U.S. v. Dzielinski, 90-1021
| Decision Date | 13 September 1990 |
| Docket Number | No. 90-1021,90-1021 |
| Citation | 914 F.2d 98 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Walter DZIELINSKI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Stephen J. Liccione, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.
Terrence M. Keegan, Milwaukee, Wis., for defendant-appellant.
Before WOOD, Jr., MANION, and KANNE, Circuit Judges.
Defendant-Appellant, Walter Dzielinski, pled guilty to two counts of bank robbery in violation of 18 U.S.C. Sec. 2113(a). The district court sentenced the defendant to 87 months in prison. That sentence represented an upward departure from the sentencing range set by the United States Sentencing Commission Guidelines (Guidelines). Dzielinski appeals, challenging the departure.
On September 1, 1989, the defendant entered the Republic Savings Bank in Elm Grove, Wisconsin. He presented the teller with a note demanding money. As he did so, the defendant pulled back his jacket to reveal what appeared to be a gun tucked into the waistband of his blue jeans. Subsequently, it was determined that the weapon was actually a starter's pistol. The teller opened her cash drawer and put approximately $3,800.00 in a bag provided by the defendant. An explosive dye pack and bait bills were included with the money. As the defendant and his co-defendant were driving away, the dye pack exploded and they discarded the bag and the money.
On the following day, the defendant entered the North Shore Bank in Brookfield, Wisconsin. As the defendant approached a teller, she recognized him from a recent flyer warning of other bank robberies in the area; therefore, the teller pulled the bait money from her drawer activating the bank's camera and alarm systems. The defendant handed her a note demanding that she give him the money in her drawer. The note indicated that he had plastic explosives, and the defendant patted his waist as if to indicate that the explosives were located there. The teller put approximately $2,500.00 in the bag and the defendant left the bank. Shortly after leaving the bank, the car in which the defendant was driving was stopped by the police. The defendant was arrested. A search of his car incident to his arrest revealed the money that the defendant stole from the North Shore Bank and evidence of an exploded dye pack from the robbery of the previous day.
On October 5, 1989, the defendant was charged in an information with the two bank robberies explained above. The defendant entered into plea negotiations with the government because he had also been selected out of a line-up by bank tellers from three other banks as being the person responsible for robberies that had occurred at those institutions. According to the terms of the plea agreement, defendant pled guilty to the counts of the information and admitted his involvement in the other three robberies. They were included for purposes of figuring his sentencing range under the Guidelines; however, he was not formally charged with the additional robberies.
A presentence report was prepared for the defendant's sentencing hearing. In the report, the probation department calculated the defendant's total offense level as 23 and determined that the defendant had a Criminal History Category score of II, establishing a sentencing range of 51 to 63 months. The probation department included a section in the presentence report listing factors that possibly might warrant departure from the Guidelines. The government also argued for an upward departure. Judge Stadtmueller agreed and sentenced the defendant to 87 months in prison.
Dzielinski raises only one issue on appeal. He challenges the district court's upward departure from the Guidelines in his sentencing. The defendant maintains that the district court improperly raised his Criminal History Category score by four points elevating him from Category II to Category IV. The district court based its upward departure on two factors: its determination that the defendant's Criminal History Category under-represented the seriousness of his previous criminal conduct and the likelihood that he would commit future crimes; and, the defendant's threatened use of what purported to be a gun and plastic explosives in the commission of the bank robberies. The defendant asserts that those grounds were improper and cannot be used to justify the departure.
In United States v. Williams, 901 F.2d 1394 (7th Cir.1990), this court noted that the district court's departure from the Guidelines is reviewed to determine whether "it was reasonable in light of the district court's explanation for its departure at the time of sentencing." Id. at 1396 (citations omitted). In addition, the Williams court noted that review of a departure is a three-step process. Initially, the court determines whether the grounds for departure relied upon by the district court are the type that can be relied upon to justify a departure. The Williams court recognized that this inquiry is essentially a question of law which is reviewed de novo. Next, the reviewing court determines whether facts which support the grounds for departure actually exist in the case. The district court's decision on this issue is a factual determination reviewable under a clearly erroneous standard. Finally, the reviewing court determines whether the degree of departure is reasonable. The district court is granted considerable deference in its decision as to whether the degree of departure corresponds to the nature of the grounds for departure. Williams, 901 F.2d at 1396-97.
Section 4A1.3 of the Guidelines provides in relevant part:
If reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range. Such information may include, but is not limited to, information concerning:
(a) prior sentence(s) not used in computing the criminal history category....
The district court determined that in this instance the defendant's criminal history did not adequately reflect the seriousness of his past criminal activity or the probability of recidivism. In making that decision, the district court focused on the similarity between the defendant's previous convictions and the bank robberies that are the subject of this case. The defendant admitted at his sentencing hearing that he committed the bank robberies because he needed the money to pay back a man whom he had apparently conned in an investment scheme. The district court added criminal history points for the defendant's previous convictions not included in the calculation of his Criminal History Category: a November 14, 1967 conviction for issuing a worthless check, a November 20, 1971 conviction for uttering and publishing a forged...
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Perkins v. City of West Covina, 94-56365
...reason to believe that it has been or could be used in criminal or gang activity to frighten a victim. See, e.g., United States v. Dzielinski, 914 F.2d 98, 102 (7th Cir.1990) (display of starter pistol during bank robbery justified upward departure at sentencing for apparent possession of d......
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U.S. v. Bridges
...Bridges' case, we need not decide whether similarity can be based solely on motive. Compare Donaghe, supra, with United States v. Dzielinski, 914 F.2d 98, 101-02 (7th Cir.1990) (holding that instant offense of bank robbery was similar to prior conviction for fraud because robbery's motive w......