United States of America v. Cunningham

Filing 7

ORDER-WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 9/26/2018: For the following reasons, defendant's 28 U.S.C. § 2255 motion 1 is denied. The court declines to issue a certificate of appealability. This matter is terminated. [see STATEMENT-OPINION] Signed by the Honorable Philip G. Reinhard on 9/26/2018. 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.

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Case No: 18 CV 50138
Judge Philip G. Reinhard

ORDER
For the following reasons, defendant’s 28 U.S.C. § 2255 motion [1] is denied. The court
declines to issue a certificate of appealability. This matter is terminated.
STATEMENT-OPINION
On April 20, 2018, defendant Teovanni Cunningham filed a 28 U.S.C. § 2255 motion
challenging his sentence. See [1]. The government filed a response to the motion on June 26,
2018 [4], and defendant filed a reply on August 13, 2018 [6]. This motion is now ripe for the
court’s review.
Background
On September 21, 2016, the court entered judgment against defendant for conspiracy to
possess stolen firearms and ammunition (18 U.S.C. § 371, 18 U.S.C. § 922(j)), possession of
stolen firearms and ammunition (18 U.S.C. § 922(j)), and felon in possession of firearms (18
U.S.C. § 922(g)(1)), and sentenced defendant to a term of 188 months in the Bureau of Prisons.
(See case no. 14 CR 50038-2, Dkt. [280].) Defendant was found guilty of breaking into a home
in Rockton, Illinois with a codefendant and stealing 22 firearms.1 At sentencing, the court
found that the evidence showed that four additional firearms were carried away from the home’s
safe, and while defendant and codefendant attempted to steal them, these four firearms were left
behind. Prior to the burglary, defendant had been convicted of a felony mob action in violation
of Illinois law 720 ILCS 5/25-1(a)(1) – a crime punishable by imprisonment for a term
exceeding one year.
At the sentencing hearing, the court found defendant’s applicable base offense level to be
20 pursuant to United States Sentencing Guidelines (“guidelines” or “U.S.S.G.”) §
2K2.1(a)(4)(B). The court then applied a six-level enhancement under U.S.S.G. §
A more detailed account of the facts can be found in the appellate opinion rendered in this case –
United States v. Cunningham, 883 F.3d 690 (7th Cir. 2018). For purposes of this ruling, the court does
not find a lengthy recitation of the facts necessary.
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2K2.1(b)(1)(C), representing 26 firearms (22 stolen, four attempted), a two-level enhancement
under U.S.S.G. § 2K2.1(b)(4) representing stolen firearms, a four-level enhancement under
U.S.S.G. § 2K2.1(b)(5) for defendant’s trafficking of firearms, a four-level enhancement under
U.S.S.G. § 2K2.1(b)(6)(B) for defendant’s possession of firearms in connection with another
felony offense (the burglary of the victim’s home), and a three-level reduction under U.S.S.G. §
3E1.1 in recognition of defendant’s acceptance of responsibility for his criminal conduct. The
court found defendant’s total offense level a 33 and his criminal history a category IV.
Defendant’s sentencing range, therefore, was 188 to 235 months of incarceration. Following
testimony and arguments of counsel, the court sentenced defendant to 188 months’
imprisonment.
Defendant appealed his sentence arguing the court violated FED. R. CRIM. P.
32(i)(4)(A)(ii) (“Before imposing sentence, the court must…permit the defendant to…present
any information to mitigate the sentence”) by limiting his presentation of character witness
testimony, and that the sentence was substantively unreasonable. On February 21, 2018, the
Seventh Circuit affirmed the court’s sentence finding that FED. R. CRIM. P. 32(i)(4)(A)(ii) does
not establish a right to the presentation of character witnesses, and further held that the court did
not abuse it discretion in weighing the 18 U.S.C. §3553(a) factors and, therefore, the sentence
was substantively reasonable.2 See United States v. Cunningham, 883 F.3d 690 (7th Cir. 2018).
Defendant filed this motion to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 on April 20, 2018. In his motion, defendant argues (1) his counsel was ineffective
by failing to give him notice of the court’s “double counting” of enhancements under U.S.S.G. §
2K2.1(b)(5) and § 2K2.1(b)(6)(B); (2) his counsel was ineffective by failing to challenge the
applicability of the six-level enhancement under U.S.S.G. § 2K2.1(b)(1)(C); and (3) the court
erred by increasing his sentence based on uncharged conduct.
Analysis
With regard to defendant’s ineffective assistance of counsel claims, the Seventh Circuit
has held that “[t]o be successful on an ineffective assistance claim, [the defendant] must: 1) show
that his attorney's performance fell below an objective standard of reasonableness under
prevailing professional norms; and 2) demonstrate a reasonable probability that this deficient
performance affected the result of the trial.” Hardamon v. United States, 319 F.3d 943, 948 (7th
Cir. 2003). See also Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
First, defendant argues his trial counsel was ineffective during his plea negotiations by
failing to notify him that the court “double counted” his sentencing enhancements under
U.S.S.G. § 2K2.1(b)(5) and § 2K2.1(b)(6)(B). Defendant’s ineffective assistance argument is
without merit because the sentencing enhancements did not amount to “double counting.”
Pursuant to § 2K2.1(b)(5), a four-level enhancement is applicable if the defendant “engaged in
the trafficking of firearms.” The facts showed defendant gave, sold, or disposed of several of the
stolen firearms to others in northern Illinois, supporting the application of this enhancement. See
guidelines application note 13, generally. Under § 2K2.1(b)(6)(B), a four-level enhancement is
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Notably, defendant did not appeal the court’s guidelines calculations.
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applicable if the defendant “used or possessed any firearm or ammunition in connection with
another felony offense.” Here, defendant possessed the subject firearms and ammunition during
the burglary of the victim’s home, thereby justifying this enhancement. “In the context of
guidelines sentencing, the term ‘double counting’ refers to using the same conduct more than
once to increase a defendant’s guidelines sentencing range. But double counting is permitted
unless the text of the guidelines or the authoritative commentary expressly prohibits it.” United
States v. Rodriguez, 884 F.3d 679, 680 (7th Cir. 2018) (citing United States v. Vizcarra, 668 F.3d
516, 519 (7th Cir. 2012)). Guidelines application note 13(D) specifically states that both
enhancements should apply if the defendant “transferred” any firearm. As noted by the
Rodriguez court, “the guidelines fall far short of expressly prohibiting simultaneous application
of the trafficking enhancement and other other-felony enhancement.” Id. at 681. The facts
support both enhancements and the guidelines do not prohibit it. Defendant, therefore, is unable
to show that his trial counsel was ineffective. “[A]n attorney is not ineffective for failing to raise
a meritless argument.” Washington v. Boughton, 884 F.3d 692, 701 (7th Cir. 2018) (citing Stone
v. Farley, 86 F.3d 712, 717 (7th Cir. 1996)). And as noted by the government, even if the court
found deficient performance on the part of defendant’s trial counsel under the Strickland
standards, no prejudice would have inured to the defendant because any objection regarding
“double counting” in his sentence enhancements would have been overruled.
Next, defendant argues his trial counsel was ineffective in failing to challenge the
applicability of the six-level enhancement under U.S.S.G. § 2K2.1(b)(1)(C). Section
2K2.1(b)(1)(C) states that if the offense in question “involved” 25-99 firearms, a six-level
enhancement would apply. Defendant argues his offense only involved the 22 firearms carried
away from the victim’s residence, not 26 – 22 firearms plus the four firearms that were dropped
on the way out of the residence - as found by the court. However, application note 5 to § 2K2.1
states, among other things, that for purposes of calculating the number of firearms under
subsection (b)(1), the court shall count those firearms “that were unlawfully sought to be
obtained.” The facts presented to the court at the time of defendant’s sentencing, including the
facts presented in defendant’s presentence investigation report, revealed three firearms were
found near the bottom of the basement steps, and a fourth firearm was located on the basement
floor near the room where the victim’s gun safe was located. The court was also informed at
sentencing that defendant admitted to his codefendants that he had dropped “a bunch of shit” in
the house during the burglary. This evidence is enough to find that the four additional firearms
were “sought to be obtained” and, therefore, the court cannot find that defendant’s counsel was
deficient in not challenging this enhancement. Additionally, like above, even if counsel was
ineffective for not objecting to the § 2K2.1(b)(1)(C) enhancement, defendant could not meet the
prejudice prong of Strickland because any objection would have been overruled. Also, as noted
in the government’s brief, any objection to this enhancement would have jeopardized
defendant’s three-level reduction under U.S.S.G. § 3E1.1 in recognition of his acceptance of
responsibility. The court cannot say that trial counsel was ineffective under these circumstances.
Defendant’s final argument is less clear. Defendant contends the court erred by
speculating on uncharged conduct and using that information to increase his offense level at
sentencing. As best the court can decipher, defendant argues the court lacked a basis for a

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finding that defendant planned to take more than 22 firearms from the victim’s residence.3 As
explained above, the court found sufficient evidence to support the finding that defendant
“sought to obtain” 26 firearms in the course of committing the burglary. Here the number of
firearms is significant for purposes of the sentencing guidelines (see § 2K2.1(b)(1)(C)) and not
considered by the court “uncharged conduct.” Moreover, defendant’s argument is procedurally
waived. “A claim cannot be raised for the first time in a § 2255 motion if it could have been
raised…on direct appeal.” McCoy v. United States, 815 F.3d 292, 295 (7th Cir. 2016) (citing
Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009)). And “[a]bsent a showing of both
cause and prejudice, procedural default will only be excused if the prisoner can demonstrate that
his is actually innocent of the crimes of which he was convicted.” Id. (citations omitted).
Defendant’s argument regarding the number of firearms was available to him at the time of his
direct appeal and, therefore, he cannot sustain an argument for procedural default; nor can he
demonstrate that he is “actually innocent” of the crimes he has pled guilty to.
For the above stated reasons, the court denies defendant’s motion pursuant to 28 U.S.C. §
2255 and finds there is no basis for an evidentiary hearing.
Certificate of Appealability
Finally, pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings For the
United States District Courts, the court declines to issue a certificate of appealability. A
certificate may issue only if defendant has made a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). The court finds that while defendant has attempted
to raise constitutional claims through his motion for relief under § 2255, his claims are without
merit and the court does not find that “reasonable jurists could debate whether (or, for that
matter, agree that) the [motion] should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” See Peterson v. Douma,
751 F.3d 524, 528 (7th Cir. 2014) (quotations omitted). As such, the court declines to issue a
certificate of appealability. This matter is terminated.
Date: 09/26/2018

ENTER:

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

In his brief, defendant relies on Nelson v. Colorado, ___ U.S. ___, 137 S.Ct. 1249 (2017) to support his
position. Nelson addressed the deprivation of a defendant’s property after a conviction has been reversed
or vacated, and the subsequent due process implications. The court does not find Nelson to be instructive
here.
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