                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0030n.06

                                          Case No. 17-3562
                                                                                         FILED
                           UNITED STATES COURT OF APPEALS                          Jan 17, 2018
                                                                               DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                              )     ON   APPEAL    FROM THE
     Plaintiff-Appellee,                               )     UNITED STATES DISTRICT
                                                       )     COURT FOR THE NORTHERN
v.                                                     )     DISTRICT OF OHIO
                                                       )
KENNETH E. JOZWIAK,                                    )
    Defendant-Appellant.                               )                 OPINION
                                  )
        BEFORE: ROGERS, McKEAGUE, and WHITE, Circuit Judges.

        McKEAGUE, Circuit Judge.              Kenneth Jozwiak pled guilty to falsifying a Naval

discharge certificate, converting funds from and making false statements to the Department of

Veterans Affairs, and obstructing justice. He received an above-guidelines prison sentence of

fifty-one months, which he now challenges as substantively unreasonable. Finding no abuse of

discretion, we affirm.

                                                   I

        Kenneth Jozwiak has never conformed to the rules. His bad behavior began during his

brief period of service in the Navy five decades ago, where he failed to obey orders, incurred

unexcused absences, engaged in illegal drug usage, and ultimately triggered his own discharge.

Some 76 convictions later, Jozwiak came full circle when he attempted to alter and embellish his

service record, fraudulently obtain benefits from the Department of Veterans Affairs (VA), and

obstruct the investigation into his actions. Let’s briefly review the record leading up to his life’s

latest chapter, the subject of this appeal.
Case No. 17-3562
United States v. Jozwiak
       In 2014, Jozwiak attempted to add his new spouse and her minor son as his lawful

dependents, hoping to increase his monthly VA pension benefit entitlement. He did so without

reporting their Social Security survivor benefits, thereby fraudulently receiving over $2,000.00 in

VA benefits. Jozwiak came to the attention of military investigators, who were looking into his

receipt of fraudulent benefits. The investigation revealed Jozwiak had submitted a false military

discharge certificate (DD-214) to the Summit County (Ohio) Veterans Service Commission in

connection with his attempt to fraudulently obtain VA benefits. During the relevant time period,

he was also deceiving the public. He falsely represented himself as a former Navy Seal and

Vietnam veteran at his stepson’s school, going so far as to falsify a military polaroid and pin a

false military ribbon rack representing that he had been awarded four Purple Hearts, a Bronze

Star with Valor, and a Silver Star.

       Jozwiak initially denied everything to investigators. He said his son had been a Navy

Seal (he has fathered four daughters but no sons), he denied falsifying a DD-214 or wearing

military ribbons to his stepson’s school, and so forth. To make matters worse, Jozwiak placed a

recorded phone call to his wife while he was incarcerated, instructing her to falsely allege that

investigators “went through [her] panty drawer, and they kept two pairs, two or three pairs of

[her] panties” so that “they’ll get in a lot of trouble.” (R. 32 at Page ID 157–58.)

       On August 3, 2016, Jozwiak was charged in a four-count indictment with falsifying a

Naval discharge certificate, in violation of 18 U.S.C. § 498, stealing public money, in violation

of 18 U.S.C. § 641, making fraudulent statements, in violation of 18 U.S.C. § 1001(a)(2), and

tampering with a witness, in violation of 18 U.S.C. § 1512(c)(2). Jozwiak knowingly and

voluntarily pled guilty to all counts without the benefit of any plea agreement. His guidelines




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Case No. 17-3562
United States v. Jozwiak
range was thirty to thirty-six months. He was in criminal history category VI even though 70 out

of his 76 prior convictions did not factor into the calculation of his criminal offense level.

       At sentencing, Jozwiak argued that his poor health was a justification for a sentence at the

low end of the guidelines range. The district court spent considerable time evaluating this

argument, even considering a downward departure under U.S.S.G. § 5H1.4 to account for

Jozwiak’s health conditions, but ultimately rejected either course of action in favor of an upward

variance to fifty-one months, which represents the national average for fraud offenses committed

by defendants in the same criminal history category.          The district court took exception to

Jozwiak’s extensive criminal history:

       While I’ve said before I’ve not seen a criminal history quite like the one before
       me, I can certainly say that about yours. I have not seen a criminal history with as
       many arrests, as many convictions and with so few criminal history points.

       While you exceed the highest number by five, only 92 percent—92 percent of
       your convictions are not even scored. So 70 of the 76 convictions don’t even
       score. So you managed to achieve a criminal history category VI and 92 percent
       of your convictions weren’t counted. That’s significant.

       And even though you’re a criminal history category of VI, when that matches up
       with the offense level of 12, the guidelines suggest 30 months at the low end,
       37 months at the high end, and I don’t mind telling you, I think that understates
       the case. It understates the danger. It understates your behavior that’s shown a
       severe disrespect for other people’s property, your position in society, and our
       laws . . . .

(R. 42 at Page ID 246–47.) The district court considered Jozwiak’s health conditions—for

example, he had a toe amputated because of his complications from diabetes while he was being

held in a holding facility awaiting sentencing—but ultimately ruled in effect that if Jozwiak did

the crime despite his age and health conditions, he should do the time. “Sometimes age can be

viewed as a deterrent to recidivism,” the court wrote, “[but] Defendant has not shown this to be

true in his case, given his persistent perpetuation of fraud schemes over the past several

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Case No. 17-3562
United States v. Jozwiak
decades.” (R. 38 at Page ID 202–03.) “Similarly, neither Defendant’s mental or physical health

whether considered individually or in combination with other characteristics encourage a more

lenient sentence or that Defendant has ceased being a danger to society.” (Id.) This appeal

followed.

                                                  II

       Jozwiak asserts his sentence is substantively unreasonable, arguing that the district court

“unreasonably varied upward and gave little consideration to [his] serious health conditions.”

Appellant’s Br. at 10. We review a challenge to an above-guidelines sentence for abuse of

discretion, see Gall v. United States, 552 U.S. 38, 51 (2007), and find none here.

       The district court specifically addressed all the 18 U.S.C. § 3553(a) factors, expressing

serious concerns about Jozwiak’s criminal history and the “wreckage” wrought as he “paraded

around these United States committing these frauds.” (R. 42 at Page ID 250.) The court perhaps

painted a more optimistic picture of Jozwiak’s health than he feels was warranted. But, the court

sufficiently considered Jozwiak’s health conditions and thoroughly recited its reasons for

arriving at a fifty-one-month sentence. In this case, the need to deter Jozwiak and protect others

from his persistent pattern of fraud proved too great for the district court.

       Jozwiak urges us to assign his health conditions greater weight on the sentencing scale.

But it’s not this Court’s place to weigh the § 3553(a) factors anew—we need only consider

whether the district court abused its discretion when it balanced the weights on its own scale.

Jozwiak also notes that the guidelines provide for a downward departure where a defendant is

“seriously infirm.” Appellant’s Br. at 12–13. Yet, Jozwiak admits he “did not seek a downward

departure,” and indeed he sought a sentence within the guidelines. Id. Jozwiak thus conceded a

substantively reasonable sentence would involve prison time. For all practical purposes, it’s



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Case No. 17-3562
United States v. Jozwiak
difficult to see how a sentence of fifty-one months would do unreasonable violence to Jozwiak’s

health while a sentence of thirty months as he requested would be just what the doctor ordered.

       Jozwiak’s fifty-one-month sentence—above the advisory range of thirty to thirty-seven

months—may be harsh, but that does not make it unreasonable. United States v. Herrera-

Zuniga, 571 F.3d 568, 591 (6th Cir. 2009). “Regardless of whether we would have imposed the

same sentence, we must afford due deference to the district court’s decision to determine the

appropriate length of the defendant’s sentence, so long as it is justified in light of the relevant §

3553(a) factors.” Id. Considering Jozwiak’s legendary criminal history—as the district court

noted, “[he] managed to achieve a criminal history category VI and 92 percent of [his]

convictions weren’t counted” (R. 42 at Page ID 247)—we can hardly conclude the district court

abused its discretion.

       Having rejected Jozwiak’s arguments that his sentence is substantively unreasonable, we

AFFIRM.




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