U.S. v. Martinez-Martinez, MARTINEZ-MARTINE

• Citation: 156 F.3d 936
• Decision Date: 14 September 1998
• Docket Number: D,No. 97-50340,MARTINEZ-MARTINE,97-50340
• Parties: 98 Cal. Daily Op. Serv. 7189, 98 Daily Journal D.A.R. 9987 UNITED STATES of America, Plaintiff-Appellee, v. Jorgeefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 936

156 F.3d 936

98 Cal. Daily Op. Serv. 7189, 98 Daily Journal

D.A.R. 9987

UNITED STATES of America, Plaintiff-Appellee, v. Jorge MARTINEZ-MARTINEZ, Defendant-Appellant.

No. 97-50340.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 7, 1998.

Decided Sept. 14, 1998.

Emily Uhrig (argued), Richard Novak (briefed), Deputy Federal Public Defenders, Los Angeles, CA, for defendant-appellant.

Jerome H. Friedberg, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; George H. King, District Judge, Presiding. D.C. No. CR-97-00081-GHK.

Before: REINHARDT, TROTT, and T.G. NELSON, Circuit Judges.

REINHARDT, Circuit Judge:

In this case, we consider what it means to be "about to complete" all acts necessary for commission of a crime under United States Sentencing Guideline § 2X1.1(b)(2). This phrase becomes important when a person arrested before completing the substantive offense is convicted of a conspiracy to commit the crime and that conspiracy is not covered by a specific offense guideline. The Sentencing Guidelines entitle a defendant convicted of such a conspiracy to be sentenced at an offense level three points below that applicable to the underlying substantive offense, unless he had completed or was about to complete the intended offense. We conclude that here the defendant was entitled to the three point reduction authorized by § 2X1.1(b)(2).

BACKGROUND

Jorge Martinez-Martinez worked as a truck driver for the MSL Transportation Group. On December 29, 1996, Martinez offered an MSL security guard $15,000 to allow him to steal cargo containers from the MSL lot. The guard agreed and arranged for Martinez to examine the contents of the containers at a time when he would be the only guard on duty. The guard then told his employer what had transpired, and the FBI was contacted.

On January 3, Martinez met with the guard to arrange the theft. That night, Martinez arrived at the MSL yard with his co-conspirator, Acxel Aroldo Avila. Martinez, Avila, and the guard used bolt cutters supplied by Avila to break into nine containers. Martinez and Avila thought that the contents of these containers probably could not be sold, so they resealed the containers and agreed to return when new shipments arrived. On January 8, the guard told Martinez that new containers with valuable merchandise would be arriving the next day. On the night of January 9, Martinez and Avila broke into the containers, one of which contained electronic equipment, but were unable to contact their "boss;" ¹ they therefore did not steal any of the merchandise.

The next night, January 10, Martinez and Avila returned and opened several containers. The FBI had wired the guard, and the recording reveals that Martinez and Avila discovered boxes containing electronics, drills, and cloth. Martinez called the boss, and then proceeded to gather samples to take to him. At a time when the guard was alone, he told the FBI what was taking place:

Okay, guys.... [W]hat I understood is that, ... they called their boss already, he's preparing the trucks, they're gonna take samples to him, they'll probably take a load with them. You know, they're gonna take samples with them to show the boss. Okay, and if they're gonna take a load I'll tell you guys, ... taking a load, taking a load. But they're setting up some samples, and ... supposedly the truck is gonna come here with MSL insignias. The words ... they have on the side of the truck, they say MSL. They're preparing all their (UI) so supposedly ... it won't look too much suspicious coming out with a different truck.... I think they're gonna come back with four drivers, take four loads out, four loads. Repeat, they're gonna take out four load[s] when they come back.

Martinez and Avila loaded one stereo system, a drill, and a small piece of denim into their car to show their boss. Martinez told the guard that before "dropping by" he would call him on the nearby pay phone. The guard asked how many trucks there would be. Martinez did not answer, but told the guard that he would be in one of the trucks. After Martinez and Avila loaded the samples, they resealed the opened containers. They then left the MSL yard with the samples to show the boss, but the Los Angeles Sheriff's Department arrested them while they were en route to meet with him.

During a post-arrest interview, Martinez explained that their procedure was to open the containers and then obtain approval from "Fernando" before stealing any goods, and that on the occasion that led to the conviction, Fernando had instructed Avila to bring samples to him.

Martinez pled guilty to a single count indictment charging conspiracy to steal goods in foreign commerce in violation of 18 U.S.C. §§ 371 and 659. ² United States Sentencing Guideline § 2X1.1, which applies to conspiracies not covered by a specific offense guideline, calls for the application of the "base offense level from the guideline for the substantive offense" and mandates an additional three point reduction

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 or the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control.

The probation officer's Presentence Report recommended the three level reduction pursuant to § 2X1.1(b)(2). He based this recommendation on his findings that Martinez and Avila needed to show the samples to their boss and obtain his approval before stealing the goods and that the trucks needed to haul the containers were not present when Martinez and Avila left the yard. Therefore, he reasoned, "several more acts" were necessary in order to complete the substantive offense. The Presentence Report concluded, "[t]hese acts might have been pivotal in determining whether the theft would occur that night."

The district court accepted the Presentence Report's factual findings but rejected its recommendation to reduce Martinez's offense level pursuant to § 2X1.1(b)(2). It found that "there is evidence sufficient to know that the so-called boss had already approved the thefts and that the appropriate number of trucks were on their way or would be on their way to be able to take away these four containers." The court did not identify the evidence that supported these findings. It then concluded that "the crime had been sufficiently completed but that the arrest[s] were the only intervening causes which prevented the completion of this offense." Consequently, the district court determined that Martinez's sentencing range was twenty-one to twenty-seven months, based on an offense level of sixteen ³ and a criminal history category of one. On June 30, 1997, the court sentenced Martinez to twenty-one months in prison.

The sole issue raised on appeal is whether the district court clearly erred in refusing to reduce Martinez's offense level under U.S.S.G. § 2X1.1(b)(2).

DISCUSSION

A district court may find a reduction unwarranted if the conspirators either completed the acts they believed necessary for completion of the offense, or "were about to complete all such acts but for apprehension or interruption by some similar event beyond their control." U.S.S.G. § 2X1.1(b)(2). "Whether a reduction under 2X1.1 is warranted is a fact-specific inquiry...." United States v. Brown, 74 F.3d 891, 893 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 74, 136 L.Ed.2d 33 (1996). Thus, our standard of review is ordinarily "clearly erroneous."

We have previously considered whether a defendant was entitled to a reduction under § 2X1.1 in only two cases. In neither did we discuss the meaning of "about to complete." ⁴ We now hold that unless the remaining steps to be taken in the commission of a crime are so insubstantial that the commission of the substantive offense is inevitable, barring an unforeseen occurrence that frustrates its completion, the conspirators are not about to complete the requisite acts and the defendant must be granted the three point reduction. ⁵

In the instant case, the district court's determination that the defendant had "sufficiently completed" the criminal offense and was therefore ineligible for the § 2X1.1...