United States v. John Czarnecki

United States Court of Appeals For the Eighth Circuit ___________________________

No. 19-1923 ___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

John Clifford Czarnecki

lllllllllllllllllllllDefendant - Appellant ____________

Appeal from United States District Court for the Eastern District of Missouri - Cape Girardeau ____________

Submitted: December 23, 2019 Filed: December 30, 2019 [Unpublished] ____________

Before STRAS, WOLLMAN, and KOBES, Circuit Judges. ____________

PER CURIAM.

John Czarnecki pleaded guilty to carjacking, 18 U.S.C. § 2119, and received a within-Guidelines-range sentence of 168 months in prison. In an Anders brief, Czarnecki’s counsel requests permission to withdraw and raises three claims: (1) the

district court 1 impermissibly counted the same conduct twice in calculating the sentence; (2) the overall sentence is substantively unreasonable; and (3) the government violated Brady v. Maryland, 373 U.S. 83 (1963), by not sharing a victim-impact statement until shortly before sentencing. See Anders v. California, 386 U.S. 738 (1967). Czarnecki has also filed a pro se brief.

We first conclude that there has been no improper double counting here. See United States v. Turner, 781 F.3d 374, 393 (8th Cir. 2015) (reviewing the construction and application of the Guidelines de novo). The objected-to enhancements for abduction and physical restraint were based on different facts. See U.S.S.G. § 1B1.1 cmt. n.1 (defining “[a]bducted” and “[p]hysically restrained”); United States v. Strong, 826 F.3d 1109, 1116–17 (8th Cir. 2016) (affirming the application of both an abduction enhancement under U.S.S.G. § 2A3.1(b)(5) and a physical-restraint enhancement under U.S.S.G. § 3A1.3).

Nor is Czarnecki’s sentence substantively unreasonable. See United States v. Callaway, 762 F.3d 754, 760 (8th Cir. 2014) (stating that a within-Guidelines-range sentence is presumptively reasonable). The record establishes that the district court sufficiently considered the statutory sentencing factors, 18 U.S.C. § 3553(a), and did not rely on an improper factor or commit a clear error of judgment. See United States v. Wohlman, 651 F.3d 878, 887 (8th Cir. 2011).

Finally, we reject the argument that the government violated Brady by failing to disclose the victim-impact letter. Nothing in it was exculpatory or otherwise favorable to Czarnecki. See United States v. Pendleton, 832 F.3d 934, 940 (8th Cir. 2016) (explaining that the prosecution need not “disclose evidence that is neutral, speculative, or inculpatory”).

1 The Honorable Audrey G. Fleissig, United States District Judge for the Eastern District of Missouri. -2-

We have also independently reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), and conclude that there are no other non-frivolous issues for appeal. Accordingly, we affirm the judgment and grant counsel permission to withdraw. ______________________________

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