U.S. v. Struzik

• Decision Date: 13 July 2009
• Docket Number: No. 08-3936.,08-3936.
• Citation: 572 F.3d 484
• Parties: UNITED STATES of America, Appellee, v. Marek Jerzy STRUZIK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

572 F.3d 484

UNITED STATES of America, Appellee, v. Marek Jerzy STRUZIK, Appellant.

No. 08-3936.

United States Court of Appeals, Eighth Circuit.

Submitted: June 10, 2009.

Filed: July 13, 2009.

Julius Anthony Nolen, Minneapolis, MN, for appellant.

Leshia M. Lee-Dixon, AUSA, Minneapolis, MN, for appellee.

Before COLLOTON, JOHN R. GIBSON and BEAM, Circuit Judges.

BEAM, Circuit Judge.

Marek Struzik appeals his 12-month sentence¹ after pleading guilty to one count of alien smuggling in violation of 8 U.S.C. §§ 1324(a)(1)(A)(i) & (a)(1)(B)(i). Struzik contends the district court² did not fully consider the sentencing factors in 18 U.S.C. § 3553(a) or sufficiently explain its sentencing decision. He also challenges his sentence as substantively unreasonable. We affirm.

I. BACKGROUND

In August 2008, Struzik, a native of Poland, was indicted on one count of alien smuggling after he admitted helping two other men cross the Canadian border and enter the United States illegally. Struzik pleaded guilty in September 2008 and a presentence investigation report was prepared. The final PSR indicated Struzik had no criminal history in this country. The PSR revealed, however, that Struzik was detained in October 2007, aboard a vessel in Culebra, Puerto Rico, on suspicion of smuggling Polish nationals into the United States. The PSR also recounted several instances of criminal conduct in Poland. Specifically, according to Paragraph 27:

The Interpol office in Warsaw, Poland, reported that [Struzik] was arrested on January 3, 2002. He was accused of supplying fake invitations to Polish nationals to appear at the U.S. Consulate in Krakow to obtain legal U.S. visas. Once the visas were obtained, [Struzik] sold the documents to unknown individuals. Additionally, he was accused of aggravated threats against a Polish national in order to force him to obtain a U.S. visa in Krakow in 2002. A total of 18 people were charged in the case. [Struzik] was found guilty.

The foreign incidents did not count in the criminal history calculation, however, and so the PSR placed Struzik in category I, assigned him a total offense level of ten and calculated an advisory Guidelines range of 6-12 months. The PSR also indicated that an upward departure might be warranted due to understated criminal history.

In a sentencing memorandum, Struzik noted several objections to the PSR. He first objected to the inclusion of, and to any departure based on, the incident in Puerto Rico, because he was not charged with anything as a result of the incident. Struzik also objected to any departure based on the information in paragraph 27, stating:

The limited information contained in that paragraph does not support an upward departure. Even if the Court finds [Struzik] was convicted of an offense in Poland in 2002, there is no indication that he was imprisoned, and the resulting conviction, if counted as 1 criminal history point, would not increase [his] criminal history category under the guidelines. Therefore, the [advisory] range would remain at 6-12 months....

Struzik also asked for leniency in light of various factors, and requested a sentence of time served and immediate release to immigration authorities.

Thereafter, the government obtained a continuance to further investigate Struzik's Polish criminal record. The government later filed its own sentencing memorandum, indicating it learned through FBI agents with the State Department that Struzik had a November 2003 Polish conviction for Selling Identification Documents and a July 2004 Polish conviction for Aggravated Threat, for which he was sentenced to 18 months' and 13 months' imprisonment, respectively, and that he also received two years' conditional probation in February 2006, for an unknown offense. The government urged the court to depart upward to a sentence of 16 months' to account for Struzik's alleged prior smuggling activities and foreign criminal convictions.

The government received additional documentation relating to Struzik's Polish criminal record before the sentencing hearing. Although that document is not in the appellate record, we understand from oral argument that it was the original Polish document from which the information about Struzik's Polish criminal history was derived. The sentencing transcript reflects that Struzik, along with his attorney and his translator, the probation office and the district court also had a chance to review that document before the hearing. At the hearing, Struzik's attorney disputed the government's interpretation of that document, arguing:

And I know that the Government's position is that this document indicates convictions in Poland for two offenses and then also a—a probationary setting. I'm not certain if the Government is taking a position that that arose from a separate conviction, but in any event, it's clear from the document that there was only one case number. Mr. Struzik indicate[d] that there was only one case and that there was only one sentence given. And that he was—although there [are] different dates on this, it was his understanding it was one case.

Thus, counsel objected "to the Court accepting the Government's position without additional information that there are, in fact, separate convictions with different date[s] of offenses." The Assistant United States Attorney later told the court she received the information from an agent she used to work with in Utah and was relying on his translations, and she understood that Struzik had two separate prior convictions.

After hearing arguments on the appropriate sentence, the district court first indicated it would not consider the incident in Puerto Rico in sentencing Struzik. The court then noted there were no objections to the PSR's remaining factual allegations and adopted those facts and the PSR's Guidelines calculation without objection. The court thereafter declined to depart upward from the advisory range, and imposed a 12-month sentence. In so doing, the court indicated it considered "the nature and circumstances of the instant offense, as well as the history and the characteristics of the defendant, including information about [Struzik's] criminal convictions in Poland," and found 12 months to be "sufficient but not greater than necessary to afford adequate deterrence to future criminal conduct." This appeal follows.

II. DISCUSSION

In reviewing a criminal sentence, we first consider whether the district court committed any significant procedural errors, such as "failing to consider the § 3553(a) factors" or "failing to adequately explain why a sentence was chosen." United States v. Zastrow, 534 F.3d 854, 855 (8th Cir.2008) (quotation omitted). We then review the sentence for substantive reasonableness under an abuse-of-discretion standard, according a rebuttable presumption of a reasonableness to a sentence within the advisory range. Id. at 855-56.

With those standards in mind, we turn to Struzik's arguments. Struzik first contends the district court failed to fully consider the § 3553(a) factors and to adequately explain the chosen sentence. We disagree. To determine whether a district court considered the § 3553(a) factors in a given case, we look to "the entire sentencing record, not merely the district court's statements at the hearing." United States v. Gray, 533 F.3d 942, 944 (8th Cir.2008) (quotation omitted). And in considering the related matter of whether the district court sufficiently explained the sentence imposed, we bear in mind that the court need not specifically respond to every argument made by the defendant, id., or mechanically recite each § 3553(a) factor. United States v. Battiest, 553 F.3d 1132, 1136 (8th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 2452, ___ L.Ed.2d ___ (2009). Rather, the district court must simply "`set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority.'" United States v. Robinson, 516 F.3d 716, 718 (8th Cir.2008) (quoting Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007)). Here, the record indicates the court had ...