In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐3543
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
TEOVONNI CUNNINGHAM,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:14‐cr‐50038‐2 — Philip G. Reinhard, Judge.
____________________
ARGUED OCTOBER 26, 2017 — DECIDED FEBRUARY 21, 2018
____________________
Before FLAUM, RIPPLE, and MANION, Circuit Judges.
RIPPLE, Circuit Judge. Teovonni Cunningham pleaded
guilty to one count of conspiracy to possess stolen firearms
and ammunition, in violation of 18 U.S.C. §§ 371 and 922(j);
one count of possession of stolen firearms and ammunition,
in violation of § 922(j); and one count of possession of firearms
by a felon, in violation of § 922(g)(1). The district court sen‐
tenced him to 60 months on the conspiracy count, 12 months
2 No. 16‐3543
on the § 922(j) count, and 116 months on the felon‐in‐posses‐
sion count, all to run consecutively; his total sentence, there‐
fore, was 188 months’ imprisonment.1 Mr. Cunningham ap‐
peals his sentence, contending that the district court’s limita‐
tion on his presentation of character witness testimony at sen‐
tencing violated Federal Rule of Criminal Procedure
32(i)(4)(A)(ii) and that the resulting sentence is substantively
unreasonable.2
We affirm the judgment of the district court. Federal Rule
of Criminal Procedure 32(i)(4)(A)(ii) does not govern the call‐
ing of character witnesses at sentencing, and the district court
did not abuse its discretion in its consideration of Mr. Cun‐
ningham’s mitigation evidence. The sentence imposed was
the product of the district court’s careful and compassionate
consideration of all the evidence in this very difficult sentenc‐
ing situation. Accordingly, we affirm its judgment.
I
BACKGROUND
In December 2012, Michael Schaffer learned that an ac‐
quaintance, G.W., kept a private collection of firearms, am‐
munition, and accessories in his home in Rockton, Illinois.
Schaffer showed Mr. Cunningham where G.W. lived and
1 The jurisdiction of the district court was premised on 18 U.S.C. § 3231.
2 Our jurisdiction is premised on 28 U.S.C. § 1291, and 18 U.S.C. § 3742.
No. 16‐3543 3
where he kept the weapons. Schaffer also told Mr. Cunning‐
ham that G.W. and his family would be away from the home
for a period on December 31, 2012. Mr. Cunningham and a
third accomplice, Michael Tapia, agreed to break in and steal
the collection. All three men—Schaffer, Tapia, and Mr. Cun‐
ningham—then agreed to store, sell, and otherwise dispose of
the weapons.
Mr. Cunningham and Tapia later broke into G.W.’s home
through a window and stole a total of twenty‐two firearms
along with ammunition. This stash included two semiauto‐
matic firearms, which were in close proximity to magazines
that could accept more than fifteen rounds of ammunition.3
Four additional weapons were dropped in the house during
the robbery.4 Between January and August of the following
year, Mr. Cunningham sold or disposed of five weapons and
some ammunition to Schaffer and Darrell Reed.
The Government charged Mr. Cunningham, along with
Tapia and Reed, in July 2014. Shortly after his arrest, the dis‐
trict court released him on bond. The conditions of release in‐
itially required him to remain on home detention except for
employment, educational, legal, medical, or religious obliga‐
tions and to remain within the Northern District of Illinois.
The court later modified these conditions to allow him to
travel outside of the district with his employer, to attend
3 Specifically, they stole five handguns, four shotguns, an AR‐15 rifle, a
FN SCAR 16S rifle, and eleven other rifles, along with 475 rounds of .223
caliber ammunition and five AR‐15 thirty‐round magazines.
4 The dropped weapons increase the total number of involved weapons to
more than twenty‐five, which resulted in an additional increase in offense
level at sentencing.
4 No. 16‐3543
school events for his daughters, and to travel to a medical ap‐
pointment with one of his daughters.
He and his codefendants, now including Schaffer, subse‐
quently were charged in a five‐count superseding indictment.
Mr. Cunningham pleaded guilty to counts 1 through 3, pos‐
session by a felon, possession of stolen firearms, and conspir‐
acy. His written plea included the factual basis for the offense.
The Probation Office prepared a presentence investigation
report (“PSR”). The report determined that Mr. Cunning‐
ham’s offense involved a semiautomatic firearm capable of
accepting a large capacity magazine and concluded that his
prior felony constituted a crime of violence.5 The report set his
base offense level at 22.6 Various enhancements substantially
raised this base: more than twenty‐five firearms were in‐
volved, resulting in a six‐level increase;7 firearms were stolen,
resulting in a two‐level increase;8 the stolen firearms were
trafficked, resulting in a four‐level increase;9 and the defend‐
ant used a firearm in connection with another felony offense,
5 See U.S.S.G. § 4B1.2(a).
6 See id. § 2K2.1(a)(3).
7 See id. § 2K2.1(b)(1)(C).
8 See id. § 2K2.1(b)(4)(A). The resulting level was reduced by one pursuant
to 2K2.1(b), which states that the cumulative offense level from the appli‐
cation of (b)(1)–(4) may not exceed 29.
9 See id. § 2K2.1(b)(5).
No. 16‐3543 5
resulting in a four‐level increase.10 After a three‐point reduc‐
tion for acceptance of responsibility, the resulting total offense
level was 34.
The calculation of Mr. Cunningham’s criminal history also
produced a very significant score. Prior criminal convictions,
including a 2004 felony conviction for mob action in Illinois,
a 2006 misdemeanor possession with intent to distribute can‐
nabis, a 2013 misdemeanor theft, and a second mob action in
2014, resulted in 9 criminal history points. Consequently, the
PSR calculated his criminal history category as IV. The advi‐
sory sentencing range therefore became 210–262 months.
The Government’s sentencing memorandum disagreed
with the PSR’s base offense level. The Government contended
that Mr. Cunningham’s first mob‐action offense was not a
crime of violence under Illinois law, and thus that U.S.S.G.
§ 2K2.1(a)(3) was inapplicable. Instead, the Government be‐
lieved that § 2K2.1(a)(4) provided the proper offense level,
two levels lower than that recommended by the PSR. The
Government therefore recommended an offense level calcu‐
lation of 33,11 and a sentencing range of 188–235 months’ im‐
prisonment. In proposing a sentence, the Government
10 See id. § 2K2.1(b)(6) & cmt. n.14(B) (stating that when a defendant steals
a firearm in a burglary, even if he does not use the firearm, the enhance‐
ment applies).
11 Under U.S.S.G. § 2K2.1, the total offense level under sections (b)(1)
through (b)(4) could not exceed 29. The PSR began with a base offense
level of 22 and added 8 levels under those subsections, resulting in an of‐
fense level of 30, which was reduced to 29. The Government’s calculation
began from a base offense level of 20 and added the same 8 levels as the
6 No. 16‐3543
pointed to multiple aggravating factors: the seriousness of the
offense; at least three of the stolen weapons were recovered
from known gang members in the community; and more than
half of the weapons had not yet been recovered. The Govern‐
ment also noted that Mr. Cunningham had a prior affiliation
with the Latin Kings gang and had two convictions for felony
mob action based on personal attacks, one of which involved
a shooting. In mitigation, the Government invited the court’s
attention to Mr. Cunningham’s strong relationship with his
daughters, his involvement in his church, and his clean record
while on pretrial release. The Government requested a sen‐
tence within the revised guideline range.
Mr. Cunningham’s sentencing memorandum agreed with
the Government that mob action was not a crime of violence.
In addition, he objected to two criminal history points because
they were based on his being under a criminal justice sentence
at the time of the instant offense; he noted that he was on bond
and had not been convicted or sentenced in connection with
that prior offense.12 Beyond his claimed calculation errors, he
also asked that the court impose a sentence below the advi‐
sory guidelines. He stressed the impact of a high sentence on
PSR. Because the total level was 28, no reduction was required. Accord‐
ingly, the two‐level reduction in base offense recommended by the Gov‐
ernment translated to only a one‐level reduction in total offense level.
12 See U.S.S.G. § 4A1.2(a)(1) (defining prior sentence); R.269 at 4–5
(Mr. Cunningham’s objections to the PSR, contending that he was charged
with, but had not been convicted of, another offense at the time he com‐
mitted the offense of conviction). Nevertheless, the removal of 2 criminal
history points from 9 to 7 had no effect on the criminal history category of
IV, which covers the range of 7–9 criminal history points. See U.S.S.G. Ch.
5, Pt. A (Sentencing Table).
No. 16‐3543 7
his family, his reliable and continued successful employment
in his father‐in‐law’s specialized paint company, and his
other efforts at rehabilitation following his arrest. He also sub‐
mitted thirty‐seven pages containing more than twenty letters
and various photographs from friends and family. These let‐
ters served as character references and asked for leniency in
his sentence. His wife, Lisa Schwartz‐Cunningham, submit‐
ted a lengthy letter describing their long‐term relationship
and happy marriage, Mr. Cunningham’s contributions to the
home, and his relationship to their three daughters, two of
whom have health issues. Their nine‐year‐old daughter has a
form of cerebral palsy, and their infant daughter had a con‐
genital heart defect at birth. His father‐in‐law,
Ronald Schwartz, wrote about Mr. Cunningham’s positive in‐
volvement in the family business, his good work ethic, and
Mr. Schwartz’s hope to leave the business to Mr. Cunning‐
ham upon his retirement.
At the outset of the sentencing hearing, the court noted
that it had received and reviewed the written materials and
asked the parties if they had any additional materials for con‐
sideration. The Government stated that it had nothing fur‐
ther, and counsel for Mr. Cunningham stated that there was
nothing further “[o]ther than our witnesses.”13 The court re‐
sponded that it would “get to that in a moment.”14 The court
then went through the PSR and the parties’ objections and,
after agreeing that mob action was not a crime of violence,
arrived at a total offense level of 33 and a criminal history cat‐
egory of IV. These calculations resulted in a guidelines range
13 R.307 at 3.
14 Id.
8 No. 16‐3543
of 188–235 months’ imprisonment, consistent with the Gov‐
ernment’s recommendation. After addressing issues related
to restitution and the terms of supervised release, the court
began:
THE COURT: All right. Now, Mr. Richard‐
son, you indicated that you might have wit‐
nesses?
MR. RICHARDSON: Yes.
THE COURT: We don’t usually have that be‐
cause I have letters that you submitted, which I
have read, and so I’m telling you normally that
the lawyers who practice out here do not pre‐
sent witnesses.
If you are—if your practice—I know you are
from Chicago and it is a little bit different. I un‐
derstand that. I might let you have a couple of
witnesses testify just very briefly. If they have
submitted letters already, I have read those.
MR. RICHARDSON: I understand, your
Honor. It is just—it is my client’s life, and to see
it on paper is one thing, to hear from live and in
person is quite another.
We have three witnesses. I don’t imagine
they would be terribly long, maybe five minutes
or so apiece.
THE COURT: All right. It shouldn’t be that
long. I will give you an opportunity to call them,
but I just don’t want them to repeat what they
have got in their letters. They can tell me their
No. 16‐3543 9
wishes for the defendant, but I would rather fo‐
cus on your arguments and incorporate what
you have got and listen to what he has got to
say. I thought the letters were well written, and
I am impressed by them. So with that in mind—
MR. RICHARDSON: Your Honor, if I could
cut it down to two witnesses, the defendant’s fa‐
ther‐in‐law and his wife, that would probably
save some time. I think that those are the two
most important.
THE COURT: I understand. Cut it down.
You don’t have to go through everything that
they have gone through. I think the wife wrote
over a three‐page letter, and I have read it. I was
impressed with it.15
Counsel called Mr. Cunningham’s father‐in‐law,
Mr. Schwartz, and then his wife, and both testified at some
length about the positive changes Mr. Cunningham had made
and about the impact of his incarceration on his family and
children. Mr. Schwartz also described Mr. Cunningham as a
model employee who had learned a trade, had been an excel‐
lent supervisor, and would eventually run the business.
Mrs. Schwartz‐Cunningham spoke principally about her hus‐
band’s involved parenting and his relationship with his
daughters. As Mrs. Schwartz‐Cunningham spoke about her
fears for her children if Mr. Cunningham were sentenced to a
long prison term, the court interjected, “If you could wrap it
15 Id. at 21–22.
10 No. 16‐3543
up. It is emotionally very hard.”16 The court also allowed
Mr. Cunningham’s pastor to speak on his behalf, although he
reminded counsel multiple times to be “[v]ery brief[].”17 His
pastor then spoke briefly about his baptism, as well as his at‐
tendance and assistance at church.
After this testimony, the court asked the parties for their
final arguments and sentencing recommendations. The Gov‐
ernment acknowledged that Mr. Cunningham’s sentencing
presented a difficult decision. The Government emphasized
that the offense was a serious and dangerous one; as a result
of Mr. Cunningham’s conduct, more than ten weapons and a
significant amount of ammunition, not recovered by law en‐
forcement, could endanger other families. It acknowledged
the defendant’s successful pretrial release, his family situa‐
tion, and the positive strides that he had made in the past two
years. The Government also noted that although the advisory
guidelines calculations were correct, Mr. Cunningham’s ac‐
tual conduct was at the lower end of the assigned category in
two respects. First, Mr. Cunningham had received a six‐level
enhancement because the crime involved between
twenty‐five and one hundred weapons; his particular offense
involved twenty‐six. Similarly, he had the lowest criminal his‐
tory score that could qualify him as a category IV offender. In
the Government’s view, this situation similarly counseled a
sentence at the low end of the guidelines.
Mr. Cunningham’s counsel emphasized Mr. Cunning‐
ham’s troubled upbringing, his falling into a bad crowd, the
health and other challenges faced by his children, and his
16 Id. at 35.
17 Id. at 36.
No. 16‐3543 11
now‐stable home. He noted that his father‐in‐law planned to
turn over his painting business to Mr. Cunningham at his re‐
tirement in five or six years. He requested a below‐guidelines
sentence, which would allow him to inherit the business and
allow the family to keep their home.
Mr. Cunningham offered his own brief statement in which
he apologized for his offenses, spoke of his commitment to a
changed life, and thanked the Government for the oppor‐
tunity to be out of custody on pretrial release “to prove myself
to society that I can function as an upstanding citizen and …
provide for my family through this excruciating time.”18
The court then explained its sentencing decision. It first
noted that, despite the strides Mr. Cunningham had made, he
had committed, nearly contemporaneous with this offense, a
theft offense and another mob‐action offense. Therefore,
while enjoying a happy home life and a stable job, he still had
engaged in a pattern of criminal behavior. The court then
turned to the § 3553(a) factors. It noted that the offenses were
very serious ones with significant aggravating factors, includ‐
ing that weapons still were on the street and had not been re‐
covered by law enforcement. The court also characterized
Mr. Cunningham’s criminal history as significant and aggra‐
vated. The court concluded:
So all in all, in looking at this case, I don’t see
any sentence that I can impose of imprisonment
that would be less than the lower end of the
guideline range. You would have faced, in my
judgment, if you had been incarcerated and not
had an opportunity to show yourself over the
18 Id. at 53.
12 No. 16‐3543
last two years, you would have had—you
would have faced the high end of the guideline
range based on your record.
The Court has given consideration to those
two years you have spent without committing a
crime, and I am going to sentence you at the low
end of the guideline range, but I see no basis for
a downward variance in this very serious crime.
Accordingly, the Court is going to make the fol‐
lowing sentence: You are convicted of three dif‐
ferent offenses, and I am going to sentence you
on Count 1 to 60 months in the Bureau of Pris‐
ons; I am going to sentence him on Count 2 to
12 months in the Bureau of Prisons, consecutive
to that in Count [1]; and in Count 3, I’m going to
sentence him to 116 months in the Bureau of
Prisons, consecutive to that in Counts 2 and 1,
and I’m going to recommend that he be desig‐
nated to a Bureau of Prisons facility nearest
Rockford so he can be close as possible to his
family.
….
The Court, before it imposes the supervised
release—if his wife or whoever is sobbing, if
you want to step outside, you can. It is a little
difficult for him to understand and to take, I
would think, but do what you can.19
19 Id. at 59–61.
No. 16‐3543 13
Because his sentences were consecutive, the sentence im‐
posed was 188 months, the low end of the guidelines range.
After imposing the conditions of supervised release, the court
added,
All right. This has been a very difficult time,
Mr. Cunningham, for you, for your family, for
your friends. It has not been easy for me either.
I have imposed a sentence that I think is appro‐
priate according to law. I encourage those who
are here as his friends to visit him as often as
possible and have his kids do that as well.
You have—it is a long period of time. Things
change. Sometimes the laws change. But it is up
to you how you live your life, but try to live it in
a positive way in the future. That’s all.20
II
DISCUSSION
Mr. Cunningham asks that we consider two issues. He
first submits that the district court violated Federal Rule of
Criminal Procedure 32(i)(4)(A)(ii) when it curtailed the
presentation of witnesses at his sentencing hearing. He also
contends that the resulting sentence was substantively unrea‐
sonable. We will consider these issues in turn.
20 Id. at 65.
14 No. 16‐3543
A.
We first consider whether the district court violated Fed‐
eral Rule of Criminal Procedure 32(i)(4)(A)(ii).21
Federal Rule of Criminal Procedure 32(i) governs the con‐
duct of the sentencing hearing itself.22 Mr. Cunningham
21 At the outset, the parties dispute whether we ought to review this mat‐
ter de novo or for plain error. According to Mr. Cunningham, “counsel
made it absolutely clear that he was asserting his client’s right to present
mitigation evidence,” while he also concedes that counsel at sentencing
did not mention the relevant rule on which Mr. Cunningham relies on ap‐
peal. Reply Br. 3. The Government contends, however, that plain error is
the appropriate standard. Our examination of the record convinces us that
the Government has the better of this argument. Although trial defense
counsel did assert that witnesses would assist the court and make a more
pointed impact on the proceedings than would paper submissions, he also
repeatedly stated that he would work with the court to make the testi‐
mony brief and relevant. Moreover, although counsel indicated that he
had witnesses to present, he never claimed a right to present witnesses,
with or without reference to Rule 32. In any event, our decision would be
the same under either standard.
22 The Rule reads, in full:
(i) Sentencing.
(1) In General. At sentencing, the court:
(A) must verify that the defendant and the de‐
fendant’s attorney have read and discussed the
presentence report and any addendum to the re‐
port;
(B) must give to the defendant and an attorney
for the government a written summary of—or
summarize in camera—any information ex‐
cluded from the presentence report under Rule
No. 16‐3543 15
32(d)(3) on which the court will rely in sentenc‐
ing, and give them a reasonable opportunity to
comment on that information;
(C) must allow the parties’ attorneys to comment
on the probation officer’s determinations and
other matters relating to an appropriate sentence;
and
(D) may, for good cause, allow a party to make a
new objection at any time before sentence is im‐
posed.
(2) Introducing Evidence; Producing a Statement. The
court may permit the parties to introduce evidence on
the objections. If a witness testifies at sentencing, Rule
26.2(a)–(d) and (f) applies. If a party fails to comply
with a Rule 26.2 order to produce a witness’s state‐
ment, the court must not consider that witness’s tes‐
timony.
(3) Court Determinations. At sentencing, the court:
(A) may accept any undisputed portion of the
presentence report as a finding of fact;
(B) must—for any disputed portion of the presen‐
tence report or other controverted matter—rule
on the dispute or determine that a ruling is un‐
necessary either because the matter will not affect
sentencing, or because the court will not consider
the matter in sentencing; and
(C) must append a copy of the court’s determina‐
tions under this rule to any copy of the presen‐
tence report made available to the Bureau of Pris‐
ons.
(4) Opportunity to Speak.
16 No. 16‐3543
grounds his argument in subsection 32(i)(4)(A)(ii). This sub‐
section addresses the right of allocution and requires that the
court “address the defendant personally in order to permit
the defendant to speak or present any information to mitigate
the sentence.” Id. (emphasis added). In Mr. Cunningham’s
view, the italicized language contemplates not only allocu‐
tion, but introduction of any other evidence he wishes to pre‐
sent.
We cannot accept this interpretation. The plain language
of the rule, read in context, is not consistent with Mr. Cun‐
ningham’s reading. First, this portion of the rule, entitled
(A) By a Party. Before imposing sentence, the
court must:
(i) provide the defendant’s attorney an op‐
portunity to speak on the defendant’s behalf;
(ii) address the defendant personally in order to
permit the defendant to speak or present any in‐
formation to mitigate the sentence; and
(iii) provide an attorney for the government
an opportunity to speak equivalent to that of
the defendant’s attorney.
(B) By a Victim. Before imposing sentence, the
court must address any victim of the crime who
is present at sentencing and must permit the vic‐
tim to be reasonably heard.
(C) In Camera Proceedings. Upon a party’s mo‐
tion and for good cause, the court may hear in
camera any statement made under Rule 32(i)(4).
Fed. R. Crim. P. 32(i) (emphasis added).
No. 16‐3543 17
“Opportunity to Speak,” identifies four classes of persons who
must be afforded an opportunity to speak: counsel for each
side, the defendant, and the victims. Mr. Cunningham un‐
questionably was offered and personally exercised that right
at his hearing.
Mr. Cunningham’s principal textual argument is that the
rule allows the defendant himself to “speak or present any in‐
formation,” and that limiting the right to allocution alone spe‐
cifically reads the latter phrase out of the rule. Although he is
correct that there must be some content to that phrase, we be‐
lieve it a significant and unjustified leap to interpret it as be‐
stowing on the defendant the unfettered right to present per‐
sonally the testimony of other witnesses. The rule speaks else‐
where about the introduction of evidence23 and does not em‐
ploy here the same term. Moreover, it indeed would be a rad‐
ical departure from the overall text and manifest intent of the
Rule to permit the defendant personally, not defendant’s coun‐
sel, to introduce evidence.
Most fundamentally, the rule long has been understood to
represent the traditional practice of allocution, a “personal”
right to the defendant. United States v. Luepke, 495 F.3d 443,
449 (7th Cir. 2007). In Luepke, we stated that we had consid‐
ered, “on numerous occasions, a defendant’s right to allocute
and to present evidence in mitigation.” Id. (citing United States
v. Aquilla, 976 F.2d 1044, 1054 (7th Cir. 1992), and United States
v. Barnes, 948 F.2d 325, 330–31 (7th Cir. 1991)). Both cases we
relied on referred to the right to speak personally rather than
23 See Fed. R. Crim. P. 32(i)(2) (“Introducing Evidence; Producing a State‐
ment. The court may permit the parties to introduce evidence on the objec‐
tions.” (emphasis added)).
18 No. 16‐3543
any right to introduce other evidence, such as additional wit‐
ness testimony. See id. As the Supreme Court has recognized,
a defendant’s opportunity to exercise this right is crucial be‐
cause “[t]he most persuasive counsel may not be able to speak
for a defendant as the defendant might, with halting elo‐
quence, speak for himself.” Green v. United States, 365 U.S. 301,
304 (1961) (plurality) (emphasis added).24 The clause allowing
the defendant the right to “present any information,” read in
this traditional context of personal presentation, simply makes
clear that the defendant may do more than traditional allocu‐
tion of admitting the offense and requesting mercy.25
Mr. Cunningham did that here by inviting the attention of the
court to his positive life changes.
24 Indeed, in describing the history of the rule, the Supreme Court
stated:
The design of Rule 32[] did not begin with its prom‐
ulgation; its legal provenance was the common‐law right
of allocution. As early as 1689, it was recognized that the
court’s failure to ask the defendant if he had anything to
say before sentence was imposed required reversal. See
Anonymous, 3 Mod. 265, 266, 87 Eng. Rep. 175 (K.B.).
Taken in the context of its history, there can be little doubt
that the drafters of [the present] Rule … intended that the
defendant be personally afforded the opportunity to
speak before imposition of sentence. … The most persua‐
sive counsel may not be able to speak for a defendant as
the defendant might, with halting eloquence, speak for
himself.
Green v. United States, 365 U.S. 301, 304 (1961) (plurality).
25 See United States v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991) (describing
the historical right as allowing the defendant an “opportunity to plead for
mercy”).
No. 16‐3543 19
As the Government notes, no court has interpreted the
rule cited by Mr. Cunningham as requiring the sentencing
court to allow mitigation witnesses. Indeed, several of our sis‐
ter circuits have made clear that the Rule contemplates no
such right. See, e.g., United States v. Jones, 643 F.3d 275, 277–78
(8th Cir. 2011) (concluding that the trial court’s decision not
to allow a character witness to testify did not violate Rule 32,
where the defendant had an opportunity to speak and the
court heard and considered a brief summary of the proffered
character testimony); United States v. Cruzado‐Laureano, 527
F.3d 231, 238 (1st Cir. 2008) (“Federal Rule of Criminal Proce‐
dure 32 does not give defendants the right to call witnesses in
their behalf at sentencing. The rule only requires the court to
allow the defendant and his attorney to speak.”); United States
v. Claudio, 44 F.3d 10, 16 (1st Cir. 1995) (“[T]here is no auto‐
matic right to present live testimony at sentencing … .”);
United States v. Heller, 797 F.2d 41, 43 (1st Cir. 1986) (“Alt‐
hough the defendant must be given the chance to inform the
court of any mitigating circumstances, he does not have the
right to have others testify for him at a sentencing.”); United
States v. Jackson, 700 F.2d 181, 191 (5th Cir. 1983) (“Hicks ar‐
gues that the requirement in Fed. R. Crim. P. 32(a)(1) that a
defendant be given the opportunity to present information in
mitigation of punishment gives him the right to present wit‐
nesses in his own behalf. … The defendant must be given the
chance to inform the court of any mitigating circumstances,
but we see little advantage to be gained by allowing the de‐
fendant to have others testify for him at sentencing. In fact,
such a judicial extension of the right of allocution would
amount to a trial of the defendant’s character following the
trial of his guilt.”).
20 No. 16‐3543
Mr. Cunningham notes that many of these cases can be
distinguished because they involved claims that the defend‐
ant should have been allowed to introduce witnesses to rear‐
gue the issue of guilt rather than to establish good moral char‐
acter. Although he is correct, the fact still remains that he has
identified no case in which one of our sister circuits has held
that Rule 32 provides any right to call witnesses in mitigation,
for any purpose.26
The Rule and the cases therefore do not establish that the
defendant has a right to present character witnesses in miti‐
gation of sentence. In any event, as the Government correctly
notes, Mr. Cunningham’s counsel at sentencing said that he
wished to present three live witnesses.27 He did so before the
court told him that its usual practice was not to permit live
character witness testimony.28 After the court stated that it
was not typical to hear from witnesses, Mr. Cunningham’s at‐
torney elected to call all three identified witnesses anyway.
At best, then, Mr. Cunningham can assert only that the
district court, by its emphasis on brevity of presentation, un‐
reasonably curtailed the presentation of mitigation evidence.
We have no doubt that a district court’s insistence, especially
repeated insistence, that the defense hurry its presentation of
mitigation evidence, can produce a climate of discomfort in
the courtroom that precipitates an unreasonable truncation or
26 The right to present witnesses and other evidence in mitigation in capital
cases is long established and of constitutional, rather than statutory, prov‐
enance. See, e.g., Paxton v. Ward, 199 F.3d 1197, 1213–14 (10th Cir. 1999)
(discussing the issue as involving the Due Process Clause).
27 R.307 at 4.
28 Id. at 21–22.
No. 16‐3543 21
dilution of this important part, oftentimes the most important
part, of the defendant’s entire case. We also have no doubt
that a district court’s idiosyncratic insistence on its own way
of proceeding, without the notice provided by local rules or
standing orders, can often disadvantage counsel who does
not frequently appear before that particular judicial officer.
District courts have the obligation to ensure that neither of
these barriers become significant obstacles in sentencing pro‐
ceedings, the most solemn part of the criminal process.
Should we encounter in a future case such barriers on defend‐
ants’ rights, we will not hesitate to take appropriate action.
Because such concerns are implicit and explicit in
Mr. Cunningham’s submission to us, we have examined the
record with great care and, as a result of that examination, we
have concluded that no such adverse impact occurred.29
Therefore, because neither the Rule nor our cases establish a
right to the presentation of character witnesses, and because,
on the record before us, the district court afforded Mr. Cun‐
ningham a full and fair opportunity to present his case, there
is no reversible error.
B.
Mr. Cunningham also submits that the sentence imposed
is substantively unreasonable. Notably, Mr. Cunningham ex‐
pressly disclaims any argument that the district court com‐
mitted procedural error by failing to address his principal ar‐
guments at sentencing. Indeed, he acknowledges that any
29 The defendant’s contention that his mother also might have testified is
simply not sustainable. He never told the district court that he wanted his
mother to testify.
22 No. 16‐3543
such claim would be foreclosed by United States v. Garcia‐Se‐
gura, 717 F.3d 566, 568–69 (7th Cir. 2013), where we held that
a district court may avoid a procedural challenge to a sentence
by asking defense counsel at sentencing whether it had ad‐
dressed the defendant’s principal arguments.30
Mr. Cunningham was sentenced at the bottom of the ad‐
visory guidelines range. As both parties acknowledge, a
within‐guidelines sentence is presumptively reasonable, and
it is the defendant’s burden to overcome the presumption.
United States v. Matthews, 701 F.3d 1199, 1203 (7th Cir. 2012).
Mr. Cunningham’s argument on this point is essentially that
the court gave insufficient weight to various mitigating fac‐
tors under § 3553(a). However,
Those factors, which are still mandatory after
Booker (unlike the Sentencing Guidelines them‐
selves), “are broad, vague, and open‐ended,”
leaving the sentencing judge with “considerable
discretion to individualize the sentence to the
offense and offender as long as the judge’s rea‐
soning is consistent with § 3553(a).” United
States v. Wachowiak, 496 F.3d 744, 748 (7th Cir.
2007). Thus, under the deferential abuse‐of‐dis‐
cretion standard, the mere fact that we might
have chosen a different sentence in the first in‐
stance is insufficient for reversal.
30 Reply Br. 12–13. The court did so in this case. See R.307 at 64 (“[I]s there
anything in terms of your argument that I have failed to address? I know
you disagree with the sentence, but is there anything that I haven’t ad‐
dressed?”).
No. 16‐3543 23
United States v. Jackson, 547 F.3d 786, 792 (7th Cir. 2008). “We
will uphold [a] sentence so long as the district court offered
an adequate statement of its reasons, consistent with 18 U.S.C.
§ 3553(a), for imposing such a sentence.” United States v.
Melendez, 819 F.3d 1006, 1013 (7th Cir. 2016) (quoting United
States v. Annoreno, 713 F.3d 352, 359 (7th Cir. 2013) (alteration
in original)). The weight assigned by the district court to the
§ 3553(a) factors is a matter largely within that court’s discre‐
tion. Id. “True, the weighting of th[ose] … factors must fall
within the bounds of reason, but those bounds are wide.” Id.
(quoting United States v. Smith, 721 F.3d 904, 908 (7th Cir.
2013)).
Our examination of the record convinces us that the dis‐
trict court adequately considered the § 3553(a) factors, and we
find no abuse of discretion in the court’s weighing of those
factors to arrive at its ultimate sentence. The court first fo‐
cused on Mr. Cunningham’s criminal record, calling it “sig‐
nificant” and “aggravated.”31 It also considered the serious‐
ness and community impact of the present offense.32 The
court took into account, without prompting from counsel, any
potential for sentencing disparities with codefendants in the
present case and indicated that it would be carefully review‐
ing recommendations for lower sentences for other individu‐
als involved in the same offense. The court also stated that it
was concerned that the present offense was “an extension of
what you had done” before, despite “the opportunity to earn
31 R.307 at 57, 58.
32 The court expressed deep concern about his provision of numerous
weapons to local gang members and that more than ten weapons re‐
mained unrecovered by police.
24 No. 16‐3543
a living, to have a family.”33 “[Y]ou alone are responsible for
the predicament that you have put [your family] in, and that’s
your decision.”34
Mr. Cunningham quite rightly stresses that he made posi‐
tive life changes while on pretrial release, that his family
needs his financial and emotional support, and that he has
support and opportunities available to him that are not com‐
mon to many criminal defendants. The record makes clear,
however, that the district court gave serious consideration to
Mr. Cunningham’s good behavior while on pretrial release
but that, when weighed against his criminal record and its im‐
pact on the community, his recent behavior did not justify go‐
ing below the low end of the guidelines range. The district
court’s scrutiny of Mr. Cunningham’s recent behavior was far
more than cursory. Indeed, the court stated that, if it had been
required to make a sentencing decision on the basis of his rec‐
ord presented at the time of pretrial release, the court would
have imposed a sentence at the high end of the guidelines
range; it was Mr. Cunningham’s improvements during the
pretrial release period that warranted a substantially reduced
sentence.35 Notably, the court pointed out that, despite his as‐
sertions that his family had changed him for the better, he had
committed this and other offenses when his family and em‐
ployment circumstances were both happy and stable.
The sentence is significant, but the court justified it care‐
fully. The court’s determination was tailored with precision
33 Id. at 59.
34 Id.
35 Id. at 59–60.
No. 16‐3543 25
to Mr. Cunningham’s personal circumstances, to the serious‐
ness of the crime, and to its impact on community safety. It is
a substantively reasonable sentence.
Conclusion
Mr. Cunningham was not denied the procedural safe‐
guards set forth in Federal Rule of Criminal Procedure
32(i)(4)(A)(ii). There is no basis for saying that a defendant’s
personal right of allocution requires the district court to allow
character witnesses to testify on a defendant’s behalf. Moreo‐
ver, the court did hear the proffered witnesses in addition to
the substantial written evidence Mr. Cunningham submitted
on the same points. Nor can we say, on the record before us,
that the district court’s handling of sentencing created a coer‐
cive or intimidating atmosphere inimical to a full and fair ex‐
amination of the statutory sentencing factors. Mr. Cunning‐
ham’s low‐end guidelines sentence is presumed reasonable,
and the district court conscientiously considered the § 3553(a)
factors in crafting it. The evidence of record supports firmly
the court’s decision. Accordingly, the judgment of the district
court is affirmed.
AFFIRMED