United States v. Joseph Kozicki , 679 F. App'x 505 ( 2017 )

NONPRECEDENTIAL DISPOSITION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
Argued January 17, 2017
Decided March 9, 2017
Before
FRANK H. EASTERBROOK, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 16-2434
Appeal from the
UNITED STATES OF AMERICA, United States District Court for the
Plaintiff-Appellee, Central District of Illinois.
v. No. 14-CR-20041
JOSEPH KOZICKI, Sue E. Myerscough,
Defendant-Appellant. Judge.
ORDER
Joseph Kozicki pleaded guilty to defrauding the United States in violation of
18 U.S.C. § 1031. The presentence report calculated an advisory sentencing guidelines
range of 30 to 37 months. The government requested 30 months’ imprisonment. Kozicki
asked that the court sentence him to a term of probation with no jail time, citing his
extremely poor health. According to the presentence report, Kozicki suffers from
coronary artery disease, hypertension, hyperlipidemia, diabetes, postherpetic neuralgia,
and congestive heart failure.
No. 16-2434 Page 2
The district judge sentenced Kozicki to 15 months’ imprisonment and 3 years of
supervised release. At sentencing the judge acknowledged Kozicki’s health problems
but determined that adopting Kozicki’s request for no jail time would be inequitable
and create an unwarranted sentencing disparity. In the written judgment, the judge
formally recommended that the Bureau of Prisons (“BOP”) place Kozicki in a facility
that the BOP could assure the court would be appropriate given his medical conditions.
Kozicki appealed, arguing that the judge committed procedural error by
“dictat[ing] to the [BOP] where Mr. Kozicki should be housed” and imposing a
“substantively unreasonable sentence that could likely result in Mr. Kozicki’s death in
prison for a non-violent offense.” Shortly thereafter Kozicki moved to extend his BOP
reporting date because of a scheduled heart surgery. The judge granted his motion and
at the same time corrected what she deemed a clerical error in the original judgment
because it did not include her oral recommendation that Kozicki be placed in a facility
in Southern California near his medical providers. See FED. R. CRIM. P. 36.
Kozicki’s main complaint is that the judge erred procedurally by dictating his
place of incarceration. But the judge did no such thing. Rather, she recommended that
Kozicki be placed in a facility that could care for his medical needs; in the amended
order, she recommended that he be placed in a facility in Southern California near his
doctors. The judge was well within her rights to make these statements: “A sentencing
court can recommend that the BOP place an offender in a particular facility or program.
But decisionmaking authority rests with the BOP.” Tapia v. United States, 564 U.S. 319,
331 (2011) (citation omitted); see also 18 U.S.C. § 3582(a) (“In determining whether to
make a recommendation concerning the type of prison facility appropriate for the
defendant, the court shall consider any pertinent policy statements issued by the
Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2).”).
Kozicki’s real point seems to be that the 15-month sentence is substantively
unreasonable because the judge thought the BOP would follow her recommendation as
if it were mandatory. The judge’s remarks do not support that interpretation. In fact,
she indicated a number of times that her statements on prison location were meant as a
recommendation—not an edict—to the BOP. In justifying the amendment to the
original judgment, the judge reasoned that the first judgment failed to “include the
Court’s full recommendation.” And at a postjudgment motion hearing to extend
Kozicki’s reporting date due to health issues, the judge noted: “Obviously, [the BOP] is
taking that recommendation [to place Kozicki near his doctors] seriously and trying to
comply with my wishes … .”
No. 16-2434 Page 3
Nor is 15 months’ imprisonment a substantively unreasonable sentence. We
review a sentence for substantive reasonableness under an abuse of discretion standard,
United States v. Annoreno, 713 F.3d 352, 356–57 (7th Cir. 2013), and we presume that any
sentence within a properly calculated advisory guidelines range is reasonable, United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Here, the sentence imposed was
significantly lower than the guidelines range, and we have “never deemed a below-
range sentence to be unreasonably high.” United States v. Wallace, 531 F.3d 504, 507 (7th
Cir. 2008).
The judge did not err in recommending Kozicki’s place of incarceration to the
BOP, nor did she abuse her discretion in sentencing Kozicki to 15 months’
imprisonment.
AFFIRMED.