November 8, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:12-cr-00356-l -
Samuel Der-Yeghiayan, Judge.
WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.
ROVNER, Circuit Judge.
23, 2015, Alan Cisneros pled guilty to possession with intent
to distribute 500 grams or more of cocaine, in violation of
21 U.S.C. § 846. The facts as developed at the plea
hearing and during sentencing reveal that Cisneros was a
high-ranking member of the Latin Kings and was involved in a
large-scale drug trafficking operation in Summit, Illinois.
In the 10-month period between approximately August 2011 and
May 2012, Cisneros admits that he was responsible for the
purchase or sale of between 3.5 and 5 kilograms of cocaine,
but he disputes the government's calculation-accepted by
the district court-that the amount exceeded 5 kilograms. The
district court determined that the Sentencing Guidelines
range applicable to Cisneros was 188-235 months, and
sentenced him to 188 months' imprisonment, a supervised
release term of four years, a special assessment of $100, and
repayment to the government of $34, 600 in "buy
money" provided to Cisneros during the course of his
now appeals his sentence on three grounds. First, he argues
that the district court, in calculating the applicable
discretionary Sentencing Guidelines range, improperly imposed
a two-level enhancement for obstruction of justice. In
addition, Cisneros argues that the district court should have
granted him a three-level reduction for acceptance of
responsibility. Finally, he contends that the district court
erred in determining that his offense involved more than 5
kilograms of cocaine.
district court applied the enhancement for obstruction of
justice based on Cisneros' attempts to flee to Mexico to
evade authorities. Cisneros was initially apprehended on May
7, 2012, as he was in the process of a drug transaction at a
laundromat. Federal agents observed Cisneros approach a van
driven by his wife in the laundromat parking lot and retrieve
something from that van which he placed in his waistband. As
he walked toward the laundromat, the agents drove into the
lot. Seeing them, Cisneros fled into the side door of the
laundromat. As he was running through the laundromat, agents
observed him throw a small package down on the floor, which
was subsequently determined to contain 58 grams of cocaine.
The agents were able to apprehend Cisneros before he reached
the laundromat's front door, and placed him under arrest.
The agents also retrieved an additional 216 grams of cocaine
from the van.
agents then transported Cisneros to a local police
department, at which point he acknowledged that the cocaine
belonged to him and indicated an interest in cooperating.
They released him at that time. The next day they contacted
him and asked him to meet them at a specific location in
Bedford Park. He did so, and voluntarily got into a vehicle
with the agents, who drove him to a local office of the
Bureau of Alcohol, Tobacco, Firearms, and Explosives. Only
then did he learn for the first time that the investigation
was a federal one, and that it had involved months of
wiretaps and surveillance. The agents asked him to cooperate
in the investigation, and Cisneros requested time to consider
the option and expressed concerns for his safety. The day
after Cisneros was released from the agents' custody, the
agents learned that he had booked a flight to Mexico. They
responded immediately and apprehended him on the jetway at
O'Hare Airport as he was boarding the flight to Mexico.
Cisneros had with him a suitcase containing three new
t-shirts that he had just purchased that day on the way to
the airport, as well as approximately $2500 in
cash, much of which had been returned to him by
the agents. He had purchased a one-way ticket, and was
traveling on his Mexican passport.
on that effort to flee to Mexico, the district court imposed
a two-level enhancement for obstruction of justice. We review
the district court's obstruction finding for clear error,
giving deference to that court's application of the
Guidelines to the facts. United States v. Arceo, 535
F.3d 679, 687 (7th Cir. 2008); United States v.
Porter, 145 F.3d 897, 902 (7th Cir. 1998).
3C1.1 of the Sentencing Guidelines provides for a two-level
enhancement if a defendant "willfully obstructed or
impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense."
Application Note 5 of that provision includes a
non-exhaustive list of the types of conduct that
"ordinarily" will not warrant that obstruction
enhancement, and included in that list is "avoiding or
fleeing from arrest." In interpreting that provision,
however, we have clarified that some efforts to evade
authorities through flight can nevertheless warrant the
enhancement. The ultimate question remains whether the
defendant's conduct evidences a willful intent to
obstruct justice. Porter, 145 F.3d at 903.
Accordingly, we have distinguished between "panicked,
instinctive flight, " generally in the immediate
aftermath of the crime, and "calculated evasion"
constituting a deliberate attempt to frustrate or impede an
ongoing criminal investigation. See United States v.
Schwanke, 694 F.3d 894, 897 (7th Cir. 2012); United
States v. Gonzalez, 608 F.3d 1001, 1006-07 (7th Cir.
2010); Arceo, 535 F.3d at 687. Thus, although flight
from officers at the time of arrest may not constitute
obstruction, we have upheld the obstruction finding in many
cases in which the defendant has evaded authorities by
traveling to distant locations and assuming a new identity,
or traveling to a foreign country where the authorities will
have significant difficulty in finding and apprehending the
defendant. See Schwanke, 694 F.3d at 895 (defendant
fled to the Philippines and stayed for four years);
Arceo, 535 F.3d at 687 (defendant fled to Mexico for
several years and then relocated to Pennsylvania under an
assumed name); Porter, 145 F.3d at 902 (defendant
traveled from Indiana to Tennessee and used a false name,
including a false birth certificate and social security card,
and altered his hair color).
recently, in United States v. Nduribe, 703 F.3d 1049
(7th Cir. 2013), we further clarified the distinction between
flight that supports the enhancement and that which does not.
The Nduribe court clarified that the distinction
does not rest on the state of mind-"panicked or
instinctual" versus "calculated." Id.
at 1052. Although our cases recited that language, the
holdings in fact turned on whether the defendant's
conduct impeded the administration of justice. Id.
Therefore, the proper question in applying that enhancement
to efforts to flee are whether the flight is "likely to
burden a criminal investigation or prosecution
significantly-likely to make the investigation or prosecution
significantly more costly or less effective than it would
otherwise have been." Id. at 1053. We further
recog- nized in Nduribe that the phrase in §
3C1.1, "or attempted to obstruct or impede,
" allows imposition of the enhancement whether or not
the defendant was successful in the effort. Id. at
1053; see also Porter, 145 F.3d at 904. Where the
defendant's efforts were foiled and therefore constituted
only an attempt, the standard is met "if, had it
succeeded, it would have had those consequences."
Nduribe, 703 F.3d at 1053.
case, we have examples of both efforts at flight that support
application of the enhancement, and flight that does not.
When Cisneros first spotted the agents near the laundromat,
he fled through the side door and ran through the laundromat
towards its front door in an effort to escape. That is the
type of conduct that, in earlier cases, we would have labeled
"panicked, instinctive flight, " but which we now
more precisely would describe as the type of conduct that is
not likely to significantly burden the investigation or
prosecution. The flight was predictably intercepted almost
immediately, and even if he had evaded capture at that
initial point, there is no reason to believe that his freedom
would have been anything but short-lived. In contrast, his
effort to flee to Mexico was highly likely to significantly
burden the investigation or prosecution. Cisneros asserts
that he had no intention of remaining in Mexico, that he was
simply seeking some time to clear his mind and weigh his
options, and intended to return. The district court certainly
was not required to credit that version, and in this case the
objective evidence belies his claim.
booked only a one-way ticket, thus negating his claim that he
planned to return in short order. Furthermore, he fled in a
manner that appeared to be designed to evade notice. Having
been made aware that the agents had been monitoring his phone
and his home as part of the investigation, Cisneros did not
pack clothes from home, but merely purchased a few t-shirts
on the way to the airport and attempted to depart quickly.
Other than those t-shirts, he filled the suitcase with $2500
in cash, which would allow him to travel within Mexico
without easily being traced. In addition, the pre-sentence
report establishes that Cisneros was an illegal alien in the
United States, a fact that was acknowledged in discussions at
the plea hearing and sentencing, and which was evidenced by
his possession of a Mexican passport. Given that status,
Cisneros would not even have had the right to return to the
United States. Moreover, although any flight to another
country may have the potential for significant interference
with an investigation, the attempted flight in this case
presented a much more profound level of interference. By
fleeing to Mexico as a Mexican national, Cisneros could have
placed himself entirely outside the reach of the American
authorities. The extradition treaty between the United States
and Mexico allows each country to exercise its discretion
over the extradition requests of its nationals. See
United States v. Munoz, 718 F.3d 726, 728 n.l (7th
Cir. 2013). Therefore, the attempted flight in this case,
similar to the flights to other countries in Schwanke,
Arceo, and Nduribe, was likely to significantly
burden the criminal investigation or prosecution if
successful. Because the obstruction enhancement applies to
attempted obstruction, not merely successful obstruction, the
interception of Cisneros at the airport does not render the
enhancement inapplicable. Here, given his status as a Mexican
citizen and his actions in purchasing a one-way ticket and
bringing large amounts of cash, the likely impact of his
flight, if successful, is clear. The district court did not
clearly err in determining that his attempt to evade law
enforcement by fleeing to Mexico warranted the enhancement
for obstruction of justice.
on that determination, we also conclude that the district
court did not err in refusing to grant a three-level
reduction for acceptance of responsibility. Cisneros'
argument for the three-level reduction is based in part on
his contention that he did not obstruct justice, but as we
have already rejected that assertion, he has an uphill battle
in seeking a reduction for acceptance of responsibility. That
is because "[a] defendant who obstructs justice may
receive credit for accepting responsibility only in
'extraordinary cases.'" U.S.S.G. § 3E1.1,
Application Note 4; United States v. Pons, 795 F.3d
745, 747 (7th Cir. 2015); Gonzalez, 608 F.3d at
1008. Cisneros has failed to demonstrate that his actions
present such an extraordinary circumstance. He alleges only
the type of eventual cooperation with the ...