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May 2, 2006

The interplay of mandatory minimums and 3553(a)

Since it has been a while since I have posted a notable district court Booker opinion, I am pleased that a helpful reader sent along the recent work of US District Judge Steven Merryday in US v. Ciszkowski, No. 8:05-cr-36-T-23TBM (M.D. Fla. May 2, 2006).

Ciszkowski is notable for a number of reasons (including the interesting names of all the main players).  Legally, the decision is interesting for its extended exploration of "whether the presence of a thirty-year minimum mandatory sentence for one of several counts of conviction is a factor the district court may consider in determining a guidelines sentence for the other counts of conviction and in determining a reasonable sentence under 18 U.S.C. § 3553(a)."  Factually, the case is interesting because the government ensured the defendant would get an added mandatory 25 years in prison by placing a silencer on a gun that was used in a sting.

May 2, 2006 at 04:41 PM | Permalink


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“Wojtek Ciszkowski will emerge from prison at age sixty-nine, after service of thirty-one years. If he served forty-five years, he would emerge (if at all) at age eighty-four.”
I say it again, there is a point where the amount of time does not matter, there is a number of year after which you probably should not let the man out of prison (if he lives that long), because in the beginning neither 31 years nor 45 years seems doable. In fact it is not until it is done that a prisoner believes he can make it. Does Judge Merryday or for that matter any judge think a prisoner is grateful for a sentence that makes it a slight possibility that he may live out the sentence or is grateful for a sentence where the struggle with hope of survival until release is remote and resignation sets in that it is over.
The parenthetical (if at all) is prophetic, but applies to both sentences, for 31 years in prison is hard to live out and who will be left that matters for you to want to release. Do you really want a 69 year old ex-con with no family who has been in prison for 30 years released, are you going to give him a job and a place to live, hell give him 60 years and then everybody will sleep better including Ciszkowski., The entrapment enhancement, while effective in getting the increased sentence, left Ciszkowski with a chance to live long enough to get out of prison. The government should have placed the silencer on a machinegun and loaded it with crack if they wanted “Ski” in prison for the rest of his life.

Posted by: Barry Ward | May 2, 2006 6:14:08 PM

Mr. Berman:
I was trial counsel for Mr. Ciszkowski and I thought a bit of background might be of assistance.
He is a naturalized citizen from Poland. He spent most of his time within the Polish community in Clearwater, Florida. Unfortunately a Federal infomant became his best friend and confidante.
The informant (an illegal alien) was working a large scale ecstacy smuggling ring connected with Poland, a fact unknown to Mr. Ciszkowski.
Their friendship deteriorated. Mr. Ciszkowski made the mistake of trying to collect some money from the CI and it was interpreted as a threat to the CI in his informant status.
Another illegal Polish alien who was a keystone in the smuggling ring decided to cooperate and the DEA devised a scheme to see if Mr. Ciszkowski was in fact a threat. Calls began and meetings took place and the theory was that Mr. Ciszkowski agreed to a contract killing of the first informant. (Mr. Ciszkowski's prior record is Petty Theft and DUI.)
The trap was first baited with $. (Mr. Ciszkowski had recently gone through bankruptcy.) They quickly added 20,000 ecstacy pills as a substitute for part of the money. (What good is a DEA case without some drugs. Enhancement is always good.) In the final stage they decided not to provide him with any old gun (he had his own at home), it became a silenced gun. This was particularly unique because somewhere in their armory they found a gun that only an expert with proper equipment could identify as silenced. To all others it appeared to be a target pistol.
Whether it be with criminal intent, naviety or greed Mr. Ciszkowski met the informant. At the meeting he took possession of a zippered gym bag (after peeking inside briefly) that contained $, pills and the silenced .22. Fifteen seconds later he was incustody.
The trial proceeded for 8 days. I won't bore you with the back and forth of it but the jury acquitted him of an attempted homicide charge related to the DEA scheme. (And two 4 year old marijuana cases [tiny quantities]that were supposed to rebut a lack of propensity.) The jury convicted him of the use of a telephone in furtherance and possession of the ecstacy. (He had never seen an ecstacy pill before.) Critical to your note, he was convicted of possession of a silenced firearm in furtherance of either of the other counts. (The Court, at the request of the Government, added a paragraph to the 11th Circuit standard instruction which further heightened the Court's position that his knowledge of the silenced nature of the gun was none of the jury's business.)
At sentencing Judge Merryday spent a great deal of time discussing Judge Cassell's decision in U.S. vs. Angelos as to what was reasonable. (He rejected sentence manipulation, etc.. Though an unprovable fact I strongly believe it drove the train for the DEA). He could not justify the guidelines philosphy that 14-19 years is reasonable yet he was being called upon to add 30 years to what was reasonable. He followed Judge Cassell's lead and thus we ended up with a life sentence of 31 years (12 months for counts 1 &2 plus 30 for the gun) vs. a life sentence of 49 years. (Probation wanted 19 to 24 by adding 2 points for obstructiom, after all Mr. Ciszkowski did lose so he must have perjured himself. Of little value I did point out that he also won three counts so how can we say he was being untruthful.)
The bottom line, as I imagine it, was that the Court, under our facts involving DEA providing everything except the possible ignorance of the defendant, felt the mandatory just was not fair but he had no choice. He even noted that following the Governments demand for full guidelines plus 30 would put Mr. Ciszkowski very close to the sentence he imposed in a particular case where there were brutal assaults, robbery, and death.
Very talented appealate counsel is now going forward and I can only hope that someone on the other end will listen and see the unfortunate results that can occur with the strict adherence to mandatories the courts require.
Art Eggers

Posted by: Arthur Eggers | May 4, 2006 3:17:23 PM

Well, but of course a sentencing judge has no absolutely no choice but to apply a mandatory minimum--that's why it is a mandatory minimum. Does anyone dispute this simple statement of fact? Will you please show me a judge that ignored a congressional mandatory minimum? That being said, I don't see your point, Art. What is the good judge to do? It seems as though he did all right by your client here, so what's your beef?

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