United States v. Zenon Grzegorczyk ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-3460
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ZENON GRZEGORCZYK,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 320 — Elaine E. Bucklo, Judge.
ARGUED MAY 26, 2015 — DECIDED SEPTEMBER 1, 2015
Before BAUER, KANNE, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. Defendant-appellant, Zenon Grze-
gorczyk, pleaded guilty to knowingly using a facility of
interstate commerce with intent that a murder be committed,
in violation of 18 U.S.C. § 1958(a), and to knowingly possessing
a firearm in furtherance of a crime of violence, in violation of
18 U.S.C. § 924(a)(1)(A). The district court sentenced Grzegor-
czyk to a within-Guidelines sentence of 151 months, plus 60
months’ imprisonment to run consecutively, for a total
2 No. 14-3460
sentence of 211 months’ imprisonment. Grzegorczyk appeals
his sentence, arguing that the district court (1) erred in refusing
to apply § 2X1.1 of the United States Sentencing Commission
Guidelines Manual to reduce his Guidelines calculation by 3
levels; (2) erred in failing to consider his mental health at the
time of the offense; and (3) imposed a substantially unreason-
able sentence. We affirm.
I. BACKGROUND
In April 2012, Grzegorczyk met with two undercover law
enforcement officers posing as gun suppliers in order to
procure firearms to ship to Poland. At some point during the
conversation, Grzegorczyk asked the men to step outside,
where he proceeded to tell them that he wanted to have killed
certain individuals who he held responsible for his divorce and
the loss of custody of his son. He explained that he would kill
them himself, but that he needed an alibi. He also told the
agents that another individual had offered to do the job for
$2,000 per person, but that he didn’t trust that person. The
agents agreed to kill two individuals in exchange for $5,000 per
person.
At the next meeting between the agents and Grzegorczyk,
which took place a couple of weeks later, Grzegorczyk got into
the agents’ car and directed them toward the residences of his
ex-wife and of two of his intended victims. He also showed the
agents photographs of at least three individuals who he
wanted killed, provided the agents with descriptions and
license plate numbers of two of the intended victims’ vehicles,
and told the agents that he wanted the murders to be com-
pleted before a wedding in early June 2012, which the intended
No. 14-3460 3
victims were expected to attend. He then confirmed the $5,000
price per person and noted that, since there could be no
witnesses, the number of victims could change depending on
who was present when the agents arrived to kill the victims.
On May 2, 2012, Grzegorczyk met the agents and presented
them with several photographs of additional victims who he
wanted murdered, explaining that he wanted a total of six
people killed. He told the agents that he wanted them to
complete the murders carefully and reiterated the need for no
witnesses. He then opened the duffle bag that he had carried
with him, which contained $45,000 in cash, a 9mm semi-
automatic firearm, and two magazines loaded with forty live
rounds of ammunition. He showed the agents the contents of
the bag and gave them $3,000 as a down payment for the
murders. He also informed the agents that he intended to leave
for Poland on June 8, 2012, and that the trip would provide his
alibi for the murders.
On May 30, 2012, a federal grand jury returned a four-count
indictment against Grzegorczyk, charging him with three
counts of knowingly using a facility of interstate commerce
with intent that a murder be committed, in violation of 18
U.S.C. § 1958(a) (Count 1 through Count 3), and one count of
possession of a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A) (Count 4). Pursuant to a
plea agreement with the government, Grzegorczyk pleaded
guilty to Count 3 and Count 4.
At sentencing, Grzegorczyk’s adjusted criminal offense
level of 34, combined with his criminal history score of 0,
yielded an advisory Guidelines range of 151 to 188 months’
4 No. 14-3460
imprisonment. Additionally, Grzegorczyk was subject to a 60-
month consecutive sentence for the firearms offense in Count 4,
bringing his total advisory sentencing range to 211 to 248
months. The government advocated for a sentence toward the
middle to high end of the Guidelines range, based on the
seriousness of the offense and the need to protect the commu-
nity. Grzegorczyk urged the district court to impose a sentence
of no more than 120 months’ imprisonment and five years’
supervised release. The district court sentenced Grzegorczyk
to 151 months’ imprisonment on Count 3, followed by a
consecutive 60-month term of imprisonment on Count 4, and
imposed a three-year term of supervised release on each count,
to be served concurrently. This appeal followed.
II. ANALYSIS
We review the district court’s interpretation of the Guide-
lines de novo, and review for clear error the factual determina-
tions underlying the district court’s application of the Guide-
lines. United States v. Harper, 766 F.3d 741, 744 (7th Cir. 2014).
We review de novo procedural errors that occur when a
sentencing court “fails to calculate or improperly calculates the
[defendant’s] Guidelines range, treats the Guidelines as
mandatory, fails to consider the § 3553(a) factors, selects a
sentence based on clearly erroneous facts, or fails to adequately
explain the basis for the chosen sentence.” United States v.
Castro-Alvarado, 755 F.3d 472, 475 (7th Cir. 2014). Finally, we
review the substantive reasonableness of a sentence for an
abuse of discretion. United States v. Conley, 777 F.3d 910, 914
(7th Cir. 2015). Sentences that fall within a properly calculated
Guidelines range are presumptively reasonable. Id.
No. 14-3460 5
A. Application of U.S.S.G. § 2X1.1
Grzegorczyk’s first argument is that the district court erred
in refusing to apply § 2X1.1 of the United States Sentencing
Commission Guidelines Manual (“U.S.S.G.”), which, if applica-
ble, would have reduced his base offense level by three. Section
2X1.1, titled “Attempt, Solicitation, or Conspiracy (Not
Covered by a Specific Offense Guideline),” provides for a
three-level decrease for solicitation “unless the person solicited
to commit or aid the substantive offense completed all the acts
he believed necessary for successful completion of the substan-
tive offense … .” U.S.S.G. § 2X1.1(b)(3)(A). It also states that
“when an attempt, solicitation, or conspiracy is expressly
covered by another offense guideline section,” the sentencing
court is to apply that Guideline section and not § 2X1.1. Id. at
(c)(1). The district court held that § 2X1.1 is inapplicable to
Grzegorczyk because his offense conduct is covered by another
offense Guideline. We agree.
Grzegorczyk’s offense conduct is specifically covered by
§ 2A1.5 (“Conspiracy or Solicitation to Commit Murder”),
which, incidentally, is listed in the Application Notes to § 2X1.1
among the specific offense Guidelines that expressly cover
solicitation. See U.S.S.G. § 2X1.1 cmt. n.1. Grzegorczyk does not
appeal the district court’s determination that § 2A1.5 applies to
the underlying conduct of his offense, nor does he appeal the
court’s use of this section to calculate his base-offense level. He
agrees that his offense conduct is covered by § 2A1.5 but
argues that, since the offense was never carried through to
completion, he is nevertheless entitled to a three-level reduc-
tion under § 2X1.1(b)(3)(A). In support of his argument,
Grzegorczyk points to the commentary to § 2X1.1, which
6 No. 14-3460
notes that a reduction of three levels is appropriate “where an
arrest occurs well before the defendant or any other co-
conspirator has completed the acts necessary for the substan-
tive offense.” U.S.S.G. § 2X1.1 cmt. background.
Grzegorczyk’s argument fails for two reasons. First, it
ignores the plain language of § 2X1.1(c)(1), which instructs the
court not to apply § 2X1.1 when a solicitation is expressly
covered by another offense Guidelines section. Second, it fails
to consider the fact that § 2A1.5 already accounts for instances
where the acts necessary for the completion of the crime
solicited have not occurred. This is evidenced by specific cross
reference instructions directing the court to apply § 2A2.1 if the
offense resulted in an attempted murder or assault with intent
to commit murder (which would yield a base-offense level
of 38) or § 2A1.1 if the offense resulted in the death of the
victim (which would yield a base-offense level of 43). U.S.S.G.
§ 2A1.5(c). Accordingly, Grzegorczyk’s claim as to the applica-
bility of § 2X1.1(b)(3)(A) to his sentence fails.
B. Grzegorczyk’s Arguments in Mitigation
Grzegorczyk’s second argument is that his sentence was
procedurally unreasonable because the district court failed to
properly weigh the § 3553(a) factors in fashioning his sentence.
Specifically, Grzegorczyk contends that the district court did
not carefully or completely consider the evidence of his mental
health status at the time of the offense and the impact of the
subsequent trauma that he suffered at the Metropolitan
Correctional Center.
At sentencing, the district court is obligated to consider the
§ 3553(a) factors and provide a record for us to review, but it is
No. 14-3460 7
not required to comprehensively discuss each of the factors.
United States v. Moreno-Padilla, 602 F.3d 802, 811 (7th Cir. 2010).
The court is also not required to discuss each factor in checklist
fashion, United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005),
nor extensively address non-principal arguments or “stock
arguments that sentencing courts see routinely,” United States
v. Tahzib, 513 F.3d 692, 695 (7th Cir. 2008). See also United States
v. Shannon, 518 F.3d 494, 496 (7th Cir. 2008) (“The court need
not address every § 3553(a) factor in checklist fashion, explic-
itly articulating its conclusions regarding each one. Instead the
court may simply give an adequate statement of reasons,
consistent with § 3553(a), for thinking the sentence it selects is
appropriate” (internal citations omitted)).
In this case, the sentencing transcript shows that the district
court gave adequate consideration to Grzegorczyk’s principal
argument in mitigation, in accordance with § 3553(a). The
principal argument advanced by Grzegorczyk at sentencing
was that his conduct was not emblematic of how he “normally
behaves.” In support of this point, Grzegorczyk argued that his
actions were brought on by the emotional trauma of his recent
divorce, his history of alcoholism and a personality disorder,
which was diagnosed by the doctor who evaluated his compe-
tency, Dr. Ostrov.1 Contrary to Grzegorczyk’s contention,
however, the district court clearly considered this information
in fashioning Grzegorczyk’s sentence. After noting several
mitigating factors, including the fact that Grzegorczyk had no
1
Although Dr. Ostrov determined that Grzegorczyk was competent,
Grzegorczyk argued that his personality disorder made him act out of
character and behave irrationally.
8 No. 14-3460
criminal history and had received letters of support from many
people, the court acknowledged his history of alcoholism and
personality disorder. The court noted that they were both
factors that it would weigh. However, the court found that
Grzegorczyk was very serious about the murders he solicited
the undercover agents to commit. Furthermore, Grzegorczyk
committed the offense at age fifty-one—an age where, in the
district court’s opinion, individuals have more control over
their emotions and are mature enough to think about the long-
term consequences of their actions. Thus, even considering
Grzegorczyk’s lack of criminal history and the low rate of
recidivism among his age group, the court found that his
particular characteristics cut against his argument that his
behavior would never manifest itself again. From the record
before us, therefore, it is apparent that the court considered
Grzegorczyk’s arguments in mitigation, in light of the other
§ 3553(a) factors, and determined that any mitigating aspects
of the defendant’s mental health or conduct were outweighed
by the seriousness of the offense and risk to the public.
C. Reasonableness of Grzegorczyk’s Sentence
Grzegorczyk’s final argument on appeal is that the district
court imposed a substantively unreasonable sentence of 211
months’ imprisonment in light of his age, risk of recidivism,
and need for rehabilitation. Since Grzegorczyk received a
within-Guidelines sentence, which carries a presumption of
reasonableness, he must overcome a hefty burden to prove its
unreasonableness. See Castro-Alvarado, 755 F.3d at 477; United
States v. Dachman, 743 F.3d 254, 263 (7th Cir. 2014). To rebut
this presumption he must demonstrate that his sentence is
unreasonable when measured against the factors set forth in
No. 14-3460 9
§ 3553(a). United States v. Nitch, 477 F.3d 933, 937 (7th Cir.
2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005). Because he has not offered a valid basis for rebutting the
presumption of reasonableness that the within-Guidelines
sentence enjoys, his final argument fails.
AFFIRMED