U.S. v. Ciszkowski, 06-12592.

• Decision Date: 20 July 2007
• Docket Number: No. 06-12592.,06-12592.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wojtek CISZKOWSKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

492 F.3d 1264

UNITED STATES of America, Plaintiff-Appellee, v. Wojtek CISZKOWSKI, Defendant-Appellant.

No. 06-12592.

United States Court of Appeals, Eleventh Circuit.

July 20, 2007.

David T. Weisbrod, Tampa, FL, for Defendant-Appellant.

David Paul Rhodes, Tampa, FL, for U.S.

Appeal from the United States District Court for the Middle District of Florida.

Before CARNES and WILSON, Circuit Judges, and WALTER,^* District Judge.

WILSON, Circuit Judge:

Wojtek Ciszkowski was convicted by a jury on charges of murder for hire, possession of drugs with the intent to distribute them, and possession of a firearm in furtherance of a crime of violence. Because the firearm that was intended to be used to commit the murder was equipped with a silencer, Ciszkowski's sentence was drastically lengthened due to the application of a thirty-year mandatory minimum. Ciszkowski appeals, arguing that he was set up by the government and claiming that he did not know the firearm was equipped with a silencer when he took it from the government informant. He argues that his conviction on the firearm charge should be reversed because the district court failed to instruct the jury that it had to find beyond a reasonable doubt that he knew the firearm was equipped with a silencer. He also argues that his sentence was unreasonable because the district court failed to realize that it could reduce his sentence upon a finding that the government's conduct was outrageous, or that it engaged in sentencing factor manipulation. We affirm.

BACKGROUND

Ciszkowski became the target of a sting operation after a Drug Enforcement Administration ("DEA") informant, Vitek Arabasz, told agents he was being threatened. Arabasz testified at trial that Ciszkowski had come to his job and told him that "he would pay" for his cooperation with law enforcement on an ecstasy smuggling investigation. DEA agents enlisted Edward Chrostowski to act as a confidential informant to find out whether Ciszkowski had threatened Arabasz.

Chrostowski met with Ciszkowski and told Ciszkowski that he was looking to find someone to kill Arabasz before Chrostowski's next court date. Chrostowski and Ciszkowski then met again and discussed the contract killing of Arabasz. At the DEA's request, Chrostowski told Ciszkowski that he wanted to pay for the contract killing partially in ecstasy pills. Chrostowski also told Ciszkowski that he would provide him with a "nice toy." The next day Chrostowski met Ciszkowski with a bag containing cash, ecstasy, and a Ruger Mark I pistol. Ciszkowski opened the bag but did not examine the gun. Once Ciszkowski took possession of the bag and entered his vehicle, DEA agents arrested him.

At trial, a firearms enforcement officer with the Department of Treasury's Bureau of Alcohol, Tobacco, Firearms, and Explosives testified about the firearm's characteristics. The officer admitted that a layperson looking at the firearm's exterior would be unable to tell that a silencer was mounted within the gun's barrel. Because a mandatory minimum sentence of 30 years applies under 18 U.S.C. § 924(c)¹ if the firearm has a silencer, Ciszkowski requested that the jury be instructed that "Mr. Ciszowski (sic) can only be found guilty of that element of the offense if the Government proves beyond a reasonable doubt that Mr. Ciszkowski had actual knowledge that the firearm in question had the characteristics of a silenced or muffled firearm." The district court denied the request, and instead instructed the jury that "[t]he United States is not required to prove as an element of the alleged crime that the defendant knew that the firearm was equipped by a silencer." The Court did, however, ask the jury to render a special verdict, determining "whether the United States has proven beyond a reasonable doubt that the firearm . . . was equipped with a firearm muffler or firearm silencer without respect to whether the defendant actually knew that the firearm was muffled or silenced."

The jury convicted Ciszkowski on three of the six indictment counts.² He was convicted for use of a facility of interstate or foreign commerce in the commission of murder for hire, in violation of 18 U.S.C. § 1958; possession with the intent to distribute Methylenedioxymethamphetamine ("MDMA" or "ecstasy"), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and possession of a firearm with a silencer in furtherance of a crime of violence and drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) and (c)(1)(B)(ii). As to the § 924(c) count, the jury made the findings that (1) the firearm was equipped with a silencer, and (2) Ciszkowski knowingly and unlawfully possessed and carried the firearm in furtherance of the murder for hire and possession of the drugs with intent to distribute. The judge, after hearing objections and arguments, sentenced Ciszkowski to 12 months on the § 1958 violation and 12 months on the § 841 violation, to run concurrently.³ The judge then imposed the mandatory minimum of 30 years on the § 924(c) firearm violation to run consecutive to the other sentences, for a total of 372 months in prison.

DISCUSSION

I.

Ciszkowski first argues that the district court erred when it rejected his requested jury instruction that required the jury to find that he had knowledge of the silencer before finding him guilty of the firearm offense. "We review [the] refusal to give a requested jury instruction for an abuse of discretion." United States v. Carrasco, 381 F.3d 1237, 1242 (11th Cir.2004) (per curiam). The refusal is only reversible error if "(1) the requested instruction was a correct statement of the law, (2) its subject matter was not substantially covered by other instructions, and (3) its subject matter dealt with an issue in the trial court that was so important that failure to give it seriously impaired the defendant's ability to defend himself." United States v. Paradies, 98 F.3d 1266, 1286 (11th Cir.1996). Here, we find no error in the refusal to give the jury instruction because the firearm characteristics in § 924(c) are sentencing factors intended to be determined by the judge, and there is nothing in the text of § 924(c) requiring proof that the defendant had knowledge of such characteristics.

We previously held that the penalty provision in § 924(c)(1)(A)(iii) is a sentencing factor rather than an element of the offense. United States v. Pounds, 230 F.3d 1317, 1319 (11th Cir.2000) (per curiam). We reasoned that § 924(c)(1)(A), standing alone, describes the criminal violation while the subsections merely describe enhanced punishment for certain types of § 924(c)(1)(A) violators. Id. The § 924(c)(1)(B) subsections function similarly by describing certain types of firearms which result in additional punishments for § 924(c)(1)(A) violators. Thus (c)(1)(A) describes a violation while the (c)(1)(B) subsections describe sentencing implications of that violation.

We are unpersuaded that the Apprendi, Blakely, and Booker⁴ line of cases compel a jury determination of the sentencing factors in § 924(c)(1)(B). Apprendi requires that a jury determine any fact that subjects a defendant to an increased penalty beyond the prescribed statutory maximum. The Supreme Court however has declined to extend the jury-determination requirement to facts triggering a statutory minimum. Harris v. United States, 536 U.S. 545, 568, 122 S.Ct. 2406, 2420, 153 L.Ed.2d 524 (2002). Section 924(c)(1)(B) only triggers minimum sentences, and therefore does not raise Apprendi concerns. Accordingly, the district court could determine § 924(c)(1)(B)'s application to Ciszkowski's conduct without violating the Constitution.⁵

Furthermore, Ciszkowski's requested instruction adds a mens rea element to § 924(c) that the statute does not contemplate. Examining a previous version of § 924(c), we explained that because § 924(c) is an enhancement statute, it does not require proof of "particularized knowledge" of the weapon characteristics. United States v. Brantley, 68 F.3d 1283, 1289 (11th Cir.1995). We reasoned that a person violating § 924(c) had already demonstrated a "vicious will" in committing the principal offense. Id. at 1290. Thus, there was no risk of punishing an innocent actor by applying the enhancements. Id. at 1290. Although Brantley addressed a prior version of § 924, there is no reason to require proof of knowledge under the new statute because the same reasoning applies.

Accordingly, we can find no error in the district court's refusal to give the jury instruction requested by Ciszkowski, because it contained an incorrect statement of law. In addition, Ciszkowski requested a jury determination on the application of a sentencing factor, which is a decision for the sentencing judge. Therefore, the district court was well within its discretion to deny the instruction.

II.

Ciszkowski next argues that his 372-month sentence is unreasonable because the district judge did not recognize that he could depart from the mandatory minimum if he found that the government engaged in outrageous conduct, sentencing entrapment, and/or sentencing manipulation. He argues that the government improperly manipulated his sentence when it converted his crime to a more serious offense by supplying him with a silenced firearm without his knowledge. He argues that the court felt bound by the thirty-year statutory minimum, which the court could have disregarded on sentencing manipulation grounds. His argument's success depends on whether: (1) we recognize these defenses in our Circuit, (2) the defenses prevent the application of the mandatory minimum, and (3) the facts support the defenses in this case.

After Booker, we review sentences under the advisory guidelines for reasonableness. See United States v. Winingear, 422 F.3d 1241, 1244-45 (11th Cir.2005) (per curiam). Sentencing is a two step process, requiring (1) the correct calculation of the guideline range and (2) the consideration of the 18 U.S.C....