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United States v. Swank

United States District Court, D. Montana, Billings Division

December 15, 2016

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ROBERT TIMOTHY SWANK, SR., Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Susan P. Watters United States District Court

         This case comes before the Court on Defendant/Movant Robert Timothy Swank's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Swank is a federal prisoner represented by counsel Palmer Hoovestal.

         I. Background

         On July 23, 2010, Swank was indicted on one count of aggravated sexual abuse, a violation of 18 U.S.C. § 2241 (c). Jurisdiction was predicated on the Major Crimes Act, 18 U.S.C. § 1153(a). Indictment (Doc. 8) at 1-2. If convicted, Swank faced a mandatory minimum penalty of 30 years in prison and a maximum penalty of life. 18 U.S.C. § 2241(c). The Federal Defenders of Montana were appointed to represent Swank. Order (Doc. 5).

         The charge was based on a report that Swank was discovered by his wife sitting in his home with a seven-year-old girl on his lap. Her pants were pulled down. The child told Swank's wife that Swank had touched her vagina and buttocks with his penis and that her bottom was wet. The girl repeated similar information in subsequent examinations and interviews. Crim. Compl. (Doc. 1) at 2-5 ¶¶ 4-10.

         On August 16, 2010, the United States filed notice of its intent to use against Swank prior instances in which he molested several children. Notice (Doc. 13); Fed.R.Evid. 414(a); Interview Summaries (Doc. 30-1) (sealed). Swank moved to exclude that evidence. On November 24, 2010, United States District Judge Richard F. Cebull deferred ruling until trial. Order (Doc. 36). Trial was set for December 13, 2010. Scheduling Order (Doc. 17) at 1.

         On the morning of trial, the parties reached an oral agreement for disposition of the case. Swank agreed to plead guilty to a superseding information alleging he committed the lesser offense of abusive sexual contact, a violation 18 U.S.C. § 2244(a)(5). Although the maximum penalty remained life in prison, conviction for abusive sexual contact carried no mandatory minimum sentence. 18 U.S.C. § 2244(a)(5), (c). Swank pled guilty in open court. Minutes (Doc. 52).

         A sentencing hearing was held on March 17, 2011. While U.S.S.G. § 2A3.4(a)(3) set the base offense level at 12 for an offense under 18 U.S.C. § 2244, U.S.S.G. § 2A3.4(c) provided that § 2A3.1 should be used if the offense involved criminal sexual abuse or attempted criminal sexual abuse. Swank objected to use of the cross-reference. Sentencing Mem. (Doc. 55) at 11-12. Judge Cebull viewed a DVD recording of an interview with the victim and found Swank's act involved criminal sexual abuse, overruled the objection, and applied the cross-reference. Sentencing Tr. (Doc. 71) at 9:9-11:22.[1] As a result, the base offense level was set at 30. U.S.S.G. § 2A3.1(a)(2).

         A four-level enhancement applied because the victim was under the age of 12, U.S.S.G. § 2A3.1(b)(2)(A), and a two-level enhancement applied because the victim was in Swank's care at the time of the offense, § 2A3.1(b)(3). Swank objected to the two-level enhancement, Sentencing Mem. at 12-13, but his objection was overruled, Sentencing Tr. at 11:23-l 5:13. Swank received a two-level downward adjustment for acceptance of responsibility. His total offense level was 34. With no criminal history, his criminal history category was I. His advisory guideline range was 151 to 188 months. Judge Cebull sentenced Swank to serve 151 months in prison, to be followed by a ten-year term of supervised release. Minutes (Doc. 58); Judgment (Doc. 59) at 2-3.

         Swank appealed the two-level enhancement under U.S.S.G. § 2A3.1(b)(3). On April 16, 2012, the Court of Appeals affirmed the sentence. United States v. Swank, 676 F.3d 919, 924 (9th Cir. 2012). Swank filed a petition for writ of certiorari in the United States Supreme Court. The writ was denied on October 1, 2012. Swankv. United States, __ U.S. __, 133 S.Ct. 219 (2012).

         Swank timely filed his § 2255 motion on September 23, 2013. Mot. § 2255 (Doc. 78) at 15; 28 U.S.C. § 2255(f)(1); Gonzalez v. Thaler, __ U.S.__, 132 S.Ct. 641, 653-54 (2012); Houston v. Lack, 487 U.S. 266, 270-71 (1988) (establishing prison mailbox rule).

         II. Analysis

         A. Swank's Claims

         Among other claims no longer before the Court, see Mem. (Doc. 97) at 2, Swank alleged that his defense attorney, Chief Federal Defender Anthony Gallagher, "constantly" told him that his right to confront and present witnesses would be severely limited because of the child's age, that hearsay evidence would be admitted against him, and that the United States, prisoners in the BOP, and the trial judge would all be biased against him. See Resp. to Order (Doc. 83) at 2-4. Swank also claimed, without further elaboration, that Gallagher "failed to provide . .. a meaningful comparison between outcome of a conviction by trial ...


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