United States v. Ciszkowski

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 20, 2007
No. 06-12592 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 05-00036-CR-T-23-TBM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WOJTEK CISZKOWSKI,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(July 20, 2007)

Before CARNES, WILSON, Circuit Judges and WALTER,* District Judge.

WILSON, Circuit Judge:

* Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
 Wojtek Ciszkowski was convicted by a jury on charges of murder for hire,

possession of drugs with the intent to distribute them, and possession of a firearm

in furtherance of a crime of violence. Because the firearm that was intended to be

used to commit the murder was equipped with a silencer, Ciszkowski’s sentence

was drastically lengthened due to the application of a thirty-year mandatory

minimum. Ciszkowski appeals, arguing that he was set up by the government and

claiming that he did not know the firearm was equipped with a silencer when he

took it from the government informant. He argues that his conviction on the

firearm charge should be reversed because the district court failed to instruct the

jury that it had to find beyond a reasonable doubt that he knew the firearm was

equipped with a silencer. He also argues that his sentence was unreasonable

because the district court failed to realize that it could reduce his sentence upon a

finding that the government’s conduct was outrageous, or that it engaged in

sentencing factor manipulation. We affirm.

BACKGROUND

Ciszkowski became the target of a sting operation after a Drug Enforcement

Administration (“DEA”) informant, Vitek Arabasz, told agents he was being

threatened. Arabasz testified at trial that Ciszkowski had come to his job and told

him that “he would pay” for his cooperation with law enforcement on an ecstacy

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smuggling investigation. DEA agents enlisted Edward Chrostowski to act as a

confidential informant to find out whether Ciszkowski had threatened Arabasz.

Chrostowski met with Ciszkowski and told Ciszkowski that he was looking

to find someone to kill Arabasz before Chrostowski’s next court date. Chrostowski

and Ciszkowski then met again and discussed the contract killing of Arabasz. At

the DEA’s request, Chrostowski told Ciszkowski that he wanted to pay for the

contract killing partially in ecstasy pills. Chrostowski also told Ciszkowski that he

would provide him with a “nice toy.” The next day Chrostowski met Ciszkowski

with a bag containing cash, ecstasy, and a Ruger Mark I pistol. Ciszkowski opened

the bag but did not examine the gun. Once Ciszkowski took possession of the bag

and entered his vehicle, DEA agents arrested him.

At trial, a firearms enforcement officer with the Department of Treasury’s

Bureau of Alcohol, Tobacco, Firearms, and Explosives testified about the firearm’s

characteristics. The officer admitted that a layperson looking at the firearm’s

exterior would be unable to tell that a silencer was mounted within the gun’s

barrel. Because a mandatory minimum sentence of 30 years applies under 28

U.S.C. § 924(c) 1 if the firearm has a silencer, Ciszkowski requested that the jury be

1
In pertinent part, 18 U.S.C. § 924(c)(1) provides that:
(A) Except to the extent that a greater minimum sentence is otherwise provided
by this subsection or by any other provision of law, any person who, during and
in relation to any crime of violence or drug trafficking crime . . . for which the
person may be prosecuted in a court of the United States, uses or carries a

3
instructed that “Mr. Ciszowski (sic) can only be found guilty of that element of the

offense if the Government proves beyond a reasonable doubt that Mr. Ciszkowski

had actual knowledge that the firearm in question had the characteristics of a

silenced or muffled firearm.” The district court denied the request, and instead

instructed the jury that “[t]he United States is not required to prove as an element

of the alleged crime that the defendant knew that the firearm was equipped by a

silencer.” The Court did, however, ask the jury to render a special verdict,

determining “whether the United States has proven beyond a reasonable doubt that

the firearm. . . was equipped with a firearm muffler or firearm silencer without

respect to whether the defendant actually knew that the firearm was muffled or

silenced.”

firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in
addition to the punishment provided for such crime of violence or drug trafficking
crime--
(I) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of
not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment
of not less than 10 years.

(B) If the firearm possessed by a person convicted of a violation of this
subsection--
...
(ii) is a machinegun or a destructive device, or is equipped with a firearm
silencer or firearm muffler, the person shall be sentenced to a term of
imprisonment of not less than 30 years.

4
 The jury convicted Ciskowski on three of the six indictment counts.2 He

was convicted for use of a facility of interstate or foreign commerce in the

commission of murder for hire, in violation of 18 U.S.C. § 1958; possession with

the intent to distribute Methylenedioxymethamphetamine (“MDMA” or “ecstasy”),

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and possession of a firearm

with a silencer in furtherance of a crime of violence and drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A) and (c)(1)(B)(ii). As to the § 924(c) count,

the jury made the findings that (1) the firearm was equipped with a silencer, and

(2) Ciszkowski knowingly and unlawfully possessed and carried the firearm in

furtherance of the murder for hire and possession of the drugs with intent to

distribute. The judge, after hearing objections and arguments, sentenced

Ciszkowski to 12 months on the §1958 violation and 12 months on the § 841

violation, to run concurrently.3 The judge then imposed the mandatory minimum

of 30 years on the § 924(c) firearm violation to run consecutive to the other

sentences, for a total of 372 months in prison.

2
He was acquitted of attempting to kill in order to prevent the testimony of witness in a
federal case, in violation of 18 U.S.C. § 1512(a)(1)(A); and two counts of possession of
marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D).
3
Although the United States Sentencing Guideline range for these two counts was 188 to
235 months, the judge departed downward and determined that a reasonable sentence would be
12 months, ostensively taking into consideration 30 year mandatory minimum to be imposed on
the § 924(c) count.

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 DISCUSSION

I.

Ciszkowski first argues that the district court erred when it rejected his

requested jury instruction that required the jury to find that he had knowledge of

the silencer before finding him guilty of the firearm offense. “We review [the]

refusal to give a requested jury instruction for an abuse of discretion.” United

States v. Carrasco, 381 F.3d 1237, 1242 (11th Cir. 2004) (per curiam). The refusal

is only reversible error if “(1) the requested instruction was a correct statement of

the law, (2) its subject matter was not substantially covered by other instructions,

and (3) its subject matter dealt with an issue in the trial court that was so important

that failure to give it seriously impaired the defendant’s ability to defend himself.”

United States v. Paradies, 98 F.3d 1266, 1286 (11th Cir. 1996). Here, we find no

error in the refusal to give the jury instruction because the firearm characteristics in

§ 924(c) are sentencing factors intended to be determined by the judge, and there is

nothing in the text of § 924(c) requiring proof that the defendant had knowledge of

such characteristics.

We previously held that the penalty provision in § 924(c)(1)(A)(iii) is a

sentencing factor rather than an element of the offense. United States v. Pounds,

230 F.3d 1317, 1319 (11th Cir. 2000) (per curiam). We reasoned that §

924(c)(1)(A), standing alone, describes the criminal violation while the subsections

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merely describe enhanced punishment for certain types of § 924(c)(1)(A) violators.

Id. The § 924(c)(1)(B) subsections function similarly by describing certain types

of firearms which result in additional punishments for § 924(c)(1)(A) violators.

Thus (c)(1)(A) describes a violation while the (c)(1)(B) subsections describe

sentencing implications of that violation.

We are unpersuaded that the Apprendi, Blakely, and Booker 4 line of cases

compel a jury determination of the sentencing factors in § 924(c)(1)(B). Apprendi

requires that a jury determine any fact that subjects a defendant to an increased

penalty beyond the prescribed statutory maximum. The Supreme Court however

has declined to extend the jury-determination requirement to facts triggering a

statutory minimum. United States v. Harris, 536 U.S. 545, 568, 122 S. Ct. 2406,

2420, 153 L. Ed. 2d 524 (2002). Section 924(c)(1)(B) only triggers minimum

sentences, and therefore does not raise Apprendi concerns. Accordingly, the

district court could determine § 924(c)(1)(B)’s application to Ciszkowski’s conduct

without violating the Constitution.5

4
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005);
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
5
The majority of our sister circuits have also reached the conclusion that § 924(c)
permits a judicial determination of firearm characteristics. United States v. Gamboa, 439 F.3d
796, 810-12 (8th Cir. 2006) (concluding that the prosecution was not required to show defendant
knew firearm was machine gun); United States v. Cavely, 318 F.3d 987, 1000 (10th Cir. 2003)
(“[A] determination of whether a firearm is a prohibited assault weapon under this section is a
sentencing factor and not an essential element of the offense that must be proven at trial.”);

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 Furthermore, Ciszkowski’s requested instruction adds a mens rea element to

§ 924(c) that the statute does not contemplate. Examining a previous version of §

924(c), we explained that because § 924(c) is an enhancement statute, it does not

require proof of “particularized knowledge” of the weapon characteristics. United

States v. Brantley, 68 F.3d 1283, 1289 (11th Cir. 1995). We reasoned that a

person violating § 924(c) had already demonstrated a “vicious will” in committing

the principal offense. Id. at 1290. Thus, there was no risk of punishing an

innocent actor by applying the enhancements. Id. at 1290. Although Brantley

addressed a prior version of § 924, there is no reason to require proof of knowledge

under the new statute because the same reasoning applies.

Accordingly, we can find no error in the district court’s refusal to give the

jury instruction requested by Ciszkowski, because it contained an incorrect

statement of law. In addition, Ciszkowski requested a jury determination on the

application of a sentencing factor, which is a decision for the sentencing judge.

Therefore, the district court was well within its discretion to deny the instruction.

United States v. Harrison, 272 F.3d 220, 226 (4th Cir. 2001) (“It makes sense only as a
sentencing factor that cabins a judge’s discretion when imposing a sentence for the base offense
in § 924(c)(1), for which the maximum penalty is life imprisonment.”); United States v. Barton,
257 F.3d 433, 443 (5th Cir. 2001 ) (“[W]e join the vast majority of circuits that have reviewed
this or a similar issue to conclude that subsections (I), (ii), and (iii) set forth sentencing factors,
not separate elements of different offenses.”); United States v. Sandoval, 241 F.3d 549, 552 (7th
Cir. 2001) (same). But see United States v. Harris, 397 F.3d 404, 413-14 (6th Cir. 2005)
(holding that firearm characteristics must be proven to the jury beyond a reasonable doubt).

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 II.

Ciszkowski next argues that his 372-month sentence is unreasonable because

the district judge did not recognize that he could depart from the mandatory

minimum if he found that the government engaged in outrageous conduct,

sentencing entrapment, and/or sentencing manipulation. He argues that the

government improperly manipulated his sentence when it converted his crime to a

more serious offense by supplying him with a silenced firearm without his

knowledge. He argues that the court felt bound by the thirty-year statutory

minimum, which the court could have disregarded on sentencing manipulation

grounds. His argument’s success depends on whether: (1) we recognize these

defenses in our Circuit, (2) the defenses prevent the application of the mandatory

minimum, and (3) the facts support the defenses in this case.

After Booker, we review sentences under the advisory guidelines for

reasonableness. See United States v. Winingear, 422 F.3d 1241, 1244-45 (11th

Cir. 2005) (per curiam). Sentencing is a two step process, requiring (1) the correct

calculation of the guideline range and (2) the consideration of the 18 U.S.C. §

3553(a) factors. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per

curiam). Even after Booker, the district court is bound by the statutory mandatory

minimums. United States v. Brehm, 442 F.3d 1291, 1300 (11th Cir. 2006) (per

curiam); United States v. Shelton, 400 F.3d 1325, 1333 n.10 (11th Cir. 2005).

9
 While our Circuit does not recognize sentencing entrapment as a viable

defense, we do recognize the outrageous government conduct defense, and we

have considered sentencing manipulation as a viable defense. United States v.

Sanchez, 138 F.3d 1410, 1413-14 (11th Cir. 1998). When a defendant makes a

sentencing entrapment claim, he argues that, although predisposed to commit a

minor or lesser offense, he has been entrapped into committing a greater offense

subject to greater punishment. Id. at 1414. Sentencing entrapment focuses on the

defendant’s conduct; in contrast, the defenses of outrageous government conduct

and sentencing factor manipulation focus on the government’s behavior. Id. at

1413-14. Outrageous government conduct occurs when law enforcement obtains a

conviction for conduct beyond the defendant’s predisposition by employing

methods that fail to comport with due process guarantees. Id. at 1413. Under this

standard, the conduct must be so outrageous that it is fundamentally unfair. United

States v. Ofshe, 817 F.2d 1508, 1516 (11th Cir. 1987). Similarly, sentencing factor

manipulation occurs when the government’s manipulation of a sting operation,

even if insufficient to support a due process claim, requires that the manipulation

be filtered out of the sentencing calculus. Sanchez, 138 F.3d at 1414. Outrageous

government conduct would necessitate the reversal of a defendant’s conviction,

while sentencing factor manipulation would simply reduce the sentence applied to

his conduct. Ciszkowski’s argument is best characterized as a sentencing factor

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manipulation claim.

Even though sentencing factor manipulation by the government may occur

during the course of an investigation, a district court still cannot disregard a

mandatory minimum, because Congress has only authorized departures from

statutory mandatory minimums in limited circumstances. “There are only two

circumstances in which a court can depart downward from a statutory authorized

mandatory minimum sentence. Either the government must file a motion to

recognize the defendants ‘substantial assistance’ . . . or the defendant must fall

within the provisions of the ‘safety valve’ embodied in 18 U.S.C. § 3553(f).”

United States v. Simpson, 228 F.3d 1294, 1304 (11th Cir. 2000). Conceptually,

however, an adjustment for sentencing factor manipulation is not a departure.

When a court filters the manipulation out of the sentencing calculus before

applying a sentencing provision, no mandatory minimum would arise in the first

place. See United States v. Riewe, 165 F.3d 727, 729 (9th Cir. 1999) (per curiam);

United States v. Castaneda, 94 F.3d 592, 594-95 (9th Cir. 1996). Therefore, if the

court found that inserting the silencer in the gun was so objectionable that it

amounted to sentencing factor manipulation, that mandatory minimum would not

apply because the silencer would be taken out of the sentencing calculation.6

6
Ciszkowski still would face a mandatory minimum of five years based on his violation
of § 924(c)(1)(A).

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 Ciskowski, however, has not met his burden of establishing that the

government’s conduct is sufficiently reprehensible to constitute sentencing factor

manipulation. Government-created reverse sting operations are recognized and

useful methods of law enforcement investigation. Sanchez, 138 F.3d at 1413. The

fact that law enforcement may provide drugs or guns essential to a willing and

predisposed offender does not necessarily constitute misconduct. Id. The standard

for sentencing factor manipulation is high, even in the circuits where it has been

recognized as a viable defense to the application of a mandatory minimum. See

United States v. Montoya, 62 F. 3d 1, 4 (1st Cir. 1995). We have previously

declined to find that the government engaged in prohibited sentencing factor

manipulation in other similar contexts. See United States v. Bohannan, 476 F.3d

1246, 1252 (11th Cir. 2007) (government’s selection of age of “minor” victim for

sting operation was not manipulation even though the selected age resulted in

enhancement under guideline); United States v. Williams, 456 F.3d 1353, 1370-71

(11th Cir. 2006) (government’s purchase of crack cocaine rather than powder

cocaine was not manipulation despite sentencing differential); Sanchez, 138 F.3d at

1412-13 (government informant’s selection of a fictitious amount of drugs to be

stolen by defendants was not manipulation of the quantity). Therefore, to bring

sting operations within the ambit of sentencing factor manipulation, the

government must engage in extraordinary misconduct.

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 In Ciszkowski’s case, we would find it troubling if the government provided

Ciszkowski a firearm with a silencer that he could not see solely to inflate his

sentence upon a conviction. Ciskowski says he lacked awareness, or even the

ability to discover the level of criminality he was engaged in when he accepted the

gun supplied by the government. Yet, Ciszkowski agreed to commit a murder for

hire, and to accept a gun to do the job. It is conceivable that the government could

reasonably decide that a muzzled firearm is the appropriate weapon for the

commission of a murder for hire and then provide Ciszkowski with such a weapon.

Had the circumstances been different, for instance if the government provided a

undetectably silenced weapon in a circumstance where the firearm or the silencer

was completely unrelated to the accompanying criminal act, we might be inclined

to find improper sentencing manipulation in such a case. Ciszkowski, however,

has not shown that the government’s conduct in this case was so reprehensible that

it constituted sentencing factor manipulation.

Having rejected Ciszkowski’s sentencing manipulation claim, we find that

the sentence imposed by the district court was reasonable. The district court

correctly calculated the guideline range, applied the guideline range as advisory,

and considered the § 3553(a) factors in fashioning a sentence. The district court

then correctly sentenced Ciszkowski to the mandatory minimum.

III.

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 In sum, we find that the district court appropriately denied Ciszkowski’s

requested jury instruction because it included an incorrect statement of law.

Section 924(c) does not require that a defendant have specific knowledge of the

firearm’s characteristics in order to be found guilty of its commission.

Furthermore, the application of the sentencing enhancements set forth in §

924(c)(1)(B) are determinations for the sentencing judge and not the jury. After

Ciszkowski’s conviction, the district court fashioned a reasonable sentence,

properly taking into consideration the § 3553(a) factors. Accordingly, we affirm.

AFFIRMED.

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