United States v. Jeffrey Woronowicz , 744 F.3d 848 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-4320
_____________
UNITED STATES OF AMERICA
v.
JEFFREY WORONOWICZ,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(District Court No.: 3-12-cr-00192-001)
District Judge: Honorable Mary L. Cooper
Submitted under Third Circuit LAR 34.1(a)
on January 17, 2014
(Opinion filed: March 12, 2014)
Before: RENDELL, ROTH, and BARRY, Circuit Judges
Theodore Sliwinski, Esquire
45 River Road
East Brunswick, NJ 08816
Counsel for Appellant
Mark E. Coyne, Esquire
John F. Romano, Esquire
Paul J. Fishman, Esquire
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102-2535
Counsel for Appellee
OPINION
RENDELL, Circuit Judge:
Jeffrey Woronowicz challenges the 41-month term of
imprisonment to which he was sentenced after pleading guilty
to a one-count Indictment charging him with counterfeiting in
violation of 18 U.S.C. § 474. Woronowicz urges that the
District Court clearly erred in calculating the amount of
counterfeit currency attributable to him under the Sentencing
Guidelines, and that his sentence is procedurally and
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substantively unreasonable. For the reasons that follow, we
will affirm.1
I.
In 2008, Woronowicz was convicted of four counts of
willful failure to file tax returns and was sentenced to a 12-
month term of imprisonment with 1 year of supervised
release. He failed to comply with the terms of his supervised
release, resulting in an additional 3 months’ imprisonment.
Woronowicz was allowed to self-surrender but failed to do
so. After being arrested for failure to surrender, Woronowicz
consented to have law enforcement officials search his
residence. The officials discovered counterfeit currency with
a face value in excess of $207,000. Approximately 90% of
the bills found were completed on only one side, and $20,000
worth were completed on both sides. Authorities also
discovered materials used to manufacture counterfeit
currency. Woronowicz subsequently pleaded guilty to the one
count Indictment charging him with counterfeiting.
At sentencing, the District Court applied a 12-level
enhancement to Woronowicz’s Guidelines range, pursuant to
§ 2B5.1(b)(1)(B) based on its calculation of the face value of
the counterfeit currency as exceeding $200,000.2 The Court
rejected Woronowicz’s argument that he should receive no
more than a 4-level enhancement since only 10% of the
1
We have jurisdiction over Woronowicz’s appeal pursuant to
28 U.S.C. § 1291.
2
Section 2B5.1(b)(1)(B) instructs to use the table in § 2B1.1
which indicates that for losses greater than $200,000, a 12-
level enhancement should be applied.
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counterfeited notes were fully completed. The Court
calculated Woronowicz’s total offense level as 20 and his
criminal history category as IV, resulting in an advisory
Guidelines range of 51 to 63 months. The Court varied
downward, imposing a sentence of 41 months’ imprisonment,
acknowledging that the fact that many of the bills were
incomplete was a mitigating factor.
II.
A.
We review a District Court’s interpretation of the
Sentencing Guidelines de novo and its application of the
Guidelines to the facts for clear error. United States v.
Richards, 674 F.3d 215, 218-20 (3d Cir. 2012).
Under § 2B5.1(b)(1)(B), the Court is to impose a
sentencing level enhancement based on “the face value of the
counterfeit items.” United States v. Wright, 642 F.3d 148, 154
(3d Cir. 2011). Here, Woronowicz concedes that the face
value of the currency was $207,980 but urges that incomplete
bills should not be counted as “counterfeit items.” He also
raises arguments regarding intended loss, but we have clearly
held that intended loss is irrelevant in imposing an
enhancement under § 2B5.1(b)(1)(B). Wright, 642 F.3d at
154.3 Though we have never explicitly ruled on whether
3
Puzzlingly, Woronowicz cites our holding in Wright for the
proposition that we have mandated “a conservative approach
when ruling on sentencing enhancements.” Appellant’s Br.
24. Even if this were true, a strict interpretation of §
2B5.1(b)(1) would still include one-sided bills in the
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incomplete bills should be counted in arriving at face value
under § 2B5.1(b)(1) of the Sentencing Guidelines, every other
court of appeals that has addressed this question has held that
they should. See United States v. Kelly, 204 F.3d 652, 657
(6th Cir. 2000) (counting bills lacking seals and numbers
under enhancement); United States v. Webster, 108 F.3d
1156, 1158 (9th Cir. 1997) (counting uncut bills); United
States v. Ramacci, 15 F.3d 75, 78 (7th Cir. 1994) (counting
one-sided bills); United States v. Lamere, 980 F.2d 506, 512-
13 (8th Cir. 1992) (counting one-sided bills).4
Under § 2B5.1, a counterfeit item is defined as “an
instrument that has been falsely made, manufactured, or
altered.” U.S.S.G. § 2B5.1 cmt. n.1. Note 3 of § 2B5.1
specifically excepts, “items that are so obviously counterfeit
that they are unlikely to be accepted even if subjected to only
minimal scrutiny,” Id. § 2B5.1 cmt. n.3, from being counted
in connection with a different subsection of § 2B5.1(b) –
namely (b)(2)(A). In United States v. Taftsiou, we held that
the Sentencing Commission “unambiguously limited the
reach of note [3]5 to subsection (b)(2)” and that we were “not
at liberty to extend its application to other subsections by
calculation of the face value of the counterfeit currency for
the reasons explained herein.
4
Woronowicz points to United States v. Cho, 136 F.3d 982(5th Cir. 1998), as disagreeing with the Lamere decision.
Cho, however, involved a completely different Guidelines
section, and disagreed with Lamere on an issue irrelevant to
the instant case—that is, whether a district court errs by
considering the application notes accompanying a cross-
referenced Guideline. See Cho, 136 F.3d at 984 n.3.
5
At the time, the note in question was note 4.
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judicial fiat alone.” 144 F.3d 287, 294 (3d Cir. 1998).
Therefore, we held that notes of unpassable quality do count
towards the face value of counterfeit items under subsection
(b)(1). Id. Incomplete bills are merely notes that could be
considered to be of unpassable quality. Therefore, extending
our holding in Taftsiou, we now hold that incomplete bills are
“counterfeit items” under § 2B5.1(b)(1) and must be counted
in calculating the total face value.
Woronowicz’s argument that there are an “abundance
of cases wherein convictions for counterfeiting were reversed
because the counterfeit bills were not of passable quality,” is
misplaced. Appellant’s Br. 15. First, the cases he relies on
involved a different statute from the one at issue here—18
U.S.C. § 472 rather than § 474. See United States v. Ross, 844
F.2d 187 (4th Cir. 1988); United States v. Johnson, 434 F.2d
827 (9th Cir. 1970); United States v. Smith, 318 F.2d 94 (4th
Cir. 1963). Unlike § 472, § 474, prohibits the possession of
currency made “in whole or in part, after the similitude” of
U.S. currency. See Ross, 844 F.2d at 190. Second, the cases
he cites involved challenges to convictions, not challenges to
sentences. Woronowicz’s sentencing range is determined by
the Sentencing Guidelines, not by the underlying
counterfeiting statute. Since the relevant Guideline provision
bases the appropriate sentencing level enhancement on the
face value of the counterfeit items, and since the face value
here is $207,980, the District Court did not err in applying a
12-level enhancement.
B.
We review a sentence’s procedural and substantive
reasonableness under an abuse of discretion standard. United
States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009).
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Woronowicz asserts that the District Court failed to
meaningfully consider the factors enumerated in 18 U.S.C. §
3553(a) and to adequately explain the reasons for its sentence.
This assertion is belied by the record. The Court provided an
in depth explanation for its sentence, noting, inter alia,
Woronowicz’s criminal history, his refusal to comply with the
law in spite of leniency previously afforded to him, the actual
and potential danger posed to the community by his continued
possession of the counterfeit bills, the high quality of the
bills, and the fact that bills were passed in 2009, prior to his
imprisonment. Contrary to Woronowicz’s assertion that the
Court did not account for the fact that the counterfeit bills
were one-sided, the Court explicitly noted that the amount of
loss used to calculate the upward adjustment under the
Guidelines “may somewhat overstate the actual or intended
loss represented by [the] hoard of mostly incompleted [sic]
printing jobs,” and the Court then varied downward two
levels, giving Woronowicz a sentence at the bottom of the
new Guidelines range of 41 to 51 months. The Court also
credited Woronowicz’s argument that the currency was
produced 31 years ago, but held that this was outweighed by
the fact that it could have been used at any time in the interim
by anyone who was able to gain possession of it.
Woronowicz raises several mitigation arguments for
the first time on appeal. We review these for plain error.
United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006).
Woronowicz states that this was his first felony conviction,
and that statistical data would suggest that persons over 50
have a low risk of recidivism. This argument makes little
sense, given that his history of criminal convictions began
after the age of 50 and that he has a track record of failing to
cooperate with law enforcement even after being shown
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leniency. Woronowicz also argues that the District Court
should have given him a lower sentence because of his youth
at the time of the manufacture of the counterfeit currency. He
acknowledges, however, that he was convicted of possession,
and that possession is an ongoing offense. We conclude that
the District Court did not commit plain error in imposing its
sentence without specific consideration of these aspects of his
life and crime.
Having determined that the District Court’s sentence
was procedurally sound, we will affirm “unless no reasonable
sentencing court would have imposed the same sentence on
that particular defendant for the reasons . . . provided.”
Tomko, 562 F.3d at 568. Sentences within the Guidelines
range are “more likely to be reasonable than those that fall
outside this range.” United States v. Olfano, 503 F.3d 240,
245 (3d Cir. 2007). Here, the District Court not only varied
downward two levels to account for the unique circumstances
of Woronowicz’s case, but also sentenced him at the bottom
of the Guidelines range. Given the Court’s sound explanation
of its reasons for sentencing Woronowicz to 41 months’
imprisonment, we conclude that it did not abuse its discretion.
III.
For the foregoing reasons, we will affirm the District
Court’s judgment of sentence.
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