United States v. Scott Schwanke

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1149
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S COTT S CHWANKE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 08-CR-47-BBC-03—Barbara B. Crabb, Judge.
A RGUED JUNE 12, 2012—D ECIDED S EPTEMBER 14, 2012
Before B AUER, K ANNE, and W ILLIAMS, Circuit Judges.
P ER C URIAM. After agreeing to cooperate with
authorities investigating his drug-distribution con-
spiracy, Scott Schwanke received a death threat from
his coconspirator, fled to the Philippines, and stayed
for four years. Later he pleaded guilty to conspiracy
to possess with the intent to distribute marijuana,
21 U.S.C. §§ 846, 841(a)(1), and was sentenced to
50 months’ imprisonment. On appeal Schwanke chal-
lenges his sentence, arguing that the district court improp-
2 No. 12-1149
erly adjusted his offense level upward under U.S.S.G.
§ 3C1.1 for obstruction of justice. Because the court did
not clearly err in finding that Schwanke willfully ob-
structed justice when he remained in the Philippines
for years, we affirm.
Beginning in 2002 Schwanke participated in a vast drug-
distribution network that supplied marijuana to
customers in Wisconsin. He frequently picked up and
delivered marijuana to the network’s leader, Robert
Michener. Schwanke was arrested in late 2006 but
released without formal charges after agreeing to
cooperate with authorities. He informed police about
his drug deliveries to Michener and others and later
recounted these conversations to a lawyer. Unbeknownst
to Schwanke, the lawyer shared this information with
Michener. (The record contains no further details about
the lawyer.)
Upon learning of Schwanke’s cooperation, Michener
confronted Schwanke at his home, put a gun to Schwanke’s
head, and threatened to kill him. As recounted in
the presentence investigation report, Michener told a
coconspirator that those informants “working for the
feds” would “get what was coming to them” and that
his “bounty hunters” could “take [ ] care of” anyone.
Later Michener and another coconspirator returned to
Schwanke’s home, vandalized it, and threatened him
that “people want you gone or dead.” At that point
Michener revealed what would happen next: Schwanke
would go to the Philippines—the record does not say
why—and Michener would give him money and instruc-
tions for obtaining a passport. When the time came
No. 12-1149 3
for Schwanke’s departure—in late 2007—Michener ac-
companied him to the airport and escorted him to the
Philippines-bound plane. For the next eight months,
Michener wired money to Schwanke.
Schwanke stayed in the Philippines for four years.
During that time he had no contact with any authorities
or family members. He earned money for necessities
by teaching English, but—in his words—he spent most
of his time heavily consuming alcohol.
In the meantime—in 2008—Schwanke, Michener, and
three codefendants were indicted for conspiracy to
possess with intent to deliver marijuana (count 1) and
attempted distribution of marijuana (counts 2 and 3),
21 U.S.C. §§ 846, 841(a)(1). Michener pleaded guilty to
the conspiracy count and was sentenced to 151
months’ imprisonment. United States v. Michener, 352
F. App’x 104, 105-06 (7th Cir. 2009).
In 2011, Schwanke was discovered at a store in Cebu,
Philippines, by Immigration and Customs Enforcement
officials. (The nature of this discovery is also not
reflected in the record.) ICE officials confiscated his
passport and returned him to the United States, where
he was arrested under a warrant for the crimes charged
in the indictment. He pleaded guilty to the conspiracy
count.
At sentencing, the district court rejected Schwanke’s
argument that he did not deserve the two-level upward
adjustment under § 3C1.1 for obstruction of justice.
Schwanke objected to the adjustment on the basis that
he fled and stayed abroad out of fear for his life because
4 No. 12-1149
he “had no information about what became of Michener”
and he believed that “higher ups in the organization [ ]
wanted him dead or gone.” Defense counsel added
that Schwanke did not contact authorities while abroad
due to fear “that Michener actually had inside infor-
mation that he may have gotten from the police.”
The court disbelieved Schwanke’s version of events,
concluding that Schwanke avoided prosecution through
calculated evasion of authorities. For purposes of its
§ 3C1.1 analysis, the court focused not on Schwanke’s
flight to the Philippines—which, the court acknowledged,
likely resulted from death threats and panic—but on
Schwanke’s decision to remain abroad four more years.
Michener’s threats notwithstanding, the court remarked,
Schwanke made “a very unfortunate decision” because
he had “other alternatives” if he did not trust the police;
he could, for instance, have contacted his family or
the Federal Bureau of Investigation. Even if Schwanke
fled out of fear of reprisal, the court added, the § 3C1.1
adjustment was warranted because he remained “hid-
den” for years despite having “other options,” he “was
aware of the ongoing investigation,” and he knew “that
federal charges were a real possibility.” The court sen-
tenced Schwanke to 50 months’ imprisonment—near
the middle of his 46 to 57-month range based on a
total offense level of 23 and Category I criminal history.
On appeal Schwanke challenges only the application
of the § 3C1.1 adjustment. That section applies if “the
defendant willfully obstructed or impeded, or attempted
to obstruct or impede, the administration of justice with
respect to the investigation, prosecution, or sentencing
No. 12-1149 5
of the instant offense of conviction.” U.S.S.G. § 3C1.1.
The word “willfully” in § 3C1.1 means “specific intent,”
e.g., United States v. Martinez, 650 F.3d 667, 670 (7th
Cir. 2011); United States v. Nurek, 578 F.3d 618, 623
(7th Cir. 2009). Specific intent is usually inferred from
the defendant’s conduct. See United States v. Gonzalez,
608 F.3d 1001, 1007 (7th Cir. 2010); United States v. Arceo,
535 F.3d 679, 687 (7th Cir. 2008); United States v. Porter,
145 F.3d 897, 903 (7th Cir. 1998). The application notes
to § 3C1.1 explain that “[a]voiding or fleeing from ar-
rest” is conduct not ordinarily covered by the guide-
line, U.S.S.G. § 3C1.1 cmt. n.5(D), but we distinguish
between panicked, instinctive flight, which does not
warrant the adjustment, and calculated evasion, which
does, Gonzalez, 608 F.3d at 1006-07; Arceo, 535 F.3d at
687; Porter, 145 F.3d at 903.
Schwanke argues that the district court failed to
make adequate factual findings to support the § 3C1.1
adjustment because the court never determined that his
continued stay in the Philippines was voluntary or
that he specifically intended to obstruct justice. He main-
tains that his ongoing stay was not calculated evasion
because he intended merely to save his life, not
avoid arrest or prosecution.
We believe that the district court’s findings suf-
ficiently reflect Schwanke’s willful obstruction of jus-
tice. The court found that Schwanke fled the jurisdic-
tion before being indicted; knew during his years abroad
that an investigation into the conspiracy was ongoing;
recognized the possibility of federal charges given his
6 No. 12-1149
initial cooperation with authorities in exchange for
his release without formal charges; and hid in the Philip-
pines for years without contacting authorities. See
generally Gonzalez, 608 F.3d at 1006-07 (upholding § 3C1.1
adjustment where defendant was arrested and re-
leased from custody “in exchange for promises to co-
operate and to keep in touch, broke his promises,
[and] created delay and expense” by fleeing jurisdiction);
Arceo, 535 F.3d at 682, 687 (upholding § 3C1.1 adjust-
ment where defendant was arrested, agreed to
cooperate, was released from custody, “knew he would
be charged with a crime; yet he fled the jurisdiction”);
Porter, 145 F.3d at 903-04 (upholding § 3C1.1 adjust-
ment where defendant fled jurisdiction despite
knowing that indictment was imminent and that his
attorney was negotiating a plea agreement and voluntary
surrender); United States v. Billingsly, 160 F.3d 502, 506-07
(8th Cir. 1998) (upholding § 3C1.1 adjustment where
defendant fled jurisdiction after being released from
custody, promising to cooperate, and knowing that
if he did not have daily contact with police he would
be charged with crimes).
Schwanke analogizes his case to United States v.
Hanhardt, in which we concluded that a defendant
lacked the specific intent required for the § 3C1.1 adjust-
ment because he missed a scheduled hearing as a
result of attempted suicide, 361 F.3d 382, 388-89 (7th
Cir. 2004), vacated on other grounds, Altobello v. United
States, 543 U.S. 1097 (2005). Schwanke urges that he
stayed abroad out of a specific intent to preserve rather
than end his life. But we explicitly limited Hanhardt to
No. 12-1149 7
its facts, explaining that “[t]he nature of suicide does
not lend itself to a clear understanding of an
individual’s motivation other than the obvious intent
to end his life.” Hanhardt, 361 F.3d at 389; see also
United States v. Curb, 626 F.3d 921, 929 (7th Cir. 2010)
(explaining that a “disturbed mental state” like that in
Hanhardt may be considered for § 3C1.1 purposes “in
very limited cases”). And although Schwanke attributes
his lengthy stay abroad to sustained panic out of a
belief that police shared confidential information with
Michener, he points to nothing in the record to support
the reasonableness of such a belief, which the district
court was entitled to discredit. See generally Arceo, 535
F.3d at 687 (explaining that defendant must support
belief with record evidence).
For its part, the government urges that Schwanke’s
case is “directly on point” with United States v. Martinez,
650 F.3d 667, 669-71 (7th Cir. 2011), in which we upheld
the § 3C1.1 adjustment where the defendant pleaded
guilty and agreed to cooperate but later fled because
he feared threats from former gang associates and failed
to appear at a scheduled sentencing. But Martinez
involved conduct explicitly covered under the guideline,
see U.S.S.G. § 3C1.1 cmt. n.4(E) (“willfully failing to
appear, as ordered, for a judicial proceeding”), and
Schwanke’s case does not, id. cmt. n.5(D) (“avoiding
or fleeing from arrest”).
A FFIRMED.
9-14-12