USA v. Steven Richard Kocis

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11838
Non-Argument Calendar
________________________
D.C. Docket No. 4:11-cr-10017-JEM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
STEVEN RICHARD KOCIS,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 28, 2013)
Before CARNES, MARCUS, and KRAVITCH, Circuit Judges.
PER CURIAM:
Case: 12-11838 Date Filed: 01/28/2013 Page: 1 of 4

-- 1 of 4 --

2
After a jury trial, Steven Kocis was convicted of one count of conspiring to
encourage or induce an alien to unlawfully enter the United States for the purpose
of commercial advantage or private financial gain, in violation of 8 U.S.C. § §
1324(a)(1)(A)(iv), (A)(v)(I), and (B)(i), and two counts of alien smuggling for the
purpose of commercial advantage or private financial gain, in violation of 8 U.S.C.
§ 1324(a)(2)(B)(ii). He challenges on appeal his sentence of 36 months
imprisonment.
I.
The district court applied United States Sentencing Guidelines § 2L1.1
(Nov. 2011) to calculate Kocis’ base offense level of 12. The court then applied a
2-level enhancement based on Kocis’ role as “an organizer, leader, manager, or
supervisor” in criminal activity, U.S.S.G. § 3B1.1(c), resulting in a total offense
level of 14. Combined with a criminal history category of I, the applicable
guidelines range was 15 to 21 months imprisonment. However, the fact that Kocis
committed his offenses “for the purpose of commercial advantage or private
financial gain” triggered a 36-month mandatory minimum sentence, 8 U.S.C. §
1324(a)(2)(B)(ii), which made his guidelines range 36 months imprisonment. See
U.S.S.G. § 5G1.1(b). The district court sentenced Kocis to the statutory minimum
of 36 months imprisonment.
II.
Case: 12-11838 Date Filed: 01/28/2013 Page: 2 of 4

-- 2 of 4 --

3
Kocis contends that the district court erred by imposing the statutory
minimum sentence of 36 months because the verdict form did not specifically ask
the jury to indicate whether it found that he committed the charged offenses “for
the purpose of commercial advantage or private financial gain”—the fact that
triggered the 36-month mandatory minimum. According to Kocis, that is contrary
to United States v. O’Brien, — U.S. —, 130 S. Ct. 2169 (2010), and Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). Because Kocis did not make
that argument at sentencing, we review only for plain error. United States v.
Dudley, 463 F.3d 1221, 1227 (11th Cir. 2006).
III.
In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. at 490, 120 S. Ct. at 2362–63. In O’Brien, the Court stated that
“judge-found sentencing factors cannot increase the maximum sentence a
defendant might otherwise receive based purely on the facts found by the jury.”
130 S. Ct. at 2175. However, neither Apprendi nor O’Brien requires a particular
format for the verdict form. All that is required is that the jury, not the judge,
makes the factual finding that is used to enhance the defendant’s sentence.
Case: 12-11838 Date Filed: 01/28/2013 Page: 3 of 4

-- 3 of 4 --

4
Here, the district court instructed the jurors that to find Kocis guilty of
counts two and three, they “must find that the Government has proved . . . beyond
a reasonable doubt . . . that the defendant’s motive was commercial advantage or
private financial gain.” After deliberations, the jury returned a verdict of guilty on
both of those counts. We presume that the jurors followed the instructions the
court gave them. Evans v. Sec’y, Fla. Dep’t of Corr., 699 F.3d 1249, 1253 (11th
Cir. 2012). If the jury had not found that Kocis’ motive was commercial
advantage or private financial gain, it could not have returned a guilty verdict on
counts 2 and 3. The fact that the jury returned a guilty verdict on those counts can
mean only one thing—that it found that Kocis’ motive was commercial advantage
or private financial gain. Accordingly, the district court did not err—much less
plainly err—by sentencing Kocis to 36 months imprisonment based on that fact.
AFFIRMED.
Case: 12-11838 Date Filed: 01/28/2013 Page: 4 of 4

-- 4 of 4 --