United States v. Gurinas, Domas , 187 F. App'x 647 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 11, 2006
Decided July 21, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-3817
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff-Appellee, for the Northern District of Illinois,
Eastern Division
v.
No. 04 CR 968
DOMAS GURINAS,
Defendant-Appellant. Samuel Der-Yeghiayan,
Judge.
ORDER
Domas Gurinas was convicted of conspiracy to commit fraud with access
devices, 18 U.S.C. §§ 1029(b)(2), 2. He argues that the district court erred by
refusing to sentence him below the advisory guidelines range. We affirm.
Gurinas pleaded guilty in 2005 for his participation in a credit card fraud
scheme in which he stole credit card information from the clients of the limousine
company at which he was employed. He sold the information to a coconspirator,
who then used it for various illegal purposes, including making fraudulent credit
cards. In all, about 150 individuals were defrauded of approximately $89,000;
Gurinas himself received roughly $1,200 for his participation in the scheme.
In his presentence investigation report, the probation officer calculated
Gurinas’s criminal history category as II by assigning him one criminal history
No. 05-3817 Page 2
point for a prior conviction (theft of two DVD’s from a store display) and two for
participating in the credit card scheme while on probation. This criminal history
category, combined with an offense level of 13, yielded a recommended guidelines
range of 15-21 months’ imprisonment.
At sentencing, Gurinas objected to the recommended guidelines range and
requested that the court adopt a lesser sentence. He argued that his prior
conviction for retail theft was due to “petty and immature” behavior that did not
warrant a Category II criminal history; that category, Gurinas asserted, overstated
the actual seriousness of the crime. Gurinas thus asked the district court to “depart
downward” and sentence him below the recommended guidelines range pursuant to
U.S.S.G. § 4A1.3(b)(1).
The district court rejected Gurinas’s objection and adopted the recommended
guidelines range. The court acknowledged that several factors favored a lesser
sentence, namely Gurinas’s cooperation with law enforcement agents; his
acceptance of responsibility; and the fact that this was his first federal offense. But
the court went on to state that the criminal history category did not over-represent
Gurinas’s criminal history because he was on probation when he committed the
credit card fraud, which, the court also noted, is a very serious crime. The court
thus concluded that the recommended guidelines range was appropriate, and
sentenced Gurinas to 15 months’ imprisonment and three years’ supervised release.
On appeal Gurinas renews the argument that the district court should have
sentenced him below the recommended guidelines range pursuant to § 4A1.3(b)(1).
The resulting sentence, he agues, is unreasonable under United States v. Booker,
543 U.S. 220 (2005), because it overstates the seriousness of his prior conviction for
retail theft and the likelihood that he will commit another crime. Gurinas further
argues that the district court “failed to properly consider [his] history and
characteristics as required by Section 3553(a)” when imposing the sentence.
Section 4A1.3(b)(1) confers upon sentencing courts the discretion to sentence
defendants below the advisory guidelines range “if reliable information indicates
that the defendant’s criminal history category substantially over-represents the
seriousness of the defendant’s criminal history or the likelihood that the defendant
will commit another crime.” U.S.S.G. § 4A1.3(b)(1). Before Booker, a district court’s
decision to “depart downward” under § 4A1.3(b)(1) was discretionary, and thus
unreviewable, unless the district court believed it lacked authority to depart. See,
e.g., United States v. Fish, 388 F.3d 284, 288-89 (7th Cir. 2004); United States v.
Bradford, 78 F.3d 1216, 1223 (7th Cir. 1996). Since Booker, however, the “framing
of the issue as one about ‘departures’ has been rendered obsolete,” and now “what is
at stake is the reasonableness of the sentence, not the correctness” of a departure
ruling. United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005); see United
No. 05-3817 Page 3
States v. Vaughn, 433 F.3d 917, 923-24 & 924 n.11 (7th Cir. 2006); United States v.
Castro-Juarez, 425 F.3d 430, 434-35 (7th Cir. 2005). That is not to say that our pre-
Booker jurisprudence regarding “downward departures” is irrelevant; when
examining whether district courts’ refusal to impose a sentence below the
guidelines range was reasonable, we may seek guidance from our treatment of
§ 4A1.3(b)(1) before Booker. See Castro-Juarez, 425 F.3d at 434-35.
With that said, Gurinas presents no persuasive argument as to why his
sentence is unreasonable. Gurinas does not argue that the district court improperly
calculated his guidelines range; he argues only that the resulting range overstates
the seriousness of his prior retail theft conviction. But we presume that Gurinas’s
sentence is reasonable because it falls within the guidelines range. Gurinas
attempts to rebut this presumption by arguing that the district court failed to
consider the factors outlined in 18 U.S.C. § 3553(a), see United States v. Lange, 445
F.3d 983, 987 (7th Cir. 2006); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005), but the record contains evidence to the contrary. For instance, the court
acknowledged Gurinas’s cooperation with law enforcement agents, his acceptance of
responsibility, and the fact that this was his first federal offense. But ultimately
the court determined that these mitigating factors were outweighed by: (1) the fact
that Gurinas was on probation when he participated in the credit card scheme, and
(2) its belief that credit card fraud is a serious crime. That the court did not afford
the mitigating factors as much weight as Gurinas would have preferred does not
make his sentence unreasonable. See United States v. Baker, 445 F.3d 987, 991-92
(7th Cir. 2006); United States v. Ortiz, 431 F.3d 1035, 1042-43 (7th Cir. 2005).
Our pre-Booker approach to § 4A1.3(b)(1) similarly supports our conclusion
that Gurinas’s sentence is reasonable. We recognized that § 4A1.3 applies only
when “defendants had steered clear of crime for a substantial period of time,” such
as ten years. See United States v. Bradford, 78 F.3d 1216, 1223-24 (7th Cir. 1996)
(citing U.S.S.G. § 4A1.3 cmt. 3). But Gurinas could not have steered clear of crime
for a substantial time if he was probation when he participated in the credit card
scheme.
AFFIRMED.