United States Court of Appeals

For the Eighth Circuit

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No. 12-2072

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

James D. Kozohorsky

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Eastern District of Missouri - Cape Girardeau

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 Submitted: January 18, 2013

 Filed: March 4, 2013

[Published]

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Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.

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PER CURIAM.

James D. Kozohorsky was tried and convicted of failing to register as a sex

offender in violation of 18 U.S.C. § 2250(a). The district court1

 varied upward from

1

 The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the

Eastern District of Missouri.
Kozohorsky’s guideline range and sentenced him to the statutory maximum of 120

months in prison. Kozohorsky appeals the denial of his pretrial motion to dismiss the

indictment and raises various issues relating to his sentence. We affirm.

I.

Kozohorsky has a lengthy criminal history. At age 15 he was convicted of

burglary and theft and spent two years in state custody. Within a year of his release,

Kozohorsky was arrested again and convicted of burglary, theft, and being a felon in

possession of a firearm. At age 22 Kozohorsky pled guilty to the violent rape of an

18 year old woman and spent another two years in state custody. Within months of

being released, Kozohorsky was arrested and charged with committing another violent

rape. While that case was pending Kozohorsky broke into the victim’s home and

threatened her, resulting in additional charges of burglary, terrorizing the victim by

threatening death or serious physical injury, and intimidating a witness. He was

sentenced in state court to 40 years in prison with 15 years suspended, but was

released in 2003 after having served about 14 years.

As a result of his rape convictions, Kozohorsky is subject to sex offender

registration requirements under federal and state law. The federal Sex Offender

Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq., requires

Kozohorsky to register and keep his registration current in each jurisdiction where he

lives or works. Id. § 16913(a). If Kozohorsky knowingly fails to register or update

his registration and travels in interstate commerce, he has committed a federal felony

punishable by up to 120 months in prison. 18 U.S.C. § 2250(a). All 50 states have

similar laws making it a felony for sex offenders to fail to register or update a

registration. See, e.g., Mo. Rev. Stat. § 589.400 et seq.

Following his release from prison in 2003, Kozohorsky lived briefly in

Wisconsin before settling in Arkansas and regularly updating his sex offender

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registration there. In 2006 Kozohorsky, then 41 years old, was arrested on charges of

violent rape. He spent about 14 months in state custody before pleading guilty to

attempted rape and receiving a suspended sentence of 120 months. Upon his release

in 2007 Kozohorsky moved to Missouri, where he lived and duly registered as a sex

offender.

In October 2009, Kozohorsky was charged in Butler County, Missouri with

failing to update his registration within 90 days of his last filing, as required by state

law. He was released on bail and registered using an address in Butler County. 

Kozohorsky was scheduled to go to trial in March 2010 but failed to appear for the

proceedings. A police lieutenant visited Kozohorsky’s last registered address and

discovered that he had not lived there since 2008. When the lieutenant contacted

Kozohorsky by phone, he stated that he no longer lived in Butler County and was in

Tennessee for a job and headed to Arkansas. Kozohorsky was arrested in September

2010 in Marked Tree, Arkansas, where he appeared to have been living. By that time

Kozohorsky’s Missouri registration had lapsed and his Arkansas registration was not

current. Kozohorsky was transferred to Butler County, and in January 2011 he pled

guilty to failure to register under Missouri state law.

Kozohorsky was subsequently indicted in federal court for violating SORNA

based on his failure to register in Arkansas. He moved to dismiss, arguing that federal

prosecution was barred under the double jeopardy and due process clauses of the Fifth

Amendment. The district court denied his motion, and the case went to trial. To

prove that he had lived in Arkansas, the government introduced Kozohorsky’s

testimony from his 2011 plea hearing in the failure to register case in Missouri. At

that hearing Kozohorsky appeared to tell the judge that he had left Missouri and been

living in Arkansas for the year prior to his arrest. At his federal trial, however,

Kozohorsky denied living in Arkansas during that time and testified that he had

misunderstood the judge’s question at the state plea hearing. He also claimed to have

been told that he had not been subject to registration in Arkansas because he

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frequently traveled for work, staying in no one location for more than five days at a

time. The jury nonetheless convicted Kozohorsky of failing to update his sex offender

registration in Arkansas in violation of 18 U.S.C. § 2250(a).

The presentence investigation report (PSR) recommended a total offense level

of 24. This included a six level enhancement under U.S.S.G. § 2A3.5(b)(1)(A) for

committing another uncharged rape during the lapse in his registration, and a two level

enhancement under U.S.S.G. § 3C1.1 for perjured testimony at his federal trial. 

Kozohorsky objected to both enhancements and also to paragraph 50 of the PSR,

which described the contents of a sex offender assessment conducted by the state of

Arkansas in 2004. The government agreed to drop the six level enhancement after

speaking with the alleged victim of the uncharged rape, but it supported an obstruction

of justice enhancement and use of the Arkansas sex offender assessment. It requested

the statutory maximum sentence of 120 months.

The district court overruled Kozohorsky’s objections to the obstruction of

justice enhancement and paragraph 50 of the PSR. The court calculated a total offense

level of 18 and criminal history category VI, resulting in a guideline range of 57 to 71

months. Terming Kozohorsky “a great risk to society” and quoting from the PSR that

his “behavior profile is congruent with that of a serial rapist,” the court varied upward

and sentenced Kozohorsky to 120 months in prison. The court reflected that, “if ever

there was a registration violation case that deserved an upward variance, this is it.” 

Kozohorsky appeals both his conviction and sentence.

II.

Kozohorsky renews his claim that double jeopardy bars his federal prosecution

for failure to register. We review de novo the district court’s denial of his motion to

dismiss the indictment on these grounds. United States v. Bearden, 265 F.3d 732, 735

(8th Cir. 2001). Kozohorsky’s Missouri conviction was based on his failure to

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register in that state in 2009, but he was prosecuted and convicted in federal court

based on his failure to register in Arkansas in 2010. The Fifth Amendment only

prohibits multiple prosecutions for “the same offence,” U.S. Const. amend. V, and

does not apply to charges based on separate and distinct acts. See Blockburger v.

United States, 284 U.S. 299, 301–04 (1932).

With respect to his sentence, Kozohorsky first challenges the two level

obstruction of justice enhancement he received. We review the district court’s

findings of fact for clear error and its application of the guidelines to those facts de

novo. United States v. Aleman, 548 F.3d 1158, 1163 (8th Cir. 2008). An obstruction

of justice enhancement is appropriate if the defendant has “willfully obstructed or

impeded . . . the administration of justice with respect to the investigation,

prosecution, or sentencing” of his offense. U.S.S.G. § 3C1.1. This includes

“committing, suborning, or attempting to suborn perjury,” id. cmt. n.4(B), but the

sentencing court “should be cognizant that inaccurate testimony or statements

sometimes may result from confusion, mistake, or faulty memory,” id. cmt. n.2. The

false testimony “must relate to a material matter and be done willfully.” Aleman, 548

F.3d at 1163.

At his plea hearing in Missouri in January 2011, Kozohorsky answered several

questions from the judge about his residency:

Judge: Where is your home?

Kozohorsky: Right now I don’t have one.

Judge: Where did you live before you were incarcerated?

Kozohorsky: Arkansas.

Judge: Arkansas?

Kozohorsky: Yes sir.

Judge: How long have you lived in Arkansas?

Kozohorsky: Approximately about a year.

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Judge: Prior to that you lived here in Butler County?

Kozohorsky: Yes, sir, about two years.

At Kozohorsky’s federal trial, the government introduced this testimony and argued

that it proved he had been living in Arkansas in 2010 prior to his arrest. Kozohorsky

testified that he had understood the state judge to be asking where he had lived prior

to his incarceration from 2006 to 2007, not his postarrest detainment in 2010. Thus,

he had been referring to 2006 when he said he had lived in Arkansas. On cross

examination the prosecutor asked why Kozohorsky had answered that he lived in

Missouri “[p]rior to” living in Arkansas if he actually had not lived in Missouri until

2007. Kozohorsky responded that he “must not have gotten that” and “probably

didn’t even catch that part of it.”

Kozohorsky argues that the district court clearly erred in finding that his trial

testimony was willfully false. We disagree. The colloquy between the judge and

Kozohorsky at his 2011 Missouri plea hearing clearly shows that the topic was where

he had been living prior to his arrest in September 2010. The state court judge used

the present tense in referring to Kozohorsky’s residence in Arkansas when asking,

“How long have you lived in Arkansas?” (emphasis added). Kozohorsky answered,

“Approximately about a year.” In addition, Kozohorsky stated that he had lived in

Butler County “[p]rior to” living in Arkansas. Since he had not lived in Missouri until

2007, this answer showed that he and the state judge were talking about where he had

been living in 2010. When Kozohorsky took the stand at his federal trial in 2012, the

district court was able to evaluate his explanation of his statements at the 2011 state

plea hearing and observe him under cross examination. Based on its own observations

at his federal trial, the district court found by a preponderance of the evidence that

Kozohorsky’s trial testimony had been willfully false. After our review of the record,

we conclude that the district court did not clearly err in its findings.

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Kozohorsky also argues that his trial testimony was not material to any issue

before the court since he claims that he had admitted the elements of the charged

offense elsewhere in his testimony. The test for materiality, however, is whether the

allegedly perjurious statements tend to impede or hamper the course of the

proceeding. United States v. Hirsch, 360 F.3d 860, 865 (8th Cir. 2004). Since

Kozohorsky denied at trial having lived in Arkansas for more than a few days at a

time and the government needed to prove that he had resided there during the relevant

period, his sworn statement at his plea hearing that he had lived in Arkansas for

“[a]pproximately about a year” was important evidence. Lying about that statement

certainly “tend[ed] to impede or hamper” the course of the trial. See id. (citation

omitted) (internal quotation marks omitted).

We next turn to Kozohorsky’s argument that the district court improperly relied

on disputed portions of the PSR. When a defendant objects to statements in the PSR,

the court must “rule on the dispute or determine that a ruling is unnecessary either

because the matter will not affect sentencing, or because the court will not consider

the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). In ruling on such a disputed

matter, “the court may consider relevant information without regard to its

admissibility under the rules of evidence applicable at trial, provided that the

information has sufficient indicia of reliability to support its probable accuracy.” 

U.S.S.G. § 6A1.3(a). Whether the information is sufficiently reliable “depends on the

facts of the particular case and is committed to the sound discretion of the district

court.” United States v. Schlosser, 558 F.3d 736, 740 (8th Cir. 2009) (citation

omitted) (internal quotation marks omitted).

Kozohorsky objected to paragraph 50 of the PSR, which cited a 2004 sex

offender screening and risk assessment conducted by the Arkansas Department of

Corrections. The PSR quoted the assessment’s conclusion that Kozohorsky’s

“behavioral pattern is congruent with that of a serial rapist” and that he has “a deviant

sexual preoccupation or paraphilia (rape) and other personality characteristics

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(psychopathic, antisocial, sadistic) predisposing him to repeated, wanton, disregard

of major social norms as well as violent sexual assault of others.” The PSR also cited

the assessment to show that Kozohorsky had a history of violent, planned sexual

assaults “much greater than his extensive official record reflects” and that his crimes

“included sadistic elements and similar modus operandi [sic].” Kozohorsky objected

to the PSR’s use of this assessment because it was “unreliable and untrue.” In

response the government introduced a certified copy of the full report. The court

found the full report “credible and reliable documentation and support for . . .

conclusions . . . made in Paragraph 50.” The court noted, moreover, that “to the extent

that there might be some reference to crimes that were committed that do not have

supporting documentation, the Court can very easily separate those circumstances .

. . from the Court’s consideration in the imposition of final sentence.”

We conclude that the district court did not err in relying on the sex offender

assessment. After the government responded to appellant’s objection by producing

the full report, Kozohorsky did not offer any contrary evidence but instead opted

solely to challenge its reliability. The district court examined the report and found it

had sufficient indicia of reliability. Moreover, the court stated that it would only

consider those crimes mentioned in the report that had full “supporting

documentation” when imposing his sentence. The district court’s finding that the

report was sufficiently reliable “depends on the facts of the particular case and is

committed to [its] sound discretion,” Schlosser, 558 F.3d at 740 (citation omitted)

(internal quotation marks omitted), and we see no reason in this record to overturn its

finding.

Kozohorsky finally argues that his sentence of 120 months is substantively

unreasonable. Regardless of whether a sentence is below, within, or above the

guideline range, we review its substantive reasonableness under a deferential abuse

of discretion standard. United States v. Feemster, 572 F.3d 455, 461, 464 (8th Cir.

2009) (en banc). In imposing Kozohorsky’s sentence the district court explained that

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he was a “great risk to society” in light of his propensity to commit violent sexual

assaults. It also noted his “extensive” criminal history which included two rapes,

attempted rape, burglary, terroristic threats, and intimidating a witness. While

Kozohorsky argues that a 120 month sentence is unreasonable for “just a registration

violation,” the district court was well within its discretion to decide that “if ever there

was a registration violation case that deserved an upward variance, this is it.”

III.

For these reasons we affirm Kozohorsky’s conviction and sentence.

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