United States v. Simon

• Decision Date: 22 March 2017
• Docket Number: No. 15-10203,15-10203
• Citation: 858 F.3d 1289
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alexis Torres SIMON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

858 F.3d 1289

UNITED STATES of America, Plaintiff-Appellee,

v.Alexis Torres SIMON, Defendant-Appellant.

No. 15-10203

United States Court of Appeals, Ninth Circuit.

Submitted En Banc March 22, 2017^* , San Francisco, California

Osvaldo Fumo, Thomas Pitaro, and Dustin R. Marcello, Pitaro & Fumo CHTD., Las Vegas, Nevada, for Defendant-Appellant.

Adam Flake, Assistant United States Attorney; Elizabeth O. White, Appellate Chief; Daniel G. Bogden, United States Attorney; United States Attorney's Office, Las Vegas, Nevada; for Plaintiff-Appellee.

Before: Sidney R. Thomas, Chief Judge, and William A. Fletcher, Ronald M. Gould, Marsha S. Berzon, Jay S. Bybee, Carlos T. Bea, Sandra S. Ikuta, Mary H. Murguia, Jacqueline H. Nguyen, Andrew D. Hurwitz, and Michelle T. Friedland, Circuit Judges.

OPINION

MURGUIA, Circuit Judge:

A jury convicted Defendant Alexis Torres Simon ("Simon") of conspiracy to commit robbery under the Hobbs Act, 18 U.S.C. § 1951, and of other federal crimes. Simon received an enhanced sentence for conduct that he contemplated and intended, but did not carry out: abduction, carjacking, and theft. Simon received these enhancements because the sentencing court applied § 2X1.1 of the United States Sentencing Guidelines (the "Guidelines"),¹ which generally covers inchoate offenses like attempt, solicitation, and conspiracy. Notably, § 2X1.1 does not apply if the "attempt, solicitation, or conspiracy is expressly covered by another offense guideline section." U.S. Sentencing Guidelines Manual § 2X1.1(c) (U.S. Sentencing Comm'n 2014). We called the case en banc to clarify how to determine when another Guidelines section "expressly" covers an inchoate offense. We affirm.

BACKGROUND

Simon and two co-defendants plotted a robbery, but they never had the chance to complete their plan. They had agreed, along with a confidential informant, to abduct the driver of a delivery van and steal the drugs inside. The defendants met in a parking lot across the street from the driver's house with the tools for the planned robbery, including a firearm. Officers then converged on the site and arrested them.

The Government later charged Simon and his co-defendants in a ten-count indictment; some of the counts involved earlier completed thefts. Simon faced eight of the ten counts: conspiracy to interfere with commerce by robbery (count one), attempted interference with commerce by robbery (count two), possession of a firearm in furtherance of a crime of violence (count three), being a felon in possession of a firearm (count six), conspiracy to commit theft from interstate shipment (count seven), and theft from interstate shipment (counts eight, nine, and ten).

After a trial at which the confidential informant was a pivotal witness, a jury convicted Simon on all eight counts. The district court overturned for insufficient evidence Simon's convictions for attempted robbery and firearm possession in furtherance of a crime of violence (counts two and three). The jury also convicted the other two defendants on all counts charged against them; the district court likewise overturned the verdicts on counts two and three against them.

At sentencing, the district court sorted the multiple counts against the three defendants into three "groups." See U.S.S.G. § 3D1.2.² The "Group 1" offenses concerned the defendants' conspiracy to rob the delivery-van driver. For Simon, the sole Group 1 offense for which he was convicted was count one, interfering with commerce by robbery, in violation of 18 U.S.C. § 1951 (Hobbs Act robbery conspiracy, or robbery conspiracy). Because the Group 1 offense had the highest total offense level, 34, the sentence Simon received for the robbery conspiracy was the most important to his overall sentence.

Where an offense involves a conspiracy, attempt, or solicitation, U.S.S.G. § 1B1.2(a) directs a district court to start its Guidelines calculation with U.S.S.G. § 2X1.1. "When an attempt, solicitation, or conspiracy is expressly covered by another offense guideline section," however, the court should instead "apply that guideline section." U.S.S.G. § 2X1.1(c). Therefore, when some other section of the Guidelines expressly covers a specific inchoate offense—for instance, U.S.S.G. § 2A1.5, "Conspiracy or Solicitation to Commit Murder"—the sentencing court leaves the default § 2X1.1 Guideline behind and looks to the instructions contained in the more specific section of the Guidelines. To aid the sentencing court in deciding whether to look somewhere other than § 2X1.1, Application Note 1 to § 2X1.1 includes a non-exclusive list of those Guidelines sections "expressly" covering inchoate offenses. U.S.S.G. § 2X1.1 cmt. n.1 (listing, among other things, U.S.S.G. § 2A1.5, "Conspiracy or Solicitation to Commit Murder").

If no other Guidelines section expressly covers the specific conduct committed, then the district court simply applies U.S.S.G. § 2X1.1, the general inchoate crime provision. Under § 2X1.1(a), the court begins with "[t]he base offense level from the guideline for the substantive offense." Thus, a court calculating the sentence for "attempt to commit felony X" starts with the base offense level in the Guidelines section for "felony X." Section 2X1.1(a) directs the sentencing court to draw any upward adjustments "from such guideline"—that is, the Guidelines section for the substantive offense—and apply those adjustments for "any intended offense conduct that can be established with reasonable certainty " (emphasis added); see also id. cmt. n.2 (noting that the relevant offense characteristics for sentencing purposes "are those that are determined to have been specifically intended or actually occurred"). Therefore, where § 2X1.1(a) applies, defendants convicted for an inchoate felony may receive sentencing enhancements as if they had completed the felony, even if they only intended the conduct. This can have a dramatic impact on the sentences defendants receive.

Simon and the Government disagreed below on whether § 2B3.1, the Guidelines section covering "Robbery," "expressly covered" Simon's conviction for conspiracy to commit robbery. The parties therefore disagreed on whether § 2X1.1 should apply, and, in turn, whether Simon should receive enhancements for certain conduct he intended but did not carry out: abduction, carjacking, and theft of more than $50,000. If § 2B3.1, for "Robbery," controlled, then the enhancements would apply only to Simon's completed conduct. But if § 2X1.1, the default Guidelines section for inchoate offenses, controlled, then enhancements would apply for all conduct Simon specifically intended . Seeking to avoid enhancements based on this intended conduct, Simon argued that § 2B3.1 of the Guidelines "expressly cover[s]" conspiracy to commit robbery because 18 U.S.C. § 1951, which criminalizes robbery "affect[ing] [interstate] commerce," also criminalizes conspiracy to commit such robbery. The Government, in response, argued that § 2B3.1 does not "expressly" cover conspiracy to rob, and that the general default inchoate Guidelines section § 2X1.1 should therefore apply, with the accompanying enhancements for intended conduct.

The district court agreed with the Government, determining that § 2B3.1 did not "expressly" cover conspiracy. The district court therefore followed the general inchoate offense provision, § 2X1.1, and applied enhancements for Simon's intended conduct.

Simon's sentence had the following components³ :

• a base level of 20, applicable to robbery, drawn from § 2B3.1(a), "Robbery";

• a five-level increase for a conspiracy member possessing a firearm, drawn from § 2B3.1(b)(2)(C), "Robbery," possessing or brandishing a firearm;

• a four-level increase for abduction , drawn from § 2B3.1(b)(4), "Robbery," abduction to facilitate commission of the offense;

• a two-level increase for carjacking , drawn from § 2B3.1(b)(5), "Robbery," offense involving carjacking;

• a one-level increase for the object of the offense being a controlled substance, drawn from § 2B3.1(b)(6), "Robbery," taking of or object to take a firearm, destructive device, or controlled substance;

• a two-level increase for an intended loss of $131,000 , drawn from § 2B3.1(b)(7)(C), "Robbery," loss of more than $50,000 and less than $250,000;

• a three-level decrease for a failure to complete certain necessary acts, drawn from § 2X1.1(b)(2), "Attempt, Solicitation, or Conspiracy ...," reduction for uncompleted conspiracy;

• a two-level enhancement for being a "leader" of the conspiracy, drawn from § 3B1.1(c), "Aggravating Role," organizer, leader, manager, or supervisor; and

• a one-level enhancement for the "unit" added by the total offense level for Simon's Group 3 counts, involving the conspiracy to commit three earlier thefts,⁴ drawn from § 3D1.4, "Determining the Combined Offense Level."

In total, Simon's offense level was 34.

If the district court had instead applied § 2B3.1, the Robbery provision, Simon would have had a base offense level of 29. This is because Simon would not have received eight levels of enhancements for his intended conduct of carjacking, abduction, and theft of more than $50,000, but also would not have received a three-level decrease from § 2X1.1(b)(2), for failure to complete certain acts.

Simon had a criminal history score of 11, placing him in Category V. The district court calculated Simon's Guidelines sentencing range at 235–293 months. The probation office recommended a sentence on the lower end of the Guidelines range, and the court varied downward and sentenced Simon to a below-Guidelines sentence of 192 months.

Simon timely appealed, challenging his convictions and his sentence. A three-judge panel previously resolved most of those issues in a memorandum disposition.⁵ The remaining issue is whether the district court correctly applied sentencing enhancements based on Simon's intended conduct pursuant to § 2X1.1 of the Guidelines.

DISCUSSION

We have jurisdiction to review Simon's sentence based on 18...