NOT RECOMMENDED FOR PUBLICATION File Name: 21a0472n.06
Case No. 21-1080
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
) FILED UNITED STATES OF AMERICA, Oct 19, 2021 ) ) DEBORAH S. HUNT, Clerk Plaintiff - Appellee, ) ) v. ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE ) ROCKY KRUPA, WESTERN DISTRICT OF MICHIGAN ) ) Defendant - Appellant. )
Before: CLAY, GIBBONS, and BUSH, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Rocky Krupa appeals his within-guidelines
sentence of 90 months’ imprisonment for participation in a heroin conspiracy in violation of
21 U.S.C. § 846 and possession of heroin with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1). Krupa pled guilty without a plea agreement. He argues that the district court
incorrectly calculated his Criminal History Category and erred in failing to adequately consider
factors related to his family situation. Because the district court did nor err or abuse its discretion
in its sentencing decision, we affirm.
I.
After being released on parole in July 2018 from the Newberry Correctional Facility in the
Michigan Department of Corrections (“MDOC”) for a state court conviction for delivering and
manufacturing controlled substances, Rocky Krupa and still-incarcerated codefendant Luis
Alberto Cruz began communicating via telephone about a source of drug supply in Mexico. Cruz, Case No. 21-1080, United States v. Krupa
from inside the prison, worked with Krupa, other codefendants (many of whom were connected to
MDOC), and the supplier in Mexico to coordinate the payment and delivery of heroin.
After several telephone calls with Cruz, Krupa confirmed that he had received his first package of
heroin on November 23, 2018. Throughout 2019 and 2020, Krupa continued his participation in
the conspiracy by acquiring and distributing drugs. On June 24, 2020, a federal grand jury returned
a superseding indictment charging Krupa and eight codefendants with conspiracy to distribute and
possess with intent to distribute controlled substances in violation of 21 U.S.C. § 846. The grand
jury also charged Krupa with possession with intent to distribute heroin in violation of 21 U.S.C.
§ 841(a)(1). Krupa pled guilty to both counts without a plea agreement on August 24, 2020,
making him one of the first participants in the conspiracy to plead guilty. The district court
accepted Krupa’s guilty plea on September 8, 2020.
In the Final Presentence Investigation Report (“PSR”), the probation office attributed
256.67 grams of heroin to Krupa’s participation in the conspiracy, resulting in a base offense level
of 24, and designated him an average participant. Krupa was credited 3 points for his timely
acceptance of responsibility, bringing his total offense level to 21. Krupa’s multiple criminal
convictions and the fact that the present offenses were committed while he was on parole resulted
in a criminal history score of 13 and a Criminal History Category of VI. The Sentencing
Guidelines provided a range of 77 to 96 months. Due to “the length and severity of [Krupa’s]
criminal history,” the probation office recommended an upward departure from Krupa’s
sentencing range. DE 225, Final Presentence Investigation Report (“PSR”), SEALED, Page ID
1179.
Objecting to the PSR, Krupa argued that he should be considered a minor participant and
accordingly receive a 2-level reduction. Krupa also raised arguments against the probation office’s
-2- Case No. 21-1080, United States v. Krupa
recommendation for an upward departure due to his criminal history. Krupa emphasized his family
relations and the support he had received from his family, as evidenced by multiple letters
submitted to the court. After the government’s sentencing memorandum argued that Krupa was
properly scored as an average participant by detailing the extent of his participation, Krupa
withdrew his objection requesting a 2-level reduction as a minor participant but maintained his
other arguments.
At Krupa’s sentencing hearing on January 8, 2021, the court announced that Krupa had
withdrawn his objection to the PSR and “score[d] th[e] case under the advisory guidelines at
Offense Level 21, Criminal History Category VI, resulting in an advisory guideline range of 77 to
96 months.” DE 337, Sentencing Tr., Page ID 2304. When asked by the court, Krupa’s counsel
stated that he had reviewed the PSR with Krupa, had no objections to the PSR, and concurred in
the advisory guidelines range. The court then asked Krupa if had reviewed the report with his
lawyer and whether he was satisfied with his lawyer’s work. Krupa answered each question
affirmatively.
The court stated that it had “considered all of the defendant’s arguments in support of his
request for a lower sentence.” Id. at 2315. The court articulated its consideration of the 18 U.S.C.
§ 3553 factors, including the seriousness of the two offenses and the fact that “[h]eroin is a
significant controlled substance problem within the Western District of Michigan.” Id. at 2317.
The court considered “the connection of th[e] conspiracy to individuals who were inside a
Michigan Department of Corrections facility,” which “goes to the heart of the security of state
prisons,” to be an “aggravating factor.” Id. The court “accept[ed] the assertion by [Krupa] and
his lawyer that his drug problem was a major instigator for his involvement” and credited Krupa
with an “eloquent allocution.” Id. at 2317–18. Although the court noted that Krupa “has a
-3- Case No. 21-1080, United States v. Krupa
terrible record,” it acknowledged that the majority of his record consisted of driving offenses.
Id. at 2318-19. The court declined to grant the upward departure from the advisory guideline
sentence recommended by the probation office because “a guideline sentence towards the middle
of the guideline range . . . would promote respect for law, provide just punishment, and reflect the
seriousness of the offense behavior.” Id. at 2319. After announcing Krupa’s 90-month sentence,
Krupa’s counsel stated that he did not have any legal objections to the sentence imposed and that
he was satisfied that all of Krupa’s arguments had been addressed on the record. Krupa filed a
notice of appeal that same day.
II.
The “district court’s mandate is to impose ‘a sentence sufficient, but not greater than
necessary, to comply with the purposes’ of section 3553(a)(2).” United States v. Foreman,
436 F.3d 638, 644 n.1 (6th Cir. 2006), abrogated on other grounds, United States v. Young,
580 F.3d 373 (6th Cir. 2009). “We review sentences for reasonableness,” United States v.
Collington, 461 F.3d 805, 807 (6th Cir. 2006) (citing United States v. Webb, 403 F.3d 373, 383
(6th Cir. 2005)), under a “deferential abuse-of-discretion standard,” Gall v. United States, 552 U.S.
38, 52 (2007). When a “sentence[] [is] properly calculated under the Guidelines,” it is “credit[ed]
Free access — add to your briefcase to read the full text and ask questions with AI
NOT RECOMMENDED FOR PUBLICATION File Name: 21a0472n.06
Case No. 21-1080
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
) FILED UNITED STATES OF AMERICA, Oct 19, 2021 ) ) DEBORAH S. HUNT, Clerk Plaintiff - Appellee, ) ) v. ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE ) ROCKY KRUPA, WESTERN DISTRICT OF MICHIGAN ) ) Defendant - Appellant. )
Before: CLAY, GIBBONS, and BUSH, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Rocky Krupa appeals his within-guidelines
sentence of 90 months’ imprisonment for participation in a heroin conspiracy in violation of
21 U.S.C. § 846 and possession of heroin with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1). Krupa pled guilty without a plea agreement. He argues that the district court
incorrectly calculated his Criminal History Category and erred in failing to adequately consider
factors related to his family situation. Because the district court did nor err or abuse its discretion
in its sentencing decision, we affirm.
I.
After being released on parole in July 2018 from the Newberry Correctional Facility in the
Michigan Department of Corrections (“MDOC”) for a state court conviction for delivering and
manufacturing controlled substances, Rocky Krupa and still-incarcerated codefendant Luis
Alberto Cruz began communicating via telephone about a source of drug supply in Mexico. Cruz, Case No. 21-1080, United States v. Krupa
from inside the prison, worked with Krupa, other codefendants (many of whom were connected to
MDOC), and the supplier in Mexico to coordinate the payment and delivery of heroin.
After several telephone calls with Cruz, Krupa confirmed that he had received his first package of
heroin on November 23, 2018. Throughout 2019 and 2020, Krupa continued his participation in
the conspiracy by acquiring and distributing drugs. On June 24, 2020, a federal grand jury returned
a superseding indictment charging Krupa and eight codefendants with conspiracy to distribute and
possess with intent to distribute controlled substances in violation of 21 U.S.C. § 846. The grand
jury also charged Krupa with possession with intent to distribute heroin in violation of 21 U.S.C.
§ 841(a)(1). Krupa pled guilty to both counts without a plea agreement on August 24, 2020,
making him one of the first participants in the conspiracy to plead guilty. The district court
accepted Krupa’s guilty plea on September 8, 2020.
In the Final Presentence Investigation Report (“PSR”), the probation office attributed
256.67 grams of heroin to Krupa’s participation in the conspiracy, resulting in a base offense level
of 24, and designated him an average participant. Krupa was credited 3 points for his timely
acceptance of responsibility, bringing his total offense level to 21. Krupa’s multiple criminal
convictions and the fact that the present offenses were committed while he was on parole resulted
in a criminal history score of 13 and a Criminal History Category of VI. The Sentencing
Guidelines provided a range of 77 to 96 months. Due to “the length and severity of [Krupa’s]
criminal history,” the probation office recommended an upward departure from Krupa’s
sentencing range. DE 225, Final Presentence Investigation Report (“PSR”), SEALED, Page ID
1179.
Objecting to the PSR, Krupa argued that he should be considered a minor participant and
accordingly receive a 2-level reduction. Krupa also raised arguments against the probation office’s
-2- Case No. 21-1080, United States v. Krupa
recommendation for an upward departure due to his criminal history. Krupa emphasized his family
relations and the support he had received from his family, as evidenced by multiple letters
submitted to the court. After the government’s sentencing memorandum argued that Krupa was
properly scored as an average participant by detailing the extent of his participation, Krupa
withdrew his objection requesting a 2-level reduction as a minor participant but maintained his
other arguments.
At Krupa’s sentencing hearing on January 8, 2021, the court announced that Krupa had
withdrawn his objection to the PSR and “score[d] th[e] case under the advisory guidelines at
Offense Level 21, Criminal History Category VI, resulting in an advisory guideline range of 77 to
96 months.” DE 337, Sentencing Tr., Page ID 2304. When asked by the court, Krupa’s counsel
stated that he had reviewed the PSR with Krupa, had no objections to the PSR, and concurred in
the advisory guidelines range. The court then asked Krupa if had reviewed the report with his
lawyer and whether he was satisfied with his lawyer’s work. Krupa answered each question
affirmatively.
The court stated that it had “considered all of the defendant’s arguments in support of his
request for a lower sentence.” Id. at 2315. The court articulated its consideration of the 18 U.S.C.
§ 3553 factors, including the seriousness of the two offenses and the fact that “[h]eroin is a
significant controlled substance problem within the Western District of Michigan.” Id. at 2317.
The court considered “the connection of th[e] conspiracy to individuals who were inside a
Michigan Department of Corrections facility,” which “goes to the heart of the security of state
prisons,” to be an “aggravating factor.” Id. The court “accept[ed] the assertion by [Krupa] and
his lawyer that his drug problem was a major instigator for his involvement” and credited Krupa
with an “eloquent allocution.” Id. at 2317–18. Although the court noted that Krupa “has a
-3- Case No. 21-1080, United States v. Krupa
terrible record,” it acknowledged that the majority of his record consisted of driving offenses.
Id. at 2318-19. The court declined to grant the upward departure from the advisory guideline
sentence recommended by the probation office because “a guideline sentence towards the middle
of the guideline range . . . would promote respect for law, provide just punishment, and reflect the
seriousness of the offense behavior.” Id. at 2319. After announcing Krupa’s 90-month sentence,
Krupa’s counsel stated that he did not have any legal objections to the sentence imposed and that
he was satisfied that all of Krupa’s arguments had been addressed on the record. Krupa filed a
notice of appeal that same day.
II.
The “district court’s mandate is to impose ‘a sentence sufficient, but not greater than
necessary, to comply with the purposes’ of section 3553(a)(2).” United States v. Foreman,
436 F.3d 638, 644 n.1 (6th Cir. 2006), abrogated on other grounds, United States v. Young,
580 F.3d 373 (6th Cir. 2009). “We review sentences for reasonableness,” United States v.
Collington, 461 F.3d 805, 807 (6th Cir. 2006) (citing United States v. Webb, 403 F.3d 373, 383
(6th Cir. 2005)), under a “deferential abuse-of-discretion standard,” Gall v. United States, 552 U.S.
38, 52 (2007). When a “sentence[] [is] properly calculated under the Guidelines,” it is “credit[ed]
with a rebuttable presumption of reasonableness” on appeal. United States v. Williams, 436 F.3d
706, 708 (6th Cir. 2006). Sentences “must be both substantively reasonable and procedurally
reasonable.” United States v. Caver, 470 F.3d 220, 248 (6th Cir. 2006) (citing Collington,
461 F.3d at 808).
Krupa argues that the district court was “hampered by the advisory Sentencing Guidelines,
which conflict with the 18 USC §3553 [sic] factors; the guidelines as they relate to family, hearth
and home seem to treat them as largely irrelevant, despite most of 20th and 21st century
-4- Case No. 21-1080, United States v. Krupa
criminology.” CA6 R. 20, Appellant Br., at 23. Krupa essentially argues that the Sentencing
Guidelines should not be used, because they “focus primarily on punishment, and not on
rehabilitation and deterrence as required by 18 USC 3553 [sic] and supported by most studies on
penology and criminology.” Id. at 24 n.4. These arguments are contrary to the Supreme Court’s
clear precedent that district courts should use the Guidelines as “the starting point and the initial
benchmark” for its sentencing calculations, so we reject them. Gall, 552 U.S. at 49; see also
United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007).
Krupa challenges the procedural and substantive reasonableness of his sentence. He argues
that the district court erred in calculating his Criminal History Category and in its sentencing
decision because Krupa’s “plea for leniency based on 18 USC §3553 [sic] factors was reasonable.”
CA6 R. 20, Appellant Br., at 23. Krupa asserts that his family “will be placed in a situation of
exceptional financial and emotional risk.” Id. at 26. Krupa did not raise these arguments below,
and they fail on appeal. Because the district court correctly calculated Krupa’s Criminal History
Category and selected a reasonable sentence based on permissible factors, we affirm.
A.
A sentence is “procedurally unreasonable if ‘the district judge fails to “consider” the
applicable Guidelines range or neglects to “consider” the other factors listed in 18 U.S.C.
§ 3553(a), and instead simply selects what the judge deems an appropriate sentence without such
required consideration.’” Collington, 461 F.3d at 808 (quoting Webb, 403 F.3d at 383). In
determining a sentence, the district court must “consider[] all of the § 3553(a) factors,” Gall,
552 U.S. at 53, and “communicate clearly its rationale for imposing the specific sentence,” United
States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006). The district court need not, however,
engage in a “ritualistic incantation” or “make specific findings relating to each of the factors
-5- Case No. 21-1080, United States v. Krupa
considered.” United States v. McClellan, 164 F.3d 308, 310 (6th Cir. 1999) (quoting United States
v. Washington, 147 F.3d 490, 491 (6th Cir. 1998)).
Because Krupa failed to raise any procedural objections to his sentence in the district court,
his claim is reviewed for plain error. United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004).
To establish plain error, Krupa must show (1) “an error or defect” by the district court that (2) was
“clear or obvious,” (3) “affected [his] substantial rights,” and (4) “affect[ed] the fairness, integrity
or public reputation of judicial proceedings.” United States v. Ataya, 884 F.3d 318, 322 (6th Cir.
2018) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).
Krupa argues that his January 18, 2002, conviction for operating while intoxicated should
have been scored as a 2-point instead of a 3-point conviction because his one-year sentence was
not longer than one year and one month. If this conviction had been scored as a 2, Krupa’s
Criminal History Category would have decreased from VI to V and his sentencing range would
have been 70 to 87 months. See USSG §5A. After Krupa’s release from custody following that
conviction, however, he violated his parole and was subsequently sentenced to 18 to 60 months’
imprisonment. The Sentencing Guidelines state that “[i]n the case of a prior revocation of
probation, parole, supervised release, special parole, or mandatory release, add the original term
of imprisonment to any term of imprisonment imposed upon revocation. The resulting total is
used to compute the criminal history points for §4A1.1(a), (b), or (c), as applicable.” USSG
§4A1.2(k)(1). We have consistently applied §4A1.2(k)(1) to uphold 3-point conviction scores
when violations of probation or parole resulted in a higher point allocation than the original
sentence would have received. See, e.g., United States v. Galvan, 453 F.3d 738–40 (6th Cir. 2006)
(upholding the district court’s 3-point conviction score after revocation of probation resulted in an
-6- Case No. 21-1080, United States v. Krupa
aggregate sentence of more than thirteen months although the original sentence was 65 days).
The district court did not err in allocating 3 points for this conviction.
The district court carefully and reasonably considered all of the § 3553(a) factors,
particularly “the nature and circumstances of the offense and the history and characteristics of the
defendant[,] . . . the seriousness of the offense,” and the need to “afford adequate deterrence.”
DE 337, Sentencing Tr., Page ID 2315–16. The court “communicate[d] clearly its rationale for
imposing the specific sentence,” Richardson, 437 F.3d at 554, and appropriately considered the
aggravating and mitigating circumstances brought to its attention, including that Krupa’s “drug
problem was a major instigator for his involvement in these offenses.” DE 237, Sentencing Tr.,
Page ID 2317.
We need not proceed with the remaining elements of plain error review because there was
no error. See United States v. Igboba, 964 F.3d 501, 510 (6th Cir. 2020) (citing United States v.
Donadeo, 910 F.3d 886, 893 (6th Cir. 2018)).
B.
A sentence is “substantively unreasonable when the district court selects a sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing
factors, or gives an unreasonable amount of weight to any pertinent factor.” United States v.
Conatser, 514 F.3d 508, 520 (6th Cir. 2008) (citing Webb, 403 F.3d at 385). A district court’s
sentencing decision must be given “due deference.” Gall, 552 U.S. at 51. “[T]hat the appellate
court might reasonably have concluded that a different sentence was appropriate is insufficient to
justify reversal of the district court.” Id. Overcoming the rebuttable presumption of
reasonableness is “no small burden,” as we “will not generally ‘second guess’ sentences on
substantive grounds when they fall in the range prescribed by the Guidelines.” United States v.
-7- Case No. 21-1080, United States v. Krupa
Simmons, 587 F.3d 348, 365 (6th Cir. 2009) (quoting United States v. Davis, 537 F.3d 611, 618
(6th Cir. 2008)).
Krupa argues that we should vacate the district court’s sentence because of the high risk of
emotional and psychological damage and financial deprivation to his family. Relying on United
States v. Husein, 478 F.3d 318 (6th Cir. 2007), Krupa asserts that the district court did not
adequately consider factors related to “the loss of caretaking or financial support” that would have
justified a downward departure. CA6 R. 20, Appellant Br., at 24. In Husein, we articulated
guidance for district courts considering a downward departure “based on extraordinary family
circumstances” and upheld a downward departure against the government’s challenge. 478 F.3d
at 326, 329–30. That case is inapplicable here, where Krupa is arguing that the district court erred
in granting him a within-guidelines sentence.
Although he was given several opportunities to raise further arguments in the district court,
Krupa never suggested that he was “irreplaceable” to his family, which could have led to a
determination of extraordinariness under §5H1.6, cmt. 1(B) of the Sentencing Guidelines. See id.
at 327. Unlike in Husein, neither Krupa’s Sentencing Memorandum nor the PSR revealed that
Krupa was “irreplaceable.” Since Krupa did not seek a downward departure from the district court,
he waived that claim. United States v. Wheaton, 517 F.3d 350, 370 (6th Cir. 2008) (citing United
States v. Ware, 282 F.3d 902, 907 (6th Cir. 2002)). Even if Krupa had moved for a downward
departure, “a district court’s decision to deny a motion for a downward departure may not be
reviewed unless the district court incorrectly believed that it lacked discretion to depart
downward.” United States v. Carter, 510 F.3d 593, 600 (6th Cir. 2007) (citing United States v.
Puckett, 422 F.3d 340, 344–46 (6th Cir. 2005)). The record reflects that the district court clearly
-8- Case No. 21-1080, United States v. Krupa
understood its discretion in the sentencing process. The district court cannot consider arguments
not brought to its attention, and we cannot find Krupa’s sentence unreasonable.
III.
Because the district court did not err in its calculation of Krupa’s Criminal History
Category or otherwise abuse its discretion in sentencing, we affirm.
-9-