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United States v. Gawron

United States Court of Appeals, Seventh Circuit

July 3, 2019

United States of America, Plaintiff-Appellee,
v.
Izabela Gawron, Defendant-Appellant.

          Argued June 12, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 CR188-8 - John Z. Lee, Judge.

          Before Wood, Chief Judge, and Barrett and St. Eve, Circuit Judges.

          Wood, Chief Judge.

         Izabela Gawron is a citizen of Poland, but she has lived in the United States for the last 17 years. She became mixed up in a complex scheme that landed her in federal court facing charges of wire fraud. Once there, she pleaded guilty to one count and was sentenced to 12 months and one day in prison, and two years of supervised release. Her appeal focuses on the latter part of the sentence: she contends that the district court erred by imposing any term of supervised release, because she is likely to be deported after her imprisonment. She also argues that the supervised-release condition confining her to the district where she is being supervised is flawed because the condition contains no scienter requirement. Finally, she asserts that the court's written judgment conflicts with its oral pronouncement of this condition.

         While we find that Gawron's first two arguments lack merit, her argument about scienter would have warranted relief if she had properly preserved it. As for the third, we agree with both parties that the written judgment must be amended to conform to the court's oral pronouncement.

         I

         Gawron and her husband, Kazimierz Motyka, were two members of a credit-card fraud scheme. They provided their personal information to another person, who then misrepresented their income to obtain credit cards in their names. Equipped with the cards, Gawron and Motyka then made purchases (including two luxury cars) without intending to pay the credit-card bills. They created two new corporations with a mobile payment processing terminal and swiped other participants' credit cards through the terminal. When they could not repay their debts, they declared bankruptcy. Both were indicted, and Gawron eventually pleaded guilty to one count of wire fraud in violation of 18 U.S.C. § 1343.

         Using the 2016 edition of the Sentencing Guidelines, which was effective from November 1, 2016, to November 1, 2018, the Probation Office prepared a presentence investigation report. It calculated a Guidelines range of one to three years of supervised release but added that the court "ordinarily" should not impose supervision on a defendant who would likely be removed from the country after her release from prison. U.S.S.G. § 5D1.1(c) cmt. n.5. The PSR also recommended a discretionary condition prohibiting Gawron from leaving the "jurisdiction" where she is being supervised without permission. Gawron objected to the PSR and to two conditions of supervised release, but she did not single out either the general imposition of supervision or the condition prohibiting her from leaving the jurisdiction. In fact, after stating her two objections to conditions of supervision, she represented that she "does not object to the remaining conditions."

         At the sentencing hearing, Gawron reiterated her two objections. Again, she did not take the position that supervised release should be skipped because of her likely removal, nor did she contest the condition restricting her movement. When asked by the court about the likelihood of deportation, Gawron's counsel responded that immigration proceedings had started and that her deportation was not a matter of "if," but "when." When the court asked if Gawron had any additional objections to the term of supervision or to the sentence, Gawron's counsel stated that there were no issues that needed to be addressed.

         As we noted earlier, the court imposed a prison sentence of 12 months and one day (below the lower limit recommended by the Guidelines), along with a two-year term of supervision. It explained that it chose to include supervision because of Gawron's need to reintegrate into society upon release if she was not deported after her incarceration. The court added that the conditions of supervision would require Gawron to secure employment, regain financial stability, and pay restitution. It acknowledged that Gawron's children would face significant difficulties if both parents were incarcerated at the same time, and so the court granted Gawron's request to delay reporting to prison until Motyka's release. In the meantime, Gawron would be subject to the conditions of her pretrial supervision.

         When reading aloud the supervised-release conditions, the district court stated:

Defendant shall remain within the jurisdiction where defendant is being supervised, unless granted permission to leave by the Court or the probation officer. By jurisdiction I mean the federal judicial district in which defendant is being supervised, such as the Northern District of Illinois.

         The written judgment, however, omitted the critical last sentence, and thus does not clarify that "jurisdiction" refers to the federal judicial ...


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