United States v. Ksobiech, Bryce R.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 27, 2006
Decided April 12, 2006
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-3495
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of Wisconsin
v. No. 05-CR-0033-S-01
BRYCE R. KSOBIECH, John C. Shabaz,
Defendant-Appellant. Judge.
ORDER
Bryce Ksobiech pleaded guilty to stealing explosive materials, 18 U.S.C.
§ 844(k). Viewing the guidelines as advisory, the district court sentenced him to 18
months imprisonment, the bottom of the applicable range. He now appeals his
sentence claiming that the district court committed plain error by failing to outline
any reasons for his sentence under 18 U.S.C. § 3553(a). He claims that because of
this omission he was effectively sentenced under a mandatory guideline regime in
violation of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220(2005).
In June 2002 Ksobiech stole one and a quarter pounds of C-4 explosives from
the United States Army. In May 2004, his wife reported the theft to the FBI, and
No. 05-3495 Page 2
in June 2005 he pleaded guilty to a one-count indictment for stealing explosive
materials, 18 U.S.C. § 844(k). The PSR proposed a total offense level of 15 and a
criminal history category of one; the resulting guidelines imprisonment range was
18 to 24 months. Ksobiech does not challenge the calculation of the guideline range.
At his sentencing hearing, which took place after the Supreme Court’s
decision in United States v. Booker, Ksobiech moved for a downward departure
because his offense was aberrant behavior, U.S.S.G. § 5K2.20, and also based on the
totality of the circumstances, id. § 5K2.0(c). The district court indicated it would
apply the guidelines as advisory and would “consider as well the statutory purposes
of sentencing set in 18 U.S.C. § 3553(a).” The court found that although Ksobiech
may not have planned in advance to steal the explosives, his behavior was not
aberrant because he later attempted to sell the explosives to fuel his drug addiction.
The court also considered Ksobiech’s military discipline record, young age, and
limited criminal history, and determined that the totality of the circumstances did
not warrant a sentence below the advisory guideline range.
On appeal Ksobiech does not argue that his sentence is unreasonable when
measured against any § 3553(a) factor. Rather, he contends that because the court
made no attempt to outline reasons under § 3553(a) for his guideline sentence, the
court essentially treated the guidelines as mandatory in violation of Booker.
Arguments regarding the district court’s procedures are not to be reviewed under
the reasonableness framework. Instead, we evaluate whether the sentencing court
complied with the proper sentencing procedures and, if it did not, conduct a
harmless error analysis if the government asserts harmlessness. United States v.
Rodriguez-Alvarez, 425 F.3d 1041, 1046 (7th Cir. 2005). We use a nondeferential
standard of review. Id. (citing United States v. Wesley, 422 F.3d 509 (7th Cir.
2005)).
We recently summarized, in Rodriguez-Alvarez, a proper sentencing
procedure for courts to follow. 425 F.3d at 1046. Even though the guidelines are
advisory, judges must continue to correctly calculate the applicable guideline range.
Rodriguez-Alvarez, 425 F.3d at 1046; see also United States v. Vaughn, 433 F.3d
917, 924 (7th Cir. 2006); United States v. Mykytiuk, 415 F.3d 606, 607 (7th Cir.
2005). The defendant must then be given the opportunity to bring to the court’s
attention any factors under § 3553(a) that might warrant a sentence below the
guideline range and the court must resolve any significant factual disputes.
Rodriguez-Alvarez, 425 F.3d at 1046; see also United States v. Dean, 414 F.3d 725,
730 (7th Cir. 2005). The court must consider the § 3553(a) factors in selecting an
appropriate sentence. Rodriguez-Alvarez, 425 F.3d at 1046; see also United States
v. Williams, 425 F.3d 478, 480 (7th Cir. 2005); Dean, 414 F.3d at 728. When
imposing the sentence the court must articulate the reasons that determined the
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sentence, but it need not expressly address each of the § 3553(a) factors. Williams,
425 F.3d at 480. “It is enough that the record confirms that the judge has given
meaningful consideration to the section 3553(a) factors.” Id.The district court completed the required steps in this case. First, there is no
dispute that the court calculated the applicable guideline range and recognized it as
advisory. Next, the court gave Ksobiech the opportunity to argue the § 3553(a)
factors. In his written motion for downward departure and at the sentencing
hearing, Ksobiech’s counsel presented several mitigating factors for the court to
take into consideration. The court resolved the factual dispute over whether
Ksobiech’s behavior was aberrant. It then considered the sentencing factors in
§ 3553(a) when it discussed the serious nature of the offense, the manner in which
Ksobiech committed the crime, Ksobiech’s military record, his age, his criminal
history, and the need “to achieve the sentencing objectives of punishment,
rehabilitation and deterrence.” Because the district court complied with the post-
Booker sentencing procedures, there is no error, and thus no harmless error
analysis is necessary.
Therefore we AFFIRM the district court’s original sentence.