1

The district court also imposed a three-year term of supervised release and

ordered Struzik to pay a special assessment in the amount of $100.

2

The Honorable David S. Doty, United States District Judge for the District of

Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 08-3936

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Marek Jerzy Struzik, *

*

Appellant. *

__________

Submitted: June 10, 2009

Filed: July 13, 2009

___________

Before COLLOTON, JOHN R. GIBSON and BEAM, Circuit Judges.

___________

BEAM, Circuit Judge.

Marek Struzik appeals his 12-month sentence1

 after pleading guilty to one count

of alien smuggling in violation of 8 U.S.C. §§ 1324(a)(1)(A)(i) & (a)(1)(B)(i). Struzik

contends the district court2

 did not fully consider the sentencing factors in 18 U.S.C.

§ 3553(a) or sufficiently explain its sentencing decision. He also challenges his

sentence as substantively unreasonable. We affirm.
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I. BACKGROUND

In August 2008, Struzik, a native of Poland, was indicted on one count of alien

smuggling after he admitted helping two other men cross the Canadian border and

enter the United States illegally. Struzik pleaded guilty in September 2008 and a

presentence investigation report was prepared. The final PSR indicated Struzik had

no criminal history in this country. The PSR revealed, however, that Struzik was

detained in October 2007, aboard a vessel in Culebra, Puerto Rico, on suspicion of

smuggling Polish nationals into the United States. The PSR also recounted several

instances of criminal conduct in Poland. Specifically, according to Paragraph 27: 

The Interpol office in Warsaw, Poland, reported that [Struzik] was

arrested on January 3, 2002. He was accused of supplying fake

invitations to Polish nationals to appear at the U.S. Consulate in Krakow

to obtain legal U.S. visas. Once the visas were obtained, [Struzik] sold

the documents to unknown individuals. Additionally, he was accused of

aggravated threats against a Polish national in order to force him to

obtain a U.S. visa in Krakow in 2002. A total of 18 people were charged

in the case. [Struzik] was found guilty. 

The foreign incidents did not count in the criminal history calculation, however, and

so the PSR placed Struzik in category I, assigned him a total offense level of ten and

calculated an advisory Guidelines range of 6-12 months. The PSR also indicated that

an upward departure might be warranted due to understated criminal history.

In a sentencing memorandum, Struzik noted several objections to the PSR. He

first objected to the inclusion of, and to any departure based on, the incident in Puerto

Rico, because he was not charged with anything as a result of the incident. Struzik

also objected to any departure based on the information in paragraph 27, stating: 

The limited information contained in that paragraph does not support an

upward departure. Even if the Court finds [Struzik] was convicted of an
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offense in Poland in 2002, there is no indication that he was imprisoned,

and the resulting conviction, if counted as 1 criminal history point,

would not increase [his] criminal history category under the guidelines.

Therefore, the [advisory] range would remain at 6-12 months . . . .

Struzik also asked for leniency in light of various factors, and requested a sentence of

time served and immediate release to immigration authorities.

Thereafter, the government obtained a continuance to further investigate

Struzik's Polish criminal record. The government later filed its own sentencing

memorandum, indicating it learned through FBI agents with the State Department that

Struzik had a November 2003 Polish conviction for Selling Identification Documents

and a July 2004 Polish conviction for Aggravated Threat, for which he was sentenced

to 18 months' and 13 months' imprisonment, respectively, and that he also received

two years' conditional probation in February 2006, for an unknown offense. The

government urged the court to depart upward to a sentence of 16 months' to account

for Struzik's alleged prior smuggling activities and foreign criminal convictions.

The government received additional documentation relating to Struzik's Polish

criminal record before the sentencing hearing. Although that document is not in the

appellate record, we understand from oral argument that it was the original Polish

document from which the information about Struzik's Polish criminal history was

derived. The sentencing transcript reflects that Struzik, along with his attorney and

his translator, the probation office and the district court also had a chance to review

that document before the hearing. At the hearing, Struzik's attorney disputed the

government's interpretation of that document, arguing: 

And I know that the Government's position is that this document

indicates convictions in Poland for two offenses and then also a – a

probationary setting. I'm not certain if the Government is taking a

position that that arose from a separate conviction, but in any event, it's

clear from the document that there was only one case number. Mr.
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Struzik indicate[d] that there was only one case and that there was only

one sentence given. And that he was – although there [are] different

dates on this, it was his understanding it was one case. 

Thus, counsel objected "to the Court accepting the Government's position without

additional information that there are, in fact, separate convictions with different

date[s] of offenses." The Assistant United States Attorney later told the court she

received the information from an agent she used to work with in Utah and was relying

on his translations, and she understood that Struzik had two separate prior convictions.

After hearing arguments on the appropriate sentence, the district court first

indicated it would not consider the incident in Puerto Rico in sentencing Struzik. The

court then noted there were no objections to the PSR's remaining factual allegations

and adopted those facts and the PSR's Guidelines calculation without objection. The

court thereafter declined to depart upward from the advisory range, and imposed a 12-

month sentence. In so doing, the court indicated it considered "the nature and

circumstances of the instant offense, as well as the history and the characteristics of

the defendant, including information about [Struzik's] criminal convictions in Poland,"

and found 12 months to be "sufficient but not greater than necessary to afford

adequate deterrence to future criminal conduct." This appeal follows.

II. DISCUSSION

In reviewing a criminal sentence, we first consider whether the district court

committed any significant procedural errors, such as "failing to consider the § 3553(a)

factors" or "failing to adequately explain why a sentence was chosen." United States

v. Zastrow, 534 F.3d 854, 855 (8th Cir. 2008) (quotation omitted). We then review

the sentence for substantive reasonableness under an abuse-of-discretion standard,

according a rebuttable presumption of a reasonableness to a sentence within the

advisory range. Id. at 855-56.
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With those standards in mind, we turn to Struzik's arguments. Struzik first

contends the district court failed to fully consider the § 3553(a) factors and to

adequately explain the chosen sentence. We disagree. To determine whether a district

court considered the § 3553(a) factors in a given case, we look to "the entire

sentencing record, not merely the district court's statements at the hearing." United

States v. Gray, 533 F.3d 942, 944 (8th Cir. 2008) (quotation omitted). And in

considering the related matter of whether the district court sufficiently explained the

sentence imposed, we bear in mind that the court need not specifically respond to

every argument made by the defendant, id., or mechanically recite each § 3553(a)

factor. United States v. Battiest, 553 F.3d 1132, 1136 (8th Cir.), cert. denied, 129 S.

Ct. 2452 (2009). Rather, the district court must simply "'set forth enough to satisfy

the appellate court that he has considered the parties' arguments and has a reasoned

basis for exercising his own legal decisionmaking authority.'" United States v.

Robinson, 516 F.3d 716, 718 (8th Cir. 2008) (quoting Rita v. United States, 127 S. Ct.

2456, 2468 (2007)). Here, the record indicates the court had "significant exposure"

to the mitigating and aggravating factors at issue, from the PSR, the parties' sentencing

memoranda and their arguments at the sentencing hearing. Battiest, 553 F.3d at 1136.

Moreover, the court clearly weighed those arguments carefully because it resolved one

issue–the government's motion for an upward departure–in Struzik’s favor. See id.

(concluding the court's resolution of a disputed sentencing issue in the defendant’s

favor evidenced its careful consideration of both parties’ arguments). Finally, after

considering those materials and listening to the parties' arguments, the judge imposed

a sentence which he justified by specific reference to several § 3553(a) factors. On

this record, we are satisfied the district court fully considered those factors and

sufficiently explained its decision. 

We do not agree, as Struzik's attorney suggested at oral argument, that the

court's explanation was lacking because the court said it considered the "information

about [Struzik]'s criminal convictions in Poland," but did not detail its findings as to

the exact number or nature of those prior convictions or explain how those findings
3

To the extent Struzik suggested through counsel at oral argument that he never

conceded involvement in any conduct of a threatening nature, we disagree. To the

contrary, after indicating it would not consider the incident in Puerto Rico, the district

court noted there were no objections to the PSR's other factual allegations and adopted

them without objection. By failing to object, specifically and clearly, to the

allegations in paragraph 27 relating to his alleged threats against a Polish national (or

any other facts set forth therein, for that matter), Struzik conceded the truth of those

allegations and the district court could rely on those facts at sentencing. United States

v. Razo-Guerra, 534 F.3d 970, 976 (8th Cir. 2008), cert. denied sub nom. RubioGuerrero v. United States, 129 S. Ct. 1365 (2009). 

-6-

impacted its decision. It is true the parties did not agree on the exact number of prior

convictions. We note, however, that regardless of whether his Polish offense conduct

resulted in one or two convictions, Struzik did not object to the PSR's description of

that conduct or dispute the government's assertion that he was found guilty of all of

that conduct. Rather, he first argued that the information in paragraph 27 did not

warrant an upward departure and later, that all of the Polish offense conduct attributed

to him was prosecuted under a single case number and resulted in a single sentence.3

Under these circumstances, the district court could certainly consider all of that

conduct in fashioning Struzik's sentence. See United States v. Schlosser, 558 F.3d

736, 740 (8th Cir. 2009) (noting there is no limitation "'on the information concerning

the background, character, and conduct of a person'" that may be considered at

sentencing) (quoting 18 U.S.C. § 3661); United States v. Razo-Guerra, 534 F.3d 970,

975 (8th Cir. 2008) (noting that a district court may accept as true any facts in the PSR

to which the defendant does not specifically object), cert. denied sub nom. RubioGuerrero v. United States, 129 S. Ct. 1365 (2009). And under such circumstances, we

do not believe that either the court's use of the word "convictions," rather than

"conviction," or its failure to set forth detailed findings on the exact number and

nature of Struzik's prior convictions before imposing a sentence within the advisory

range amounts to significant procedural error. Thus, Struzik's sentence is procedurally

reasonable. 
-7-

We also find Struzik's sentence substantively reasonable. As noted above, our

review here is for an abuse of discretion, and we treat Struzik's within-Guidelines

sentence as presumptively reasonable. Zastrow, 534 F.3d at 855-56. An abuse of

discretion occurs "where the sentencing court fails to consider a relevant factor that

should have received significant weight, gives significant weight to an improper or

irrelevant factor, or considers only the appropriate factors but commits a clear error

of judgment in weighing those factors." United States v. Moore, 565 F.3d 435, 438

(8th Cir. 2009) (internal quotation omitted). For the reasons just discussed, however,

we reject Struzik's argument that the district court relied on an improper factor by

considering his Polish criminal record. Moreover, we find no indication that the court

either failed to consider the mitigating factors Struzik discusses in his brief or erred

in concluding, after weighing those and the other relevant factors, that a 12-month

sentence was warranted in this case.

 

III. CONCLUSION

For the foregoing reasons, we affirm the decision of the district court.

______________________________