United States of America v. Pawel Sebastian Szkutnik

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PAWEL SEBASTIAN SZKUTNIK,
Defendant-Appellant.
No. 17-30088
D.C. No. 2:06-cr-00212-JLR
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Pawel Sebastian Szkutnik appeals from the district court’s judgment and
challenges the 16-month sentence imposed upon revocation of supervised release.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Szkutnik contends that the district court procedurally erred by failing to use
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
FEB 16 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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the Guidelines range as the starting point at sentencing, instead sentencing him
based on a determination made at a previous hearing. Szkutnik also argues that the
court failed to explain the sentence adequately. We review for plain error, see
United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and
conclude that there is none. The record reflects that the court considered the
uncontested Guidelines range, but concluded that an above-Guidelines sentence
was warranted in light of Szkutnik’s poor performance on supervised release. The
court’s explanation was sufficient. See United States v. Carty, 520 F.3d 984, 992
(9th Cir. 2008) (en banc). Moreover, the court’s imposition of a 16-month
sentence belies Szkutnik’s argument that the court placed undue reliance on its
remark at a prior revocation hearing that any future violations would result in an
18-month sentence.
Szkutnik also contends that the sentence is substantively unreasonable. The
district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38,
51 (2007). The 16-month sentence is substantively reasonable in light of the 18
U.S.C. § 3583(e) sentencing factors and the totality of the circumstances, including
Szkutnik’s history on supervised release and failure to be deterred by prior prison
terms. See Gall, 552 U.S. at 51.
AFFIRMED.

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