Opinion
No. 19-1923
12-30-2019
United States of America Plaintiff - Appellee v. John Clifford Czarnecki Defendant - Appellant
Appeal from United States District Court for the Eastern District of Missouri - Cape Girardeau [Unpublished] Before STRAS, WOLLMAN, and KOBES, Circuit Judges.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 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.
The Honorable Audrey G. Fleissig, United States District Judge for the Eastern District of Missouri. --------
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").
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.