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Precedential or Non-Precedential: Non-Precedential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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                                                            NOT PRECEDENTIAL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, 

, 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, 

, 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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, 200 (3d Cir. 2006) (citation omitted); see also Boykin v. Alabama, 

, 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.” 

. In conducting this review, we look to the

entire sentencing transcript, and “we will not elevate form over substance.” United States

v. Dragon, 

, 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.” 

. We have

noted that “a within-guidelines range sentence is more likely to be reasonable than one

that lies outside the advisory guidelines range.” 

Finally, the party challenging

the sentence bears the burden to show unreasonableness. 

       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. 

. 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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