[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 27, 2008
No. 07-14220 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00255-CR-2-CLS-PWG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDDIE CUNNINGHAM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(March 27, 2008)
Before BIRCH, DUBINA and FAY, Circuit Judges.
PER CURIAM:
Eddie Cunningham appeals his conviction and 180-month sentence for
possession of firearms by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(e)(1). On appeal, Cunningham argues that the evidence presented at trial
was not sufficient to establish that he had constructive possession, that is,
dominion and control, over the shotguns found inside his home. Cunningham
asserts that the evidence shows that only his wife had dominion and control over
the shotguns. Cunningham further contends that his mere presence in the home, or
his knowledge of the location of the shotguns, is insufficient to establish
constructive possession. Second, Cunningham argues that the district court failed
to sufficiently instruct the jury on the law of possession, specifically, the issue of
“dominion and control.” Cunningham contends that, as a result, the jury did not
understand the issues involved.
Last, Cunningham argues that his 180-month sentence, imposed pursuant to
the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e) and U.S.S.G.
§ 4B1.4(a), constitutes cruel and unusual punishment because it is greatly
disproportionate to the offense that was committed. Cunningham asserts that this
is particularly true because his qualifying prior felony convictions occurred
approximately 20 years before the instant offense. Cunningham also asserts that
the ACCA-enhanced sentence does not allow the district court to adequately
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consider significant factors such as his age at the time of the prior offenses, his
rehabilitation since those convictions, and the circumstances involved in the instant
offense.
For the reasons set forth more fully below, we affirm Cunningham’s
conviction and sentence.
I.
We review de novo “whether there is sufficient evidence to support the
jury’s verdict.” United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003). We
will affirm the jury’s verdict “if a reasonable trier of fact could conclude that the
evidence establishes guilt beyond a reasonable doubt.” Id. (quotation omitted). On
review, the evidence is viewed “in the light most favorable to the government, with
all reasonable inferences and credibility choices made in the government’s favor.”
Id. (quotation omitted).
“Under 18 U.S.C. § 922(g)(1), it is unlawful for a felon to possess a firearm.
Section 922(g)(1) requires the government to prove ‘three distinct elements:’
(1) that [the defendant] was a convicted felon; (2) that [the defendant] knew he was
in possession of a firearm; and (3) that the firearm affected or was in interstate
commerce.” United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004).
“Possession can be shown by circumstantial as well as direct evidence . . . [and] . . .
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can be either actual or constructive[.]” United States v. Crawford, 906 F.2d 1531,
1535 (11th Cir. 1990). “A defendant has constructive possession if he exercises
ownership, dominion, or control over the firearm. A defendant also has
constructive possession if he has the power and intention to exercise dominion or
control. The defendant may exercise that dominion and control either directly or
through others.” United States v. Gunn, 369 F.3d 1229, 1235 (11th Cir. 2004)
(citations omitted).
The record establishes that Cunningham stipulated that he was a convicted
felon. As to Cunningham’s knowledge that he was in possession of a firearm, the
record indicates that Cunningham’s wife, Dannye, purchased two Mossberg
12-gauge shotguns as a birthday present for Cunningham. Dannye took the
shotguns to her father’s house, and after his death, to her mother’s house, where
they remained until October 2004. Cunningham and Dannye separated in October
2004 and Cunningham moved in with Elliot Jackson. After Cunningham moved
out, Dannye brought the shotguns back to the home they had shared.
On February 7, 2005, Cunningham returned to the family home to speak
with Dannye. Dannye and Cunningham engaged in a heated argument and
Cunningham’s step-daughter called the police to resolve the dispute. Although the
evidence indicates that Cunningham was not living with his wife at that time, there
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is no dispute that two shotguns were found inside the house that night. One of the
shotguns was found in a basement bedroom. The record indicates that
Cunningham was in the basement when the officers entered the house, and that he
initially refused to cooperate with the officers’ instructions to exit the basement,
instead “taunting” the officers by remaining partially hidden and only revealing
one hand at a time. Later, Cunningham admitted that there was a shotgun in the
basement bedroom, and physically pointed out the location of the gun to one of the
officers. Earlier, Dannye advised the officers that there was a gun underneath the
bed in the upstairs master bedroom. While leaving the house, Cunningham
confirmed that his wife had bought the shotguns for him as a birthday present and
noted that he could not purchase guns because he was a convicted felon. Further,
both shotguns were manufactured in Connecticut and, thus, had traveled in
interstate commerce. Accordingly, these facts support a finding that Cunningham,
a convicted felon, had constructive possession of the shotguns found in his home
on February 7, 2005. See Wright, 392 F.3d at 1273; Gunn, 369 F.3d at 1235.
Therefore, viewing the evidence in the light most favorable to the government, we
conclude that there was sufficient evidence to convict and affirm as to this issue.
II.
Where the defendant fails to object to a jury instruction before the district
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court, our review of that instruction is for plain error. Wright, 392 F.3d at 1277.
Under plain error review, there must be: “(1) error, (2) that is plain, and (3) that
affects substantial rights. If all three of those conditions are met, the court may
exercise its discretion to notice a forfeited error but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” United
States v. LeCroy, 441 F.3d 914, 930 (11th Cir. 2006); Wright, 392 F.3d at 1277.
Here, the district court’s jury instruction mirrored the pattern jury instruction
from this Circuit regarding the law of possession. The court’s instruction was
proper because it informed the jury members that in order to find that Cunningham
possessed the subject firearm(s), they had to find that he either had direct physical
control over it or had the power and the intent to exert control over it.
Additionally, the court’s instruction reflected an accurate statement of the law.
See Gunn, 369 F.3d at 1235; Crawford, 906 F.2d at 1535. Accordingly, the
district court did not plainly err in instructing the jury on the law of possession, and
we affirm as to this issue.
III.
We have declined to review a claim that a sentence constituted cruel and
unusual punishment when the argument was not raised in the district court. See
United States v. Sanchez, 138 F.3d 1410, 1417 (11th Cir. 1998) (refusing to
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consider Eighth Amendment argument, where defendant’s sentence was enhanced
through a “career offender provision,” because the defendant did not raise it in the
district court). However, we have reviewed a constitutional challenge to a sentence
not raised in the district court for plain error. United States v. Swatzie, 228 F.3d
1278, 1281 (11th Cir. 2000). To correct plain error, we first must find (1) error, (2)
that is plain, and (3) that affects substantial rights. “If all three conditions are met,
an appellate court may then exercise its discretion to notice a forfeited error, but
only if (4) the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id.
The ACCA provides that any person convicted of an offense under 18
U.S.C. § 922(g) who has 3 previous convictions for a violent felony or a serious
drug offense, is subject to a 15-year mandatory minimum sentence. 18 U.S.C.
§ 924(e)(1). A “violent felony” is defined as an offense punishable by a term
exceeding one year that (1) “has as an element the use, attempted use, or threatened
use of physical force against the person of another,” or (2) is, inter alia, burglary or
“involves conduct that presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B). The record indisputably established that
Cunningham was convicted of five separate instances of armed robbery, in
violation of Ala. Code § 13A-8-41, an offense punishable under Alabama law by
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20 years to life imprisonment pursuant to Ala. Code § 13A-5-6(a)(1), (5).
Accordingly, the district court properly found that Cunningham was subject to the
increased sentence under the ACCA.
“In non-capital cases, the Eighth Amendment encompasses, at most, only a
narrow proportionality principle.” United States v. Brant, 62 F.3d 367, 368 (11th
Cir. 1995) (citing Harmelin v. Michigan, 501 U.S. 957, 985-994, 111 S.Ct. 2680,
2696-2701, 115 L.Ed.2d 836 (1991)). We must make a threshold determination
that the sentence imposed is grossly disproportionate to the offense committed, and
only if we so find must we then consider sentences imposed on others in the
jurisdiction and for commission of the same crime in other jurisdictions. United
States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000).
In Reynolds, the defendant pled guilty to violating 18 U.S.C. §§ 922(g)(1)
and 924(e), and was sentenced under the ACCA to 180 months’ imprisonment. Id.
at 1212-13. Reynolds’s triggering offenses included felony convictions for
delivery of cocaine, burglary, and aggravated battery. Id. at 1212. Although
Reynolds argued that his sentence was disproportionate because his possession of a
firearm was for an innocent reason, specifically, to prevent a teenager’s access to
the firearm, we reasoned that “[s]ections 922(g) and 924(e)(1) . . . do not focus on
the motive or purpose of the current possession of firearms, but rather on the fact
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that a person with three or more violent felony or serious drug convictions
currently possesses a firearm.” Id. at 1214 (citation omitted). We held that the
15-year sentence was not grossly disproportionate to the § 922(g) offense, and that
the ACCA did not impose cruel and unusual punishment. Id.
Here, Cunningham was convicted under the same statutes and was sentenced
to the same term of imprisonment as Reynolds. In addition, Cunningham’s
qualifying prior convictions, which included five state convictions for armed
robbery, arguably were as serious, if not more so, than the qualifying offenses in
Reynolds. Accordingly, we hold that Cunningham’s sentence is not grossly
disproportionate to his offense of conviction, and therefore, does not violate the
Eighth Amendment. Moreover, to the extent that Cunningham argues that the
application of the ACCA based on 20-year-old prior convictions results in an
unconstitutionally disproportionate sentence, he misinterprets the applicable
analysis. The test for an Eighth Amendment violation is whether the sentence was
grossly disproportionate to the offense for which the sentence was imposed.
Reynolds, 215 F.3d at 1214. Further, to the extent that Cunningham argues that
the application of the ACCA does not allow the court to consider mitigating
circumstances such as his age at the time of the prior offenses, his subsequent
rehabilitation, and the facts surrounding the instant offense, the district court
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expressly acknowledged and considered these circumstances in its analysis of the
§ 3553(a) sentencing factors. Accordingly, Cunningham has failed to show plain
error.
In light of the foregoing, Cunningham’s conviction and sentence are
AFFIRMED.
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