                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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                                                                 NOT PRECEDENTIAL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



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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



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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



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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



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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.




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