United States v. Reza Dembowski ( 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NONPRECEDENTIAL DISPOSITION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
Submitted May 30, 2012
Decided May 31, 2012
Before
RICHARD D. CUDAHY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11-2654
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of Wisconsin.
v. No. 10-CR-134
REZA JOHN DEMBOWSKI, C. N. Clevert, Jr.,
Defendant-Appellant. Chief Judge.
ORDER
Reza Dembowski, a manager at a car dealership, stole more than $300,000 from his
employer by submitting phony invoices for advertising and car-installation work that was
never performed. Dembowski pleaded guilty to conspiracy to commit mail fraud, see 18
U.S.C. §§ 1349, 1341, and was sentenced above the guidelines range to 120 months’
imprisonment. Dembowski filed a notice of appeal, but his appointed lawyer has moved to
withdraw because she cannot identify a nonfrivolous issue to pursue. See Anders v.
California, 386 U.S. 738 (1967). Dembowski has not responded to counsel’s motion. See C IR.
R. 51(b). We confine our review to the potential issues identified in counsel’s facially
adequate brief. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
No. 11-2654 Page 2
Because Dembowski has told counsel that he does not want to challenge his guilty
plea, counsel properly refrains from evaluating the adequacy of the plea colloquy or the
voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670–72 (7th Cir. 2002).
Counsel does consider whether Dembowski could challenge the district court’s
calculation of his guidelines range, but rightly concludes that any such challenge would be
frivolous. As counsel notes, we would be unable to review any of Dembowski’s challenges
to the guidelines calculations because he waived them when, at his second sentencing
hearing, he withdrew the objections he had earlier raised. See United States v. Knox, 624 F.3d
865, 875 (7th Cir. 2010); United States v. Venturella, 585 F.3d 1013, 1018–19 (7th Cir. 2009).
And in any event, the court properly calculated a range of 57 to 71 months based on
Dembowski’s offense level of 23 and criminal history category of III.
Counsel also considers whether Dembowski could challenge his 120-month
sentence, which is 49 months above the top end of his guidelines range. But we would
uphold an above-range sentence so long as the district court reasonably applied the factors
in 18 U.S.C. § 3553(a) and adequately explained the penalty. See United States v. Hill, 645
F.3d 900, 911 (7th Cir. 2011); United States v. Abebe, 651 F.3d 653, 657 (7th Cir. 2011); United
States v. Courtland, 642 F.3d 545, 550–51 (7th Cir. 2011). Here, the court emphasized the
nature of Dembowski’s offense conduct, which not only caused “mammoth” losses to his
employer but also “stained” the reputation of the 40-year-old company and deprived 104
coworkers of salary raises. See 18 U.S.C. § 3553(a)(1). The court was also troubled by
Dembowski’s criminal history—which included deceiving the federal government—and
his pattern of deception, including an episode in which Dembowski misled his lawyer to
suggest to the court that he had to return to Wisconsin to help care for his mother who had
cancer, which was not in fact the case. And the court explained that a 10-year sentence was
needed to reassure the public, especially in these recessionary times, that crimes like those
Dembowski committed would result in “substantial” incarceration and penalties. See id.
§ 3553(a)(2)(B), (C).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.