Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
5-15-2007
USA v. Cummings
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4777
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"USA v. Cummings" (2007). 2007 Decisions. Paper 1107.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4777
UNITED STATES OF AMERICA
v.
CALFORD CUMMINGS,
Appellant
On Appeal from the District Court of the Virgin Islands
Division of St. Thomas and St. John
(D.C. Criminal No. 3:05-cr-00020-G-001)
District Judge: Honorable Curtis V. Gomez
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 9, 2007
Before: SLOVITER, STAPLETON, and VAN ANTWERPEN, Circuit Judges.
(Filed: May 15, 2007)
____
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Appellant Calford Cummings pled guilty to a one-count indictment charging him
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with attempted entry by a previously deported alien who has not obtained the express
permission of the Attorney General to reapply for admission, in violation of 8 U.S.C. §
1326(a). He now argues: (1) the waiver of his appellate rights contained in the plea
agreement was not knowing and voluntary; and (2) his sentence is unreasonable because
the District Court failed to meaningfully apply the factors contained in 18 U.S.C. §
3553(a).
The District Court had jurisdiction over this criminal case pursuant to 48 U.S.C. §
1612. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a). See United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006). For the reasons
set forth below, we will affirm.
I.
On March 3, 2005, a grand jury sitting in St. Thomas, Virgin Islands, returned a
one-count indictment charging Cummings with attempting to enter the United States at St.
Thomas on February 19, 2005, after having been deported on July 1, 2004, without
obtaining the express permission of the Attorney General to reapply for admission.
Cummings was arraigned and pled not guilty on March 16, 2005. However, on May 18,
2005, Cummings entered into a plea agreement with the government. Paragraph (f) of the
plea agreement expressly states, in relevant part:
CALFORD CUMMINGS agrees that in the event the Court grants him a reduction
of two (2) levels or more, pursuant to § 3E1.1(a), regardless of how the sentence is
calculated by the Court, CALFORD CUMMINGS, expressly waives his right to
appeal the conviction and sentence imposed in this case on any ground, including
the right to appeal conferred by Title 18, United States Code, Section 3742.
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Supp. App. at 5 (emphasis in original).
Cummings filed an application for permission to enter a plea of guilty and
appeared before Magistrate Judge Geoffrey Barnard. At the change of plea hearing,
Judge Barnard conducted an extensive colloquy and concluded that Cummings’ guilty
plea was entered into knowingly and voluntarily. District Court Judge Curtis Gomez
accepted the plea and adjudicated Cummings guilty on June 2, 2005.
After granting a two-level reduction for Cummings’ acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1(a), the Presentence Report calculated Cummings’ total
offense level as 22. At the sentencing hearing, the District Court granted the
government’s motion for an additional one-level reduction pursuant to § 3E1.1(b),
reducing the offense level to 21. With a criminal history category of II, the advisory
Guidelines range was recalculated at 41 to 51 months. On September 21, 2005, the
District Court sentenced Cummings to 41 months’ imprisonment followed by two years
of supervised release, and a special assessment of $100. The District Court ordered that
Cummings was to be given credit for time served since February 19, 2005. Cummings
timely appealed.
II.
A defendant may waive his right to appeal in a criminal case if such waiver is
entered into knowingly and voluntarily. United States v. Khattak, 273 F.3d 557, 562 (3d
Cir. 2001). To this end, Federal Rule of Criminal Procedure 11 “outlines a series of
admonitions and warnings to be provided to the defendant.” United States v. Schweitzer,
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454 F.3d 197, 200 (3d Cir. 2006) (citation omitted); see also Boykin v. Alabama, 295 U.S.
238, 243 n.5 (1969) (explaining that Rule 11 “governs the duty of the trial judge before
accepting a guilty plea”). Relevant to this appeal, the court must inform the defendant of,
and determine that he understands, “the terms of any plea-agreement waiving the right to
appeal or to collaterally attack the sentence.” Fed. R. Crim. P. 11(b)(1)(N).
We need not reach the issue of the validity of the waiver of appellate rights
contained in the plea agreement. Even assuming, arguendo, that the waiver is invalid,
Cummings’ claim that his sentence is unreasonable fails on the merits. In evaluating the
reasonableness of a sentence, we determine whether: (1) the court gave “meaningful
consideration” to the § 3553(a) factors and any meritorious grounds properly raised by
the parties; and (2) whether those factors were “reasonably applied to the circumstances
of the case.” Cooper, 437 F.3d at 329-30. In conducting this review, we look to the
entire sentencing transcript, and “we will not elevate form over substance.” United States
v. Dragon, 471 F.3d 501, 506 (3d Cir. 2006). Furthermore, we apply a deferential
standard, as “the trial court [is] in the best position to determine the appropriate sentence
in light of the particular circumstances of the case.” Cooper, 437 F.3d at 330. We have
noted that “a within-guidelines range sentence is more likely to be reasonable than one
that lies outside the advisory guidelines range.” Id. at 331. Finally, the party challenging
the sentence bears the burden to show unreasonableness. Id. at 332.
An independent review of the record confirms that Cummings has not met his
burden of showing that the District Court’s sentence was unreasonable. During the
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sentencing hearing, the District Court expressly stated that it considered the § 3553(a)
factors in reaching Cummings’ sentence. Moreover, the only argument raised by
Cummings was a request, made through his attorney, that the District Court impose a
sentence of time served. After making this argument, defense counsel stated, “I do not
see anything else in the report that is worthy of particular attention . . . .” Supp. App. at
34. Because Cummings did not argue for a lower sentence based on any of the § 3553(a)
factors, the District Court was not required to expressly discuss and make findings as to
each of those factors. Cooper, 437 F.3d at 329. Finally, the District Court expressly
considered and granted the government’s motion for an additional one-level reduction
based on Cumming’s acceptance of responsibility. The Court then properly recalculated
the advisory Guidelines range to be from 41 to 51 months and sentenced Cummings to 41
months, the low end of that range
In sum, the record clearly shows the Court meaningfully considered the § 3553(a)
factors and the meritorious arguments raised by the parties, and it imposed a reasonable
sentence. Accordingly, we will affirm.
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