Petition for Writ of Certiorari — Brian Lee Krzeczowski, Petitioner v. United States
Supreme Court briefDec 15, 2017
Ask Donna
What actually matters in this document.
Text
DOCKET NUMBER ____________________
IN THE UNITED STATES SUPREME COURT
UNITED STATES OF AMERICA,
Plaintiff/Respondent
vs.
BRIAN KRZECZOWSKI,
Defendant/Petitioner
On Petition For Writ of Certiorari to the
United States Court of Appeals
For the Sixth Circuit
Docket No. 15-5584 Below
PETITION FOR WRIT OF CERTIORARI
Paul Bergmann, III
Attorney for Defendant/Petitioner Brian Krzeczowski
707 Georgia Avenue, Suite 203
Chattanooga, TN 37402
Telephone: (423) 756-3245
Facsimile: (423) 267-0126
pb3@epbfi.com
BPR # 009133
QUESTIONS PRESENTED FOR REVIEW
1. Whether the Magistrate Judge’s Failure to Explain the Role of the Mandatory
Minimum Term of Incarceration in the Appellate Waiver and His Further
Failure to Determine the Defendant’s/Petitioner’s Understanding of It Thereby
Rendered the Waiver Unenforceable Where the Prosecutor Did Not Explain
the Waiver and the Defendant/Petitioner Merely Confirmed That He Had
“Gone Over That Plea Agreement With (His) Lawyer”.
2. Whether
the
District
Court
Erred
When
It
Enhanced
the
Defendant’s/Petitioner’s Sentence Two Levels for the Use of a Computer
Pursuant to the Provisions of U.S.S.G. §2G2.1(b)(6)(B)(ii).
3. Whether
the
District
Court
Erred
When
It
Enhanced
the
Defendant’s/Petitioner’s Sentence Five Levels Pursuant to the Provisions of
U.S.S.G. §§ 1B1.3(a), 2G2.1(d)(1) and 3D1.4(a).
i
LIST OF PARTIES
All parties appear in the caption of the case on the cover page. A list of all
parties to the proceeding in the court whose judgment is the subject of the
instant petition follows:
Brian Krzeczowski, Petitioner
United States of America, Respondent
ii
TABLE OF CONTENTS
Questions Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i
List of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Index to Appendices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Table of Cited Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Opinions Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statutory and United States Sentencing Guidelines Provisions Involved . . . . . . . 2
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Reasons for Granting Writ of Certiorari. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
iii
INDEX TO APPENDICES
APPENDIX A
Sixth Circuit ORDER
Appendix Page 1
APPENDIX B
U.S. District Court -- Judgment
in a Criminal Case
Appendix Page 7
APPENDIX C
Sixth Circuit Order Directing Further
Briefing
Appendix Page 13
APPENDIX D
Statutory and United States Sentencing
Guidelines Provisions
Appendix Page 17
iv
TABLE OF CITED AUTHORITIES
UNITED STATES SUPREME COURT CASES
PAGE NO(S)
Anders v. California,
386 U.S. 738 (1967)
8
Duncan v. Walker,
533 U.S. 167,
121 S.Ct. 2120
150 L.Ed. 251 (2001)
19
CIRCUIT COURT CASES
Sarlog v. United States,
422 F. App’x 399 (6th Cir. 2011)
14
Tablie v. Gonzalez,
471 F. 3d 60 (2d Cir. 2006)
19
United States v. Behrman,
235 F.3d 1049 (7th Cir. 2000)
11
United States v. Bias,
2016 WL 698102 (6th Cir. 2016)
11
United States v. Cohen,
515 F. App’x 405 (6TH Cir. 2013)
14
United States v. Fields,
763 F.3d 443 (6th Cir. 2014),
cert. denied, 135 S.Ct. 392 (2014)
11
United States v. McCoy,
508 F.3d 74 (1st Cir. 2007)
11, 12
United States v. Oladimeji,
463 F.3d 152 (2d Cir. 2006)
11, 12
United States v. Phibbs,
999 F. 2d 1053 (6th Cir. 1993)
11
v
United States v. Roberts,
442 F.3d 128 (2d Cir. 2006)
19
United States v. Robison,
924 F.2d 612 (6th Cir. 1991)
11
United States v. Smith,
344 F.3d 300 (6th Cir. 2010)
11
United States v. Somner,
127 F.3d 405 (5th Cir. 1997)
11, 12
Universal Church v. Geltzer,
463 F.3d 218 (2d Cir. 2006)
19
U.S. v. Bowden,
975 F.2d 1080 (4th Cir. 1992),
cert. denied 507 U.S. 945
113 S.Ct. 1351,
122 L.Ed. 2d 732 (1993)
12
U.S. v. Hesson,
46 F. App’x 226 (5th Cir. 2002)
7, 21, 22, 23,
24
U.S. v. Jass,
569 F.3d 47 (2d Cir. 2009)
18, 20
U.S. v. Murdock,
398 F.3d 491 (6th Cir. 2005)
14
U.S. v. Wernick,
891 F.3d 108 (2d Cir. 2012)
8, 25
FEDERAL STATUTES
18 U.S.C. § 2251(a)
2, 3, 4, 7, 26
18 U.S.C. § 2252(a)(2)
2
18 U.S.C. § 2252(a)(4)
2
18 U.S.C. § 3553
3
vi
28 U.S.C. § 1242(1)
1
FEDERAL RULES OF PROCEDURE
Supreme Court Rule 10
15, 20, 26
Supreme Court Rule 13
1
Federal Rule of Criminal Procedure 11
13, 14, 15
UNITED STATES SENTENCING GUIDELINES
U.S. SENTENCING GUIDELINES MANUAL § 1B1.1
22
*U.S. SENTENCING GUIDELINES MANUAL § 1B1.2(d)
27
U.S. SENTENCING GUIDELINES MANUAL § 1B1.3
21, 22
U.S. SENTENCING GUIDELINES MANUAL § 1B1.3(a)
22, 23
U.S. SENTENCING GUIDELINES MANUAL § 1B1.3(a)(1)
23, 24, 25
U.S. SENTENCING GUIDELINES MANUAL § 1B1.3(a)(2)
23, 24
U.S. SENTENCING GUIDELINES MANUAL § 1B1.3(a)(3)
23, 24
U.S. SENTENCING GUIDELINES MANUAL § 1B1.3(a)(4)
23, 24
U.S. SENTENCING GUIDELINES MANUAL § 2G2.1
4
*U.S. SENTENCING GUIDELINES MANUAL § 2G2.1(b)(2)(A)
5
*U.S. SENTENCING GUIDELINES MANUAL § 2G2.1(b)(3)
6
U.S. SENTENCING GUIDELINES MANUAL § 2G2.1(b)(3)(B)(i)(2000)
19
U.S. SENTENCING GUIDELINES MANUAL § 2G2.1(b)(3)(B)(ii)(2000)
18, 19, 20
U.S. SENTENCING GUIDELINES MANUAL § 2G2.1(b)(6)(B)(ii)
5, 6, 7, 15, 16
17, 18, 20
*U.S. SENTENCING GUIDELINES MANUAL § 2G2.1(c)
26
U.S. SENTENCING GUIDELINES MANUAL § 2G2.1(c)(1) (2000)
21, 22, 23
vii
U.S. SENTENCING GUIDELINES MANUAL § 2G2.1(d)(1) (2014)
5, 7, 21, 22
U.S. SENTENCING GUIDELINES MANUAL § 3(D)
5
U.S. SENTENCING GUIDELINES MANUAL § 3D1.2
23
U.S. SENTENCING GUIDELINES MANUAL § 3D1.2(d)
23, 24
U.S. SENTENCING GUIDELINES MANUAL § 3D1.4
5
U.S. SENTENCING GUIDELINES MANUAL § 3D1.4(a)
5
SECONDARY SOURCES
11 Oxford English Dictionary 268 (2d Ed. 1989)
viii
19
OPINIONS BELOW
1. Opinion, United States Court of Appeals for the Sixth Circuit, United States
of America v. Brian Lee Krzeczowski, C.A. No. 15-5584, September 22, 2017
(not recommended for full text publication).
2. Judgment in a Criminal Case, United States District Court for the Eastern
District of Tennessee at Chattanooga, United States of America v. Brian Lee
Krzeczowski, District Court No. 1:14-cr-00109, May 19, 2015.
JURISDICTIONAL STATEMENT
The United States Court of Appeals for the Sixth Circuit entered its Opinion
in this case on September 22, 2017. No mandate has been issued. The petitioner did
not request a rehearing. This Court’s jurisdiction is invoked under the provisions of
Title 28, U.S. Code, Section 1242(1).
Rule 13 of the United States Supreme Court allows ninety (90) days within
which to file a Petition for Writ of Certiorari after entry of judgment by the appellate
court or from the denial of a petition for rehearing, whichever is later. Accordingly,
the instant petition is timely-filed.
The petitioner, Brian Lee Krzeczowski, respectfully prays that a Writ of
Certiorari issue to review the judgment of the District Court and the Opinion of the
United States Court of Appeals for the Sixth Circuit. In its opinion, the Sixth Circuit
Court of Appeals dismissed the petitioner’s appeal.
1
STATUTORY AND UNITED STATES SENTENCING GUIDELINES
PROVISIONS INVOLVED
Applicable Statutes and United States Sentencing Guidelines Manual
provisions are reproduced verbatim in Appendix D.
STATEMENT OF THE CASE
On or about October 7, 2014, a federal grand jury returned a (4) four-count
indictment, charging Brian Lee Krzeczowski in all four counts of that indictment.
[Indictment, R. 3, Page ID # 3 – 5]. Count One of the indictment charged Mr.
Krzeczowski with the production of child pornography, in violation of 18 U.S.C. §
2251(a). [Id. at Page ID # 3]. Count Two of that indictment charged Mr. Krzeczowski
with receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). [Id. at Page
ID # 4]. Count Three of the indictment charged him with the distribution of child
pornography in violation of 18 U.S.C. § 2252(a)(2). [Id.]. Count Four of the indictment
charged him with the possession of child pornography in violation of 18 U.S.C. §
2252(a)(4). [Id. at Page ID # 5]
On December 1, 2014, Brian Lee Krzeczowski and Attorney Paul Bergmann, III,
signed a plea agreement wherein Mr. Krzeczowski agreed to plead guilty to Count I
of the indictment, which charged him with a single count of production of child
pornography against one victim (MV), in violation of 18 U.S.C. § 2251(a). [Plea
Agreement, R. 14, Page ID # 73 – 81]. The Government agreed to move for a dismissal
of the remaining counts of the indictment. [Indictment, R. 3, Page ID # 4 – 5; Plea
Agreement, R. 14, Page ID # 73]. On December 2, 2014, Assistant United States
Attorney Michael Porter signed the Plea Agreement for Assistant United States
2
Attorney Terra Bay. [Id. at Page ID # 81]. Pursuant to the plea agreement, the
defendant/petitioner agreed that the punishment for his violation of 18 U.S.C. §
2251(a), was, for purposes of this appeal, imprisonment for a term of no less than
fifteen and up to thirty years. [Id. at Page ID # 73.] In the plea agreement, the
Government and the petitioner agreed, inter alia, that the Court could impose any
lawful term(s) of imprisonment, any lawful fine(s), and any lawful term(s) of
supervised release up to the statutory maximum(s). [Plea Agreement, R. 14, Page ID
# 76].
The petitioner acknowledged in the plea agreement that the sentencing
determination would be based upon the entire scope of the petitioner’s criminal
conduct, the petitioner’s criminal history and pursuant to other factors listed in the
U.S. SENTENCING GUIDELINES MANUAL and enumerated in 18 U.S.C. § 3553. [Id.].
In Paragraph 12(a) of his plea agreement, Petitioner Krzeczowski agreed to the
following:
12. (a) In consideration of the concessions made by the United States in
this agreement and as a further demonstration of the defendant’s
acceptance of responsibility for the offense(s) committed, the defendant
agrees not to file a direct appeal of the defendant’s conviction(s) or
sentence except the defendant retains the right to appeal a sentence
imposed above the sentencing guideline range or any applicable
mandatory minimum sentence (whichever is greater) determined by the
district court.
[Plea Agreement R. 14, Page ID # 79 – 80].
On December 23, 2014, Brian Lee Krzeczowski appeared before the Honorable
Magistrate Judge William B. Carter for his Change of Plea Hearing. [Minutes of
Change of Plea Hearing (Rearraignment), R. 17, Page ID # 86]. Petitioner
Krzeczowski contends that in attempting to review the terms of the plea agreement
3
with Mr. Krzeczowski at his change of plea hearing (rearraignment), Magistrate
Judge Carter inadvertently misstated the terms of the appellate waiver provision
contained in Paragraph 12 of the plea agreement when he failed to mention the
applicable statutory mandatory minimum sentence which disallowed the sentencing
judge from sentencing Mr. Krzeczowski to a term less than 15 years absent a motion
for downward departure or variance by the Government and when he failed to explain
the role of that mandatory minimum in the appellate waiver. [See, Change of Plea
Hearing (Rearraignment), R. 37, Page ID #s 19, 27.] Petitioner Krzeczowski contends
that Magistrate Judge Carter also failed to ascertain whether Mr. Krzeczowski and
his attorney had reviewed the appellate waiver or whether he understood it.
[Id.]
Mr. Krzeczowski pled guilty to Count One of the above-referenced indictment,
pursuant to the terms of the above-referenced plea agreement. [Minutes of Change
of Plea Hearing (Rearraignment), R. 17, Page ID # 86; Plea Agreement as to Brian
Lee Krzeczowski, R. 14, Page ID # 73 – 81; Change of Plea Hearing (Rearraignment),
R. 37, Page ID # 308 -- 345].
United States Probation Officer J. Brent Starnes prepared both the Presentence
Investigation Report and the Revised Presentence Investigation Report.
In the
Revised Presentence Investigation Report filed March 26, 2015, USPO Starnes
located the guideline for 18 U.S.C. § 2251(a) offenses at § 2G2.1 of the sentencing
guidelines and assessed Mr. Krzeczowski’s base offense level at Level 32. [Revised
Presentence Investigation Report, R. 23, Page ID # 117].
After correctly applying a
number of advisory guidelines enhancements, USPO Starnes incorrectly opined that
4
the offense involved the use of a computer or an interactive computer service to solicit
participation with a minor in sexually explicit conduct and enhanced Mr.
Krzeczowski’s offense level by an additional two levels pursuant to the provisions of
U.S. SENTENCING GUIDELINES MANUAL § 2G2.1(b)(6)(B)(ii) [Revised Presentence
Investigation Report, R. 23, Page ID # 117]. (Emphasis supplied.) [Revised
Presentence Investigation Report, R. 23, Page ID # 118].
Further, United States
Probation Officer Starnes then reviewed U.S. SENTENCING GUIDELINES MANUAL §
2G2.1(d)(1), determined that the offense involved more than one victim and then
cross-referenced the sentencing guidelines to find that the multiple count
adjustments found at U.S. SENTENCING GUIDELINES § 3(D) applied.
Presentence Investigation Report, R. 23, Page ID # 118].
[Revised
Then, USPO Starnes
incorrectly found that there were at least ten other victims, one of whom was under
the age of 16 years. [Id.]. Reasoning that the defendant/petitioner should receive one
Unit for the offense involving the victim who was the subject of the instant
indictment, he further found that since each of the Adjusted Offense Levels for each
of the other ten alleged victims was from one to four levels less serious than the
subject offense, the defendant/petitioner should be assessed ten additional units for
these ten other uncharged victims pursuant to U.S. SENTENCING GUIDELINES
MANUAL § 3D1.4(a), for a total of eleven units. [Revised Presentence Investigation
Report, R. 23, Page ID # 118]. Because U.S. SENTENCING GUIDELINES MANUAL §
3D1.4 limits the assignment of Units to a total of five units, USPO Starnes
determined that the defendant/petitioner should be assigned five additional units.
5
[Revised Presentence Investigation Report, R. 23, Page ID # 118]. Because USPO
Starnes found that Mr. Krzeczowski’s criminal history score was zero, he determined
that the Criminal History Category applicable to the defendant/petitioner was I. [Id.
at Page ID # 119, 120]. Based on a total offense level of 40 and a Criminal History
Category of I, Mr. Starnes reasoned that the sentencing guidelines range was 292
months to 365 months, but then further found that since the statutorily-authorized
maximum of 30 years is less than the maximum of the guideline range, the proper
applicable guideline range was 292 to 360 months. [Id. at Page ID # 122].
Prior to sentencing, CJA Panel Attorney Paul Bergmann, III, filed objections to
the Revised PSR on the petitioner’s behalf. In his Notice of Objections to Revised
PSR, the petitioner first objected to the 2-level enhancement assessed against him by
USPO Starnes based on U.S. SENTENCING GUIDELINES MANUAL § 2G2.1(b)(6)(B)(ii).
[Revised Presentence Investigation Report, R. 23, Page ID # 117; Notice of Objections
to Revised PSR, R. 27, Page ID # 134]. At Petitioner Krzeczowski’s sentencing
hearing held on May 18, 2015, CJA Panel Attorney Paul Bergmann, III, argued that
the USPO’s 2-level assessment pursuant to the provisions of U.S. SENTENCING
GUIDELINES MANUAL § 2G2.1(b)(6)(B)(ii) was improper since the computer now is the
normal medium of communication, having supplanted the use of other media such as
the telegraph, telephone and correspondence. [Judgment Proceedings, R. 35, Page
ID # 221 – 232]. Attorney Bergmann also argued at Mr. Krzeczowski’s sentencing
hearing that the USPO’s 2-level assessment pursuant to the provisions of U.S.
6
SENTENCING GUIDELINES MANUAL § 2G2.1(b)(6)(B)(ii) was improper for other
reasons stated later in the instant petition.
In his Objections to Revised PSR, Mr. Krzeczowski also filed an objection to the
United States Probation Officer’s analysis under the provisions of U.S. SENTENCING
GUIDELINES MANUAL § 2G2.1(d)(1) that the offense involved more than one victim,
and, therefore, that Chapter Three, Part D (Multiple Counts) should be applied to
enhance the defendant’s/petitioner’s punishment by 5 offense levels as if the
promoting of a commercial sex act or prohibited sexual conduct in respect to each
victim had been contained in a separate count of conviction. [Revised Presentence
Investigation Report, R. 23, Page ID # 118; Notice of Objections to Revised PSR, R.
27, Page ID # 134, 135.]. In his Notice of Objections to Revised PSR, Mr. Krzeczowski
noted that he pled guilty solely to Count One which charged him with the production
of pornographic images involving only one victim.
[Id.].
While the defendant
admitted in his plea agreement that the FBI also identified a second victim who sent
sexually explicit images of herself to the defendant at his prompting, he further
objected that such an allegation does not amount to production as defined in 18 U.S.C.
§ 2251(a). [Id.]. At Mr. Krzeczowski’s sentencing, Attorney Bergmann argued that
Mr. Krzeczowski’s uncharged acts with other minors, which were not a part of the
same offense, could not be considered relevant conduct under the rationale of U.S. v.
Hesson, 46 F. App’x 226 (5th Cir. 2002) an unreported decision.
Proceedings, R. 35, Page ID # 232 – 236].
[Judgment
At that sentencing hearing, Attorney
Bergmann also argued that a reported decision of the Second Circuit Court of
7
Appeals, U.S. v. Wernick, 891 F.3d 108 (2d Cir. 2012), was at least persuasive
authority for the defendant’s/petitioner’s argument that mere temporal overlap
between uncharged criminal acts and his charged criminal act does not make either
criminal act relevant to the other criminal act since any allegations that Mr.
Krzeczowski may have engaged in uncharged criminal acts with other alleged minor
victims must have occurred in the course of the commission of the offense of
conviction. [Judgment Proceedings, R. 35, Page ID # 236 – 238, 242 – 243, 246].
After he overruled defense counsel’s objections to the PSR, Judge Mattice found
that the petitioner’s total offense level was 40, that his Criminal History Category
was I and that his advisory sentencing guidelines range was 292 to 360 months. [Id.
at # 247 -- 248]. Judge Mattice committed the petitioner to the custody of the Bureau
of Prisons for a term of 292 months. [Judgment Proceedings, R. 35, Page ID # 260].
On May 19, 2015, a Judgment as to Brian Lee Krzeczowski was filed. [Judgment
as to Brian Lee Krzeczowski, R. 30, Page ID # 141 – 148]. Defendant Krzeczowski
timely-filed his Notice of Appeal from the May 19, 2015, Judgment on June 1, 2015.
[Notice of Appeal by Brian Lee Krzeczowski, R. 33, Page ID # 215].
On April 25, 2016, Attorney Paul Bergmann, III, filed both a Motion to Withdraw
and an Anders brief in the Sixth Circuit Court of Appeals on behalf of the
defendant/petitioner, which renewed, strongly asserted and further explained the
objections Attorney Bergmann had made at sentencing on behalf of Krzeczowski, but
recognized the fact that Defendant/Petitioner Krzeczowski had signed an appellate
waiver as one of the provisions of his plea agreement. [See, e.g., Anders Brief, 6th Cir.
8
Case No. 15-5584, R 15; Motion to Withdraw, 6th Cir. Case No. 15-5584, R. 16]. On
June 26, 2016, Defendant/Petitioner Krzeczowski signed his pro se appellant’s brief,
with a postmark showing mailing to the undersigned counsel on July 8, 2016.
[Responsive Brief of Brian Krzeczowski, 6th Cir. Case No. 15-5584, R. 21].
Mr.
Krzeczowski’s pro se responsive brief was filed by the Clerk’s Office for the Sixth
Circuit Court of Appeals on July 11, 2016. [See, id.]
By ORDER issued January 3,
2017, the Sixth Circuit Court of Appeals denied undersigned counsel’s motion to
withdraw and directed Counsel to file a brief addressing, inter alia, (1) “whether the
magistrate judge’s failure to explain the role of the statutory minimum in the
appellate waiver and determine Krzeczowski’s understanding of it thereby rendered
the waiver unenforceable where the prosecutor did not explain the waiver and
Krzeczowski merely confirmed that he had “gone over that plea agreement with [his]
lawyer,” (2) “whether the district judge erred by imposing an enhancement for use of
a computer ‘to solicit participation with a minor in sexually explicit conduct’ ” and
(3) “whether the district court erred by imposing an enhancement due to the
exploitation of ten other victims.” [See, ORDER, 6th Cir. Case No. 15-5584, R. 25.]
On February 9, 2017, undersigned counsel filed the defendant’s/petitioner’s “Brief
of the Appellant” which addressed the issues the Sixth Circuit Court of Appeals
directed him to explore. [Brief of the Appellant, 6th Cir. Case No. 15-5584, R. 27]. On
March 14, 2017, the United States filed its “Brief of the United States”. [Brief of the
United States, Case No. 15-5584, R. 29]. On March 31, 2017, the undersigned filed
the “Reply Brief of the Appellant”. [Reply Brief of the Appellant, 6th Cir. No. 15-5584,
9
R. 31].
On September 22, 2017, the Sixth Circuit Court of Appeals dismissed
Defendant’s/Appellant’s appeal, finding that Defendant’s/Petitioner’s appellate
waiver barred consideration of his claims regarding the application of the Guidelines
enhancements, regardless of any potential merits of those claims. [ORDER, Case No.
15-5584, R. 33].
REASONS FOR GRANTING WRIT OF CERTIORARI
I.
Petitioner Krzeczowski first contends that the appellate waiver contained in
Paragraph 12(a) of his plea agreement does not preclude him from appealing Judge
Mattice’s imposition of a 292-month BOP sentence which he contends was based on
guidelines miscalculations by United States Probation Officer Brent Starnes, but
determined to be correct by District Court Judge Mattice.
In that provision,
Petitioner Krzeczowski agreed to the following:
12. (a) In consideration of the concessions made by the United States in
this agreement and as a further demonstration of the defendant’s
acceptance of responsibility for the offense(s) committed, the defendant
agrees not to file a direct appeal of the defendant’s conviction(s) or
sentence except the defendant retains the right to appeal a sentence
imposed above the sentencing guideline range or any applicable
mandatory minimum sentence (whichever is greater) determined by the
district court.
[Plea Agreement, R. 14, Page ID # 79 – 80]. (Emphasis supplied.)
Mr. Krzeczowski argues that the appellate waiver does not preclude him from
appealing his sentence since the district court incorrectly applied the United States
Sentencing Guidelines when sentencing him to a term of imprisonment of 292
months.
Since plea agreements are contractual in nature, the petitioner contends
10
that the Court must use traditional principles of contract law in interpreting and
enforcing them. See, United States v. Bias, No. 15-3162, 2016 WL 698102 (6th Cir.
2016), citing with approval from United States v. Fields, 763 F.3d 443, 453 (6th Cir.
2014), cert. denied, 135 S.Ct. 392 (2014) [quoting United States v. Robison, 924 F.2d
612, 613 (6th Cir. 1991)]. He argues that a knowing and voluntary appellate waiver
only precludes an appeal which falls within its scope, with any ambiguities in the
plea agreement construed against the government as the drafter and master of the
plea agreement contract. See, Bias, supra; United States v. Smith, 344 F.3d 300, 312
(6th Cir. 2010); see also, e.g., United States v. McCoy, 508 F.3d 74 (1st Cir. 2007),
United States v. Oladimeji, 463 F.3d 152, 157 (2d Cir. 2006); United States v.
Behrman, 235 F.3d. 1049, 1052 (7th Cir. 2000); United States v. Somner, 127 F.3d
405, 408 (5th Cir. 1997) (per curiam). He further contends that “the most persuasive
evidence of what a defendant reasonably appreciated as his bargain is found in the
plain language of the court-approved settlement.” Bias, supra, at *2, quoting United
States v. Phibbs, 999 F.2d 1053, 1081 (6th Cir. 1993).
In the McCoy case, supra, the Third Circuit Court of Appeals had occasion to
decide the applicability of an appeal waiver precluding McCoy’s challenge of any
sentence that fell “within the guideline range.” McCoy, supra, at 78. The appellate
court opined:
McCoy’s arguments on appeal are that, by both a legal error and a
mathematical mistake, the district court mis-measured the loss and so
misapplied the guidelines; if he is correct, then his sentence was not
“within the guideline range” and his appeal is not barred by the waiver.
We agree with the Fourth Circuit that a waiver forgoing (sic) “any
appeal . . . if the sentence imposed herein is within the guidelines” does
11
not waive the right to appeal an alleged misapplication of the guidelines.
United States v. Bowden, 975 F.2d 1080, 1081 n.1 (4th Cir. 1992), cert.
denied, 507 U.S. 945, 113 S.Ct. 1351, 122 L.Ed. 2d 732 (1993).
The final clause of McCoy’s waiver says that the waiver applies “even
if the Court rejects one or more positions advocated by the U.S. Attorney
or Defendant with regard to the application of the U.S. Sentencing
Guidelines.” Perhaps this provision was in fact meant to foreclose
review of all of the district judge’s decisions as to how to apply the
guidelines, whether mistaken or not. But it does not say so clearly; it is
not the natural reading of the language; and it is hardly a reading that
one would rush to embrace. And, with ambiguity in plea agreements
construed against the government, United States v. Oladimeji, 463 F.3d
152, 157 (2d Cir. 2006); United States v. Somner, 127 F.3d 405, 408 (5th
Cir. 1997) (per curiam), it is a reading we cannot accept. (Emphasis
supplied).
McCoy, supra, at 78.
Petitioner Krzeczowski argues that while perhaps the Government’s inclusion of
the Paragraph 12 waivers was meant by the prosecutor to foreclose review of all the
district judge’s decisions regarding the application of the guidelines, whether
mistaken or not, the language is ambiguous, at best, and should be construed against
the Government.
The petitioner contends that the Government’s purported
interpretation is not the natural reading of the language and the Government’s
interpretation is not one which this Honorable Court should rush to embrace.
Petitioner Krzeczowski further contends, therefore, that to understand the scope of
the waivers contained in Paragraph 12 (a) of the above-referenced plea agreement,
this Honorable Court should look to the plain meaning of the words comprising that
paragraph. He maintains that in order to ascertain the plain meaning of Paragraph
12 (a), this Honorable Court should separate the individual phrases of the waiver
distinguished from each other in that paragraph by the word “or” to ascertain the
12
intent of the parties. To that end, the petitioner asks this Honorable Court to analyze
Paragraph 12 (a) by dividing that paragraph’s waiver provisions into two distinct
sections as follows: [T]he defendant agrees not to file a direct appeal of the defendant’s
conviction(s) or sentence except the defendant retains the right to appeal a sentence
imposed –
(a) above the sentencing guideline range or
(b) above any applicable mandatory minimum sentence . . . determined by the district
court.
Thus, the defendant/petitioner maintains he understood that the terms of the
waiver provision contained in the plea agreement drafted by the government only
precluded him from appealing any applicable mandatory statutory minimum
sentence determined by the district court, but that it did not preclude him from
appealing a sentence imposed above that mandatory statutory minimum sentence
due to an application of the sentencing guidelines by the district court based on
erroneous guidelines calculations by the United States Probation Officer, a position
he preserved through objections to his PSR filed in the record and argued at
sentencing.
In addition to the foregoing, the petitioner further contends that the appellate
waiver in his plea agreement by which the Government will argue he relinquished
his ability to appeal his sentence is unenforceable in that the magistrate judge who
presided at his change of plea hearing committed plain error when he failed to comply
with the dictates of FEDERAL RULE OF CRIMINAL PROCEDURE 11 without providing a
functional substitute for the safeguards mandated by that rule. Petitioner
13
Krzeczowski submits that because he seeks not to reverse his conviction, but merely
seeks to void the appellate waiver provision in his plea agreement in order to
challenge his sentence, he need not show that but for the magistrate judge’s failure
to properly discuss the appellate waiver provisions with him, he would not have
entered his guilty plea. See, U.S. v Murdock, 398 F.3d 491, 496 (6th Cir. 2005)
(citations omitted). While Krzeczowski did not raise the FEDERAL RULE OF CRIMINAL
PROCEDURE 11 violation at the district court level, the Sixth Circuit Court of Appeals
correctly determined that the magistrate judge committed plain error, but incorrectly
failed to grant the relief Krzeczowski sought, holding that an error in the application
of the Guidelines generally does not constitute a miscarriage of justice that voids an
appellate waiver and permits consideration of the claims. [ORDER, 6TH Cir. Case No.
15-5584, R. 33].
Krzeczowski further submits that the Sixth Circuit Court of Appeals in Murdock,
supra, clearly cautioned “prosecutors as well as judges to be mindful of the
importance of ascertaining that defendants are aware of and understand appellate
waiver provisions.” Id. At 497 – 498. Because the magistrate judge’s FEDERAL RULE
OF CRIMINAL PROCEDURE 11 violations occurred before Krzeczowski’s plea of guilty
and in circumstances which Krzeczowski argues caused him to misunderstand the
terms of his appellate waiver based on the court’s explanation, Krzeczowski contends
he cannot be said to have knowingly and voluntarily waived his right to appeal his
sentence which was premised on a miscalculation of the Sentencing Guidelines. See,
United States v. Cohen, 515 F. App’x. 405, 409 (6th Cir. 2013), citing and quoting
with approval from Sarlog v. United States, 422 F. App’x. 399, 403 (6th Cir. 2011).
14
Petitioner submits that a judge accepting a plea of guilty from a criminal
defendant must comply with all of the dictates of FEDERAL RULE OF CRIMINAL
PROCEDURE 11. (Emphasis supplied). In its unpublished opinion in the case sub
judice, while the Sixth Circuit Court of Appeals found that the magistrate judge
committed plain error by failing to fully explain the waiver to Krzeczowski and
determine that he understood it, but that appellate court fell short of setting aside
the appellate waiver in its entirety to allow Krzeczowski to appeal errors by the
sentencing judge. Pursuant to the provisions of SUPREME COURT RULE 10, the
petitioner now petitions this Honorable Court to exercise its supervisory power to
define the duties of judges who accept guilty pleas pursuant to the provisions of
FEDERAL RULE OF CRIMINAL PROCEDURE 11.
II.
In its Revised Presentence Investigation Report, the United States Probation
Office assessed a 2-level enhancement against Krzeczowski pursuant to the
provisions of U.S. SENTENCING GUIDELINES MANUAL § 2G2.1(b)(6)(B)(ii), opining
that the enhancement was appropriate since the offense involved the use of a
computer or an interactive computer service to solicit participation with a minor in
sexually-explicit conduct. [Revised Presentence Investigation Report, R. 23, Page ID
# 6.] (Emphasis supplied.) That provision of the United States Sentencing Guidelines
provides in pertinent part:
(6) If, for the purpose of producing sexually explicit material or for the
purpose of transmitting such material live, the offense involved. . . (B)
the use of a computer or an interactive computer service to. . . (ii) solicit
15
participation with a minor in sexually explicit conduct, increase by 2
levels.
U.S. SENTENCING GUIDELINES MANUAL § 2G2.1(b)(6)(B)(ii). (Emphasis supplied.)
The petitioner contends that the district court erred when it enhanced his sentence
two levels for the use of a computer, now the most commonly-used means of
uncomplicated information dissemination, pursuant to the provisions of U.S.
SENTENCING GUIDELINES MANUAL § 2G2.1(b)(6)(B)(ii) since he did not solicit
participation in sexually-explicit conduct between a minor and a third party, but
instead only solicited participation by a minor in sexually-explicit conduct.
In his Notice of Objections to Revised PSR, Krzeczowski objected to Probation
Officer Starnes’ assessment of a U.S. SENTENCING GUIDELINES MANUAL §
2G2.1(b)(6)(B)(ii) 2-level enhancement for the use of a computer.
See Notice of
Objections to Revised PSR, R. 27, Page ID # 134; Judgment Proceedings, R. 35, Page
ID # 6 – 17.
Preserving his objection to the use of U.S. SENTENCING GUIDELINES
MANUAL § 2G2.1(b)(6)(B)(ii) to enhance the defendant’s/petitioner’s sentence two
levels, defense counsel argued both in his written objection to the revised PSR and at
the sentencing hearing that the 2-level enhancement was unwarranted since the
computer has taken the place of correspondence, the telegraph, the telephone, and
the facsimile machine; that it is in such common use now that it is the preferred
means of disseminating information and that it requires no special knowledge or skill
to operate or use. Id. While defense counsel conceded that computers are faster than
older forms of communication, he also argued that Krzeczowski’s actions could have
been accomplished through the use of those older forms of communication which
16
predated the computer, forms which then, like the computer now, required no special
knowledge or skill to operate or use when they were the most commonly-accepted and
most widely-used methods of communication.
ID # 221].
[Judgment Proceedings, R. 35, Page
Defendant/Petitioner now reiterates that argument and asks this
Honorable Court to consider that the U.S. SENTENCING GUIDELINES MANUAL §
2G2.1(b)(6)(B)(ii) 2-level enhancement for the use of a computer constitutes
unnecessary augmentation of a sentence which already carries a mandatory
minimum sentence of 15 years for this now 45-year old petitioner who never had been
convicted of a crime prior to his conviction in the instant matter.
Additionally, the petitioner asks this Honorable Court to consider the normal
definitions
of
terms
used
in
U.S.
SENTENCING GUIDELINES MANUAL
§
2G2.1(b)(6)(B)(ii). U.S. SENTENCING GUIDELINES MANUAL § 2G2.1(b)(6)(B)(ii) should
not serve to enhance the petitioner’s sentence by two levels since Krzeczowski’s
actions do not fit the parameters of the enhancement. [See, Judgment Proceedings,
R. 35, Page ID # 226 – 230]. Count I of the indictment to which the petitioner pled
guilty in the instant case makes no mention of his soliciting participation of any other
individual to engage in sexually-explicit conduct with a minor; its language instead
discusses the petitioner’s actions in employing, using, persuading, inducing, enticing
and coercing activities by only a single minor, MV. [See Indictment, R. 3, Page ID #
3]. (Emphasis supplied.)
Significantly, the dispositive language of the plea agreement detailing
Krzeczowski’s activities is found in Paragraph 4 of that document. While he admitted
17
that he knowingly solicited participation by 16-year old MV in the production of
pornographic images, the defendant/petitioner did not solicit participation with a
minor in the production of sexually-explicit images in that he never admitted to
producing pornographic images of minors engaging in sexually-explicit conduct with
each other or with anybody else. [See, Plea Agreement, R. 14, Page ID # 74, 75.]
(Emphasis supplied.)
Petitioner Krzeczowski submits that such a distinction is
crucial since that fact, coupled with the prosecution’s failure to produce any evidence
to the contrary at sentencing, disallows enhancement under the language of U.S.
SENTENCING GUIDELINES MANUAL § 2G2.1(b)(6)(B)(ii).
In United States v. Jass, 569 F.3d 47 (2nd Cir. 2009), the Second Circuit Court of
Appeals had occasion to hear a case in which appellate counsel for Marian Jass
contested the 2-level enhancement of her sentence pursuant to the provisions of U.S.
SENTENCING GUIDELINES MANUAL § 2G2.1(b)(3)(B)(ii)(2000), the predecessor to
renumbered U.S. SENTENCING GUIDELINES MANUAL § 2G2.1(b)(6)(B)(ii)(2014),
which also directed sentencing courts to increase defendants’ sentences 2 levels if
defendants used a computer or an Internet-access device [a computer or an
interactive computer service] to solicit participation with a minor in sexually-explicit
conduct. Although that appellate court did not remand the case for resentencing
because the district court judge found that he would have imposed the same sentence
even if he had refused to apply the enhancement, that appellate court nonetheless
differentiated between the words “by” and “with”, noting that their ordinary
meanings are not the same. See, Jass, supra, at 67-68. The Court noted:
18
Section 2G2.1(b)(3)(B)(ii) provides for a two-point enhancement
when a computer is used to “solicit participation with a minor in
sexually explicit conduct.” The immediate interpretive question raised
by this language is, “Whose participation is being solicited?” To affirm
the district court, we would have to conclude that the correct answer in
this case is “Victim 2.” But such a reading of the guideline would yield
the curious conclusion that defendants warranted a two-level
enhancement in their offense level because Leight used a computer to
“solicit [Victim 2’s] participation with [Victim 2] in sexually explicit
conduct.” Not only is this interpretation illogical, it does not comport
with the usual definition of participation, i.e., “[a] taking part,
association, or sharing (with others) in some action or matter.” 11
Oxford English Dictionary 268 (2d ed. 1989) (emphasis added). While
an individual can certainly act alone, such a person would not generally
be said to be participating with himself in the activity at issue.
The government disagrees with this reading of the guideline and
implicitly asks that we read the word “with” as used in the guideline
to mean “by,” so that it would extend to Leight’s solicitation of
participation by Victim 2 in sexually explicit conduct. In considering
this argument, “we employ basic rules of statutory construction and
give all terms . . . their ordinary meanings unless there are persuasive
reasons not to do so.” United States v. Roberts, 442 F.3d 128, 129 (2d
Cir. 2006). We conclude that the government’s interpretation is not
supported by the plain language of § 2G2.1(b)(3)(B)(ii).
Where the Commission wished to reference a minor’s own
participation in particular activity, it expressly used the word “by” to
convey that meaning. For example, the immediately preceding section
covers attempts “to solicit participation by a minor” in sexually explicit
conduct. U.S.S.G. § 2G2.1(b)(3)(B)(i) (emphasis added). Thus, because
Congress indicated that it could use the word “by” when it so desired,
and because the ordinary meaning of “by” is not the same as “with,” we
decline to equate these prepositions as they appear in 2G2.1(b)(3)(B)(i)
and (ii). See Universal Church v. Geltzer, 463 F.3d 218, 223 (2d Cir.
2006) (noting that because “Congress knew how to use [certain] words
when [it] so desired,” fact that those words had not been used was
meaningful).
It is more natural to read subsection (ii) as addressing a situation
in which one person solicits another person to engage in sexual
activities with a minor. Otherwise, the phrase “participation with” is
rendered effectively meaningless. See Duncan v. Walker, 533 U.S. 167,
174, 121 S.Ct. 2120, 150 L.Ed. 2d 251 (2001) (“It is our duty to give
effect, if possible, to every clause and word of a statute.” (internal
quotation marks omitted)); accord Tablie v. Gonzalez, 471 F.3d 60, 64
(2d Cir. 2006). Because the record in this case demonstrates no such
19
third-party solicitation, we are obliged to identify procedural error in
the district court’s use of § 2G2.1(b)(3)(B)(ii) to calculate Jass’s
Sentencing Guidelines range.
Jass, supra, at 67 – 68.
Krzeczowski submits that the Jass case, supra, is the only appellate court
decision he could find which defines the differences between the words “with” and
“by”, a crucial distinction defining the parameters of U.S. SENTENCING GUIDELINES
MANUAL § 2G2.1(b)(3)(B)(ii)(2000), the forerunner of renumbered section U.S.
SENTENCING GUIDELINES MANUAL § 2G2.1(b)(6)(B)(ii), under which his sentence was
enhanced 2 levels. Thus, the petitioner now asks this Honorable Court to consider
that the 2-level enhancement provided by U.S. SENTENCING GUIDELINES MANUAL §
2G2.1(b)(6)(B)(ii) was erroneously applied to enhance his sentence. He contends that
his actions do not fit the parameters of the enhancement since he solicited
participation by, not with, 16-year old MV. He maintains that his offense level should
be reduced by 2 levels.
Petitioner realizes that the Sixth Circuit Court of Appeals dismissed his appeal
when it determined that his appellate waiver precluded consideration of his
argument. However, Petitioner contests that dismissal and further contends that
this Honorable Court should sustain his Petition for Writ of Certiorari pursuant to
the provisions of Supreme Court Rule 10 (c) since one appellate court has decided the
important question of federal law discussed in the instant argument in his favor, a
question of federal law which has not been, but should be, settled by this Court.
20
III.
Petitioner respectfully requests this Honorable Court to rule that the district
court erred when it enhanced his sentence five levels due to the unproven, unrelated,
uncharged exploitation of ten other alleged victims pursuant to the provisions of U.S.
SENTENCING GUIDELINES MANUAL §§ 1B1.3(a)(1), 2G2.1(d)(1) and 3D1.4(a). In the
instant case, the petitioner pled guilty only to Count I of the indictment filed against
him, i.e., the production of child pornography involving only one child, a 16-year old
minor known as MV. See, Plea Agreement, R. 14, Page ID # 73. (Emphasis supplied.)
None of the other three indictment counts which were dismissed mentioned anything
about other victims. Indictment, supra, at Page ID # 2 – 3. In his Notice of Objections
to Revised PSR, the petitioner objected to the United States Probation Officer’s
assessment of a 5-level enhancement against him pursuant to the terms of U.S.
SENTENCING GUIDELINES MANUAL § 2G2.1(d)(1) because the crime to which
Krzeczowski pled guilty involved production against only one minor, an objection
reiterated by Attorney Bergmann at the petitioner’s sentencing hearing. [Notice of
Objections to Revised PSR, R. 27, Page ID #134 – 135; Revised Presentence
Investigation Report, R. 23, Page ID # 118]. [See, Judgment Proceedings, R. 35, Page
ID # 232 – 246.]
The defendant/petitioner contends that the reasoning of the Second Circuit
Court of Appeals in United States v. Hesson, 46 Fed. Appx. 226, (2nd Cir. 2002), is
persuasive since it interprets the language of U.S. SENTENCING GUIDELINES
MANUAL § 2G2.1(c)(1) (2000), the predecessor to renumbered U.S. SENTENCING
21
GUIDELINES MANUAL § 2G2.1(d)(1) (2014). The identical language of both provisions
holds that “[i]f the offense involved the exploitation of more than one minor, Chapter
Three, Part D (Multiple Counts) shall be applied as if the exploitation of each minor
had been contained in a separate count of conviction.” U.S. SENTENCING GUIDELINES
MANUAL § 2G2.1(c)(1) (2000), U.S. SENTENCING GUIDELINES MANUAL. § 2G2.1(d)(1)
(2014). In that case, the Second Circuit Court of Appeals noted that the district court
had enhanced Defendant Hesson’s punishment by 5 levels when it ruled that his
uncharged conduct in videotaping seventy-four other minor males engaged in
sexually-explicit activities was “relevant conduct” under U.S. SENTENCING
GUIDELINES MANUAL § 1B1.3. Hesson, supra, at *2. (Emphasis supplied.) Although
the court did not remand the case for re-sentencing since it found that the district
court would have sentenced Hesson to the same sentence absent the erroneous
application of U.S. SENTENCING GUIDELINES MANUAL § 2G2.1(c)(1) (2000) to enhance
his sentence, that appellate court held that the district court erred in its 5-level U.S.
SENTENCING GUIDELINES MANUAL § 2G2.1(c)(1) (2000) enhancement of the
defendant’s sentence. First, it set out and explained the provisions of § 2G2.1(c)(1)
(2000):
Section 2G2.1(c) provides that if the “offense involved the exploitation of
more than one minor, then Chapter III, Part D of the Sentencing
Guidelines (Multiple Counts), “shall be applied as if the exploitation of
each minor had been contained in a separate count of conviction.”
Application Note 1, Part (1), to U.S.S.G. § 1B1.1 defines “offense” as “the
offense of conviction and all relevant conduct under § 1B1.3 (Relevant
Conduct) unless a different meaning is specified or is otherwise clear
from the context.” Section 1B1.3(a) defines relevant conduct, in
applicable part, as follows:
22
(1)(A) all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant. . .
that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid
detection or responsibility for that offense.
Hesson, supra, at *2. (Emphasis supplied.) Then, it ruled that the district
court committed plain error in its application of § 2G2.1(c)(1):
Here, the district court did commit an error that was plain in its
application of § 2G2.1(c)(1). The language in § 2G2.1(c)(1) states that
“[i]f the offense involved the exploitation of more than one minor,
Chapter Three, Part D (Multiple Counts) shall be applied as if the
exploitation of each minor had been contained in a separate count of
conviction: (emphasis added). There was only one offense actually
charged here, and it only involved one minor. Although the term
“offense” includes relevant conduct under § 1B1.3, see U.S.S.G. § 1B1.3,
Commentary, Hesson’s uncharged acts with minors, which were not
part of the same offense, cannot be considered relevant conduct under §
1B1.3.
Section 1B1.3(a) has four subparts that each provide for a different
category of relevant conduct. Section 1B1.3(a)(1) includes as relevant
conduct “all acts and omissions committed . . . by the defendant . . . that
occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid
detection or responsibility for that offense . . .” Hesson’s uncharged acts
do not fall into this category, as they did not occur during the
commission of the offense of conviction, in preparation for the offense, or
while trying to avoid detection or responsibility for the offense. Section
§ 1B1.3(a)(2) includes as relevant conduct offenses “of a character for
which § 3D1.2(d) would require grouping of multiple counts,” but
Hesson’s offense is explicitly excluded from the grouping provisions. See
U.S.S.G. § 3D1.2(d) (excluding offenses under § 2G2.1 from the grouping
provisions of § 3D1.2). Section § 1B1.3(a)(3) includes as relevant conduct
“all harm that resulted from the acts and omissions specified in
subsections (a)(1) and (a)(2) above, and all harm that was the object of
such acts and omissions.” However, because Hesson’s conduct does not
fall under §§ 1B1.3(a)(1) or (a)(2), it cannot fall under § 1B1.3(a)(3).
Finally, section 1B1.3(a)(4) provides for adjusting the offense level for
relevant conduct based on “any other information specified in the
applicable guidelines.” No other information has been specified here. It
23
follows that, for the purposes of this sentence, Hesson’s unrelated acts
with other minors therefore are not relevant conduct under § 1B1.3, and
cannot be considered part of the same offense under § 2G2.1(c)(1).
Therefore, the district court should not have applied § 3D1.4 to Hesson’s
offense level, and to do so was an error that was plain.
Hesson, supra, at *3.
Defendant/Petitioner
Krzeczowski
contends
that
other
uncharged,
unsubstantiated, unproven allegations by the United States Probation Officer
alleging that there were at least ten other victims, not including M.V., were
improperly used to enhance his punishment. The petitioner argues that, even if
proven true, moreover, any activities involving other minors did not occur during the
commission of the offense of conviction, in preparation for the offense or while trying
to avoid detection or responsibility for the offense. He asserts that those activities
alleged by the United States Probation Officer cannot be considered relevant conduct
offenses for which the sentencing guidelines would require grouping of multiple
counts because they are specifically excluded from the grouping provisions under U.S.
SENTENCING GUIDELINES MANUAL § 3D1.2(d). Moreover, because Krzeczowski’s
conduct does not fall under the provisions of either U.S. SENTENCING GUIDELINES
MANUAL § 1B1.3(a)(1) or § 1B1.3(a)(2), he insists that it cannot fall under the
provisions of § 1B1.3(a)(3). He further argues that his conduct cannot be included
under the provisions of § 1B1.3(a)(4) because no other verified and proven information
specified in the sentencing guidelines permits application of that guideline to his case.
Even if other acts are proven, Krzeczowski contends that the other acts alleged by
the United States Probation Officer and accepted by the Court cannot be used to
24
enhance his punishment since they are, at best, unrelated and uncharged acts not
part of the offense of conviction. See also U. S. v. Wernick, 691 F.3d 108, 115 (2nd Cir.
2012) (wherein the Second Circuit Court of Appeals opined that the words “relevant
conduct” suggest that more is required than mere temporal proximity, as the other
conduct must be “relevant” and must occur “during the commission of the offense of
conviction).
In the case at bar, Krzeczowski was charged with the production of child
pornography involving only one minor, 16-year old MV.
He pled guilty to the
production of pornography involving only one minor, 16-year old MV.
The
Government did not prove the existence of ten other victims not listed in any counts
of the original indictment. To qualify as “relevant conduct,” any purported conduct
against those alleged additional victims must have occurred in the course of
commission of the offense of conviction, a fact which the prosecution could not and
did not prove at sentencing or at any other time. Even if the prosecution had proven
that other uncharged criminal acts of child pornography production occurred during
the same time frame as the offense of conviction, an allegation which the prosecution
failed to prove, the bare temporal overlap between those uncharged criminal acts and
the acts giving rise to the offense of conviction is insufficient to apply the concept of
relevant conduct at sentencing. Krzeczowski thus argues that the District Court
erroneously enhanced his sentence five levels pursuant to the provisions of U.S.
SENTENCING GUIDELINES MANUAL §§ 1B1.3(a)(1), 2G2.1(d)(1) and 3D1.4(a), a
position he advanced and argued strenuously at sentencing.
25
Defendant/Petitioner Krzeczowski submits that while the various courts of
appeal have attempted to define the parameters of “relevant conduct”, those attempts
have failed, especially in the highly-charged emotional arena of child pornography.
Pursuant to the provisions of Supreme Court Rule 10, the defendant/petitioner
respectfully petitions this Honorable Court to settle this important question of federal
law to define what conduct constitutes relevant conduct for purposes of sentencing
defendants convicted of violating the provisions of 18 U.S.C. § 2251(a) in order to
provide guidance to the lower courts, to prosecutors, to criminal defense attorneys
and to ordinary citizens.
CONCLUSION
Based on the foregoing, Petitioner prays that this Honorable Court grant a
Writ of Certiorari to review the substantial and important Federal issues outlined
herein, and upon the briefing and hearing of oral argument in this cause, reverse the
decision of the Sixth Circuit Court of Appeals and remand for resentencing.
Respectfully submitted,
s/Paul Bergmann, III
Paul Bergmann, III,
Attorney for Petitioner BrianKrzeczowski
707 Georgia Avenue, Suite 203
Chattanooga, TN 37402
Telephone: (423) 756-3245
Facsimile: (423) 267-0126
pb3@epbfi.com
TN BPR # 009133
26
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.