omitted)).
Cunningham also claims the sentence was unreasonable because he “had not
been convicted of any crimes (aside from an insufficient funds check) since 1996,”
had not used alcohol or drugs for fifteen years, had maintained employment until
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suffering a back injury, and was an important figure in the lives of his children. He
claims he only used the guns to teach his children how to hunt and two of the guns
found could have been used by children; he stated he only bow hunted. Finally, he
argues the district court relied too heavily on the importance of rendering consistent
sentences. “We review the reasonableness of a sentence for an abuse of discretion.”
United States v. Lee, 454 F.3d 836, 838 (8th Cir. 2006). First, the sentence imposed
was at the low end of the Guidelines range of thirty-seven to forty-six months of
imprisonment. Second, the district court expressly referenced and considered the
§ 3553(a) factors in crafting Cunningham’s sentence. Thus, we find the district court
did not abuse its discretion in imposing his sentence.
Accordingly, we affirm.
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