United States v. Andrzej Pietkiewicz ( 2012 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
May 23, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 11-3296
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 10 CR 767
ANDRZEJ PIETKIEWICZ,
Defendant-Appellant. Ronald A. Guzmán,
Judge.
ORDER
Andrzej Pietkiewicz used phony identification and false loan applications to finance
at least 12 vehicles, mostly luxury cars, from dealers in the Chicago area. Only one vehicle
ever was recovered. Pietkiewicz succeeded in assuming aliases that could withstand credit
checks by paying an Ohio official for authentic credit-history information. In March 2011,
based on this conduct, Pietkiewicz pleaded guilty in the Northern District of Illinois to an
information charging him with committing mail fraud during the period from March 2008
through October 2009. See 18 U.S.C. § 1341. Meanwhile, in the Northern District of Ohio, he
already had pleaded guilty to conspiracy to commit identify fraud, 18 U.S.C. § 1028(f), (a).
That conspiracy, which ran from 2007 until October 2009, involved the same Ohio official
and the same stolen identities.
No. 11-3296 Page 2
Pietkiewicz had been sentenced to six months’ imprisonment on the Ohio case, and
that sentence had been fully discharged by the time he pleaded guilty to the § 1341 count in
the Northern District of Illinois. At sentencing on the § 1341 charge, Pietkiewicz moved for
a below-guidelines prison sentence on the basis of U.S.S.G. § 5K2.23, which provides that a
reduced sentence “may be appropriate if the defendant (1) has completed serving a term of
imprisonment; and (2) subsection (b) of § 5G1.3 . . . would have provided an adjustment
had that completed term of imprisonment been undischarged at the time of sentencing for
the instant offense.” Pietkiewicz argued that he met these conditions and asked for a
reduction to account for his completed six-month term. The government opposed this
request, which the district court rejected without explanation. The court sentenced
Pietkiewicz to 71 months’ imprisonment and ordered him to pay $438,461 in restitution.
Pietkiewicz filed a notice of appeal, but his newly appointed lawyer has concluded
that the appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738(1967). We disagree with counsel’s assessment and deny the motion.
Section 5G1.3(b) of the sentencing guidelines provides that a sentence “shall be
adjusted” to account for the completed portion of an undischarged prison term that was
imposed for “another offense that is relevant conduct to the instant offense of conviction . . .
and that was the basis for an increase in the offense level for the instant offense under
Chapter Two (Offense Conduct) or Chapter Three (Adjustments).” This adjustment is
literally inapplicable when the other sentence has been fully served, but § 5K2.23 explains
that a reduction still “may be appropriate” as a matter of discretion if the other criteria of
§ 5G1.3(b) are met for the discharged sentence. See U.S.S.G. § 5G1.3 cmt. n.4; United States v.
Cruz, 595 F.3d 744, 746 (7th Cir. 2010).
In his Anders brief, counsel reasons that it would be frivolous to argue that the
district court erred in denying Pietkiewicz’s request for a reduction under § 5K2.23
because, counsel asserts, the Ohio conduct was not used to increase Pietkiewicz’s offense
level. Counsel overlooks, however, that the court expressly relied on Pietkiewicz’s purchase
of identity and credit information from the Ohio official in applying two upward
adjustments—one for using “sophisticated means” in committing the mail fraud, U.S.S.G.
§ 2B1.1(b)(10)(C), and the other for participating in an “organized scheme” to steal cars,
id. § 2B1.1(b)(13)(A). These two adjustments added a total of 4 offense levels. Moreover, it is
clear that the court recognized the Ohio conduct as “relevant conduct” because the court
adopted the probation officer’s advice that Pietkiewicz receive zero criminal-history points
for his conviction in the Northern District of Ohio, advice premised on the view that the
charges in both districts are part of the same offense under U.S.S.G. § 4A1.2(a)(1).
No. 11-3296 Page 3
The district court nonetheless denied Pietkiewicz’s § 5K2.23 argument without
explanation. District courts must address nonfrivolous grounds in mitigation and generally
are obliged to explain their choice of sentence. See Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Robertson, 662 F.3d 871, 880 (7th Cir. 2011); United States v. Kilgore, 591
F.3d 890, 893 (7th Cir. 2010). At this stage, we cannot conclude that it would be frivolous for
Pietkiewicz to base an appellate claim on the unexplained denial of his § 5K2.23 argument.
In a written submission the government had argued against a reduction because, according
to the prosecutor, the § 5G1.3 criteria would not be met unless the Northern District of Ohio
conviction “increases his base offense level or factors into the calculation of his criminal
history category” (emphasis added). This understanding of § 5G1.3(b), which Pietkiewicz
disputed, appears to contradict the text of the guideline, and the government cited no
authority supporting its reading. It is arguable, then, that the district court denied
Pietkiewicz’s request for a reduction based on a misunderstanding about the requirements
of § 5K2.23.
We express no opinion on the merits. We decide only that an appellate challenge to
the denial of the motion under § 5K2.23 would not be frivolous and that Pietkiewicz is
entitled to the benefit of briefing by counsel. See United States v. Eskridge, 445 F.3d 930,
931–32 (7th Cir. 2006).
Counsel’s motion to withdraw is DENIED. Briefing will proceed as follows:
1. The brief and required short appendix of the appellant are due by
June 22, 2012.
2. The brief of the appellee is due by July 23, 2012.
3. The reply brief of the appellant, if any, is due by August 6, 2012.
Important Scheduling Notice!
Notices of hearing for particular appeals are mailed shortly before the date of oral argument.
Criminal appeals are scheduled shortly after the filing of the appellant's main brief; civil appeals
after the filing of the appellee's brief. If you foresee that you will be unavailable during a period
in which your particular appeal might be scheduled, please write the clerk advising him of the
time period and the reason for such unavailability. Session data is located at http://
www.ca7.uscourts. gov/cal/calendar.pdf. Once an appeal is formally scheduled for a certain date,
it is very difficult to have the setting changed. See Circuit Rule 34(e).