U.S. v. Ciszkowski, 8:05-cr-36-T-23TBM.

• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
• Citation: 430 F.Supp.2d 1283
• Docket Number: No. 8:05-cr-36-T-23TBM.,8:05-cr-36-T-23TBM.
• Parties: UNITED STATES of America v. Wojtek CISZKOWSKI.
• Decision Date: 02 May 2006

430 F.Supp.2d 1283 UNITED STATES of America
v.
Wojtek CISZKOWSKI. No. 8:05-cr-36-T-23TBM. United States District Court, M.D. Florida, Tampa Division. May 2, 2006.

Page 1284

W. Stephen Muldrow, U.S. Attorney's Office, Tampa, FL, for Plaintiff.

SENTENCING MEMORANDUM

MERRYDAY, District Judge.

During 2003 and 2004, the Drug Enforcement Administration (DEA) investigated the smuggling of 3,4-methylenediox-ymethamphetamine (MDMA) into the United States from Poland. Consequently, Jacek Kozlowski, Chris Muszynski, Edward Chrostowski, and Maciej Slawomir Zaczykiewicz were indicted in United States v. Jacek Kozlowski, et al., Case No. 8:04-cr-2197T-23MAP (the Kozlowski case).

In September, 2004, Wojtek Ciszkowski approached Witold Arabasz, an acquaintance of Ciszkowski's and a prolific confidential informant in the Kozlowski case. According to Arabasz, Ciszkowski told Arabasz that he "was going to pay," which Arabasz interpreted as a threat of retaliation for Arabasz's cooperation with law enforcement in the Kozlowski case. Although puzzled that Ciszkowski knew of Arabasz's cooperation, Arabasz regarded Ciszkowski as a credible threat. As a result of Arabasz's report to law enforcement about Ciszkowski's threat, Arabasz and his family entered the federal witness protection program.

In January, 2005, under the explicit directions of law enforcement, Chrostowski contacted Ciszkowski, identified himself as one of the defendants in the Kozlowski case, and claimed that Arabasz was the informer who caused Chrostowski's arrest. Chrostowski proposed that Ciszkowski assist Chrostowski by killing Arabasz. In response, Ciszkowski suggested that he would kill Arabasz for a sufficient sum of money.

Later in January, 2005, Ciszkowski traveled to Bal Harbour, Florida (in Miami Dade County), and met Chrostowski. Ciszkowski and Chrostowski discussed Arabasz's role as a government informant, the related arrest of several Polish-Americans, and Ciszkowski's further interest in killing Arabasz.

On January 26, 2005, Ciszkowski and Chrostowski met and again discussed killing Arabasz. To effect the killing of Arabasz, Chrostowski promised to provide Ciszkowski a firearm; 20,000 MDMA pills worth $40,000; and $10,000 in cash as a down payment on the fee for shooting Arabasz. Ciszkowski and Chrostowski agreed to meet the next day for Chrostowski to deliver to Ciszkowski the gun, the MDMA, and the cash.

On January 27, 2005, Ciszkowski and Chrostowski met in a Clearwater, Florida, restaurant, and Chrostowski stated that he wanted Arabasz killed before March 3, 2005, Chrostowski's next court appearance in the Kozlowski case. Because of planned travel to Illinois and Connecticut, Ciszkowski complained of inadequate time to complete the attack on Arabasz. As the meeting concluded, Ciszkowski and Chrostowski walked across the parking lot to the rear of Chrostowski's car, Chrostowski opened the trunk and unzipped a duffle bag, and Ciszkowski looked down into the bag. Inside were an unloaded Ruger semi-automatic .22 caliber pistol equipped with a silencer; $10,000 in currency; and 20,000 MDMA pills (some actual and some counterfeit). Ciszkowski took the duffle bag, walked with the bag to his vehicle, and placed the bag on the passenger's seat. As Ciszkowski began to leave, law enforcement surrounded his vehicle. Refusing to exit the vehicle, Ciszkowski was forcibly removed and arrested.

The grand jury indicted (Doc. 18) Ciszkowski on six counts for (1) using a facility

Page 1285

of interstate commerce with the intent to commit a murder-for-hire contrary to 18 U.S.C. § 1958, (2) possessing MDMA with the intent to distribute, (3) possessing a firearm equipped with a silencer in furtherance of a crime of violence contrary to 18 U.S.C. § 924(c)(1)(A) and 924(c)(1)(B)(ii), (4) attempting to kill to prevent the testimony of a witness in a federal criminal case contrary to 18 U.S.C. § 1512(a)(1)(A), and (5 and 6) possessing marijuana on two occasions with the intent to distribute contrary to 21 U.S.C. § 841(a)(1) and 841(b)(1)(D). A jury trial resulted in Ciszkowski's conviction (Doc. 87) on counts, one through three (using a facility of interstate commerce, possessing MDMA with intent to distribute, and possessing a silenced firearm in furtherance of a violent crime) and acquittal on counts three through six (attempting to murder a federal witness and two counts of possessing marijuana with the intent to distribute).

The base offense level for the first and second counts of conviction is 32. After "grouping," Section 3D1.4 of the Sentencing Guidelines adds another two levels, yielding an offense level of 34, which in Criminal History Category III yields an advisory sentencing range of 188-235 months for the first two counts of conviction (the range recommended by the probation officer in the presentence report was reduced to 188-235 months from 235-293 months by denial of a two-level enhancement for obstruction of justice). The terms for the first two counts are concurrent.

Section 924(c)(1)(A)(i) provides a five-year minimum mandatory sentence for carrying or using a firearm in furtherance of a crime of violence. However, under Section 924(c)(1)(B), the minimum mandatory sentence increases to thirty years if the firearm is equipped with a silencer. Accordingly, Ciszkowski's sentence for the third count of conviction is a minimum, mandatory, and consecutive sentence of thirty years.

Obviously, the advisory sentence of 188 months (assuming a sentence at the low end) and the addition of the mandatory minimum of 360 months result in a sentence of 545 months or, stated differently, 45 years and 5 months. At the sentencing hearing, Ciszkowski received a sentence of 372 months or, stated differently, 31 years. The question recurs whether this is a "reasonable sentence" within the meaning of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and 18 U.S.C. § 3553(a).

After Booker, the Eleventh Circuit in a series of widely remarked and frequently consulted opinions, advanced toward a full exposition of methodology under the "reasonable sentence" regime of Booker. See, e.g., United States v. Shelton, 400 F.3d 1325 (11th Cir.2005); United States v. Winingear, 422 F.3d 1241 (11th Cir.2005); United States v. Scott, 426 F.3d 1324 (11th Cir.2005); and United States v. Talley, 431 F.3d 784 (11th Cir.2005). United States v. Montgomery, 165 Fed.Appx. 840, 841-42 (11th Cir.2006), summarizes the prescribed sentencing formula:

United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), made the sentencing guidelines advisory and subjected sentences to an unreasonableness review on appeal. In sentencing, district courts must still consult...