United States of America v. Donald W. Kubeczko

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3416
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONALD W. KUBECZKO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CR 843-1—Rebecca R. Pallmeyer, Judge.
SUBMITTED AUGUST 31, 2011—DECIDED SEPTEMBER 21, 2011
Before POSNER, ROVNER, and WOOD, Circuit Judges.
POSNER, Circuit Judge. Donald Kubeczko did not
inform the government when his mother died, but
instead cashed the checks that it continued sending to
her address for benefits she had earned under the Civil
Service Retirement System. This went on for twelve
years and netted him $158,000. Eventually he was
caught and pleaded guilty to mail fraud. His Guide-
lines sentencing range was 21 to 27 months, but the

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2 No. 10-3416
judge sentenced him to 30 months. By the time he was
sentenced he had spent 10 months in pretrial deten-
tion. He would be entitled to credit for that time
against his sentence, 18 U.S.C. § 3585(b)(2), and so if
sentenced at the top of the Guidelines range he would
have been out in 17 months. The judge sentenced him to
30 months, mainly and perhaps exclusively because she
believed that he needed treatment for mental illness and
probably alcoholism as well and that it would take more
than 18 months. A 30-month sentence, with credit for
10 months, would keep him in prison for 20 months,
which she thought would be enough time for treatment.
The need for such treatment is not questioned; the defen-
dant has serious mental illness (depression, narcissistic
personality, and compulsive personality) and alcohol
dependence.
After the judge sentenced the defendant (and indeed
while this appeal was pending), the Supreme Court, on
the basis of the provision of the Sentencing Reform Act
that in determining whether or for how long to imprison
a convicted defendant the sentencing judge is to “recog-
niz[e] that imprisonment is not an appropriate means
of promoting correction and rehabilitation,” 18 U.S.C.
§ 3582(a), held that a sentencing judge may not
increase the length of the defendant’s prison term in
order to facilitate the defendant’s rehabilitation or cor-
rection. Tapia v. United States, 131 S. Ct. 2382 (2011). (By
“correction” the statute appears to mean “providing
the defendant with needed educational or vocational
training, medical care, or other correctional treatment.”

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No. 10-3416 3
28 U.S.C. § 994(k); cf. Tapia v. United States, supra, 131 S. Ct.
at 2388.) The government has confessed error.
The judge said at the sentencing hearing that the de-
fendant “has had mental health and perhaps sub-
stance abuse issues for which he needs treatment. My
concern about the guideline sentence here in this case of
21 to 27 months is that even a high-end guideline sen-
tence may not be long enough for the Bureau of Prisons
to designate [the defendant] to a location where he can
get mental health treatment . . . . [A] stay in the Bureau
of Prisons of a significant length is necessary in order
for him to get the Bureau of Prisons’ inpatient treatment
program. I believe that he has to be in one place
longer than 18 months for that purpose . . . . I want to
impose a sentence of 30 months in the custody of the
Bureau of Prisons, slightly above the guideline range,
because I do want to give the Bureau of Prisons every
opportunity to place [him] in a facility where he can
begin getting the treatment.”
Given Tapia, this language entitles the defendant to
be resentenced. But there is an issue lurking that may
become relevant at his new sentencing hearing, an issue
not addressed in the Tapia opinion. The issue is flagged
in some ambiguous further remarks of the judge at the
sentencing hearing. She said: “He had been in the
Salvation Army [that is, in a Salvation Army halfway
house, see United States v. Hart, 578 F.3d 674, 675 (7th
Cir. 2009)]. He was essentially removed involuntarily
from that facility because of his behavior . . . . The reason
I couldn’t release [him], in spite of the fact that this

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4 No. 10-3416
[i.e., mail fraud] is a nonviolent crime, is that he had
really nobody who could step forward and be a
custodian for him.”
These remarks intimate (no stronger word is possible)
a concern that by virtue of his untreated mental illness
and alcoholism, the defendant may be too dangerous
to be left to roam at large until these conditions are
brought under control. The staff of the Salvation Army
facility, in explaining why he had to be removed from
the facility and given psychiatric treatment elsewhere,
remarked “his grandiose/entitled thinking, possible
psychotic thinking concerning the above stated sexual
ideations, and possible safety concerns due to other
clients’ reactions to [his] unwillingness to engage in
his own treatment as well as his unwillingness to cope
with other races/genders.” Nothing in the statute, or in
the language or reasoning of Tapia, suggests that there
is any impropriety to lengthening a sentence because
of concern—whether based on mental illness, addiction,
or anything else that may weaken a person’s inhibi-
tions against committing crimes—that the defendant
is likely to commit further crimes upon release, so that
a longer sentence is required for the protection of
the public.
Compare two hypothetical sentencing statements. In
one the judge says, “I’m not worried that you’ll com-
mit more crimes if I gave you a shorter sentence;
I am giving you a long sentence to enable you to obtain
psychiatric assistance that will bring about your com-
plete rehabilitation.” In the other sentencing statement

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No. 10-3416 5
the judge says, “I am going to sentence you to a sen-
tence long enough to enable you to obtain psychiatric
assistance, because until then you will continue to be a
danger to the public because you can’t control your
violent impulses.” The first ground for a longer sentence
violates the statute, but the second does not, because
incapacitation (physically preventing the defendant
from committing crimes on “the outside,” by im-
prisoning him) is an authorized factor for a judge to
consider in determining the length of a prison sentence.
18 U.S.C. § 3553(a)(2)(C). The need for incapacitation
might be rooted in mental problems that could be al-
leviated by treatment. The mental problems them-
selves, and the possibility that the defendant would
benefit from treatment that he could obtain by
an extended prison term, would be inadmissible con-
siderations; but the fact that his mental problems made
him more dangerous could justify a longer sentence
without running afoul of section 3582(a).
The distinction was made clear by the district court
and court of appeals in United States v. Lawrence, 402
Fed. Appx. 699, 701-02 (3d Cir. 2010) (record references
omitted): “The record demonstrates that the district
court did not impose Lawrence’s term of imprisonment
for rehabilitative purposes . . . . The court noted that
Lawrence has not shown even ‘the beginnings of rehabil-
itation’ because he had not acknowledged his guilt in
any way. The district court further admonished that
Lawrence would ‘have to get it sooner or later in order
to get me to give you a more lenient sentence.’ The
court also made clear that it believed that Lawrence

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6 No. 10-3416
posed a danger to the community and was not ready for
rehabilitation, observing that there was a ‘pattern of
criminal activity . . . that causes me pause as to how
safe the community is with Mr. Lawrence in it, unless
he’s been truly rehabilitated, which I’ve already said on
the record he’s not ready for yet, unfortunately.’ Thus,
the district court’s statements reveal that it sentenced
Lawrence to a term of imprisonment not for a rehabilita-
tive purpose, but rather, because he had not demon-
strated that he was interested in rehabilitation. Accord-
ingly, the court imposed a custodial sentence in order
to protect the community, promote respect for the law,
and to provide a just punishment for the offense, all of
which are permissible sentencing considerations under
§ 3553(a).” And United States v. Dixon, 449 F.3d 194, 205
(1st Cir. 2006), said that the defendant’s “conduct,
whether or not evincing a plea for help, showed that
were he to be released before being given a meaningful
opportunity for rehabilitation, he would pose a real
danger both to the intended recipients of the [threat-
ening] letters and to society at large.”
But the sentencing judge’s remarks in the present
case were ambiguous. The reference to the defendant’s
having no custodian was to the judge’s having decided
that she had to commit him to jail after he proved
himself unmanageable by the Salvation Army. (A jail
was not the type of “custodian” that she had in mind.)
But she may have believed that until his mental health
and substance abuse problems were solved, or, more
realistically, ameliorated, he could not restrain himself
from committing further crimes, and if so it would

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No. 10-3416 7
be dangerous to the public to release him in (say)
17 months (the 27-month top of the Guidelines range
minus the 10-month credit). It is a possibility that the
judge will be authorized to consider in resentencing
the defendant.
An alternative approach, which she should also con-
sider, is not extending his sentence but rather deferring
the decision whether he can be safely released
when he completes it. A prisoner who cannot safely be
released upon completion of his sentence may be civilly
committed then—and by a federal judge if a state won’t
commit him. 18 U.S.C. § 4248(d); see United States v.
Comstock, 130 S. Ct. 1949 (2010). The difficulty of pre-
dicting a defendant’s mental status when he is released
makes this approach advisable in many cases, especially
when the sentence is long, which increases the difficulty
of prediction. In this case, however, a sentence at the top
of the applicable Guidelines range would, after credit
for time served, be only 17 months from the date of
imposition.
VACATED AND REMANDED.
9-21-11

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