United States of America v. Cunningham

Filing 10

ORDER-WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 10/29/2018: For the reasons stated below, defendant's motion for reconsideration pursuant to FED. R. CIV. P. 59(e) 9 is denied. This matter remains closed. [see STATEMENT-OPINION] Signed by the Honorable Philip G. Reinhard on 10/29/2018. Mailed notice (kms)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
United States of America,
Plaintiff,
v.
Teovanni Cunningham,
Defendant.

)
)
)
)
)
)
)
)
)

Case No: 18 CV 50138
Judge Philip G. Reinhard

ORDER
For the reasons stated below, defendant’s motion for reconsideration pursuant to FED. R. CIV.
P. 59(e) [9] is denied. This matter remains closed.
STATEMENT-OPINION
Defendant Teovanni Cunningham has filed a motion pursuant to FED. R. CIV. P. 59(e) asking
the court to reconsider its September 26, 2018 order. See [9]. In the court’s September 26, 2018
order it dismissed defendant’s 28 U.S.C. §2255 motion for post conviction relief and declined to
issue a certificate of appealability. See [7].
A Rule 59(e) motion for modification of judgment allows a court to reconsider matters
“encompassed within the merits of the underlying action.” Miller v. Safeco Ins. Co. of America, 683
F.3d 805, 814 (7th Cir. 2012) (quotations omitted). “Rule 59(e) allows a court to alter or amend a
judgment only if the petitioner can demonstrate a manifest error of law or present newly discovered
evidence.” Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008); LB Credit Corp. v. Resolution
Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995) (“[A] Rule 59(e) motion must clearly establish
either a manifest error of law or fact or must present newly discovered evidence.”) (internal
quotations omitted). The Seventh Circuit has held that a Rule 59(e) motion is not typically to be
construed as a successive habeas petition for purposes of AEDPA and thus may be ruled upon by
the district court. See Curry v. United States, 307 F.3d 664, 665 (7th Cir. 2002).
Rule 59(e) motions “are not appropriately used to advance arguments or theories that could
and should have been made before the district court rendered a judgment, or to present evidence that
was available earlier.” Miller, 683 F.3d at 813 (internal quotations omitted). Defendant points to
no evidence or argument that was not known to him at the time of his original petition (in other
words, no “newly discovered evidence”). To the extent defendant rehashes old arguments in his
motion, the Seventh Circuit has explicitly found this practice to be an inappropriate use of Rule
59(e). See Vesely v. Armslist LLC, 762 F.3d 661, 666 (7th Cir. 2014). Defendant’s arguments seem
1

more akin to the position that the court has committed a manifest error of law. “A manifest error
is not demonstrated by the disappointment of the losing party. It is the wholesale disregard,
misapplication, or failure to recognize controlling precedent.” Oto v. Metropolitan Life Ins. Co., 224
F.3d 601, 606 (7th Cir. 2000) (citations and quotations omitted).
Defendant presents three arguments in his motion for reconsideration: (1) there was
insufficient evidence to support a four-level enhancement under USSG § 2K2.1(b)(5); (2) the fourlevel enhancement under USSG § 2K2.1(b)(6)(B) was unwarranted; and (3) the court failed to
address (1) and (2) on the merits. Defendant’s arguments fail.1
First, defendant argues the court’s reliance on United States v. Rodriguez is misplaced
because in Rodriguez the defendant knew that the guns he sold were being used to commit felonies.
United States v. Rodriguez, 884 F.3d 679 (7th Cir. 2018). Here, defendant argues, while he admits
he transferred firearms to another (Darrell Reed), the record is devoid of any facts showing
defendant knew or had reason to know that Reed intended to use or dispose of the firearms
unlawfully. Section 2K2.1(b)(5) provides for a four-level enhancement “[i]f the defendant engaged
in the trafficking of firearms.” The facts showed (and the plea agreement specified) defendant sold
four of the firearms he stole during the burglary to Reed. Application note 13 provides that section
(b)(5) of the guidelines applies if, among other things, the transfer of the firearms was to an
individual whose use or disposal of the firearms would be unlawful. As noted in the court’s
September 26 ruling as well as specifically set out in the plea agreement, defendant sold four
firearms to Reed “knowing that the firearms were stolen,” making Reed’s possession of them
unlawful. In its prior ruling, the court cited to Rodriguez in support of the simultaneous application
of the “trafficking” enhancement (§ 2K2.1(b)(5)) and the “another felony” enhancement (§
2K2.1(b)(6)(B)). The court acknowledges that the application of the § 2K2.1(b)(5) enhancement
in Rodriguez (based on Rodriguez’s awareness that the firearms he was selling would be used to
commit felonies) differs from the § 2K2.1(b)(5) enhancement here (defendant’s sale of stolen
firearms to another) - each of which is proper. However, this does not alter the court’s reliance on
Rodriguez. To the extent defendant’s motion to reconsider the court’s September 26, 2018 ruling
argues the court’s application of the four-level sentencing enhancement under § 2K2.1(b)(5) was
improper, the court finds defendant’s argument unavailing.
Next, defendant argues the court’s application of a four-level sentencing enhancement under
§ 2K2.1(b)(6)(B) in addition to the four-level enhancement under § 2K2.1(b)(5) was impermissible
“double counting” and his counsel was ineffective for failing to object. As the court stated in its
September 26 ruling, the two four-level enhancements were not “double counting” because
defendant was enhanced under § 2K2.1(b)(5) based on the trafficking of stolen firearms, and the
enhancement under § 2K2.1(b)(6)(B) was based on the burglary as “another felony offense” (see
application note 13(D)). While defendant presents the same argument here as he presented in his
§ 2255 motion (“[A] Rule 59(e) motion is not to be used to ‘rehash’ previously rejected arguments.”
1

The court refers to the factual and procedural background of defendant’s underlying criminal
matter as set forth in the court’s September 26, 2018 order [7] as well as the appellate opinion rendered in
defendant’s criminal case - United States v. Cunningham, 883 F.3d 690 (7th Cir. 2018).

2

Vesely, 762 F.3d at 666 (citations omitted)), the court will address the argument briefing in light of
defendant’s reliance on United States v. Johns, 732 F.3d 736 (7th Cir. 2013), and United States v.
Shelton - a Seventh Circuit case which was published seven days after the court’s September 26,
2018 opinion, and which further explains the sentencing enhancements and may provide defendant
with a better understanding.
In United States v. Shelton, __F.3d __, 2018 WL 4763344 (7th Cir. 2018), four defendants
were charged with stealing multiple firearms from a cargo train. The defendants divided the stolen
firearms and then sold them on the black market. After being indicted on various firearms and theft
charges, all four defendants were sentenced under the four-level sentencing enhancements pursuant
to § 2K2.1(b)(5) and § 2K2.1(b)(6)(B). The Seventh Circuit affirmed the district court’s sentencing
under both enhancements and stated:
“It is true that Note 13(D) ‘expressly prohibits’ imposing enhancements under §
2K2.1(b)(6)(B) and § 2K2.1(b)(5) if the other felony offense is the trafficking
offense itself. United States v. Johns, 732 F.3d 736, 740 (7th Cir. 2013). For that
reason, in Johns, we held that the court erred because it applied both enhancements
‘based on the same conduct - [the defendant’s] transfer of the firearms to the CI with
knowledge that the CI was going to resell the firearms.’ Id. Critically, however, ‘the
guidelines do not prohibit simultaneous application of the trafficking and otherfelony [offense] enhancements’ when the other felony offense is an offense other
than firearms possession or trafficking. United States v. Rodriguez, 884 F.3d 679,
681 (7th Cir. 2018); see also United States v. Grove, 725 F. App’x. 252, 254 (4th Cir.
2018); United States v. Truitt, 696 F. App’x. 391, 394 (11th Cir. 2017); United States
v. Sweet, 776 F.3d 447, 451 (6th Cir. 2015). Here, defendants possessed firearms in
relation to a felony offense ‘other than a firearms possession or trafficking offense’:
burglary of the cargo train. Thus, unlike in Johns, only § 2K2.1(b)(5) applied based
on defendants’ sale of the firearms; § 2K2.1(b)(6)(B) was imposed due to the
burglary.”
Id. at *6.
Such is the case here. As in Shelton, and unlike Johns, defendant was assessed a four-level
sentencing enhancement under § 2K2.1(b)(5) for the sale of multiple firearms, knowing the firearms
to be stolen, and a four-level sentencing enhancement under § 2K2.1(b)(6)(B) for the burglary of
the victim’s home where defendant took possession of the firearms. The court, again, holds that
defendant’s sentence under both § 2K2.1(b)(5) and § 2K2.1(b)(6)(B) was proper.
Finally, defendant argues, to the best of the court’s understanding, that the court did not
“reach the merits” of his claims for relief in his § 2255 motion by relying on clearly erroneous
factual findings. The court finds that it did, in fact, address defendant’s issues and arguments on the
merits in its ruling on defendant’s § 2255 motion, relying on proper factual findings. Therefore, the
court finds no merit in this argument.

3

For all the above reasons, the court denies defendant’s motion for reconsideration pursuant
to FED. R. CIV. P. 59(e).
The court declines to issue a certificate of appealability. A certificate of appealability is
required before a habeas petitioner may appeal an unfavorable decision to the Seventh Circuit. 28
U.S.C. § 2253(c); Fed. R. App. P. 22(b). See also West v. Schneiter, 485 F.3d 393 (7th Cir. 2007).
A certificate of appealability is not granted as a matter of right and instead may only be granted “if
the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). A substantial showing occurs when “reasonable jurists could debate whether (or, for
that matter, agree that) the [motion] should have been resolved in a different matter or that the issues
presented were adequate to deserve encouragement to proceed further.” Resendez v. Knight, 653
F.3d 445, 446 (7th Cir. 2011) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
For the reasons set forth above, the court finds that defendant has not proffered new evidence
or shown that the court committed a manifest error of law with regard to the court’s September 26,
2018 order, and does not find that “reasonable jurists could debate whether . . . the [motion] should
have been resolved in a different matter.” Id. Thus, because there is no substantial question for
appeal, the court declines to issue a certificate of appealability.
Date: 10/29/2018

ENTER:

United States District Court Judge
Notices mailed by Judicial Staff. (LC)

4