United States v. Krasinski, Piotr ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1965
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
P IOTR K RASINSKI,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 251—John W. Darrah, Judge.
A RGUED F EBRUARY 25, 2008—D ECIDED S EPTEMBER 19, 2008
Before R OVNER, W OOD , and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Piotr Krasinski raises several
challenges to the sentence he received for conspiring to
distribute Ecstasy and conspiring to launder monetary
instruments. We find none persuasive. First, we reject
his challenge to the enhancement he received under
U.S.S.G. § 2S1.1(b)(2)(B) because the transfer of money
from the United States to Canada to pay for the pills he
supplied “promoted the carrying on” of the drug conspir-
2 No. 07-1965
acy. Next, the district court did not clearly err when it
estimated the number of pills attributable to Krasinski
by performing a calculation based on the range he admit-
ted in his plea agreement. In light of Krasinski’s admis-
sions that he threatened a cooperating witness and his
family, the district court was also justified in imposing an
obstruction of justice enhancement and denying an ac-
ceptance of responsibility reduction. Finally, Krasinski’s
sentence at the low end of the advisory guidelines range
was reasonable. As a result, we affirm the judgment of
the district court.
I. BACKGROUND
Piotr Krasinski, a Canadian citizen and resident, pled
guilty to conspiring to distribute 3,4 methylenedioxy-
methamphetamine, commonly known as “MDMA” or
“Ecstasy,” in violation of 18 U.S.C. §§ 841(a)(1) and 846. He
also pled guilty to conspiring to launder monetary instru-
ments in violation of 18 U.S.C. § 1956(a)(2). Krasinski
admitted in his plea agreement that from 1999 through
March 2003, he agreed with Piotr Misiolek, Andrzej
Ogonowski, and others to distribute Ecstasy pills. He
further admitted that he generally brokered deals
ranging from 5,000 to 30,000 pills per delivery, that he
delivered pills to the others on approximately eight to
ten occasions, and that on March 5, 2003, he delivered
7,000 pills.
Krasinski typically sold the pills at a cost of $3.50 to
$6 per pill knowing that the pills would be resold for at
least $8 to $10. Krasinski’s co-conspirators sometimes
No. 07-1965 3
brought United States currency into Canada to pay him
for the pills. At other times, Krasinski received payment
in United States currency while in the United States and
then brought the money back to Canada with him, and on
some occasions, Krasinski’s co-conspirators in the United
States sent him money in Canada after the pills had
been delivered.
After his arrest, Krasinski learned that Ogonowski had
provided information to the government concerning
Krasinski’s involvement in the Ecstasy scheme. Krasinski
told another inmate to tell Ogonowski that Krasinski knew
people in Poland who would hurt him if he did not help
Krasinski, and he provided a false story for Ogonowski
to tell. Later, while Krasinski and Ogonowski were trans-
ported to court together, he told Ogonowski that if anyone
testified against him, that person would have his throat
cut. He also made a slashing motion across his throat. The
next month, in a conversation recorded by the govern-
ment, Krasinski suggested he would harm Ogonowski if
he did not follow through with Krasinski’s false story.
Using the United States Sentencing Guidelines in effect
at the time of the sentencing hearing on October 26, 2004,
the district court concluded that Krasinski’s guidelines
range, although he had no criminal history, was 292 to
365 months. The district court imposed a sentence of
292 months’ imprisonment. On appeal, in light of the
United States Supreme Court’s decision its opinion in
United States v. Booker, 543 U.S. 220 (2005), we vacated and
remanded Krasinski’s sentence because it was unclear
whether the district court had applied the guidelines in a
4 No. 07-1965
mandatory or advisory manner. After a new sentencing
hearing, the district again imposed a sentence of 292
months’ imprisonment. Krasinski appeals and raises
multiple challenges to his sentence.
II. ANALYSIS
A. U.S.S.G. § 2S1.1(b)(2)(B) enhancement
Krasinski maintains he should not have received an
enhancement pursuant to U.S.S.G. § 2S1.1(b)(2)(B), which
provides for a two-level enhancement in money
laundering cases “if the defendant was convicted under
18 U.S.C. § 1956.” He did not object to this enhancement
before the district court, so our review is for plain error.
See United States v. Wainwright, 509 F.3d 812, 815 (7th Cir.
2007).
Krasinski pled guilty to conspiring to launder monetary
instruments in violation of 18 U.S.C. § 1956(h). That might
seem to end matters, as he was “convicted under 18 U.S.C.
§ 1956,” but the government does not argue that it does.1
1
Despite the seemingly clear language of U.S.S.G.
§ 2S1.1(b)(2)(B), a conviction under section 1956 does not always
end the inquiry. Application Note 3(C) to the guideline pro-
vides that the section 2S1.1(b)(2)(B) enhancement does not
apply “if the defendant was convicted of a conspiracy under
18 U.S.C. § 1956(h) and the sole object of that conspiracy was
to commit an offense set forth in 18 U.S.C. § 1957.” See also
United States v. Tedder, 403 F.3d 836, 842-44 (7th Cir. 2005)
(discussing Application Note 3(C)). The sole object of Krasinski’s
(continued...)
No. 07-1965 5
Instead, although Krasinski does not challenge his convic-
tion itself in this proceeding, the dispute on appeal con-
cerns whether Krasinski’s conduct was enough to sup-
port his money laundering conviction. Krasinski maintains
that it was not, and, therefore, that the U.S.S.G.
§ 2S1.1(b)(2)(B) enhancement cannot stand.
The federal money laundering statute, 18 U.S.C. § 1956,
contains distinct provisions pertaining to domestic and
international activity. The section pertinent here, section
1956(a)(2), has two subsections, and each criminalizes a
type of international monetary transfer. Krasinski was
charged with violating subsection (a)(2)(A), which prohib-
its transport, transmittal, or transfer of funds out of the
country “with the intent to promote the carrying on of
specified unlawful activity”; it does not refer to “proceeds”
of the activity. The elements of a conspiracy to violate
section 1956(a)(2)(A) are thus that the defendant:
(1) conspired; (2) to transport funds between the United
States and another country; (3) with the intent to pro-
mote the carrying on of specified unlawful activity. See
United States v. Pierce, 224 F.3d 158, 162 (2d Cir. 2000).
Other provisions in the statute, in contrast, specifically
refer to “proceeds.” For example, section 1956(a)(2)(B)
criminalizes certain international transfers that “represent
1
(...continued)
conspiracy was not to commit a section 1957 money laundering
offense, however, so this exception does not apply.
6 No. 07-1965
the proceeds of some form of unlawful activity.” 2 The
domestic provisions require a showing of “proceeds” as
well. See 18 U.S.C. §§ 1956(a)(1), (a)(3).
Pointing to our decision in United States v. Malone, 484
F.3d 916 (7th Cir. 2007), Krasinski maintains that he did
not “promote the carrying on” of any illegal activity. In
Malone, the defendant made cash deliveries that served
as the final step in a drug operation, and a jury convicted
him of conspiring to sell the drugs and conspiring to
commit money laundering. We considered whether
2
Section 1956(a)(2) begins:
Whoever transports, transmits, or transfers, or attempts
to transport, transmit, or transfer a monetary instrument or
funds from a place in the United States to or through a
place outside the United States or to a place in the United
States from or through a place outside the United States—
(A) with the intent to promote the carrying on of
specified unlawful activity; or
(B) knowing that the monetary instrument or funds
involved in the transportation, transmission, or transfer
represent the proceeds of some form of unlawful
activity and knowing that such transportation, trans-
mission, or transfer is designed in whole or in part—
(i) to conceal or disguise the nature, the location,
the source, the ownership, or the control of the
proceeds of specified unlawful activity; or
(ii) to avoid a transaction reporting requirement
under State or Federal law,
shall be sentenced . . . .
No. 07-1965 7
merely making these deliveries constituted transactions
in the “proceeds” of unlawful activity under the money
laundering statute. Concluding they were not, we said that
“unlike the act of reinvesting a criminal operation’s net
income to promote the carrying on of the operation, the
act of paying a criminal operation’s expenses out of gross
income is not punishable as a transaction in proceeds under
§ 1956(a)(1)(A)(i).” 3 Id. at 921 (emphasis added); accord
United States v. Santos, 128 S. Ct. 2020, 2031 (2008) (plurality
opinion) (“proceeds” in 18 U.S.C. § 1956(a)(1) means
“profits,” not “receipts”).
Malone does not help Krasinski because unlike the
provision at issue in Malone, the section Krasinski was
charged with conspiring to violate (section 1956(a)(2)(A))
contains no “proceeds” requirement. See United States v.
Piervinanzi, 23 F.3d 670, 680 (2d Cir. 1994) (”. . . § 1956(a)(2)
contains no requirement that ‘proceeds’ first be gen-
erated by unlawful activity, followed by a financial trans-
action with those proceeds, for criminal liability to at-
tach.”). In fact, Malone actually hurts Krasinski. We ex-
3
The defendant in Malone was charged with violating 18 U.S.C.
§ 1956(a)(1)(A)(i), which makes it a crime when a person,
. . . knowing that the property involved in a financial
transaction represents the proceeds of some form of unlaw-
ful activity, conducts or attempts to conduct such a financial
transaction which in fact involves the proceeds of specified
unlawful activity—
(A)(i) with the intent to promote the carrying on of specified
unlawful activity.
8 No. 07-1965
plicitly noted in Malone that “the promotion element [of
the money laundering statute] can be met by ‘transactions
that promote the continued prosperity of the underlying
offense,’ i.e., that at least some activities that are part and
parcel of the underlying offense can be considered to
promote the carrying on of the unlawful activity.” 484 F.3d
at 921 (quoting United States v. Febus, 218 F.3d 784, 790 (7th
Cir. 2000)). The absence of a “proceeds” requirement in
section 1956(a)(2)(A) reflects that Congress decided to
prohibit any funds transfer out of the country that pro-
motes the carrying on of certain unlawful activity.
The plurality opinion in the Supreme Court’s recent
decision in Santos, 128 S. Ct. 2020, supports our circuit’s
reading of the “promotion” element. In the course of its
discussion of “proceeds” under the money laundering
statute, the plurality noted that dissenting opinions in
the case posited that one way to address an issue con-
cerning the meaning of “proceeds” would be to interpret
narrowly the statute’s “promotion” requirement. Id. at
2027. The plurality characterized such an argument as
follows: “A defendant might be deemed not to ‘promote’
illegal activity ‘by doing those things . . . that are needed
merely to keep the business running,’. . ., because promo-
tion (presumably) means doing things that will cause a
business to grow. See Webster’s 2d, p. 1981 (giving as
one of the meanings of ‘promote’ ‘[t]o contribute to the
growth [or] enlargement’ of something).” Id. The plurality
discounted the argument for a narrow interpretation of
the promotion requirement, stating:
The federal money-laundering statute, however,
bars not the bare act of promotion, but engaging in
No. 07-1965 9
certain transactions “with the intent to promote
the carrying on of specified unlawful activity.” 18
U.S.C. § 1956(a)(1)(A)(i) (emphasis added). In that
context the word naturally bears one of its other
meanings, such as “[t]o contribute to the . . . pros-
perity” of something, or to “further” something.
See Webster’s 2d, p.1981.
Id.
In this case, the international transport and transfer of
funds contributed to the drug conspiracy’s prosperity
and furthered it along. Krasinski was one of Misiolek’s
Ecstasy suppliers in Canada. Krasinski’s co-conspirators
in the United States brought or sent him money in
Canada, and, in return, he supplied them with Ecstasy pills
that were sold in the United States. At other times,
Krasinski received money in the United States and brought
it back with him to Canada to pay for the pills that were
eventually resold in the United States as part of the
conspiracy. That was enough to satisfy the statute’s
promotion requirement, see United States v. Garcia Abrego,
141 F.3d 142, 163 (5th Cir. 1998), and the district court
made no error when it imposed the U.S.S.G.
§ 2S1.1(b)(2)(B) enhancement.
B. Drug quantity calculation
Krasinski also challenges the district court’s calculations
of both the number of pills attributable to him and the
weight of those pills, calculations that were used to set
Krasinski’s base offense level under the guidelines. The
10 No. 07-1965
government has the burden of proving the quantity of
drugs attributable to a defendant for sentencing pur-
poses by a preponderance of the evidence. United States v.
Soto-Piedra, 525 F.3d 527, 529 (7th Cir. 2008). We review
the district court’s factual findings regarding drug quantity
for clear error. Id. We also note that although Krasinski
argues to the contrary, the district court properly used
the version of the guidelines in effect at the time of his
sentencing, instead of an earlier edition, to calculate his
advisory guidelines range. See, e.g., United States v. Ander-
son, 517 F.3d 953, 961 n.1 (7th Cir. 2008); United States
v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006).
Krasinski maintains that the district court erred when
it found him responsible for the sale of 112,000 pills. He
contends he was only responsible for 30,000 pills and
that any amount above that lacks sufficient indicia of
reliability. A defendant has a due process right to be
sentenced on the basis of reliable information, United States
v. Bautista, 532 F.3d 667, 672 (7th Cir. 2008), and a district
court may not base its drug quantity calculation on pure
speculation or “nebulous eyeballing,” United States v.
Jarrett, 133 F.3d 519, 530 (7th Cir. 1998). A seizure of the
drugs involved in the offense, of course, provides
reliable information regarding drug quantity. See Bautista,
532 F.3d at 672. Admissions in a plea agreement also
conclusively establish the admitted facts. United States v.
Warneke, 310 F.3d 542, 550 (7th Cir. 2002) (“An admission
is even better than a jury’s finding beyond a reasonable
doubt; it removes all contest from the case.”).
A district court may use a reasonable estimate of the
quantity of drugs attributable to a defendant for guide-
No. 07-1965 11
lines purposes. United States v. Acosta, 534 F.3d 574, 582
(7th Cir. 2008); see also U.S.S.G. § 2D1.1 cmt. n.12 (“Where
there is no drug seizure or the amount seized does not
reflect the scale of the offense, the court shall approximate
the quantity of the controlled substance.”). Here, Krasinski
admitted in his plea agreement that he delivered be-
tween 5,000 and 30,000 Ecstasy pills on approximately
eight to ten separate occasions. He also admitted delivering
7,000 pills on March 5, 2003. With these statements in
mind, the district court first found that Krasinski delivered
Ecstasy pills on seven occasions, a conservative figure in
light of Krasinski’s admission that he made eight to ten
deliveries. The district court then took note of Krasinski’s
specific admission that he delivered 7,000 pills on one
occasion. For the other six deliveries, the district court
estimated that he delivered 17,500 pills each time, a figure
he calculated by averaging the 5,000- and 30,000-pill
figures. The result was a total of 112,000 pills.
As we have recognized before, arriving at sentencing
determinations through averaging can be problematic. See
United States v. Johnson, 185 F.3d 765, 768-69 (7th Cir. 1999).
“[A]t some point a court’s estimation will seem less like a
restrained approximation and more like unsupported
conjecture.” United States v. Henderson, 58 F.3d 1145, 1152
(7th Cir. 1995). A calculation based on a wide range of
endpoints, for example, is cause for concern. Compare
United States v. Sepulveda, 15 F.3d 1161, 1197 (1st Cir. 1993)
(using midpoint between four ounces and one kilogram
to determine drug quantity erroneous) with United States
v. Webster, 54 F.3d 1, 5-6 (1st Cir. 1995) (upholding use
12 No. 07-1965
of two ounces for circumstances where witness testified
that one to three ounces supplied and eight ounces in
instances where witness stated six to twelve ounces
supplied). Extrapolating from a small number of known
quantities also raises a red flag, especially when the
maximum and minimum amounts are unknown. See
Johnson, 185 F.3d at 769 (vacating sentence where amount
carried on fourth trip determined only by looking to
amount carried on three others); United States v. Shonubi,
998 F.2d 84, 89-90 (2d Cir. 1993) (finding error in assump-
tion that quantity of heroin possessed on one trip repre-
sented typical quantity on eight trips).
The calculation employed by the district court in this
case was not the most conservative one it could have
performed. The district court could have held Krasinski
responsible for a one-time delivery of 7,000 pills, one
delivery of 30,000 pills, and six deliveries of 5,000 pills, a
calculation also consistent with the plea agreement. See
Jarrett, 133 F.3d at 530-31 (approving conservative drug
quantity approximation based on five months of under-
cover purchases and defendant’s admissions). The result
would have been a total of 67,000 pills, and, notably, a
lower offense level for Krasinski. See Presentence Report
at 6 (deeming Krasinski responsible for 80,000 to 240,000
Ecstasy pills).
Nonetheless, we cannot say that the district court’s
decision to hold Krasinski responsible for 112,000 pills was
clearly erroneous. The district court based the number of
deliveries and the range for the quantity of pills in those
deliveries on numbers supplied by Krasinski himself.
No. 07-1965 13
Significantly, unlike in Johnson, we know the maximum
and minimum quantities involved. Cf. Johnson, 185 F.3d
at 765. Moreover, Krasinski states in his sentencing memo-
randum that according to Misiolek, Ogonowski said
Krasinski was responsible for about 100,000 pills, so a
second source supported the decision to hold Krasinski
responsible for between 80,000 and 240,000 pills, the range
of pills in Krasinski’s advisory guidelines range. And
although Krasinski claims that Ogonowski would testify
that Krasinski supplied only 30,000 pills, Krasinski cites
nothing in support of his claim, and Krasinski admitted
to supplying more than that in his own plea.
Krasinski also takes issue with the district court’s use of
the typical weight table in U.S.S.G. § 2D.1.1, Application
Note 11, to estimate that each Ecstasy pill weighed 250
milligrams. The guidelines provide that “[u]nless other-
wise specified, the weight of a controlled substance . . .
refers to the entire weight of any mixture or substance
containing a detectable amount of the controlled sub-
stance.” Id. (emphasis added). The guidelines do not list
Ecstasy or MDMA as substances for which actual drug
weight should be used. See U.S.S.G. § 2D1.1(c)(B). As a
result, as we have recognized before, a defendant who
sells Ecstasy pills “is responsible for the weight of the
whole pill, not just the active ingredient.” United States v.
Roche, 415 F.3d 614, 619 (7th Cir. 2005).
Krasinski emphasizes that the typical weight table
should not be used “if any more reliable estimate of the
total weight is available from case-specific information.”
U.S.S.G. § 2D1.1, cmt. n.11; see also United States v. Gaines,
14 No. 07-1965
7 F.3d 101, 102-03 (7th Cir. 1993). In this case, he maintains,
a more reliable estimate of the total weight exists—that
of the 9,000 pills the government confiscated. Krasinski
asserts that these pills weighed a total of 342 grams, or 38
milligrams per pill. The lab reports in the record, however,
indicate that the seized pills weighed an average of 323
milligrams per pill. Krasinski’s figures appear to be
based on the weight of the active ingredient in the pills
instead of the correct measure, the weight of the entire
pill. Not only was the district court’s decision to use the
typical weight table proper, then, but it also benefitted
Krasinski. The “typical” weight of an Ecstasy pill according
to the guidelines (250 milligrams) is lower than the
average weight of the recovered pills. Accordingly, the
district court’s drug quantity calculations were not
clearly erroneous.
C. Obstruction of justice and acceptance of responsi-
bility
Krasinski also maintains that the district court should
not have imposed an obstruction of justice enhancement
and that it should have granted a reduction for
acceptance of responsibility. We review de novo whether
the district court made appropriate findings to support
the obstruction enhancement, and we examine any under-
lying factual determinations for clear error. United States
v. Johnson, 497 F.3d 723, 725 (7th Cir. 2007). Whether a
defendant accepted responsibility is a factual determina-
tion that we also review for clear error. United States v.
Samuels, 521 F.3d 804, 817 (7th Cir. 2008).
No. 07-1965 15
The guidelines call for a two-point obstruction of justice
enhancement when the defendant “willfully obstructed or
impeded, or attempted to obstruct or impede, the adminis-
tration of justice during the investigation, prosecution, or
sentencing of the instant offense.” U.S.S.G. § 3C1.1. Exam-
ples include “threatening, intimidating, or otherwise
unlawfully influencing a co-defendant, witness, or juror,
directly or indirectly, or attempting to do so.” U.S.S.G.
§ 3C1.1 cmt. n.4(a).
Krasinski argues that the district court should not have
relied on a translation of a recorded February 26, 2004
conversation between Krasinski and another inmate (not
Ogonowski), as he contends the translation is inaccurate.
But the district court did not rely on the February 26,
2004 conversation when it imposed the enhancement.
Instead, it pointed to the conduct Krasinski admitted in
the plea agreement and found that those admissions
warranted the enhancement. Krasinski admitted in his
plea agreement and confirmed during his change of plea
hearing that he attempted to persuade Ogonowski to
change his testimony. He further admitted that he threat-
ened to have others harm Ogonowski if he testified against
Krasinski, including a specific threat that anyone testifying
against him would have his throat cut in Poland. These
admissions were more than sufficient to support the
obstruction of justice enhancement.
The guidelines also provide for a two-level reduction, at
the district court’s discretion, if the defendant “clearly
demonstrates acceptance of responsibility for his offense.”
U.S.S.G. § 3E1.1(a). “When a sentencing court properly
16 No. 07-1965
enhances a defendant’s offense level under § 3C1.1 for
obstructing justice, ‘he is presumed not to have accepted
responsibility.’ ” United States v. Ewing, 129 F.3d 430, 435
(7th Cir. 1997) (quoting United States v. Larsen, 909 F.2d
1047, 1050 (7th Cir. 1990)); see also U.S.S.G. § 3E1.1 n.4
(“Conduct resulting in an enhancement under § 3C1.1
(Obstructing or Impeding the Administration of Justice)
ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct. There may, how-
ever, be extraordinary cases in which adjustments under
both §§ 3C1.1 and 3E1.1 may apply.”). The district court
recognized that it could find Krasinski accepted responsi-
bility even after it imposed an obstruction of justice
enhancement, and we do not find its decision not to do
so clearly erroneous. Krasinski’s threats against Ogonow-
ski were serious. And even though they took place
before he pled guilty, a defendant is not entitled to an
acceptance of responsibility reduction merely for pleading
guilty. See United States v. Jones, 52 F.3d 697, 701 (7th Cir.
1995). Krasinski pled guilty only after his attempts to
obstruct justice failed, and the district court was justified
in concluding that his case was not an extraordinary one.
D. Reasonableness
Finally, Krasinski maintains that his 292-month sentence
is unreasonable. We presume that a sentence within the
properly calculated guidelines range is reasonable, United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and
Krasinski’s sentence is at the low end of this range. In
arriving at the sentence it did, the district court acknowl-
No. 07-1965 17
edged Krasinski’s character letters and lack of criminal
history. In light of the scale of the scheme and Krasinski’s
threats against a witness, however, the district court
decided that the 292-month sentence was appropriate to
meet the goals expressed in 18 U.S.C. § 3553. That decision
was not unreasonable.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
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