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United States v. Gilowski ( 2023 )


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  • Case: 22-10887        Document: 00516837427             Page: 1      Date Filed: 07/28/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10887
Summary Calendar                                   FILED
____________                                     July 28, 2023
Lyle W. Cayce
United States of America,                                                          Clerk
Plaintiff—Appellee,
versus
Artur Gilowski,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-451-20
______________________________
Before Higginbotham, Stewart, and Southwick, Circuit Judges.
Per Curiam: *
Artur Gilowski timely appeals his trial conviction for conspiracy to
commit interstate transportation of stolen property and conspiracy to
commit mail fraud. He argues that the district court misapplied several
Sentencing Guidelines enhancements and that some elements of the jury’s
decision are unfounded. His conviction stems from high-level involvement
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10887        Document: 00516837427         Page: 2    Date Filed: 07/28/2023
No. 22-10887
in a crime ring which sent groups of thieves to national retailers to steal small
electronics that a smaller number of individuals in Chicago would then resell
on the internet.
We conclude that the district court correctly applied the Sentencing
Guidelines. First, Gilowski presents an argument about the amount of actual
loss, but the amount used was presented by Gilowski, so any error is invited
and therefore reviewed for manifest injustice. See United States v. Taylor,
    973 F.3d 414
    , 418 (5th Cir. 2020). Gilowski presents no binding or persuasive
authority that there has been manifest injustice regarding the amount of
actual loss in this case.
Second, Gilowski offers a different interpretation of the record
evidence around his role in the conspiracy. He objected to this enhancement,
so we review the district court’s application of the Guidelines de novo and its
factual findings for clear error. See United States v. Delgado–Martinez,
    564 F.3d 750
    , 751 (5th Cir. 2009). His argument does not demonstrate error, as
Gilowski only offers an alternate reading of the facts.
Third, Gilowski argues that the mass marketing enhancement
requires direct solicitation and direct harm to consumers. He did not object
to the application of this enhancement, so we review this argument under a
deferential plain error standard. United States v. Cisneros-Gutierrez,
    517 F.3d 751
    , 759–60 (5th Cir. 2008). This argument is foreclosed by our precedent.
See United States v. Isiwele,
    635 F.3d 196
    , 204–05 (5th Cir. 2011); United
States v. Magnuson,
    307 F.3d 333
    , 335 (5th Cir. 2002).
Fourth, Gilowski argues that the enhancement in the Guidelines for
obstruction requires an affirmative finding of perjury. He objected to this
enhancement, so we review the legal conclusions de novo and the factual
findings for clear error. See Delgado–Martinez,
    564 F.3d at 751
    . The text of
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Case: 22-10887     Document: 00516837427           Page: 3   Date Filed: 07/28/2023
No. 22-10887
the Guidelines does not require a perjury finding more explicit than what the
district court held in this case. See U.S.S.G. § 3C1.1 & comment n.4(B).
Finally, Gilowski argues that no reasonable jury could have found him
guilty beyond a reasonable doubt. He admits the government created an
inference that the goods he sold were stolen, and juries may draw reasonable
inferences from the evidence presented. See United States v. Vargas-Ocampo,
    747 F.3d 299
    , 301 (5th Cir. 2014). Gilowski’s other sufficiency argument is
that his text messages used by the government should have been prohibited
as both hearsay and co-conspirator statements. The text messages were not
hearsay because they were not offered to prove the truth of the matter
asserted. See United States v. Cantu,
    876 F.2d 1134
    , 1137 (5th Cir. 1989).
Gilowski’s argument around co-conspirator statements is not fully formed
and cites no authority. It therefore is insufficiently briefed. See Brinkmann
v. Dallas Cnty. Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir. 1987).
Thus, we find that a reasonable trier of fact could have found that
Gilowski was guilty beyond a reasonable doubt.
AFFIRMED.
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