United States v. Pietrak , 216 F. App'x 221 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-14-2007
USA v. Pietrak
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4202
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-4202
____________
UNITED STATES OF AMERICA
v.
DENNIS J. PIETRAK,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-cr-00042-18)
District Judge: Honorable William H. Yohn, Jr.
____________
Submitted Under Third Circuit LAR 34.1(a)
December 13, 2006
Before: FISHER, CHAGARES and GREENBERG, Circuit Judges.
(Filed February 14, 2007)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Dennis Pietrak was convicted along with several co-defendants of violations of the
Hobbs Act, and theft and bribery concerning programs receiving federal funds. The
District Court sentenced him to thirty months incarceration and three years of supervised
release. He appeals this sentence, arguing that the two-level upward adjustment for
perjury under United States Sentencing Guidelines § 3C1.1 imposed by the District Court
could only have been made upon a finding by the jury beyond a reasonable doubt.
Because United States v. Booker, 543 U.S. 220 (2005), does not so require, we will affirm
the sentence imposed by the District Court.
I.
As we write only for the parties, we will forgo a lengthy recitation of the factual
and legal background to this case. On January 24, 2002, Pietrak was indicted along with
nineteen other defendants and charged with violations of the Hobbs Act, 18 U.S.C.
§ 1951, and theft and bribery concerning programs receiving federal funds under 18
U.S.C. § 666. These charges stemmed from the submission of false and inflated invoices
to the City of Philadelphia by a vendor. The indictment alleged that city employees,
including Pietrak, approved fraudulent invoices on behalf of the City in return for
kickbacks from the vendor.
The trial began on September 23, 2002. On October 9, 2002, the jury found
Pietrak guilty on both of the counts charged against him.
Pietrak appeared for sentencing before the District Court on March 9, 2004. The
Court agreed with the presentence report that Pietrak’s total offense level was 17.
However, the Government argued that the offense level should be increased by two levels
for obstruction of justice pursuant to U.S.S.G. § 3C1.1 because Pietrak willingly gave
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false testimony about a material matter at trial. Specifically, Pietrak’s sworn testimony
that he had never signed fraudulent invoices or received cash kickbacks was
irreconcilably inconsistent with the jury’s finding that he was guilty of a violation of the
Hobbs Act and theft concerning programs receiving federal funds.
After a hearing in which Pietrak’s counsel conceded that the Pietrak’s trial
testimony was not the result of “confusion, mistake or faulty memory,” the District Court
determined that the two-level upward adjustment under U.S.S.G. § 3C1.1 was
appropriate. The enhancement translated into a Guidelines range of 30 to 37 months.
The District Court sentenced Pietrak to 30 months imprisonment and 3 years of
supervised release, and ordered him to pay restitution.
Pietrak appealed, claiming in part that there was insufficient evidence to support
the obstruction of justice enhancement, and that the enhancement was improper under
Blakely v. Washington, 542 U.S. 296 (2004), because it had not been found by a jury
beyond a reasonable doubt.1 On July 15, 2005, we affirmed his conviction and remanded
the case for resentencing in light of the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005).
Resentencing occurred on September 1, 2005. At the hearing, the District Court
reimposed the same sentence based on a Guidelines range reflecting the two-level
1
The Supreme Court had not yet decided United States v. Booker, 543 U.S. 220(2005), when the Defendant filed his brief.
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obstruction of justice enhancement. In contrast, the District Court issued slightly reduced
sentences to Pietrak’s co-defendants whose sentences had also been remanded under
Booker. Pietrak now appeals.
II.
We exercise jurisdiction under 28 U.S.C. § 1291. Our review is plenary when
considering the application of the Sixth Amendment right to a jury trial to a sentencing
decision. United States v. Barbosa, 271 F.3d 438, 452 (3d Cir. 2001). We also exercise
plenary review over a District Court’s application of the Sentencing Guidelines. United
States v. Abrogar, 459 F.3d 430, 433-34 (3d Cir. 2006). Once we are satisfied that the
Guidelines range was correctly calculated, we review the resulting sentence for
reasonableness. United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006).
Pietrak’s primary argument is that the District Court erred by imposing a two-level
enhancement for obstruction of justice, when no perjury was ever found by a jury beyond
a reasonable doubt. However, Booker only applies to facts “necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of guilty or
a jury verdict.” 543 U.S. at 244. Pietrak’s 30 month sentence was well within the 10 year
maximum authorized in 18 U.S.C. § 666 and the 20 year maximum authorized in 18
U.S.C. § 1951. As we recently emphasized in United States v. Grier, -- F.3d --, 2007 WL
315102 (3d Cir. Feb. 5, 2007),
[f]acts relevant to application of the Guidelines – whether or not they
constitute a “separate offense” – do not [increase the statutory maximum
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punishment to which the defendant is exposed]. They inform the district
court’s discretion without limiting its authority. They therefore do not
constitute “elements” of a “crime” under the rationale of Apprendi and do
not implicate the rights to a jury trial and proof beyond a reasonable doubt.
Id. at *8 (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)) (internal citations
omitted). Thus, the District Court did not err when it found by a preponderance of the
evidence that Pietrak had lied under oath and applied the two-level enhancement.
Pietrak also argues that the District Court acted “unreasonably” because it reduced
the sentences of his co-defendants on remand, but reimposed the same sentence on him.
He claims that this disparity is explained by the fact that he was the only one to testify at
trial, and thus the two-level perjury enhancement “has a chilling effect for all other
defendants who wish to testify at their trials in the federal system.” However, the
Supreme Court has explained that defendants “cannot contend that increasing [their]
sentence because of [their] perjury interferes with [their] right to testify, for we have held
on a number of occasions that a defendant’s right to testify does not include a right to
commit perjury.” United States v. Dunnigan, 507 U.S. 87, 96 (1993). Finally, neither the
letter nor the spirit of Booker requires that a defendant’s sentence be reduced on remand,
as Pietrak suggests.
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In sum, the District Court did not err in applying the two-level obstruction of
justice enhancement to Pietrak’s sentence, and he has offered no reason why his sentence
at the bottom of the Guidelines range is unreasonable under Booker.2
III.
For the foregoing reasons, we will affirm the sentence imposed by the District
Court.
2
Nor has our review of the record uncovered any reason why Pietrak’s sentence is
unreasonable. The District Court properly considered the § 3553(a) factors and the
sentencing grounds raised by the parties. See Cooper, 437 F.3d at 332.
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