U.S. v. Brown

• Decision Date: 30 January 1996
• Docket Number: No. 94-3665,94-3665
• Citation: 74 F.3d 891
• Parties: UNITED STATES of America, Appellee, v. Larry BROWN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 891

74 F.3d 891

UNITED STATES of America, Appellee, v. Larry BROWN, Appellant.

No. 94-3665.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 12, 1995.

Decided Jan. 30, 1996.

William Gavras, St. Louis, MO, argued, for appellant.

David Rosen, Asst. U.S. Atty., St. Louis, MO, argued, for appellee.

Before FAGG, Circuit Judge, and FLOYD R. GIBSON and HENLEY, Senior Circuit Judges.

HENLEY, Senior Circuit Judge.

Larry Brown appeals from a 57-month sentence imposed by the district court ¹ following his guilty plea to possession of an incendiary device, in violation of 18 U.S.C. Sec. 371. We affirm.

During a meeting between Brown, a union business agent, and Keith Milton, a union member, regarding Milton's dissatisfaction with the union's handling of a grievance, the two came to blows. The union suspended Brown after Milton filed a complaint against him. A few days later, on August 13, 1993, Brown sought the assistance of Martin Dames, an acquaintance who was also an FBI undercover informant, in injuring Milton and his property. On August 17, Brown introduced Dames to Donald Vaughn, who was on parole for murder.

On August 26, the trio met and Vaughn suggested putting a wired spark plug in the gas tank of Milton's car, which would cause the car to explode when it was started, a feat Vaughn said he had successfully performed in the past. During the course of several meetings, Brown and Vaughn discussed various ways of harming Milton and his property. They also made several attempts to locate Milton and his house. In September, Department of Labor agents questioned Brown as to whether he was stalking Milton and told him he would be a suspect if Milton were hurt. Brown told Dames about this conversation and said he had to be careful. In May 1994, Brown was charged with conspiracy to possess an incendiary device.

The presentence report (PSR) calculated a total offense level of 23, a criminal history category of I, and a Guidelines range of 46 to 57 months. Brown filed objections to the PSR, contending, inter alia, that he was entitled to a three-level reduction under U.S.S.G. Sec. 2X1.1(b)(2) because he had not completed the acts necessary for the successful completion of the substantive offense. In relevant part, Section 2X1.1(b)(2) provides for a three-level reduction in conspiracy cases, "unless the defendant or a co-conspirator completed all the acts the conspirators believed necessary on their part for the successful completion of the substantive offense."

At sentencing, Brown again claimed he was entitled to the reduction, attempting to characterize the substantive offense as arson or murder. Terry Coff, an FBI agent who investigated the case, testified that the conspirators had met seven times and during these meetings the plans regarding harming Milton "changed a few times," but at the last meeting Brown insisted that "we're still going to burn his house and blow up his car."

The court overruled Brown's objection. The court stated that the focus of the guideline was on the substantive offense and what a defendant thought was necessary on his part for successful completion of the offense. The court indicated that had the substantive offense been arson or murder, as Brown had suggested, a reduction might have been warranted. However, the court found that the substantive offense was possession of an incendiary device and that by hiring somebody "who could do the job" Brown did "what he thought was necessary to successfully complete the act."

On appeal, Brown first suggests that the district court erred as a matter of law in applying 2X1.1(b)(2) by failing to distinguish between the conspiracy and the substantive offense. See United States v. Rothman, 914 F.2d 708, 710-11 (5th Cir.1990) ("offense" in Sec. 2X1.1(b)(2) refers to "underlying offense and not the conspiracy"). However, he reluctantly admits that the court did distinguish between the conspiracy and the substantive offense. In fact, as the government points out, the district court was...