United States v. Gajdik, William J.

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2752
United States of America,
Plaintiff-Appellee,
v.
William J. Gajdik,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 00-CR-10061--Michael M. Mihm, Judge.
Argued December 11, 2001--Decided June 4, 2002
Before Bauer, Ripple, and Rovner, Circuit
Judges.
Rovner, Circuit Judge. Under some
circumstances, convicted felons in
Illinois may serve their sentences in the
"Impact Incarceration" Program, an
alternative to prison styled after the
familiar military basic training program,
or "boot camp," incorporating physical
labor, military formation and drills,
regimented activities, uniform dress and
appearance, as well as education and
counseling. 730 ILCS 5/5-8-1.1. In 1997,
William Gajdik was convicted of burglary
in Illinois and sentenced to five years
in the state penitentiary. Instead of
serving five years, Gajdik completed boot
camp and was released after just 121
days. In June 2000, however, Gajdik
pleaded guilty in federal court to
seventeen counts of mail and wire fraud,
money laundering, and interstate
transportation of stolen currency.
Because the Illinois court had sentenced
Gajdik to a term of five years, the
district court determined that Gajdik’s
prior sentence exceeded thirteen months,
warranting three criminal history points
under U.S.S.G. sec. 4A1.1(a). The
district court sentenced Gajdik to
concurrent 57-month prison terms, the
maximum under the guideline range. Gajdik
argues that his successful completion of
boot camp and subsequent early release
operated to "suspend" the remainder of
his prior sentence, so that the district
court should have assigned two, not
three, points under U.S.S.G. secs.
4A1.1(b) and 4A1.2(b)(2), and sentenced
him to no more than 46 months. We
conclude that the district court
correctly calculated Gajdik’s criminal
history and affirm.
I.
Between January and July 2000, Gajdik
operated a fraud scheme over the internet
site eBay, an electronic venue for
private parties to buy and sell goods at
auction. After a stint of legitimate
transactions, Gajdik began selling
designer sunglasses that he
misrepresented as new and under
manufacturer’s warranty. The sunglasses
were in fact broken and discarded glasses
that Gajdik retrieved from a dumpster
outside of a Peoria distribution
warehouse and reassembled. Gajdik quickly
graduated to auctioningexpensive
merchandise such as Rolex, Auderman
Piquet, and Patek Phillipe watches,
diamonds, collectable coins, and
computers. Gajdik neither possessed nor
intended to obtain or deliver any of
these items. Still, Gajdik’s fraudulent
auctions attracted many bidders, and eBay
users from around the world believing
they were purchasing high-end goods sent
him nearly $700,000. Gajdik deposited
most of this money in a savings account
opened for the purpose of accepting wire
transfers and depositing checks from his
eBay customers. Gajdik’s fraudulent
activities soon came to the attention of
the FBI, which obtained and executed a
search warrant for his Peoria home. By
that time Gajdik had fled Illinois with
$44,000 from the savings account. Federal
agents caught up with him later in
Florida. As a result of these misdeeds,
he was charged in an indictment with ten
counts of mail fraud, 18 U.S.C. sec.
1341, eight counts of wire fraud, 18
U.S.C. sec. 1343, two counts of money
laundering, 18 U.S.C. sec. 1957(a), and
one count of interstate transportation of
stolen currency, 18 U.S.C. sec. 2314.
Gajdik promptly entered a plea agreement
with the government and pleaded guilty to
seventeen of the twenty-one charges. In
the Presentence Investigation Report, the
probation officer recommended grouping
his offenses and a total offense level of
seventeen. Gajdik’s base offense level
was six under U.S.S.G. sec. 2F1.1(a)./1
The probation officer recommended a ten-
level increase under sec. 2F1.1(b)(1) for
causing a total loss of more than
$500,000, a two-level increase under sec.
2F1.1(b)(2) for more than minimal
planning, an additional two-level
increase under sec. 2F1.1(b)(3) for
committing the offenses through mass
marketing, and a three-level decrease
under sec. 3E1.1(b)(2) for acceptance of
responsibility.
The probation officer next recommended
that the district court assign nine
criminal history points. This total
included two points stemming from
Gajdik’s 1997 burglary conviction and
five-year prison sentence in Illinois. In
the 1997 sentencing order, the Illinois
judge recommended that Gajdik be allowed
to serve his sentence through the Impact
Incarceration Program. The Illinois
Department of Corrections (IDOC) accepted
Gajdik into the program and notified the
state court of its decision. Gajdik
successfully completed the program in 121
days, and on July 1, 1997, the IDOC
certified such to the court, which
entered an order reducing his sentence to
time served. Although a prior five-year
prison sentence normally constitutes
three criminal history points under
U.S.S.G. sec. 4A1.1(a), the probation
officer concluded that Gajdik’s
successful completion of boot camp
"suspended" the remainder of the
sentence. Since Gajdik had served fewer
than thirteen months, the probation
officer recommended assigning only two
criminal history points under sec.
4A1.1(b). With the addition of three
points for a prior theft conviction, and
four points for two prior convictions for
passing bad checks, the probation officer
recommended that the district court
assign a total of nine points, placing
Gajdik in criminal history category IV,
with a corresponding guideline range of
37 to 46 months.
The government objected to this
calculation, asserting that Gajdik’s
prior sentence for burglary should count
as three, not two, points. The government
argued that Gajdik had received what was
in effect an indeterminate sentence with
a maximum term of five years, and that
the sentencing judge’s recommendation
that he be considered for boot camp was
merely a suggestion how Gajdik could
statutorily serve his term. The district
court agreed. The additional point bumped
Gajdik to criminal history category V,
increasing his guideline range to 46 to
57 months. The district court sentenced
Gajdik to concurrent terms of 57 months.
Gajdik argues that the Illinois judge’s
recommendation of boot camp, his
successful completion of the program, and
the automatic reduction of his sentence
to time served operated in combination to
transform the remainder of his sentence
into the type of "suspended" sentence
contemplated by U.S.S.G. sec.
4A1.1(b)(2). In the government’s view,
the mandatory reduction of a prison
sentence to time served under the
Illinois statute is a form of prison
incentive program that reduces the time
an inmate serves in prison but does not
suspend the remainder of a sentence. As
such, the government contends that the
district court correctly considered only
the maximum sentence imposed by the state
court in assigning criminal history
points. Whether the district court should
have assigned two or three criminal
history points to Gajdik’s prior state
sentence is a question of law we review
de novo. See United States v. Akinyemi,
108 F.3d 777, 779 (7th Cir. 1997).
II.
Determination of criminal history is
governed by U.S.S.G. sec. 4A1.1. Prior
sentences of imprisonment exceeding one
year and one month generate three points,
U.S.S.G. sec. 4A1.1(a), and shorter
sentences of imprisonment of at least
sixty days generate two points, U.S.S.G.
sec. 4A1.1(b). The guidelines define a
"prior sentence of imprisonment" as "a
sentence of incarceration and refers to
the maximum sentence imposed." U.S.S.G.
sec. 4A1.1(b)(1). Thus, criminal history
points are based on the sentence
pronounced, not the length of time
actually served. U.S.S.G. sec. 4A1.2,
comment. (n.2); United States v.
DePriest, 6 F.3d 1201, 1215 (7th Cir.
1993). Time served in a boot-camp style
program counts as a form of
"imprisonment" under the sentencing
guidelines. See United States v. Brooks,
166 F.3d 723, 726-27 (5th Cir. 1999); cf.
United States v. Timbrook, No. 01-3646,
2002 WL 1065865, at *2 (7th Cir. May 29,
2002) (work release in county jail is
"sentence of imprisonment").
If part of a defendant’s prior sentence
of imprisonment was "suspended," however,
"prior sentence of imprisonment" refers
only to the portion of the sentence not
suspended. U.S.S.G. sec. 4A1.2(b)(2);
DePriest, 6 F.3d at 1215. The statutory
authority to suspend a sentence in
federal court was abolished when the
sentencing guidelines were implemented,
U.S.S.G. Ch.7, Pt.A(2)(a), and the
guidelines do not expressly define
"suspended sentence." By common
definition a "suspended sentence" is a
definite sentence postponed so that the
defendant is not required to serve his
time in prison unless he commits another
crime or violates some court-imposed
condition during a probationary period.
See Alabama v. Shelton, 122 S. Ct. 1764
(2002); Roberts v. United States, 320
U.S. 264, 268 (1943). Additionally, under
the now-repealed federal statute
authorizing suspension of a sentence, 18
U.S.C. sec. 3651, only a court, not an
executive agency, could suspend a
sentence. See United States v. Harris,
237 F.3d 585, 589 (6th Cir. 2001).
With this definition in mind, Gajdik’s
successful participation in the Illinois
Impact Incarceration program did not
operate to "suspend" the remainder of his
five-year sentence for burglary. Rather,
the procedure more closely resembles a
pardon or commutation by the executive.
Although an Illinois inmate’s time in the
program is probationary in the sense that
if he fails to successfully complete the
program, "his term of imprisonment shall
be as set forth by the court in its
sentencing order," 730 ILCS 5/5-8-1.1(a),
the statute does not provide for a
probationary period after the inmate
completes the program and is released.
Moreover, the IDOC, not the court,
ultimately determines whether an inmate
participates in boot camp and is released
early. To participate in the program, the
sentencing judge must first approve the
defendant for placement in the program
after finding that the defendant "may
meet the eligibility requirements of the
[IDOC]," although the statute does not
mandate that the judge actually approve
all prima facie-eligible defendants. Id.
To be eligible, the offender must (1) be
between 17 and 35 years of age; (2) never
have participated in the program before;
(3) not have been convicted of certain
serious felonies such as murder, rape,
kidnapping, and arson; (4) have been
sentenced to a term of imprisonment of
eight years or less; (5) be physically
able to participate in the program; (6)
not have any mental disorder that might
interfere with his participation in the
program; (7) consent in writing to
participation in the program; and (8) be
approved for placement in the court’s
sentencing order. 730 ILCS 5/5-8-1.1(b);
20 Ill. Admin. Code sec. 460.20.
Preliminary approval by the judge does
not guarantee that the defendant will
serve his time in boot camp, however.
Once the IDOC receives custody of an
approved offender, the offender is
transferred, subject to availability of
space, to a reception center for
additional screening for placement in the
program. Ill. Admin. Code sec. 460.30(a).
At that stage the IDOC may consider
additional factors beyond those listed in
the statute. 730 ILCS 5/5-8-1.1(b) para.
2; Ill. Admin. Code sec. 460.30(a). For
instance, the IDOC may decline to place a
prima facie-eligible individual in a boot
camp if it determines that he has
outstanding warrants or a history of
escaping or absconding, if he poses a
safety or security risk, or if space is
not available. 730 ILCS 5/5-8-1.1(b)
para. 2; see also Solorzano-Patlan v.
INS, 207 F.3d 869, 871 & n.4 (7th Cir.
2000) (noting that the IDOC has rejected
offenders recommended for boot camp by
the sentencing court). Additionally, once
approved the offender must maintain his
eligibility for the program and a
positive disciplinary record while
awaiting placement. Ill. Admin. Code sec.
460.30(d). In this respect, the Illinois
procedure is similar to that addressed in
United States v. Schomburg, 929 F.2d 505
(9th Cir. 1991). There, a California
court sentenced the defendant to a 60-day
term of imprisonment, but recommended
that the local Sheriff consider the
defendant for a "weekend work" program.
The Ninth Circuit held that the
defendant’s sentence had not been
"suspended" for purposes of sec. 4A1.2(b)
because whether he served his sentence in
jail or in the work program was at the
sheriff’s, not the court’s, discretion.
Id. at 506-07.
Gajdik points out, however, that the
Illinois statute requires the sentencing
court to order that an inmate’s sentence
"shall be reduced" once the IDOC
certifies that the offender successfully
completed the program. See 730 ILCS 5/5-
8-1.1(a). This, he contends, demonstrates
sufficient judicial involvement in the
process to place the early-release
decision in the hands of the court rather
than the executive agency. In support,
Gajdik relies on United States v. Murray,
No. 97-3871, 1998 WL 552823 (6th Cir.
Aug. 13, 1998) (unpublished), where the
Sixth Circuit held that successful
completion of Ohio’s "shock
incarceration" program operates to
suspend a sentence for purposes of sec.
4A1.2(b)./2 To participate in the Ohio
program, the offender must independently
apply to the program after sentencing. A
committee then reviews the application
and selects eligible applicants according
to specified criteria. Once an applicant
is accepted, the committee notifies the
applicant’s sentencing judge of its
intention to place the applicant in the
program. If the judge believes the
defendant should not participate in the
program, the judge must indicate his
disapproval within 10 days. If the judge
disapproves, the applicant may not
participate in the program and must serve
his sentence. See Ohio Admin. Code sec.
5120-11-03(I). In determining that the
Ohio program operated as a suspension,
the Sixth Circuit concluded that the
sentencing judge’s approval of Murray’s
acceptance into the program reflected the
judge’s assessment that his previous
crime was not so serious as to require a
two-year term in the penitentiary. 1998
WL 552823, at *2. But the Ohio program
differs from the Illinois program in that
Ohio’s program is a "means of early
release on parole." Ohio Admin. Code sec.
5120-11-03(A). Because the Illinois
statute makes no such provision, Murray
provides little assistance in this case.
Our conclusion that the Illinois program
operates as a pardon or commutation
rather than a suspension is also
consistent with the purpose underlying
the criminal history calculation of the
sentencing guidelines. Criminal history
is scored to assess a defendant’s
likelihood of recidivism by taking into
account the seriousness of the
defendant’s past criminal conduct. See
U.S.S.G. Ch.4, Pt.A, intro. comment.;
U.S.S.G. sec. 4A1.1, comment. (backg’d);
U.S.S.G. sec. 4A1.3. None of the
eligibility factors listed in the Impact
Incarceration statute reflect on the
judge’s assessment of the seriousness of
the crime or likelihood of recidivism.
Certainly, a judge confronting an
undeserving offender may in his
discretion decline to recommend boot camp
for myriad reasons, including his belief
that the defendant’s crime was serious
enough to require that the defendant
serve his sentence in a prison. But the
judge is not required to take the
seriousness of the crime into account--
Illinois has determined that, putting
aside factors reflecting the offender’s
physical and mental abilities, any
offender convicted of a felony (except
for very serious crimes such as murder,
rape, kidnapping, or arson, where the
offender is absolutely barred) and
sentenced to eight years of imprisonment
or less may participate in the program.
Considering that the sentencing judge
makes only a preliminary finding of
eligibility for boot camp, the range of
offenders that could fit into this
category, and the lack of contrary
information in the record, we think that
the Illinois judge’s approval of Gajdik
for the boot-camp program did not reflect
an assessment of the seriousness (or lack
thereof) of his crime.
III.
We hold that the legal effect on a
sentence of successfully completing the
Illinois boot-camp program more closely
resembles a commutation or pardon by the
executive. The commentary to the
sentencing guidelines instructs that
pardons for reasons unrelated to
innocence or errors of law are counted
towards criminal history. U.S.S.G. sec.
4A1.2, comment. (n.10); United States v.
Stowe, 989 F.2d 261, 263 (7th Cir. 1993);
United States v. Shazier, 179 F.3d 1317,
1319-20 (11th Cir. 1999). Since Gajdik’s
early release was not based on innocence
or mistake of law, the district court
correctly determined that his 1997
Illinois sentence was a prior sentence of
imprisonment exceeding one year and one
month, and assigned three criminal
history points. Accordingly, we AFFIRM the
judgment of the district court.
FOOTNOTES
/1 Gajdik was sentenced under the guidelines manual
effective November 1, 2000. On November 1, 2001,
the Sentencing Commission deleted U.S.S.G. sec.
2F1.1 and consolidated its provisions as amended
with sec. 2B1.1. U.S.S.G. App. C, amendment 617.
/2 Unpublished decisions generally have no preceden-
tial value in this court. Circuit Rule 53(b)(2)(iv), (e)