U.S. v. Martinez, No. 02-1230.

• Decision Date: 08 September 2003
• Docket Number: No. 02-1230.
• Citation: 342 F.3d 1203
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Martinez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

342 F.3d 1203

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Martinez, Defendant-Appellant.

No. 02-1230.

United States Court of Appeals, Tenth Circuit.

September 8, 2003.

Philip W. Ogden, Colorado Springs, CO, for Defendant-Appellant.

John W. Suthers, United States Attorney, District of Colorado, and Andrew A. Vogt, Assistant United States Attorney, Denver, CO, for Plaintiff-Appellee.

Before SEYMOUR, BALDOCK, and O'BRIEN, Circuit Judges.

SEYMOUR, Circuit Judge.

Defendant Anthony Martinez appeals the sentence imposed after he pled guilty to being an accessory after the fact to attempted armed bank robbery. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm Mr. Martinez' sentence, although on slightly different grounds than those articulated by the district court.

I.

A federal grand jury indicted Mr. Martinez and six others on numerous charges connected with an attempt to rob the Colorado East Bank & Trust in La Junta, Colorado. The charges included conspiracy, attempted armed bank robbery, arson, unlawful possession and use of firearms, unlawful possession and use of incendiary devices, and accessory after the fact. Mr. Martinez' involvement was limited to assisting in the disposal of a shotgun used during the attempted robbery, and the indictment charged him with being an accessory after the fact to attempted armed bank robbery. See 18 U.S.C. § 3.

Mr. Martinez pled guilty to the charge pursuant to a plea agreement in which the government agreed to recommend a two-level downward departure pursuant to U.S.S.G. § 5K1.1 in exchange for his continued cooperation. Prior to sentencing, the government filed a motion requesting that Mr. Martinez receive a four-level downward departure under § 5K1.1. The district court sentenced Mr. Martinez pursuant to the applicable sentencing guideline, U.S.S.G. § 2X3.1, which provides that the base offense level for an accessory after the fact is "6 levels lower than the offense level for the underlying offense." The district court adjusted the base offense level upward for several specific offense characteristics of the underlying offense after concluding Mr. Martinez knew or should have known of each of them. See U.S.S.G. § 2X3.1, cmt. n. 1 (instructing sentencing court, in calculating offense level for accessory after the fact offenses, to apply "any applicable specific offense characteristics that were known, or reasonably should have been known, by the defendant."). The court granted the government's motion for a four-level downward departure and also granted a three-level downward departure for Mr. Martinez' acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b). The court then sentenced Mr. Martinez to a 57-month term of imprisonment.

II.

On appeal, Mr. Martinez first asserts the district court erred in refusing to apply U.S.S.G. § 2X1.1(b)(1), which provides for a three-level reduction in the base offense level where the substantive offense was not completed.¹ Mr. Martinez asserts he is entitled to the three-level reduction because the bank robbery was unsuccessful. We review de novo legal questions regarding the application of the sentencing guidelines. See United States v. Brown, 314 F.3d 1216, 1222 (10th Cir.2003). We review the district court's factual findings for clear error, "giving due deference to the district court's application of the guidelines to the facts." Id.

Mr. Martinez pled guilty to a charge of accessory after the fact. The district court properly began its sentencing analysis with U.S.S.G. § 2X3.1, which required the court to set Mr. Martinez' base offense level as an accessory after the fact at six levels below that established for the underlying offense. However, the "underlying offense" for the purpose of applying § 2X3.1 is attempted bank robbery, for which no specific guideline exists. The court rejected Mr. Martinez' assertion that the general guideline for attempts, § 2X1.1, should factor into the court's calculation of Mr. Martinez' sentence, concluding that applying § 2X1.1 would constitute an erroneous application of the guidelines. The court implied that because attempted bank robbery is included in the same statute as bank robbery, see 18 U.S.C. § 2113,² the court need only look to the guideline section for robbery, see U.S.S.G. § 2B3.1, as the underlying substantive offense, rather than to the general guideline for attempted crimes, § 2X1.1. The court was incorrect. Tenth Circuit precedent, coupled with our reading of the guidelines, persuades us that where a defendant is convicted of an attempt crime not itself covered by a specific offense guideline, calculation of the defendant's sentence must be pursuant to § 2X1.1.

In reaching this conclusion, we are guided by United States v. Bolden, 132 F.3d 1353 (10th Cir.1997). In Bolden, the defendant participated in an attempted bank robbery. Without expressly entering into an analysis of the applicability of § 2X1.1 to the defendant's crime, we followed § 2X1.1's rubric to determine whether the district court had properly calculated the defendant's sentence. Then, in addressing whether the defendant should have received a three-point deduction under § 2X1.1(b)(1), we stated that "[w]hen a defendant has completed all acts he believes are necessary for the successful completion of an offense, he is not entitled to a reduction...." Id. at 1357. Based on the district court's findings, we determined the defendant had in fact completed all the acts necessary for attempted bank robbery, and hence could not receive a sentence reduction. Id.

Bolden is directly applicable to Mr. Martinez' case. Mr. Martinez, like the defendant in Bolden, was involved in an attempted bank robbery. While Mr. Martinez' charge as an accessory after the fact under 18 U.S.C. § 3 required the district court to begin its sentencing analysis with U.S.S.G. § 2X3.1, that guideline directed the court to determine Mr. Martinez' baseline offense level according to the underlying offense, attempted bank robbery. Hence, in accord with Bolden, the district court should have first turned to § 2X1.1, the guideline applicable to attempted crimes for which there is no specific guideline. Section 2X1.1 would have then directed the court to § 2B3.1, the guideline for robbery.

A reading of the guidelines supports such an approach. In an introductory chapter, the guidelines detail how to determine the applicable section for an offense. The guidelines state "[i]f the offense involved a conspiracy, attempt or solicitation, refer to § 2X1.1 (Attempt, Solicitation, or Conspiracy) as well as the guideline referenced in the Statutory Index for the substantive offense." U.S.S.G. § 1B1.2(a). Because Mr. Martinez was convicted of an attempt crime, the court should begin by examining § 2X1.1 as well as § 2B3.1. The parenthetical included in § 2X1.1's title further indicates that § 2X1.1 applies to attempts "not covered by a specific offense guideline." U.S.S.G. § 2X1.1 (emphasis added). Section 2X1.1(c) even more specifically directs that "[w]hen an attempt, solicitation, or conspiracy is expressly covered by another offense guideline section, apply that guideline section." U.S.S.G. § 2X1.1(c) (emphasis added). A list of guideline sections which expressly include attempts within their scope follow in Application Note 1 to § 2X1.1.³ Section 2B3.1, the guideline for robbery, is not among those sections listed, nor does it expressly cover attempted robbery. Therefore, in accordance with the guidelines and Bolden, § 2X1.1 must play an integral role in determining Mr. Martinez' sentence. See also United States v. Ogle, 328 F.3d 182, 191 (5th Cir.2003) (§ 2X1.1 applied to defendant's attempted money laundering conviction because no other offense guideline expressly covered attempted money laundering); United States v. Villafranca, 260 F.3d 374, 381 (5th Cir.2001) (same, as applied to conspiracy to obstruct commerce in violation of Hobbs Act); United States v. Amato, 46 F.3d 1255, 1260-62 (2d Cir. 1995) (even where Hobbs Act covers conspiracy, § 2X1.1 should be applied to determine defendant's sentence when no other guideline section expressly covers robbery conspiracy); United States v. Grove, 150 F.Supp.2d 1270, 1284-87 (M.D.Ala.2001) (criticizing Eleventh Circuit's conclusion that § 2X1.1 does not apply to attempt offenses included in underlying substantive offense statute and advocating approach in accord with Amato); Scibetta v. United States, 32 F.Supp.2d 711, 715-19 (D.N.J.1998) (§ 2X1.1 applies to conspiracy to commit robbery under Hobbs Act where no guideline section expressly covers the substantive offense even when statute may incorporate conspiracy as a substantive offense).⁴

We acknowledge other courts have taken a different approach in examining the applicability of § 2X1.1 to attempt crimes. See, e.g., United States v. Hernandez-Franco, 189 F.3d 1151, 1158-59 (9th Cir. 1999); United States v. Thomas, 8 F.3d 1552, 1564-65 (11th Cir.1993); United States v. Williams, 891 F.2d 962, 965 (1st Cir.1989); United States v. Anderson, 955 F.Supp. 935, 937 (N.D.Ill., 1997); Halmos v. United States, 872 F.Supp. 762, 765 (D.Haw.1995). In attempting to determine whether an offense guideline which does not expressly include attempts might be used to determine a defendant's sentence instead of § 2X1.1, these courts take the position that § 2X1.1 is not at all applicable to attempt crimes where the statutory provision under which the defendant was convicted includes attempt crimes and that same statute is covered by a guideline section. See Hernandez-Franco, 189 F.3d at 1158-59; Thomas, 8 F.3d at 1564-65; Williams, 891 F.2d at 965; Anderson, 955 F.Supp. at 937; Halmos, 872 F.Supp. at 765-66.⁵ See generally THOMAS W. HUTCHINSON, ET AL., FEDERAL SENTENCING LAW AND PRACTICE 1034 (2003) (noting Ninth Circuit looks to statutory provision under which defendant was convicted to determine whether guideline provision applies to...