United States Court of Appeals

For the Eighth Circuit

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No. 19-2228

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Walter Schulz

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Springfield

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 Submitted: April 13, 2020

Filed: April 29, 2020

[Unpublished]

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Before BENTON, BEAM, and KOBES, Circuit Judges. 

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PER CURIAM.
Walter Schulz appeals, challenging the sentence imposed by the district court1

following his guilty plea to escape from custody in violation of 18 U.S.C. §§ 751(a)

and 4082(a). Schulz argues that the district court procedurally erred in calculating

his sentence. He alleges he was entitled to a four-point reduction in his base offense

level because he escaped from non-secure custody and did not commit a disqualifying

offense while away from confinement. United States Sentence Guidelines (U.S.S.G.)

§ 2P1.1(b)(3).2 The district court did not grant Schulz the reduction and ultimately

sentenced Schulz to thirty months’ imprisonment followed by three years of

supervised release.

This court reviews a district court’s factual findings at sentencing for clear

error and reviews the district court’s application of the Guidelines de novo. United

States v. Luscombe, 950 F.3d 1021, 1031 (8th Cir. 2020). The district court,

crediting the testimony of the arresting United States Marshal, held that Schulz failed

to establish that he was entitled to the four-point reduction because it was more likely

than not that he committed the offenses alleged–that he gave false information about

his identity to the United States Marshal and resisted attempts to take him into

custody. See United States v. Batts, 758 F.3d 915, 916 (8th Cir. 2014) (“At

sentencing, the defendant bears the burden to prove that he is entitled to a reduction

under § 2P1.1(b)(3).”); United States v. Killingsworth, 413 F.3d 760, 763 (8th Cir.

1The Honorable Stephen R. Bough, United States District Judge for the

Western District of Missouri.

2U.S.S.G. § 2P1.1(b)(3) provides:

If the defendant escaped from the non-secure custody of a . . . “halfway

house,” or similar facility . . . decrease the offense level under

subsection (a)(1) by 4 levels . . . . Provided, however, that this reduction

shall not apply if the defendant, while away from the facility, committed

any federal, state, or local offense punishable by a term of imprisonment

of one year or more.

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2005) (“A district court’s assessment of a witness’s credibility is almost never clear

error given that court’s comparative advantage at evaluating credibility.”).

Citing United States v. Jones, 628 F.3d 1044 (8th Cir. 2011), Schulz claims this

is one of the “extreme” circumstances where the district court’s credibility finding

was in error. Id. at 1047. (“A district court’s finding that a witness’s testimony is

credible is only error in extreme circumstances, such as when the witness testified to

facts that are physically impossible.”). Schulz maintains that when he was taken into

custody, he did not resist arrest and he most certainly does not remember giving false

information to the officers about his identity. He points out the inconsistency

between the recitation of the custodial event in the presentence investigation report

and the different account provided by the United States Marshal at sentencing as to

Schulz’s exact location when he was taken into custody–in a vehicle in the garage

versus a vehicle in the driveway. He argues the district court clearly erred by failing

to place more emphasis on this inconsistency and by failing to properly scrutinize the

testimony. However, assuming the testimony regarding the location of the arrest was

actually inconsistent, this allegedly conflicting testimony is not such an extreme

circumstance as to overturn the district court’s credibility determination. 

Accordingly, we affirm the sentence imposed by the district court.

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