United States v. Grzegorczyk

Citation800 F.3d 402
Decision Date01 September 2015
Docket NumberNo. 14–3460.,14–3460.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Zenon GRZEGORCZYK, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Jennie Levin, Attorney, Office of the United States Attorney, Chicago, IL, PlaintiffAppellee.

Andrea Elizabeth Gambino, Attorney, Gambino & Associates, Chicago, IL, for DefendantAppellant.

Before BAUER, KANNE, and WILLIAMS, Circuit Judges.

Opinion

BAUER, Circuit Judge.

Defendant-appellant, Zenon Grzegorczyk, pleaded guilty to knowingly using a facility of interstate commerce with intent that a murder be committed, in violation of 18 U.S.C. § 1958(a), and to knowingly possessing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(a)(1)(A). The district court sentenced Grzegorczyk to a within-Guidelines sentence of 151 months, plus 60 months' imprisonment to run consecutively, for a total sentence of 211 months' imprisonment. Grzegorczyk appeals his sentence, arguing that the district court (1) erred in refusing to apply § 2X1.1 of the United States Sentencing Commission Guidelines Manual to reduce his Guidelines calculation by 3 levels; (2) erred in failing to consider his mental health at the time of the offense; and (3) imposed a substantially unreasonable sentence. We affirm.

I. BACKGROUND

In April 2012, Grzegorczyk met with two undercover law enforcement officers posing as gun suppliers in order to procure firearms to ship to Poland. At some point during the conversation, Grzegorczyk asked the men to step outside, where he proceeded to tell them that he wanted to have killed certain individuals who he held responsible for his divorce and the loss of custody of his son. He explained that he would kill them himself, but that he needed an alibi. He also told the agents that another individual had offered to do the job for $2,000 per person, but that he didn't trust that person. The agents agreed to kill two individuals in exchange for $5,000 per person.

At the next meeting between the agents and Grzegorczyk, which took place a couple of weeks later, Grzegorczyk got into the agents' car and directed them toward the residences of his ex-wife and of two of his intended victims. He also showed the agents photographs of at least three individuals who he wanted killed, provided the agents with descriptions and license plate numbers of two of the intended victims' vehicles, and told the agents that he wanted the murders to be completed before a wedding in early June 2012, which the intended victims were expected to attend. He then confirmed the $5,000 price per person and noted that, since there could be no witnesses, the number of victims could change depending on who was present when the agents arrived to kill the victims.

On May 2, 2012, Grzegorczyk met the agents and presented them with several photographs of additional victims who he wanted murdered, explaining that he wanted a total of six people killed. He told the agents that he wanted them to complete the murders carefully and reiterated the need for no witnesses. He then opened the duffle bag that he had carried with him, which contained $45,000 in cash, a 9mm semi-automatic firearm, and two magazines loaded with forty live rounds of ammunition. He showed the agents the contents of the bag and gave them $3,000 as a down payment for the murders. He also informed the agents that he intended to leave for Poland on June 8, 2012, and that the trip would provide his alibi for the murders.

On May 30, 2012, a federal grand jury returned a four-count indictment against Grzegorczyk, charging him with three counts of knowingly using a facility of interstate commerce with intent that a murder be committed, in violation of 18 U.S.C. § 1958(a) (Count 1 through Count 3), and one count of possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 4). Pursuant to a plea agreement with the government, Grzegorczyk pleaded guilty to Count 3 and Count 4.

At sentencing, Grzegorczyk's adjusted criminal offense level of 34, combined with his criminal history score of 0, yielded an advisory Guidelines range of 151 to 188 months' imprisonment. Additionally, Grzegorczyk was subject to a 60–month consecutive sentence for the firearms offense in Count 4, bringing his total advisory sentencing range to 211 to 248 months. The government advocated for a sentence toward the middle to high end of the Guidelines range, based on the seriousness of the offense and the need to protect the community. Grzegorczyk urged the district court to impose a sentence of no more than 120 months' imprisonment and five years' supervised release. The district court sentenced Grzegorczyk to 151 months' imprisonment on Count 3, followed by a consecutive 60–month term of imprisonment on Count 4, and imposed a three-year term of supervised release on each count, to be served concurrently. This appeal followed.

II. ANALYSIS

We review the district court's interpretation of the Guidelines de novo, and review for clear error the factual determinations underlying the district court's application of the Guidelines. United States v. Harper, 766 F.3d 741, 744 (7th Cir.2014). We review de novo procedural errors that occur when a sentencing court “fails to calculate or improperly calculates the [defendant's] Guidelines range, treats the Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails to adequately explain the basis for the chosen sentence.” United States v. Castro–Alvarado, 755 F.3d 472, 475 (7th Cir.2014). Finally, we review the substantive reasonableness of a sentence for an abuse of discretion. United States v. Conley, 777 F.3d 910, 914 (7th Cir.2015). Sentences that fall within a properly calculated Guidelines range are presumptively reasonable. Id.

A. Application of U.S.S.G. § 2X1.1

Grzegorczyk's first argument is that the district court erred in refusing to apply § 2X1.1 of the United States Sentencing Commission Guidelines Manual (“U.S.S.G.”), which, if applicable, would have reduced his base offense level by three. Section 2X1.1, titled “Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline),” provides for a three-level decrease for solicitation “unless the person solicited to commit or aid the substantive offense completed all the acts he believed necessary for successful completion of the substantive offense....” U.S.S.G. § 2X1.1(b)(3)(A). It also states that “when an attempt, solicitation, or conspiracy is expressly covered by another offense guideline section,” the sentencing court is to apply that Guideline section and not § 2X1.1. Id. at (c)(1). The district court held that § 2X1.1 is inapplicable to Grzegorczyk because his offense conduct is covered by another offense Guideline. We agree.

Grzegorczyk's offense conduct is specifically covered by § 2A1.5 (“Conspiracy or Solicitation to Commit Murder”), which, incidentally, is listed in the Application Notes to § 2X1.1 among the specific offense Guidelines that expressly cover solicitation. See U.S.S.G. § 2X1.1 cmt. n.1. Grzegorczyk does not appeal the district court's determination that § 2A1.5 applies to the underlying conduct of his offense, nor does he appeal the court's use of this section to calculate his base-offense level. He agrees that his offense conduct is covered by § 2A1.5 but argues that, since the offense was never carried through to completion, he is nevertheless entitled to a three-level reduction under § 2X1.1(b)(3)(A). In support of his argument, Grzegorczyk points to the commentary to § 2X1.1, which notes that a reduction of three levels is appropriate “where an arrest occurs well before the defendant or any other coconspirator has completed the acts necessary for the substantive offense.” U.S.S.G. § 2X1.1 cmt. background.

Grzegorczyk's argument fails for two reasons. First, it ignores the plain language of § 2X1.1(c)(1), which instructs the court not to apply § 2X1.1 when a solicitation is expressly covered by another offense Guidelines section. Second, it fails to consider the fact that § 2A1.5 already accounts for instances where the acts necessary for the completion of the crime solicited have not occurred. This is evidenced by specific cross reference instructions directing the court to apply § 2A2.1 if the offense resulted in an attempted murder or assault with intent to commit murder (which would yield a...

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