NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 3, 2008
Decided January 15, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 08‐1561 Appeal from the United States District
Court for the Northern District of
UNITED STATES OF AMERICA, Illinois, Eastern Division.
Plaintiff‐Appellee,
No. 05 CR 910
v.
Elaine E. Bucklo, Judge.
JIRI KLIMECEK,
Defendant‐Appellant.
O R D E R
Jiri Klimecek was a member of a warez group, which is an operation that
overrides copyright protection measures embedded in movies, video games, and
computer software, and uses computer servers to make these materials available for
unauthorized download by Internet users. [Rec. Tab 1.] He was indicted under 17
U.S.C. § 506(a)(2) and 18 U.S.C. § 2319(c)(1) for willfully infringing copyrights by
reproducing or distributing during a 180‐day period at least ten copies of one or more
No. 08-1561 Page 2
copyrighted works with a retail value of more than $2500. He was further charged
under 17 U.S.C. § 506(a)(1) and 18 U.S.C. § 2319(b)(1) because the purpose of his
infringement was for private financial gain. [Rec. Tab 2.]
Klimecek pleaded guilty. [Rec. Tab 9.] During the plea colloquy, he declared
that he bought and installed hardware and software to set up a computer server and
paid half of the monthly service charges to connect the server to the Internet. [Rec. Tabs
3–4.] In exchange, Klimecek was to obtain access to Czech movies and music. [Rec. Tab
6.] He admitted that he knew that Internet users from around the world were accessing
the server to upload and download copyrighted works. [Rec. Tab 4.] The defendant
also stated that during a 180‐day period he caused at least ten or more copies of one or
more copyrighted items to be uploaded to the server and thus made available for
unauthorized download by Internet users. [Rec. Tab 5.] Klimecek admitted that the
retail value of these copyrighted materials exceeded $2500. [Rec. Tabs 6–8.]
The district court determined that the defendant was not eligible for a two‐level
offense level reduction under U.S.S.G. § 3B1.2(b) for being a minor participant in the
copyright infringement operation and concluded that the applicable Guideline range
was 30–36 months’ imprisonment. [Rec. Tab 10–11.] After hearing from the
government, defense counsel, and Klimecek, the court examined the § 3553(a) factors
and sentenced Klimecek to 30 months’ imprisonment. [Rec. Tab 12.] Klimecek appeals
his sentence. [Rec. Tab 13.]
Klimecek challenges the district court’s determination that he was not a minor
participant and thus not entitled to a two‐level reduction. We review a district court’s
finding of fact concerning a defendant’s level of participation in an offense for clear
error, which we find only if we are left with a definite and firm conviction that a
mistake has been made. United States v. Gonzalez, 534 F.3d 613, 616 (7th Cir. 2008).
The Guidelines permit a defendant’s offense level to be reduced by two levels
where the defendant was a minor participant in the offense. U.S.S.G. § 3B1.2(b). A
defendant is a “minor participant” if he “plays a part in committing the offense that
makes him substantially less culpable than the average participant” and “is less
culpable than most other participants, but [his] role could not be described as minimal.”
U.S.S.G. § 3B1.2 cmt. nn.3(A) & 5; Gonzalez, 534 F.3d at 616. A defendant must show by
No. 08-1561 Page 3
a preponderance of the evidence that he is entitled to a minor participant reduction
under § 3B1.2(b). Gonzalez, 534 F.3d at 616.
Conceding that the evidence about the other participants’ roles in the copyright
infringement scheme was sparse, the defendant baldly asserts that he was only a lackey
who did the bidding of higher‐ups. But this is not dispositive; even if other participants
were more involved and more powerful than Klimecek, he cannot be deemed a minor
participant if his function was an essential component of the scheme. United States v.
McKee, 389 F.3d 697, 700 (7th Cir. 2004). The district court stated that the defendant was
“crucial” to the operation, and certainly he was: had he not bought the hardware and
software components, set up the server, connected it to the Internet, and paid half of the
monthly Internet service charges, the dissemination of the copyrighted materials could
not have occurred. Klimecek also argues that he was only one of many persons who set
up servers to make the copyrighted materials accessible to Internet users. However,
this means that he had a run‐of‐the‐mill role, which is at odds with the requirement that
a defendant must play a part that makes him substantially less culpable than the average
participant in order to qualify for a reduction under § 3B1.2. U.S.S.G. § 3B1.2 cmt.
n.3(A). Klimecek’s claim that he did not understand the full scope of the operation is
belied by his admission that he knew Internet users from around the world were
accessing the server to upload and download copyrighted materials. For these reasons,
the district court did not clearly err when it found that Klimecek was not a minor
participant.
Klimecek also argues that his 30‐month sentence was unreasonable. We review
the reasonableness of a sentence under an abuse of discretion standard. United States v.
Panaigua‐Verdugo, 537 F.3d 722, 727 (7th Cir. 2008). A sentence that falls within a
properly calculated Guidelines range is presumptively reasonable, id., but the
defendant may rebut this presumption by showing that the sentence is unreasonable in
light of the § 3553(a) factors. United States v. Campos, 541 F.3d 735, 750–51 (7th Cir.
2008).
Klimecek contends that the district court should have imposed a below‐
Guidelines sentence for the following reasons, all of which relate to the nature and
circumstances of the offense and his history and characteristics: he did not realize that
the value of the infringed items would exceed $300,000 or that the scope of the offense
would extend to more than himself and a few friends; he lacked a criminal background;
No. 08-1561 Page 4
he had a limited mens rea; his financial gain was negligible; and he was vulnerable to
the influence of the more sophisticated participants. However, it is clear from the
sentencing transcript that the district court thoroughly considered the § 3553(a) factors
(which include the nature and circumstances of the offense and the defendant’s history
and characteristics) and explained why a 30‐month sentence was appropriate. This
sentence was at the low end of the advisory range, and the defendant has not presented
anything that overcomes its presumptive reasonableness.
We AFFIRM Klimecek’s sentence.