United States of America v. Dennis M. Czysz

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 19, 2022
Decided June 7, 2023
Before
DIANE P. WOOD, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-3374
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DENNIS M. CZYSZ,
Defendant-Appellant.
Appeal from the United States
District Court for the Eastern
District of Wisconsin.
No. 2:20-cr-00189-PP-1
Pamela Pepper,
Chief Judge.
O R D E R
As of 2019, Dennis M. Czysz possessed and had distributed hundreds of photos and
pictures depicting child pornography. Some of these depictions were quite graphic, and
some involved very young (i.e., three- to five-year-old) children. He was apprehended
after the National Center for Missing and Exploited Children received a tip about his
activities. At the time, Czysz already had two prior Wisconsin convictions for similar
offenses. The first occurred in 2000, when he was found guilty of exposing a child to
harmful material in violation of Wis. Stat. § 948.11(2)(a); the second occurred in 2005,
when he was convicted of four counts of possession of child pornography in violation of
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 21-3374 Page 2
Wis. Stat. § 948.12(1m). As a result, he was under a lifetime obligation under state law to
register as a sex offender. But his first encounter with federal criminal law did not come
until the 2019 arrest, which led to charges of unlawful distribution and possession of child
pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1), and §§ 2252A(a)(5)(B)
and (b)(2).
Czysz pleaded guilty to the distribution count and entered a written plea agreement
in which the government promised to dismiss the possession count in return for Czysz’s
waiver of his right to appeal his sentence (among other things). The waiver is
comprehensive:
Based on the government’s concessions in this agreement, the defendant
knowingly and voluntarily waives his right to appeal his sentence in this case and
further waives his right to challenge his conviction or sentence in any post-
conviction proceedings … . As used in this paragraph, the term “sentence” means
any term of imprisonment, term of supervised release, term of probation,
supervised release condition, fine, forfeiture order, and restitution order.
It contains exceptions only for punishment in excess of the statutory maximum,
reliance on any constitutionally impermissible factor, ineffective assistance of counsel in
connection with the negotiation of the plea agreement or sentencing, or a claim that the
agreement was entered involuntarily. At the change-of-plea hearing, the district court
confirmed Czysz’s understanding that he had knowingly waived his right to appeal. In
accordance with its understanding of the mandatory minimum as required by 18 U.S.C.
§ 2252A(b)(1), the court sentenced Czysz to 180 months in prison.
To our surprise, Czysz’s brief in this court has nothing to say about the appeal waiver.
Instead, it argues the merits of the question whether a prior conviction for possession of
child pornography in violation of Wis. Stat. § 948.12(1m) may be used as a predicate
offense for purposes of the enhanced statutory minimum under 18 U.S.C. § 2252A(b)(1).
Our response to his merits argument is “Not so fast!” If the appeal waiver is valid, he has
no right to a decision on the merits.
It is well established that “an appeal waiver must be enforced if its ‘terms are express
and unambiguous, and the record shows that the defendant knowingly and voluntarily
entered into the [plea] agreement.’” United States v. Nulf, 978 F.3d 504, 506–07 (7th Cir.
2020) (quoting United States v. Haslam, 833 F.3d 840, 844 (7th Cir. 2016)). The waiver in
Czysz’s agreement meets those criteria. It expressly includes an appeal of his sentence—
exactly the kind of appeal he is attempting to advance here.

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No. 21-3374 Page 3
Finally, the government has properly briefed the question whether the appeal waiver
is binding, but Czysz offered exactly nothing in response. As we noted, his opening brief
was silent on the subject, and he did not file a reply brief. Under the circumstances, we
have no trouble giving effect to the waiver and dismissing Czysz’s appeal.
APPEAL DISMISSED

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