Petition for Writ of Certiorari — Rocky Krupa, Petitioner v. United States
Supreme Court briefNov 16, 2021
Ask Donna
What actually matters in this document.
Text
NO.
SUPREME COURT OF THE UNITED STATES
ROCKY KRUPA
Petitioner
- VS. UNITED STATES OF AMERICA
Respondent.
)
)
)
)
)
)
)
)
)
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
/s Michael Losavio
Michael M. Losavio
1642 Jaeger Avenue
Louisville, Kentucky 40205
losavio@losavio.win.net
(502) 417-4970
Counsel of Record for Petitioner
Rocky Krupa
1
QUESTION PRESENTED FOR REVIEW
Question I. – Was Rocky Krupa’s sentence procedurally and substantively unreasonable as the
district court did not consider nor articulate why the appellant could not receive a lesser sentence
due to family circumstances as permitted by Booker and U.S.S.G. §5H1.6, and simply applied
the probabilistic model of the Sentencing Guidelines in an unjust way.
2
LIST OF ALL PARTIES TO THE PROCEEDING IN THE COURT
WHOSE JUDGMENT IS SOUGHT TO BE REVIEWED
Rocky Krupa, Appellant, Petitioner
United States of America, Appellee, Respondent
,
3
TABLE OF CONTENTS
Questions Presented For Review .....................................................................................................3
Opinion Below .................................................................................................................................6
Grounds of Jurisdiction ....................................................................................................................6
Constitutional Provisions and Other Authorities Involved in This Case .........................................7
Statement of the Case.......................................................................................................................8
Reasons For Granting the Writ ......................................................................................................10
Conclusion .....................................................................................................................................17
Certification of Word and Page Length ………………………………………………………….18
Certificate of Service……….………………………..…………………………………………..19
Appendix…………………………………………..……………………………..………………19
Opinion Affirming of the United States Court of Appeals for the Sixth Circuit ....... A 1-17
United States v. Rocky Krupa, Case No. 21-1080
Judgment of the U.S. District Court for the Western District of Michigan………..…B 1-7
United States v. Rocky Krupa, Case # 1-20-CR- 69
4
TABLE OF AUTHORITIES
Cases
Branion v. Gramley, 855 F.2d 1256 (7th Cir. 1988); ................................................................... 19
Eddings v. Oklahoma, 455 US 104 (1982) ................................................................................... 17
Gall v. United States, 128 S. Ct. 558 (2007)................................................................................. 11
Kimbrough v. United States, 128 S. Ct. 558 (2007) ..................................................................... 11
Lockett v. Ohio, 438 US 586 (1975) ............................................................................................. 17
United............................................................................................................................................ 14
United States v Boucher, File Name: 19a0232p.06, (6th Cir. 2019) ............................................ 13
United States v Deigant, 916 F.2d 916 (4th Cir. 1990), ................................................................ 15
United States v Jackson, 964 F.2d 124 (2nd Cir 1992) .................................................................. 15
United States v. Booker 543 U.S. 220 (2005 ................................................................................ 11
United States v. Higgins, 967 F.2d 841 (3rd Cir 1992) ................................................................. 15
United States v. Peters, 08a0024p.06 ........................................................................................... 17
United States v. Rita, 127 S. Ct. 2456, 2465 (2007) ..................................................................... 11
United States v. Shonubi, 103 F.3d 1085 (2nd Cir. 1997) ............................................................ 19
United States v. Vidrickson, 998 F. 2d 601 (8th Cir. 1993) ........................................................... 15
United States. v. Husein, 478 F.3d 318 (6th Cir. 2007) ................................................................ 14
Statutes
18 U.S.C. §3231 .............................................................................................................................. 8
18 U.S.C. §3553 ...................................................................................................................... 17, 18
18 USC §3553 ............................................................................................................................... 13
21 USC 846 ..................................................................................................................................... 8
21 USC 851 ..................................................................................................................................... 8
28 U.S.C. §1291 .............................................................................................................................. 8
28 U.S.C. §1294 .............................................................................................................................. 8
Federal Rules of Appellate Procedure 3 and 4(b) ........................................................................... 8
Other Authorities
U.S.S. G. §5H1.6 .......................................................................................................................... 18
U.S.S.G § 5H1.6, Commentary..................................................................................................... 17
U.S.S.G. § 5H1.6, cmt. 1(B) ......................................................................................................... 15
Treatises
Andrew von Hirsch, Prediction of Criminal Conduct and Preventive Confinement of Convicted
Persons, 21 Buff. L. Rev. 717, 744-50 (1972) .......................................................................... 19
Berg, Mark and Huebner, Beth, "Reentry and the Ties that Bind: An Examination of Social Ties,
Employment and Recidivism," 28 Justice Quarterly 2 (30 July 2010) ..................................... 18
Michael Meyerson and William Meyerson, Significant Statistics, 37 Pepp.L.Rev.771 (2010); .. 19
Mike Townsend and Thomas Richardson, Probability and Statistics in the Legal Curriculum, 40
Duq. L. Rev 447 (Spring 2002); ............................................................................................... 19
Mills, Alice and Codd, Helen "Prisoners' families and offender management: Mobilizing social
capital," 55 Probation Journal 1, pp 9-24 (March 2008); ......................................................... 18
Petersilia, Joan "When Prisoners Return to the Community: Political, Economic and Social
Consequences," SENTENCING & CORRECTIONS: ISSUES FOR THE 21ST CENTURY
5
11 (U.S. Department of Justice ed., November. 2000),
https://www.ncjrs.gov/pdffiles1/nij/184253.pdf, (accessed 12/15/2014 .................................. 18
Ronald Dworkin, Taking Rights Seriously (1977); ..................................................................... 19
See. e.g., Cobbina, Jennifer, Huebner, Beth and Berg, Mark, "Men, Women, and Postrelease
Offending: An Examination of the Nature of the Link Between Relational Ties and
Recidivism," 58 Crime and Delinquency 3, pp 331-361 (May 2012) ...................................... 18
OPINIONS AND ORDERS BELOW
The opinion below of the United States Court of Appeals for the Sixth Circuit was rendered in
United States v. Rocky Krupa, Case No. 21-1080, File Name: 21a0472n.06; that opinion affirmed
the judgment of the United States District Court for the Western District of Michigan in case
number 1-20-CR- 69 where the original sentence committed Krupa to the custody of the Bureau
of Prisons to a total term of 90 months imprisonment.
JURISDICTION
i.
The opinion of the United States Court of Appeals for the Sixth Circuit was
entered on October 19, 202; pursuant to Rule 13.1 of the rules of this Court, the
Petition is timely filed.
ii.
No petition for a rehearing was filed in this matter; no extension of time within
which to file a petition for a writ of certiorari has been made.
iii.
This is not a cross-Petition pursuant to Rule 12.5.
iv.
The statutory provision conferring jurisdiction upon this Court to review upon a
writ of certiorari the judgment or order in question is 28 U.S.C. §1254.
6
Constitutional Provisions And Other Authorities Involved In This Case
U.S.S. G. §5H1.6
In sentencing a defendant convicted of an offense other than an offense described in the
following paragraph, family ties and responsibilities are not ordinarily relevant in determining
whether a departure may be warranted.
In sentencing a defendant convicted of an offense involving a minor victim under section 1201,
an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, of title 18,
United States Code, family ties and responsibilities and community ties are not relevant in
determining whether a sentence should be below the applicable guideline range.
Family responsibilities that are complied with may be relevant to the determination of the
amount of restitution or fine.
7
STATEMENT OF THE CASE
Jurisdiction in the First Instance
Subject matter jurisdiction vested in the U.S. District Court for the Western District of
Michigan pursuant to 18 U.S.C. §3231; Appellant Rocky Krupa was charged for offenses against
the laws of the United States and was convicted upon a plea of guilty to Count 1, conspiracy to
distribute and possess with the intent to distribute controlled substances, 21 USC 846, 851 and 841
(a) (1), (b) (1)(C), and Count 4, Possession with intent to distribute heroin, 21 USC 851 and 841
(a) (1), (b) (1)(C).
Appellate jurisdiction vested in the United States Court of Appeals for the Sixth Circuit
pursuant to 28 U.S.C. §1291 and 28 U.S.C. §1294.
Presentation of Issues in the Courts Below and Facts
Rocky Krupa was indicted, along with eight others for conspiring to distribute and
possess with the intent to distribute heroin, methamphetamine, cocaine and buprenorphine and of
knowingly possessing with the intent to distribute heroin during a time he was fighting his
addiction and was recruited into a drug conspiracy while doing time in jail.
Mr. Krupa pled guilty to those charges against him without a plea agreement, an early
acceptance of responsibility.
Mr. Krupa himself noted his issues:
187. Mr. Krupa explained it was a slow season at his work, and he was struggling
financially. He provided the following written statement, “I had just started to get back
into doing opiates again after almost 3 years clean. I would do it like 1, 2, times a week,
around then I received a call asking me if I would like to receive an oz. or ounce and ½
for what I thought was pretty cheap. I accepted the offer, and thought I could make $ at it.
But I just ended up doing more, and just about breaking even.”
188. The defendant explained he has been unable to meet his first grandchild due to his
incarceration. He stated his mother is aging and his father is ill. He is especially
concerned about his parents due to the COVID-19 pandemic. Mr. Krupa expressed
8
remorse about how this offense has affected his fiancée and children. He explained they
were in the final stages of purchasing a home and had recently purchased a thriving
business prior to his arrest. Mr. Krupa also acknowledged how this offense impacted his
community. He wrote, “Not to mention the impact that heroin has on people who use it
and society in general. I contributed to that and I hate it.”
189. Mr. Krupa stated he was extremely disappointed in himself, and he wished he would
have reached out for help and made different choices. He explained he should have found
another way to get through his financial struggles or asked for help with his own
substance abuse problems. In the future, he plans to avoid involvement in similar activity
by staying sober, focusing on his business, and choosing his associates more carefully.
190. During his custody sentence, Mr. Krupa plans to focus on programming, classes,
staying out of trouble, and getting back home to his loved ones.
Mr. Krupa’s memorandum did note that:
The PSI Report correctly reflects Rocky’s personal and family data, ¶¶263-273. Rocky
grew up in flint, Michigan residing mainly with his mother. Rocky has been in a longterm relationship with his fiancé, Rebecca Fisher who is the mother of two of his
children. Rocky has the love and support of his family as evidenced by the attached
letters from his mother, his sister and his adult daughter. All speak of Rocky’s love and
devotion to his family.
as well as his success in overcoming alcohol additions, building a family and successfully
becoming a productive member of society as a painter and mechanic. Mr. Krupa asked for a
“calculation of the sentencing guidelines and determine that the total offense level is 19, his
criminal history category is V with a guideline imprisonment range of 57-71 months and to
sentence him within that range.“ Id.
Mr. Krupa’s mother Alice Gillett wrote of his efforts to support his family now
that he had three children and had built a successful painting business His sister Amy wrote how
Rocky had started to overcome his addictions and become a dependable father for his family. His
daughter Kaylee wrote how he had begun to move away from his addiction and build a
successful painting business through hard work and long hours. His cousin Robert Krupa wrote
asking for consideration for Rocky as he is a good person. His partner Rebecca and the mother
of his two youngest children, Alana, 12, and Josephus, three, wrote how he had “made great
9
strides for himself and his family.” acquiring a house he renovated himself for his family and a
painting business, M&M Painting of Cadillac, Michigan, to support them; she asked that Rocky
be allowed to continue to support his family and beat his addiction.
Final Judgment was entered on January 8, 2021 adjudging Krupa guilty upon his plea of
guilty of Count 1 and Count 4 and sentencing him to the imprisonment for a total term 90
months imprisonment on each of Counts 1 and 4, to run concurrently for a total term of 90
months imprisonment. Rocky Krupa appealed this conviction, arguing:
Issue I- Rocky Krupa’s sentence was procedurally and substantively unreasonable as the
district court erred when it did not consider nor articulate why the appellant could not
receive a lesser sentence due to family circumstances as permitted by Booker and
U.S.S.G. §5H1.6.
The Court of Appeals affirmed as to all issues raised, noting:
Krupa essentially argues that the Sentencing Guidelines should not be used, because they
“focus primarily on punishment, and not on rehabilitation and deterrence as required by
18 USC 3553 [sic] and supported by most studies on penology and criminology.” Id. at
24 n.4. These arguments are contrary to the Supreme Court’s clear precedent that district
courts should use the Guidelines as “the starting point and the initial benchmark” for its
sentencing calculations, so we reject them. Gall, 552 U.S. at 49; see also United States v.
Bolds, 511 F.3d 568, 579 (6th Cir. 2007).
Krupa challenges the procedural and substantive reasonableness of his sentence. He
argues that the district court erred in calculating his Criminal History Category and in its
sentencing decision because Krupa’s “plea for leniency based on 18 USC §3553 [sic]
factors was reasonable.” CA6 R. 20, Appellant Br., at 23. Krupa asserts that his family
“will be placed in a situation of exceptional financial and emotional risk.” Id. at 26.
Krupa did not raise these arguments below, and they fail on appeal. Because the district
court correctly calculated Krupa’s Criminal History Category and selected a reasonable
sentence based on permissible factors, we affirm.
This Petition follows.
10
REASONS FOR GRANTING THE WRIT
Question I. – Was Rocky Krupa’s sentence procedurally and substantively unreasonable as the
district court did not consider nor articulate why the appellant could not receive a lesser sentence
due to family circumstances as permitted by Booker and U.S.S.G. §5H1.6, and simply applied
the probabilistic model of the Sentencing Guidelines in an unjust way.
Mr. Krupa asked generally that he receive leniency due to his family’s need for him,
setting the standard of review as de novo on this issue; otherwise it would be reviewed for plain
error. Pursuant to United States v. Booker 543 U.S. 220 (2005) this Court reviews a criminal
sentence for both procedural and substantial reasonableness under an abuse of discretion
standard. The Supreme Court in Gall v. United States, 128 S. Ct. 558 (2007) and Kimbrough v.
United States, 128 S. Ct. 558 (2007) carefully expanded on the advisory nature of the Guidelines.
Plain error review applies to assertions of error where no objection was made. The District Court
record must adequately explain the chosen sentence to allow for “meaningful appellate review"
or it will be procedurally unreasonable such that “a remand is warranted to reduce confusion and
ensure correctness.” Gall v. United States, 552 U.S. 38, 50 (2007). The appellate presumption of
reasonableness for a sentence within the Guidelines is only a weak one and rebuttable; “It does
not reflect strong judicial deference of the kind that leads appeals court to grant greater
factfinding leeway to an expert agency than to a district judge”. United States v. Rita, 127 S. Ct.
at 2465 This Court notes a sentence within the guidelines is not per se reasonable.
The detail of the sentencing court’s reasons varies according to the simplicity or
complexity of the case before it and the non-frivolous reasons proposed for a different
sentence. United States v. Rita, above.
This argument is not waived by Mr. Krupa.
11
The District Court noted that Krupa’s objections to the Presentence Report had been
withdrawn. Mr. Krupa and his counsel affirmed he had adequate time to review and had
reviewed the presentence report, had no objections to it and concurred in the advisory guideline
range, and Krupa was satisfied with his counsel’s work on his behalf.
The United States noted Krupa was the first person to plead guilty and that “First, since
being indicted, the defendant has made very good decisions. He has been polite and respectful
when taken into custody. He has not otherwise been a problem. He pled guilty to all of the counts
in the Indictment shortly after the government disclosed the discovery.”
Mr. Krupa’s memorandum did note that:
The PSI Report correctly reflects Rocky’s personal and family fata, ¶¶263-273. Rocky
grew up in flint, Michigan residing mainly with his mother. Rocky has been in a longterm relationship with his fiancé, Rebecca Fisher who is the mother of two of his
children. Rocky has the love and support of his family as evidenced by the attached
letters from his mother, his sister and his adult daughter. All speak of Rocky’s love and
devotion to his family.
as well as his success in overcoming alcohol additions, building a family and successfully
becoming a productive member of society as a painter and mechanic. Mr. Krupa asked for a
“calculation of the sentencing guidelines and determine that the total offense level is 19, his
criminal history category is V with a guideline imprisonment range of 57-71 months and to
sentence him within that range. “
His mother Alice Gillett wrote of his efforts to support his family now that he had three
children and had built a successful painting business His sister Amy wrote how Rocky had
started to overcome his addictions and become a dependable father for his family. His daughter
Kaylee wrote how he had begun to move away from his addiction and build a successful painting
business through hard work and long hours. His cousin Robert Krupa wrote asking for
consideration for Rocky as he is a good person. His partner Rebecca and the mother of his two
12
youngest children, Alana, 12, and Josephus, three, wrote how he had “made great strides for
himself and his family.” acquiring a house he renovated himself for his family and a painting
business, M&M Painting of Cadillac, Michigan, to support them; she ask that Rocky be allowed
to continue to support his family and beat his addition.
Krupa’s family - his mother, sister, long-time girlfriend, daughter, and grandson – were
all at court to support him that day, writing letters in support of Mr. Krupa; he noted that getting
a defendant back with his home and family helped prevent recidivism. Id. Counsel noted Mr.
Krupa’s great potential as a productive citizen, as a skilled painter seeking to buy his own
business; he asked the court to sentence Krupa at the low end of the guidelines for those reasons
and those the United States set out.
With acceptance of responsibility, the mother of two of his children and two young
children depending on him for support, his parents elderly and his father infirm, Rocky Krupa’s
plea for leniency based on 18 USC §3553 factors was reasonable. His hopes were that he would
still be able to provide parental, emotional and financial support for his two young children, ages
one and five, before they grew beyond the benefit of his support and protection.
The District Court reviewed the §3553 factors and the sentencing guidelines calculations
with Mr. Krupa. The District Court was hampered by the advisory Sentencing Guidelines, which
conflict with the 18 USC §3553 factors; the guidelines as they relate to family, hearth and home
seem to treat them as largely irrelevant1 , despite most of 20th and 21st century criminology.
1 As Sixth Circuit noted in United States v Boucher, File Name: 19a0232p.06, (6th Cir. 2019) :
While these [family and community] factors might distinguish Boucher from a mine-run
defendant convicted of assault, they are almost all disfavored as grounds for a belowGuidelines sentence.3 Congress has instructed the Sentencing Commission to “assure that
the guidelines and policy statements, in recommending a term of imprisonment . . . reflect
the general inappropriateness of considering the education, vocational skills, employment
13
And with natural reason as to how we all live together in the world. See United States v. Bistline,
665 F.3d 758, 767 (6th Cir. 2012) (affirming consideration of family circumstances but reversing
the sentence as unjustified in that case)
In United States. v. Husein, 478 F.3d 318 (6th Cir. 2007) the Sixth Circuit rejected the
government’s rejection of leniency due to exceptional family circumstances:
Fortunately, the recent commentary added to § 5H1.6 offers substantial guidance by
requiring the presence of the following four "circumstances" before a determination of
extraordinariness may be made:
(i) The defendant's service of a sentence within the applicable guideline range will cause
a substantial, direct, and specific loss of essential caretaking, or essential financial
support, to the defendant's family.
(ii) The loss of caretaking or financial support substantially exceeds the harm ordinarily
incident to incarceration for a similarly situated defendant. For example, the fact that the
defendant's family might incur some degree of financial hardship or suffer to some extent
from the absence of a parent through incarceration is not in itself sufficient as a basis for
departure because such hardship or suffering is of a sort ordinarily incident to
incarceration.
(iii) The loss of caretaking or financial support is one for which no effective remedial or
ameliorative programs reasonably are available, making the defendant's caretaking or
record, family ties and responsibilities, and community ties of the defendant.” 28 U.S.C.
§ 994(e). The Guidelines’ policy statements do just that. See USSG § 5H1.2 (“Education
and vocational skills are not ordinarily relevant [to a defendant’s sentence.]”); id. § 5H1.5
(“Employment record is not ordinarily relevant.”); id. § 5H1.6 (“[F]amily ties and
responsibilities are not ordinarily relevant.”); id. § 5H1.11 (“Civic, charitable, or public
service . . . and similar good works are not ordinarily relevant.”); id. § 5H1.1 (noting age
“may be relevant” only if “present to an unusual degree”).
In other words, the Sentencing Guidelines focus primarily on punishment, and not on
rehabilitation and deterrence as required by 18 USC 3553 and supported by most studies on
penology and criminology.
14
financial support irreplaceable to the defendant's family.2
(iv) The departure effectively will address the loss of caretaking or financial support.
U.S.S.G. § 5H1.6, cmt. 1(B) (emphasis added).
Rocky Krupa accepted responsibility for his acts.
This and Krupa’s primary support for his family and his efforts to beat addiction placed
Krupa, Jr’s family situation outside the “typical”3 one for criminal offenders in that Krupa was
within an environment of family elders dealing marijuana, elders who were also convicted and
would not be available to provide financial support to his wife and young children.
Rocky Krupa’s situation meets all the criteria set out in Husein. Rocky Krupa ’s service of
sentence results in substantial, direct, and specific loss of essential caretaking, or essential financial
support, to his family; his young children rely on his protection, guidance and financial support, as
do the children of any father. But their situation is particularly fragile given their ages and the
danger to them extraordinary.
This loss of caretaking or financial support substantially exceeds the harm ordinarily
incident to incarceration for a similarly situated defendant. Here the loss occurs at a crucial time
for these two very young children, where they and their mother were Krupa’s dependents.
His children will not simply suffer “some degree of financial hardship or suffer to some
extent from the absence of a parent” ; rather, they will be placed in a situation of exceptional
financial and emotional risk, and these factors are intertwined.
2 The life of every family that strives for stability and support is extraordinary; extraordinary
family circumstances justify a downward departure and a lesser sentence. United States v
Jackson, 964 F.2d 124 (2nd Cir 1992); United States v Deigant, 916 F.2d 916 (4th Cir. 1990),
United States v. Higgins, 967 F.2d 841 (3rd Cir 1992), United States v. Vidrickson, 998 F. 2d 601
(8th Cir. 1993)
3 Perhaps we should consider any truly supportive family relationship as anything other than
extraordinary in this modern, hyper-materialist world.
15
Emotional and Psychological Damage to the Innocent
For children as young as Rocky Krupa’s the bonding and attachment with a parent or
similarly protective adult is absolutely vital for the development of proper attachment and
relationships in the future. Damage to this through the absence of a parent at this key time,
financial deprivation and, indeed, the high risk of danger to small children in this circumstance is
not of a sort ordinarily incident to incarceration. It is, instead, a vast, collateral calamity that most
harshly punishes and damages these children, not the offender, Rocky Krupa.
Financial Deprivation to the Innocent
The family financial statement shows the family received ¾ of its income from Krupa,
$6260, against $2000 from his spouse, against total monthly expenses of $2755.
The loss of Krupa’s income creates a household deficit of $755 per month and a great
strain on keeping the family together. Indeed, part of Krupa’s temptation to engage with his codefendants was that he had money problems combined with a return to opiates after almost three
years clean:
Mr. Krupa explained it was a slow season at his work, and he was struggling financially.
He provided the following written statement, “I had just started to get back into doing
opiates again after almost 3 years clean. I would do it like 1, 2, times a week, around then
I received a call asking me if I would like to receive an oz. or ounce and ½ for what I
thought was pretty cheap. I accepted the offer, and thought I could make $ at it. But I just
ended up doing more, and just about breaking even.”
(R. 225, PSR, PageID.1146)
The Presentence Report details both the precarious financial situation this creates for the
family and noted Krupa did not have the ability to pay a fine within the Guidelines range. Id. The
district court in its sentencing did not sufficiently consider and/or articulate its consideration of
the myriad factors that make Mr. Krupa unique among traffickers and thus at least worthy of
attention in sentencing, regardless of the final outcome.
16
It made no findings as to whether or not “The loss of caretaking or financial support
substantially exceeds the harm ordinarily incident to incarceration for a similarly situated
defendant” or that “effective remedial or ameliorative programs reasonably are available” for
this family, even with all the information presented by the PSR. U.S.S.G § 5H1.6, Commentary;
United States v. Husein, above.4
The damage to the innocent should not be dismissed due to a general statement by the
Sentencing Commission. Gall v United States and 18 USC 3553 require individual sentencing
based on the unique situation of an individual before the court; this Court per United States v.
Peters, 08a0024p.06 requires an adequate articulation of the reasoning for a trial court’s
decision, the extent of which may vary with the uniqueness of the factors at issue. None of these
requirements were met in this sentencing, which offends the core of the American ideology of
individualism and its legal requirement of individualized sentencing in contrast to a class-based
system of generalized punishment.
The controlling law is 18 U.S.C. §3553, which mandates that a sentence be sufficient but
not greater than necessary, to
(A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner. 18
U.S.C. §3553 (a)
4 And this is in accord with the sentiments expressed in Lockett v. Ohio, 438 US 586
(1975) and Eddings v. Oklahoma, 455 US 104 (1982) as to capital sentencing that a sentencing
court should consider in mitigation personal circumstances such as family and family
upbringing.
17
It also requires consideration, inter alia, of the nature and circumstances of the
offense and the history and characteristics of the defendant, the need to avoid
unwarranted sentence disparities among defendants with similar records who have been
found guilty of similar conduct, and the Sentencing Guidelines. 18 U.S.C. §3553(a) (1),
(3), (4), (5) and (6).
The rejection of the importance of family ties is detailed in U.S.S. G. §5H1.6. Family
Ties and Responsibilities which states that "family ties and responsibilities are not ordinarily
relevant in determining whether a departure may be warranted." But that directly conflicts with
18 U.S.C. §3553(a)(2)(C), which mandates that a sentence be sufficient but not greater than
necessary, to "protect the public from further crimes of the defendant." Family ties and
responsibilities are key to re-integrating offenders and reducing recidivism that hurts those of the
public as well as reducing the risk of the collateral consequences of the impact on the offender's
children and their behavior. See, e.g., Mills, Alice and Codd, Helen "Prisoners' families and
offender management: Mobilizing social capital," 55 Probation Journal 1, pp 9-24 (March 2008)
5
See. e.g., Cobbina, Jennifer, Huebner, Beth and Berg, Mark, "Men, Women, and Postrelease
Offending: An Examination of the Nature of the Link Between Relational Ties and Recidivism,"
58 Crime and Delinquency 3, pp 331-361 (May 2012)
So the Guidelines reject one of the most crucial aspects of fulfilling the §3553 mandate.
Both in the abstract and the application in Krupa's case show the unreasonableness of the
5 See Also Berg, Mark and Huebner, Beth, "Reentry and the Ties that Bind: An Examination of
Social Ties, Employment and Recidivism," 28 Justice Quarterly 2 (30 July 2010) ; Petersilia,
Joan "When Prisoners Return to the Community: Political, Economic and Social Consequences,"
SENTENCING & CORRECTIONS: ISSUES FOR THE 21ST CENTURY 11 (U.S. Department
of Justice ed., November. 2000), https://www.ncjrs.gov/pdffiles1/nij/184253.pdf, (accessed
12/15/2014)
18
sentence Krupa received, procedurally and substantively.
Similarly, the Guidelines as a whole are a probabilistic model for defining the sentences
within the United States6. In United States v. Shonubi, 103 F.3d 1085 (2nd Cir. 1997) the
Second Circuit rejected an ad hoc probabilistic model for setting the drug quantity for an
offender, requiring "specific evidence" of the drug quantity.
Krupa's Guidelines-informed sentencing used an algorithmic process as defined by the
United States Sentencing Guidelines (U.S.S.G.) but contrary to the facts of rehabilitation and
deterrence. It was error to not give consideration and benefit due to Krupa’s family
circumstances, that error was plain, especially where Krupa detailed those circumstances and his
family supported him in many letters, it prejudiced Krupa not being used to reduce his
sentencing level and thus increasing his sentence calculation to imprisonment, and it seriously
affects the fairness and integrity of the outcome of these proceedings as to justify this Court’s
exercise of its discretion to remedy this.
It is respectfully submitted that the sentence in this matter is procedurally unreasonable as
it was based on an incorrect calculation of the guidelines and it should be vacated and remanded
to the district court for a re-sentencing with full consideration of the factors discussed herein.
Further, this sentence is substantively unreasonable in that the district court gave an unreasonable
weight to one possible §3553 factor but gave little weight to those relating to history and
6 Commentators have discussed the ways in which statistical and probabilistic models are used,
properly and improperly, in criminal justice and the ways in which lawyers are taught to use
them. See, e.g. Branion v. Gramley, 855 F.2d 1256 (7th Cir. 1988); Michael Meyerson and
William Meyerson, Significant Statistics, 37 Pepp.L.Rev.771 (2010); Mike Townsend and
Thomas Richardson, Probability and Statistics in the Legal Curriculum, 40 Duq. L. Rev 447
(Spring 2002); Ronald Dworkin, Taking Rights Seriously 13 (1977); Andrew von Hirsch,
Prediction of Criminal Conduct and Preventive Confinement of Convicted Persons, 21 Buff. L.
Rev. 717, 744-50 (1972)
19
characteristics of Krupa that support a lesser sentence for him.
CONCLUSION
The sentence was erroneous and this Petition for Writ of Certiorari should be granted and
Mr. Krupa given the relief he has argued for herein.
Respectfully submitted,
/s Michael Losavio
Michael M. Losavio
1642 Jaeger Avenue
Louisville, Kentucky 40205
(502) 417-4970
Counsel of Record for
Petitioner Rocky Krupa
20
Certification of Word Count and Petition Length
The undersigned certifies that this Petition for a Writ of Certiorari does not exceed 5110 words nor
20 pages in length, not counting the appendix materials, and is in compliance with the length rules
of Supreme Court Rule 33.
/s Michael Losavio
Michael Losavio
1642 Jaeger Avenue
Louisville, Kentucky 40205
losavio@losavio.win.net
(502) 417-4970
Counsel of Record for Petitioner
pursuant to the Criminal Justice Act
Certificate of Service
A copy of the foregoing Petition for a Writ of Certiorari has been served this day by U.S. Postal
Mail or via a private expedited service on Hon. Elizabeth Prelogar, Solicitor General of the
United States, Department of Justice, 950 Pennsylvania Ave., N. W., Washington, DC 205300001.
This November16, 2021
/s Michael Losavio
Michael Losavio
1642 Jaeger Avenue
Louisville, Kentucky 40205
losavio@losavio.win.net
(502) 417-4970
Counsel of Record for Petitioner
pursuant to the Criminal Justice Act
21
A
P
P
E
N
D
I
X
Opinion Affirming of the United States Court of Appeals for the Sixth Circuit......A 1-9…
United States v. Rocky Krupa, #No. 21-1080
Judgment of the U.S. District Court for the Western District of Michigan………B 1-7…
United States v. Rocky Krupa, #1-20-CR- 69
Statutes Involved in this Petition
18 U.S.C. §3553
22
A1
NOT
RECOMMENDED
PUBLICATION
FOR
File Name:
21a0472n.06 Case
No. 21-1080
UNITED STATES COURT OF
APPEALSFOR THE SIXTH CIRCUIT
FILED
)
UNITED STATES OF
AMERICA,
Plaintiff - Appellee,
v.
)
)
)
)
)
)
)
)
)
ROCKY KRUPA,
Defendant - Appellant.
23
Oct 19, 2021
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN
Before: CLAY, GIBBONS, and BUSH, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Rocky Krupa appeals his within-guidelines
sentence of 90 months’ imprisonment for participation in a heroin conspiracy in violation of
21 U.S.C. § 846 and possession of heroin with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1). Krupa pled guilty without a plea agreement. He argues that the district court
incorrectly calculated his Criminal History Category and erred in failing to adequately consider
factors related to his family situation. Because the district court did nor err or abuse its discretion
in its sentencing decision, we affirm.
I.
After being released on parole in July 2018 from the Newberry Correctional Facility in the
Michigan Department of Corrections (“MDOC”) for a state court conviction for delivering and
manufacturing controlled substances, Rocky Krupa and still-incarcerated codefendant Luis
Alberto Cruz began communicating via telephone about a source of drug supply in Mexico.
Cruz,
from inside the prison, worked with Krupa, other codefendants (many of whom were connected
to MDOC), and the supplier in Mexico to coordinate the payment and delivery of heroin.
After several telephone calls with Cruz, Krupa confirmed that he had received his first package
of heroin on November 23, 2018. Throughout 2019 and 2020, Krupa continued his participation
in the conspiracy by acquiring and distributing drugs. On June 24, 2020, a federal grand jury
returned a superseding indictment charging Krupa and eight codefendants with conspiracy to
distribute and possess with intent to distribute controlled substances in violation of 21 U.S.C. §
846. The grand jury also charged Krupa with possession with intent to distribute heroin in
24
violation of 21 U.S.C. § 841(a)(1). Krupa pled guilty to both counts without a plea agreement on
August 24, 2020, making him one of the first participants in the conspiracy to plead guilty. The
district court accepted Krupa’s guilty plea on September 8, 2020.
In the Final Presentence Investigation Report (“PSR”), the probation office attributed
256.67 grams of heroin to Krupa’s participation in the conspiracy, resulting in a base offense level of
24, and designated him an average participant. Krupa was credited 3 points for his timely acceptance
of responsibility, bringing his total offense level to 21. Krupa’s multiple criminal convictions and the
fact that the present offenses were committed while he was on parole resulted in a criminal history
score of 13 and a Criminal History Category of VI. The Sentencing Guidelines provided a range of 77
to 96 months. Due to “the length and severity of [Krupa’s] criminal history,” the probation office
recommended an upward departure from Krupa’s sentencing range. DE 225, Final Presentence
Investigation Report (“PSR”), SEALED, Page ID 1179.
Objecting to the PSR, Krupa argued that he should be considered a minor participant and
accordingly receive a 2-level reduction. Krupa also raised arguments against the probation
office’s recommendation for an upward departure due to his criminal history. Krupa emphasized
his family relations and the support he had received from his family, as evidenced by multiple
letters submitted to the court. After the government’s sentencing memorandum argued that
Krupa was properly scored as an average participant by detailing the extent of his participation,
Krupa withdrew his objection requesting a 2-level reduction as a minor participant but
maintained his other arguments.
At Krupa’s sentencing hearing on January 8, 2021, the court announced that Krupa had
withdrawn his objection to the PSR and “score[d] th[e] case under the advisory guidelines at
Offense Level 21, Criminal History Category VI, resulting in an advisory guideline range of 77
25
to 96 months.” DE 337, Sentencing Tr., Page ID 2304. When asked by the court, Krupa’s
counsel stated that he had reviewed the PSR with Krupa, had no objections to the PSR, and
concurred in the advisory guidelines range. The court then asked Krupa if had reviewed the
report with his lawyer and whether he was satisfied with his lawyer’s work. Krupa answered
each question affirmatively.
The court stated that it had “considered all of the defendant’s arguments in support of his
request for a lower sentence.” Id. at 2315. The court articulated its consideration of the 18
U.S.C.
§ 3553 factors, including the seriousness of the two offenses and the fact that “[h]eroin is a
significant controlled substance problem within the Western District of Michigan.” Id. at 2317.
The court considered “the connection of th[e] conspiracy to individuals who were inside a
Michigan Department of Corrections facility,” which “goes to the heart of the security of state
prisons,” to be an “aggravating factor.” Id. The court “accept[ed] the assertion by [Krupa] and
his lawyer that his drug problem was a major instigator for his involvement” and credited Krupa
with an “eloquent allocution.” Id. at 2317–18. Although the court noted that Krupa “has a
terrible record,” it acknowledged that the majority of his record consisted of driving offenses.
Id. at 2318-19. The court declined to grant the upward departure from the advisory guideline
sentence recommended by the probation office because “a guideline sentence towards the middle
of the guideline range . . . would promote respect for law, provide just punishment, and reflect
the seriousness of the offense behavior.” Id. at 2319. After announcing Krupa’s 90-month
sentence, Krupa’s counsel stated that he did not have any legal objections to the sentence
imposed and that he was satisfied that all of Krupa’s arguments had been addressed on the
record. Krupa filed a notice of appeal that same day.
26
I.
The “district court’s mandate is to impose ‘a sentence sufficient, but not greater than necessary, to comply
with the purposes’ of section 3553(a)(2).” United States v. Foreman,436 F.3d 638, 644 n.1 (6th Cir. 2006),
abrogated on other grounds, United States v. Young,580 F.3d 373 (6th Cir. 2009). “We review sentences for
reasonableness,” United States v. Collington, 461 F.3d 805, 807 (6th Cir. 2006) (citing United States v. Webb,
403 F.3d 373, 383 (6th Cir. 2005)), under a “deferential abuse-of-discretion standard,” Gall v. United States, 552
U.S.38, 52 (2007). When a “sentence[] [is] properly calculated under the Guidelines,” it is “credit[ed]with a
rebuttable presumption of reasonableness” on appeal. United States v. Williams, 436 F.3d 706, 708 (6th Cir.
2006). Sentences “must be both substantively reasonable and procedurally reasonable.” United States v. Caver,
470 F.3d 220, 248 (6th Cir. 2006) (citing Collington, 461 F.3d at 808).
Krupa argues that the district court was “hampered by the advisory Sentencing Guidelines,
which conflict with the 18 USC §3553 [sic] factors; the guidelines as they relate to family,
hearth and home seem to treat them as largely irrelevant, despite most of 20th and 21st
century
criminology.” CA6 R. 20, Appellant Br., at 23. Krupa essentially argues that the Sentencing
Guidelines should not be used, because they “focus primarily on punishment, and not on
rehabilitation and deterrence as required by 18 USC 3553 [sic] and supported by most studies on
penology and criminology.” Id. at 24 n.4. These arguments are contrary to the Supreme Court’s
clear precedent that district courts should use the Guidelines as “the starting point and the initial
benchmark” for its sentencing calculations, so we reject them. Gall, 552 U.S. at 49; see also
United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007).
Krupa challenges the procedural and substantive reasonableness of his sentence. He argues
that the district court erred in calculating his Criminal History Category and in its sentencing
decision because Krupa’s “plea for leniency based on 18 USC §3553 [sic] factors was
27
reasonable.” CA6 R. 20, Appellant Br., at 23. Krupa asserts that his family “will be placed in a
situation of exceptional financial and emotional risk.” Id. at 26. Krupa did not raise these
arguments below, and they fail on appeal. Because the district court correctly calculated Krupa’s
Criminal History Category and selected a reasonable sentence based on permissible factors, we
affirm.
A.
A sentence is “procedurally unreasonable if ‘the district judge fails to “consider” the
applicable Guidelines range or neglects to “consider” the other factors listed in 18 U.S.C.
§ 3553(a), and instead simply selects what the judge deems an appropriate sentence without such
required consideration.’” Collington, 461 F.3d at 808 (quoting Webb, 403 F.3d at 383). In
determining a sentence, the district court must “consider[] all of the § 3553(a) factors,” Gall,
552 U.S. at 53, and “communicate clearly its rationale for imposing the specific sentence,”
United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006). The district court need not,
however, engage in a “ritualistic incantation” or “make specific findings relating to each of
the factors
considered.” United States v. McClellan, 164 F.3d 308, 310 (6th Cir. 1999) (quoting United Statesv. Washington,
147 F.3d 490, 491 (6th Cir. 1998)).
Because Krupa failed to raise any procedural objections to his sentence in the district court,
his claim is reviewed for plain error. United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir.
2004). To establish plain error, Krupa must show (1) “an error or defect” by the district court that
(2) was “clear or obvious,” (3) “affected [his] substantial rights,” and (4) “affect[ed] the fairness,
integrity or public reputation of judicial proceedings.” United States v. Ataya, 884 F.3d 318, 322
(6th Cir. 2018) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).
28
Krupa argues that his January 18, 2002, conviction for operating while intoxicated should
have been scored as a 2-point instead of a 3-point conviction because his one-year sentence was
not longer than one year and one month. If this conviction had been scored as a 2, Krupa’s
Criminal History Category would have decreased from VI to V and his sentencing range would
have been 70 to 87 months. See USSG §5A. After Krupa’s release from custody following that
conviction, however, he violated his parole and was subsequently sentenced to 18 to 60 months’
imprisonment. The Sentencing Guidelines state that “[i]n the case of a prior revocation of
probation, parole, supervised release, special parole, or mandatory release, add the original term
of imprisonment to any term of imprisonment imposed upon revocation. The resulting total is
used to compute the criminal history points for §4A1.1(a), (b), or (c), as applicable.” USSG
§4A1.2(k)(1). We have consistently applied §4A1.2(k)(1) to uphold 3-point conviction scores
when violations of probation or parole resulted in a higher point allocation than the original
sentence would have received. See, e.g., United States v. Galvan, 453 F.3d 738–40 (6th Cir.
2006) (upholding the district court’s 3-point conviction score after revocation of probation
resulted in an aggregate sentence of more than thirteen months although the original sentence
was 65 days). The district court did not err in allocating 3 points for this conviction.
The district court carefully and reasonably considered all of the § 3553(a) factors,
particularly “the nature and circumstances of the offense and the history and characteristics of
the defendant[,] . . . the seriousness of the offense,” and the need to “afford adequate
deterrence.” DE 337, Sentencing Tr., Page ID 2315–16. The court “communicate[d] clearly its
rationale for imposing the specific sentence,” Richardson, 437 F.3d at 554, and appropriately
considered the aggravating and mitigating circumstances brought to its attention, including that
Krupa’s “drug problem was a major instigator for his involvement in these offenses.” DE 237,
29
Sentencing Tr., Page ID 2317.
We need not proceed with the remaining elements of plain error review because there wasno error. See
United States v. Igboba, 964 F.3d 501, 510 (6th Cir. 2020) (citing United States v. Donadeo, 910 F.3d 886, 893
(6th Cir. 2018)).
B.
A sentence is “substantively unreasonable when the district court selects a sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing
factors, or gives an unreasonable amount of weight to any pertinent factor.” United States v.
Conatser, 514 F.3d 508, 520 (6th Cir. 2008) (citing Webb, 403 F.3d at 385). A district court’s
sentencing decision must be given “due deference.” Gall, 552 U.S. at 51. “[T]hat the appellate
court might reasonably have concluded that a different sentence was appropriate is insufficient
to justify reversal of the district court.” Id. Overcoming the rebuttable presumption of
reasonableness is “no small burden,” as we “will not generally ‘second guess’ sentences on
substantive grounds when they fall in the range prescribed by the Guidelines.” United States
v.Simmons, 587 F.3d 348, 365 (6th Cir. 2009) (quoting United States v. Davis, 537 F.3d 611, 618(6th Cir.
2008)).
Krupa argues that we should vacate the district court’s sentence because of the high risk of
emotional and psychological damage and financial deprivation to his family. Relying on United
States v. Husein, 478 F.3d 318 (6th Cir. 2007), Krupa asserts that the district court did not
adequately consider factors related to “the loss of caretaking or financial support” that would
have justified a downward departure. CA6 R. 20, Appellant Br., at 24. In Husein, we articulated
guidance for district courts considering a downward departure “based on extraordinary family
circumstances” and upheld a downward departure against the government’s challenge. 478 F.3d
30
at 326, 329–30. That case is inapplicable here, where Krupa is arguing that the district court
erred in granting him a within-guidelines sentence.
Although he was given several opportunities to raise further arguments in the district court,
Krupa never suggested that he was “irreplaceable” to his family, which could have led to a
determination of extraordinariness under §5H1.6, cmt. 1(B) of the Sentencing Guidelines. See id.
at 327. Unlike in Husein, neither Krupa’s Sentencing Memorandum nor the PSR revealed that
Krupa was “irreplaceable.” Since Krupa did not seek a downward departure from the district
court, he waived that claim. United States v. Wheaton, 517 F.3d 350, 370 (6th Cir. 2008) (citing
United States v. Ware, 282 F.3d 902, 907 (6th Cir. 2002)). Even if Krupa had moved for a
downward departure, “a district court’s decision to deny a motion for a downward departure may
not be reviewed unless the district court incorrectly believed that it lacked discretion to depart
downward.” United States v. Carter, 510 F.3d 593, 600 (6th Cir. 2007) (citing United States v.
Puckett, 422 F.3d 340, 344–46 (6th Cir. 2005)). The record reflects that the district court clearly
understood its discretion in the sentencing process. The district court cannot consider arguments
not brought to its attention, and we cannot find Krupa’s sentence unreasonable.
III.
Because the district court did not err in its calculation of Krupa’s Criminal History
Category or otherwise abuse its discretion in sentencing, we affirm.
AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case
31
UNITED STATES DISTRICT COURT
Western District of Michigan
UNITED
STATES
AMERICA
OF
JUDGMENT IN A CRIMINAL CASE
-vs-
Case Number: 1:20-cr-6905 USM Number: 22920040
ROCKY JOSEPH KRUPA
Richard E. Zambon
Defendant’s Attorney
THE DEFENDANT:
܈
☐
☐
pleaded guilty to Counts One and Four of the Indictment.
pleaded nolo contendere to Count(s)
was found guilty on Count(s)
, which was accepted by the court.
after a plea of not guilty.
The defendant is adjudicated guilty of these offenses:
Title & Section
Offense Ended
21 U.S.C. §§ 846, 851, and 841(a)(1), (b)(1)(C)
June 25, 2020
Conspiracy to Distribute and Possess with Intent to Distribute Controlled Substances
21 U.S.C. §§ 851 and 841(a)(1), (b)(1)(C)
June 25, 2020
Possession With Intent to Distribute Heroin
Count
One
Four
The defendant is sentenced as provided in the following pages of this judgment. The sentence is
imposed pursuant to the Sentencing Reform Act of 1984.
IT IS ORDERED that the defendant must notify the United States attorney for this district within 30 days
of any change of name, residence, or mailing address until all fines, restitution, costs, and special
assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must
notify the court and the United States attorney of material changes in economic circumstances.
Date of Imposition of Sentence: January 8, 2021
Dated: January 8, 2021
/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
32
AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case
Judgment – Page 2
Defendant: ROCKY JOSEPH KRUPA
Case Number: 1:20-cr-69-05
IMPRISONMENT
The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned
for a total term of ninety (90) months on each of Counts 1 and 4, to be served concurrently.
܈
The court makes the following recommendations to the Bureau of Prisons:
That defendant receives educational and vocational training opportunities.
That defendant receives a substance abuse assessment and recommended treatment.
That defendant be screened for participation in the 500-hour Residential Drug Abuse Program.
That defendant is designated to a correctional facility close to Michigan.
܈
☐
The defendant is remanded to the custody of the United States Marshal.
The defendant shall surrender to the United States Marshal for this district:
at
on
as notified by the United States Marshal.
The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
☐ before 2:00 P.M. on
☐ as notified by the United States Marshal.
☐ as notified by the Probation or Pretrial Services Office.
☐
☐
☐
RETURN
I have executed this judgment as follows:
Defendant delivered on
at
to
, with a certified copy of this judgment.
United States Marshal
By:
Deputy United States Marshal
1302
AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case
Judgment – Page 3
Defendant: ROCKY JOSEPH KRUPA
Case Number: 1:20-cr-69-05
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be placed on supervised release for a term
of five (5) years on each of Counts 1 and 4, to be served concurrently.
MANDATORY CONDITIONS
1. You must not commit another federal, state, or local crime.
2. You must not unlawfully possess a controlled substance.
3. You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within
15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the
court.
☐ The above drug testing condition is suspended, based on the court’s determination that you posea
low risk of future substance abuse. (check if applicable)
4. ܈You must cooperate in the collection of DNA as directed by the probation officer.
5. ܆You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C.
§ 20901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex
offender registration agency in the location where you reside, work, are a student, or were convicted
of a qualifying offense. (check if applicable)
6. ܆You must participate in an approved program for domestic violence. (check if applicable)
7.
܆You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing
a sentence of restitution. (check if applicable)You must comply with the standard conditions that have beenadopted by this court as
well as with any other conditions on the attached page.
1303
AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case
Judgment – Page 4
Defendant: ROCKY JOSEPH KRUPA
Case Number: 1:20-cr-69-05
STANDARD CONDITIONS OF SUPERVISION
As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions
are imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum
tools needed by probation officers to keep informed, report to the court about, and bring about improvements in your conduct
and condition.
1. You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your
release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different
time frame.
2. After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and
when you must report to the probation officer, and you must report to the probation officer as instructed.
3. You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from
the Court or the probation officer.
4. You must answer truthfully the questions asked by your probation officer.
5. You must live at a place approved by the probation officer. If you plan to change where you live or anything about yourliving
arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying
the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72
hours of becoming aware of a change or expected change.
6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer
to take any items prohibited by the conditions of your supervision that he or she observes in plain view.
7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excusesyou from
doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses
you from doing so. If you plan to change where you work or anything about your work (such as your position or your job
responsibilities), you must notify the probation officer at least 10 days before the change. Ifnotifying the probation officer at least
10 days in advance is not possible due to unanticipated circumstances, you mustnotify the probation officer within 72 hours of
becoming aware of a change or expected change.
8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been
convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the
probation officer.
9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that
was designed, or was modified for the specific purpose of causing bodily injury or death to another personsuch as nunchakus or
tasers).
11. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without
first getting the permission of the court.
12. If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may
require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the
person and confirm that you have notified the person about the risk.
13. You must follow the instructions of the probation officer related to the conditions of supervision.
U.S. Probation Office Use Only
A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy
of this judgment containing these conditions. For further information regarding these conditions, see Overview of Probation
and Supervised Release Conditions, available at www.uscourts.gov.
Defendant’s Signature
Date
1304
AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case
Judgment – Page 5
Defendant: ROCKY JOSEPH KRUPA
Case Number: 1:20-cr-69-05
SPECIAL CONDITIONS OF SUPERVISION
1. You must participate in a program of testing and treatment of substance abuse, as directed by the probation officer, and follow
the rules and regulations of that program until such time as you are released from the program by the probation officer and must
pay at least a portion of the cost according to your ability, as determined by the probationofficer.
2. You must not use or possess any controlled substances without a valid prescription. If you do have a valid prescription, you
must follow the instructions on the prescription. You must not possess, use, or sell marijuana or any marijuana derivative
(including any product containing cannabidiol (CBD) or THC) in any form (including edibles) or for any purpose (including
medical purposes). You are also prohibited from entering any marijuana dispensary or grow facility.
3. You must not use/possess any alcoholic beverages and must not frequent any establishments whose primary purpose is the
sale/serving of alcohol.
4. You must provide the probation officer with access to any requested financial information and authorize the releaseof any
financial information. The probation office will share financial information with the U.S. Attorney's Office.
5. You must submit your person, property, house, residence, vehicle, papers, computers (as defined in 18 U.S.C. § 1030(e)(1)),
other electronic communications or data storage devices or media, or office, to a search conducted bya United States probation
officer. Failure to submit to a search may be grounds for revocation of release. You must warn any other occupants that the
premises may be subject to searches pursuant to this condition. The probation officer may conduct a search under this condition
only when a reasonable suspicion exists that you haveviolated a condition of supervision and that the areas to be searched contain
evidence of this violation. Any searchmust be conducted at a reasonable time and in a reasonable manner.
1305
AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case
Judgment – Page 6
Defendant: ROCKY JOSEPH KRUPA
Case Number: 1:20-cr-69-05
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the Schedule of Payments on the
following pages.
Assessment
Fine
Restitution
AVAA Assessment*
JVTA Assessment**
$200.00
-0-
-0-
-0-
-0-
☐ The determination of restitution is deferred until
245C) will be entered after such a determination.
. An Amended Judgment in a Criminal Case (AO
☐ The defendant must make restitution (including community restitution) to the following payees in
theamount listed below.
If the defendant makes a partial payment, each payee shall receive an approximately proportioned
payment, unless specified otherwise in the priority order or percentage payment column below. However,
pursuant to 18
U.S.C. § 3664(I), all nonfederal victims must be paid before the United States is paid.
Name of Payee
Total Loss***
Restitution Ordered
TOTALS
$ 0.00
$ 0.00
Priority or Percentage
☐ Restitution amount ordered pursuant to plea agreement.
☐ The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine
is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f).All
of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant
to 18 U.S.C. § 3612(g).
☐ The court determined that the defendant does not have the ability to pay interest and it is ordered that:
☐ the interest requirement is waived for the fine.
☐ the interest requirement is waived for the restitution.
☐ the interest requirement for the fine is modified as follows:
☐ the interest requirement for the restitution is modified as follows:
1306
* Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299.
** Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.
*** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on
or after September 13, 1994, but before April 23, 1996.
AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case
Judgment – Page 7
Defendant: ROCKY JOSEPH KRUPA
Case Number: 1:20-cr-69-05
SCHEDULE OF PAYMENTS
Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:
A
܈
Lump sum payment of $200.00 due immediately, balance due
☐ not later than
, or
☐ in accordance with ܆C, ܆D, ܆E, or ܆F below; or
B
܆
Payment to begin immediately (may be combined with C, D, or F below); or
C
܆
Payment in equal
installments of $
after the date of this judgment; or
over a period of
, to commence
D
܆
Payment in equal
installments of $
after release from imprisonment to a term of supervision; or
over a period of
, to commence
E
܆
Payment during the term of supervised release will commence within
after release from imprisonment.
The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or
F
܆
Special instructions regarding the payment of criminal monetary penalties:
Unless the court has expressly ordered otherwise in the special instructions above, if this judgment imposes imprisonment,
payment of criminal monetary penalties is due during the period of imprisonment. All criminal monetary penalties, except
those payments made through the Federal Bureau of Prisons’ Inmate Financial Responsibility Program, are made to the
Clerk of the Court, 399 Federal Building, 110 Michigan N.W., Grand Rapids, MI 49503, unless otherwise directed by the
court, the probation officer, or the United States Attorney.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
☐ Joint and Several
Case Number
Defendant and Co-Defendant Names
(including defendant number)
Joint and Several
Amount
Corresponding Payee,
if appropriate
Total Amount
1307
Case No. 21-1080, United States v. Krupa
☐ The defendant shall pay the cost of prosecution.
☐ The defendant shall pay the following court cost(s):
☐ The defendant shall forfeit the defendant’s interest in the following property to the United States:
Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4)
AVAA assessment,
(5) fine principal, (6) fine interest, (7) community restitution, (8) JVTA assessment, (9) penalties, and (10)
costs, including cost of prosecution and court costs.
1308
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.