United States of America v. Tony Cushingberry

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 28, 2024
Decided May 30, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-2139
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TONY CUSHINGBERRY,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:20-CR-00112-001
Jane Magnus-Stinson,
Judge.
O R D E R
Tony Cushingberry pleaded guilty to second-degree murder of a United States
employee. Despite a broad appeal waiver in his plea agreement, Cushingberry filed a
notice of appeal. His appointed lawyer asserts that the appeal is frivolous and seeks to
withdraw under Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s brief explains
the nature of the case and raises potential issues that we would expect an appeal like
this to involve. Because the analysis appears thorough, and Cushingberry has not
responded to counsel’s motion, see C IR . R. 51(b), we limit our review to the subjects that
counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-2139 Page 2
On April 27, 2020, Cushingberry was on his mother’s front porch while a letter
carrier was delivering mail on his street. Cushingberry was upset that the letter carrier
had stopped delivering mail to the home because the residents had not signed a letter
promising to restrain their dog. According to the plea agreement, Cushingberry
“aggressively approached” the letter carrier, and as the verbal altercation continued, the
letter carrier sprayed Cushingberry with her defensive spray. Cushingberry then shot
the letter carrier in the chest and fled. The letter carrier was transported to the hospital,
but the gunshot wound proved fatal. Witnesses identified Cushingberry as the shooter,
and Cushingberry later admitted to police that he had shot the letter carrier, then fled
and stashed the gun in the detached garage of his mother’s residence.
Federal authorities arrested Cushingberry on a criminal complaint. He was
indicted on charges of second-degree murder of an employee of the United States,
see 18 U.S.C. §§ 1111, 1114, and discharging a firearm during and in relation to a crime
of violence, see 18 U.S.C. § 924(c)(1)(A)(iii). The grand jury later returned a superseding
indictment with the same charges and an expanded forfeiture allegation.
Cushingberry later entered into a plea agreement, in which he stipulated to the
facts detailed above, admitted to the elements of the second-degree murder charge, and
agreed to plead guilty. Cushingberry acknowledged that the murder charge carried a
statutory maximum sentence of life in prison, a fine of up to $250,000, and not more
than 5 years of supervised release. The prosecutor agreed to dismiss the § 924(c) charge.
The parties also stipulated to an offense-level calculation under the Sentencing
Guidelines: a total of 41 resulting from a base offense level of 38, a six-level increase
based on the victim’s status, and a three-level reduction for acceptance of responsibility.
The agreement contains an appellate waiver in which Cushingberry “expressly waives
[his] right to appeal the conviction and sentence imposed in this case on any ground.”
Cushingberry acknowledged with his signature that he understood the terms of the
plea agreement, which “correctly reflect[ed] the results of plea negotiations,” and that
“no threats, promises, or other representations” had induced his plea.
Then came a plea hearing. The district court conducted a colloquy with
Cushingberry—specifically confirming that he understood the appeal waiver—then
found an adequate factual basis and accepted Cushingberry’s guilty plea. A probation
officer then prepared a presentence investigation report (PSR). The parties submitted
material including their briefs, the report of a mitigation specialist and letters of support
(Cushingberry), and letters from the decedent’s family and from community members
affected by the murder (the government).

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No. 23-2139 Page 3
At the sentencing hearing, the court adopted the presentence investigation
report with no objections, accepted the total offense level of 41, and confirmed a
criminal history category of I based on zero criminal history points. This yielded a
guidelines range of 324 to 405 months in prison. The court heard arguments from the
parties about the appropriate sentence, with Cushingberry requesting a below-
guidelines sentence based on extensive mitigating factors, and the government seeking
an above-range sentence based primarily on the impact of the offense on the victim’s
family and the postal-worker community as well as the high minimum sentence
Cushingberry would get under state law had he been prosecuted in Indiana. After
discussing the sentencing factors under 18 U.S.C. § 3553(a), the court imposed a
sentence of 360 months in prison, three years of supervised release, and a $1,000 fine.
That brings us to this appeal. Counsel tells us that he advised Cushingberry of
the risks and benefits of challenging his guilty plea and confirmed that Cushingberry
does not wish to withdraw his plea. Counsel therefore properly refrains from
discussing the validity of the plea. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir.
2012); United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Counsel next considers whether Cushingberry could challenge his sentence but
rightly concludes that the broad appeal waiver forecloses any such challenge. An
appeal waiver is enforceable if the plea agreement of which it is part is valid.
United States v. Nulf, 978 F.3d 504, 506 (7th Cir. 2020). When a defendant does not wish
to challenge the validity of his plea, we consider only whether the agreement expressly
and unambiguously waived the right to appeal. See id. In the plea agreement here,
Cushingberry expressly waived his “right to appeal the conviction and sentence
imposed in this case on any ground”—a waiver that “specifically include[d] all
provisions of the guilty plea and sentence imposed, including the length and conditions
of supervised release and the amount of any fine.” And Cushingberry confirmed, in the
plea agreement and then under oath at the plea hearing, that he understood and
voluntarily agreed to the waiver. Accordingly, the waiver is enforceable barring
exceptional circumstances. See id.
As counsel rightly points out, no such circumstances exist here. None of the
sentence’s terms—360 months in prison, 3 years of supervised release, and a $1,000
fine—exceed the relevant statutory maximums. See 18 U.S.C. §§ 1111(b), 3583(b)(1),
3571(b)(3). Nor does the record suggest that the district court considered any
constitutionally impermissible factors, such as race, in crafting the sentence.
See United States v. Campbell, 813 F.3d 1016, 1018 (7th Cir. 2016). Counsel considers

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No. 23-2139 Page 4
whether it was appropriate for the court to rely on letters from postal workers around
the country, who were not victims of the offense. We agree with counsel that any
argument on this issue would be frivolous. Even if we could consider reliance on non-
victim statements as an “exceptional circumstance,” there was no such reliance here.
The district court mentioned these letters only once, as something it had reviewed
before the hearing, and it expressly distinguished them from “the actual victim impact
statements from the family of the decedent.” The court did not refer to the letters when
explaining the sentence.
We GRANT counsel’s motion and DISMISS the appeal.

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