                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-3296

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

A NDRZEJ P IETKIEWICZ,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 10 CR 767—Ronald A. Guzmán, Judge.


    A RGUED O CTOBER 26, 2012—D ECIDED M ARCH 21, 2013




   Before E ASTERBROOK, Chief Judge, and C UDAHY and
T INDER, Circuit Judges.
  C UDAHY, Circuit Judge. This is a case about how a
court must explain its discretionary determinations in
criminal sentencing. Defendant-appellant Andrzej
Pietkiewicz was charged with mail fraud in violation
of 18 U.S.C. § 1341. Pietkiewicz emigrated from Poland
in 1990, when he was 17 years old. He had a suc-
cessful career in auto-body repair. However, Pietkiewicz
became involved in a criminal scheme. From 2008-2009,
2                                                   No. 11-3296

Pietkiewicz engaged in securing financing with six false
identities to buy at least twelve cars. He would make
small down payments for the cars, and then abscond
with the vehicles. Generally these cars were equipped
with tracking systems. No signals from these cars have
been detected, indicating that either Pietkiewicz has
disabled the tracking systems or that the cars are no
longer in the United States.1 Only one car has been re-
covered. It was found in Canada, inside a shipping con-
tainer destined for Europe.
   In the course of this scheme, Pietkiewicz traveled to
Cleveland in order to acquire a false identification docu-
ment from a representative of the Ohio Bureau of
Motor Vehicles. Pietkiewicz used this fake identity to
buy two cars. On June 7, 2010, the Northern District of
Ohio sentenced Pietkiewicz to 6 months’ imprisonment
and 2 years of supervised release for fraud with iden-
tification documents.2 His sentence was discharged in
September 2010.
  The federal government indicted Pietkiewicz after his
release from prison. On December 10, 2010, in the
Northern District of Illinois, Eastern Division, Pietkiewicz
was charged with mail fraud in violation of 18 U.S.C.
§ 1341. On March 23, 2011, he pleaded guilty pursuant
to a plea agreement. The main issue in this case is what,
if any, effect should Pietkiewicz’s Ohio offense and
time served pursuant to a sentence for it have on his
instant sentence.


1
    These systems do not transmit signals internationally.
2
    Northern District of Ohio, Docket No. 09 CR 510.
No. 11-3296                                                     3

  On June 10, 2011, the United States Probation Office
issued a Presentence Report (PSR).3 Pietkiewicz’s total
offense level was 24. Under U.S.S.G. § 2B1.1(b)(9)(C) (2010),
the PSR arrived at level 24 in part from recommending
a specific offense characteristic enhancement of 2 be-
cause this offense was related to the sophisticated
means of creating false documents and identities at issue
in Pietkiewicz’s Ohio federal case. 4 Pursuant to U.S.S.G.
§ 2B1.1(b)(12)(A) (2010), the PSR also recommended a
specific offense characteristic enhancement of 2 be-
cause this offense was related to the organized scheme
involved in the Ohio federal case. The PSR also placed
Pietkiewicz in criminal history category II based on
2 criminal history points.5 Based on a total offense level



3
    Probation used the 2010 edition of the Guidelines Manual.
4
  The remaining Offense Level calculations were determined
as follows: the PSR advised a base offense level of 7, pursuant
to U.S.S.G. §2B1.1(a)(1). The PSR recommended a specific
offense characteristic enhancement of 14, pursuant to U.S.S.G.
§ 2B1.1(b)(1)(H), because losses exceeded $400,000 but not
more than $1 million. The PSR recommended a specific
offense characteristic enhancement of 2, pursuant to U.S.S.G.
§ 2.B1.1(b)(2)(A)(i), because the offense involved at least ten
but fewer than 50 victims. The PSR credited a decrease of
2 levels for acceptance of responsibility pursuant to U.S.S.G.
§ 3E1.1(a) and for timely acceptance of responsibility under
U.S.S.G. § 3E1.1(b).
5
  The PSR reported four previous adult adjudications of guilt.
Two were not counted for criminal history points. One of these
four previous adjudications of guilt was a minor offense
                                                 (continued...)
4                                                 No. 11-3296

of 24 and a criminal history category of II, the PSR calcu-
lated an advisory Guideline range of 57 to 71 months’
imprisonment.
  At a hearing, Pietkiewicz moved for a downward
variance to his sentence pursuant to U.S.S.G. §§ 5G1.3(b),
5K2.23, because, based on the “sophisticated means”
related to his discharged Ohio conviction, his offense
level was increased without also crediting a downward
variance for the 6 months’ time served.6 The district
court denied his motion without explanation. At sen-
tencing, Pietkiewicz reiterated this argument for a down-
ward variance. Additionally, Pietkiewicz argued that
his sentence should be reduced because the PSR also
considered his conduct in the Ohio case to constitute
an “organized scheme” requiring an enhancement. The
district court denied the motion for downward vari-
ance, adopting the PSR’s calculations of a total offense
level of 24 and criminal history category of II, and im-
posing a sentence of 71 months’ imprisonment, 2 years’


(...continued)
for which a minor sentence was imposed. The remaining
excluded offense was the Ohio federal case. Only two 1998
convictions for driving under the influence of alcohol in
Cook County, Illinois, were counted for 1 criminal history
point each, pursuant to U.S.S.G. § 4A1.1(c).
6
  We note in passing that although the Guidelines use the term
“departure,” that term is no longer appropriate in light of
case law flowing from United States v. Booker, 543 U.S. 220
(2005). The Sentencing Commission might do well to con-
sider removing the term “departure” from the entire Guidelines.
No. 11-3296                                             5

supervised release, $428,461.34 restitution and $100.00
special assessment.
  Pietkiewicz appeals, arguing that the district court
erred by denying his request for a sentence reduction
under U.S.S.G. §§ 5G1.3, 5K2.23. The district court had
jurisdiction under 18 U.S.C. § 3231. As an appeal from
the district court’s final order, this court has jurisdic-
tion under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
The decision to deviate or not to deviate from sen-
tencing guidelines is reviewed for abuse of discretion.
United States v. Lucas, 670 F.3d 784, 794 (7th Cir. 2012).
We hold that though the district court may have had
good reason for denying the request for a downward
variance in this case, the district court erred by not ex-
plaining its refusal of the downward variance. We
vacate Pietkiewicz’s sentence and remand.


                            I.
  On appeal, Pietkiewicz argues that the district court
erred by denying his request for a downward variance
under U.S.S.G. §§ 5G1.3, 5K2.23, without explanation,
even though the court considered his actions in the
Ohio offense, for which he had already served a term
of imprisonment to be related, and thus used that con-
duct as the basis of an offense level increase.
  A defendant may appeal a sentence imposed under
the Sentencing Reform Act of 1984 only if it was imposed
in violation of the law, was imposed as a result of
an incorrect application of the Sentencing Guidelines or
6                                              No. 11-3296

was otherwise unreasonable. 18 U.S.C. § 3742 (2006).
Section 5G1.3(b) of the Sentencing Guidelines explains
that sentencing courts should consider if the defendant’s
present sentence takes into account the sentence im-
posed in a related case:
      (b) If . . . a term of imprisonment resulted from
    another offense that is relevant conduct to the instant
    offense of conviction under the provisions of sub-
    sections (a)(1), (a)(2), or (a)(3) of §1B1.3 (Relevant
    Conduct) and that was the basis for an increase in
    the offense level for the instant offense under
    Chapter Two (Offense Conduct) or Chapter Three
    (Adjustments), the sentence for the instant offense
    shall be imposed as follows:
      (1) the court shall adjust the sentence for
    any period of imprisonment already served on the
    undischarged term of imprisonment if the court de-
    termines that such period of imprisonment will not
    be credited to the federal sentence by the Bureau
    of Prisons; and
      (2) the sentence for the instant offense shall be
    imposed to run concurrently to the remainder of
    the undischarged term of imprisonment.
U.S.S.G. § 5G1.3(b)(1)-(2) (2010).
  Although § 5G1.3(b) is not directly applicable to dis-
charged sentences, Application Note 4 of § 5G1.3 ex-
plains that sentencing courts can still consider a
reduction in a sentence when the service of the earlier
sentence was discharged:
No. 11-3296                                              7

     (4) Downward Departure Provision.—In the case of
   a discharged term of imprisonment, a downward
   departure is not prohibited if the defendant (A) has
   completed serving a term of imprisonment; and
   (B) subsection (b) would have provided an adjust-
   ment had that completed term of imprisonment
   been undischarged at the time of sentencing for
   the instant offense. See §5K2.23 (Discharged Terms
   of Imprisonment).
  Further, Sentencing Guidelines § 5K2.23, Discharged
Terms of Imprisonment, states:
     A downward departure may be appropriate if the
   defendant (1) has completed serving a term of impris-
   onment; and (2) subsection (b) of §5G1.3 (Imposition
   of a Sentence on a Defendant Subject to Undischarged
   Term of Imprisonment) would have provided an
   adjustment had that completed term of imprison-
   ment been undischarged at the time of sentencing
   for the instant offense. Any such departure should
   be fashioned to achieve a reasonable punishment
   for the instant offense.
U.S.S.G. § 5K2.23 (2010).
  Pietkiewicz moved for a downward variance pursuant
to U.S.S.G. §§ 5G1.3, 5K2.23, to account for the discharged
6-month imprisonment for his Ohio conviction. A down-
ward variance for a discharged term of imprisonment
may be appropriate when § 5G1.3(b) would have
provided for an adjustment if the completed prison
sentence was not discharged when defendant was sen-
tenced in the present case. Section 5G1.3(b) conditions
8                                               No. 11-3296

an adjustment in a presently imposed prison term on
the defendant’s serving a prison term for another offense
that the court is counting as relevant conduct for the
present offense, and that is increasing the defendant’s
offense level for the present offense based on that
prior conduct.
  The condition involving an increase in offense level
found in § 5G1.3(b) applies in this case. The Ohio
offense was considered relevant conduct in enhancing
Pietkiewicz’s offense level. Specifically, the PSR en-
hanced Pietkiewicz’s offense level by 2 due to his
use of “sophisticated means” to create false docu-
ments and identities—one of which was the basis of the
Ohio offense. The district court denied Pietkiewicz’s
presentence motion without explanation.
  At sentencing, Pietkiewicz again made a motion for a
sentence reduction based on the “sophisticated means”
enhancement. Additionally, Pietkiewicz argued that a
reduction was appropriate under U.S.S.G. § 5K2.23 be-
cause the PSR recommended an additional 2-point en-
hancement for participating in an “organized scheme” to
steal cars, based on the conduct that gave rise
to the Ohio conviction. The district court denied
Pietkiewicz’s motion for a downward variance, again,
without explanation.
  A court must “state in open court the reasons for its
imposition of the particular sentence.” 18 U.S.C. § 3553(c);
see also Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Robertson, 662 F.3d 871, 880 (7th Cir.
2011); United States v. Kilgore, 591 F.3d 890, 893 (7th
No. 11-3296                                                9

Cir. 2010). The amount of explanation required from
the district court varies with the circumstances. United
States v. Curby, 595 F.3d 794, 797 (7th Cir. 2010). Thus, the
“more obvious the reasons for the sentence, the less
the need to announce them.” United States v. Garthus,
652 F.3d 715, 721 (7th Cir. 2011). “When a matter is as
conceptually simple . . . and the record makes clear that
the sentencing judge considered the evidence and argu-
ments, we do not believe the law requires the judge to
write more extensively.” Rita v. United States, 551 U.S.
338, 359 (2007). However, while this court does not
require a comprehensive discussion of every factor af-
fecting the sentencing judge’s decision, it must provide
some explanation and “address nonfrivolous sentencing
arguments.” United States v. Villegas-Miranda, 579 F.3d
798, 801 (7th Cir. 2009).
  In its denial of the motion for downward variance,
the court only stated generally that in calculating the
sentence it considered the PSR, the submissions of
the parties and the arguments and evidence introduced
at sentencing. The record is silent on the district court’s
reasoning for possibly using Pietkiewicz’s conduct from
the Ohio offense to enhance Pietkiewicz’s sentence but
denying a sentence reduction based on that same Ohio
imprisonment term. Of course, Pietkiewicz used five
other false identities in order to secure financing to pur-
chase ten additional cars, so it is possible that the
district court felt the Ohio offense had no impact on
the sentencing, one way or the other. While the dis-
trict court may have had valid reasons for denying
Pietkiewicz’s sentence reduction, this court cannot de-
10                                             No. 11-3296

termine what they are from the record or that the
court considered Pietkiewicz’s arguments for downward
variances. For these reasons, the district court erred
in denying, without explanation, Pietkiewicz’s motion
for a downward variance based on his related Ohio
federal case. We therefore vacate Pietkiewicz’s sentence
and remand the case to the district court so the court
can evaluate Pietkiewicz’s motion for downward vari-
ance in sentencing pursuant to U.S.S.G. §§ 5G1.3, 5K2.23
and explain the reasoning for its decision with respect
to that motion.
                                   V ACATED and R EMANDED.




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