United States v. Soto

• Decision Date: 07 April 2016
• Docket Number: No. 15–40478.,15–40478.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Reynaldo SOTO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

819 F.3d 213

UNITED STATES of America, Plaintiff–Appellee,

v.Reynaldo SOTO, Defendant–Appellant.

No. 15–40478.

United States Court of Appeals, Fifth Circuit.

April 7, 2016.

John A. Reed, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, Anna Elizabeth Kalluri, Assistant U.S. Attorney (argued), U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, H. Michael Sokolow, Assistant Federal Public Defender (argued), Federal Public Defender's Office, Houston, TX, for Defendant–Appellant.

Before DENNIS, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:

Reynaldo Soto appeals his sentence for unlawful possession of ammunition by a felon. Soto argues that in determining his Sentencing Guidelines range, the district court incorrectly determined that when Soto was arrested, he was on the verge of delivering the ammunition to a co-conspirator who would smuggle it across the border into Mexico, and therefore erroneously applied the cross reference in U.S.S.G. § 2K2.1(c)(1)(A)

without giving Soto a three-level attempt reduction under § 2X1.1(b)(1). Because the cross reference is inapplicable, we VACATE Soto's sentence and REMAND for resentencing.

I.

Reynaldo Soto pleaded guilty to being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(2). Soto, a convicted felon, was pulled over for a traffic violation in Pharr, Texas.¹ During the traffic stop, Soto stated that he and his one-year-old son, who was in the car, were on their way home from Soto's mother's residence. The police officer detected the smell of marijuana and Soto consented to a search of the car. A drug-sniffing dog alerted to the presence of a narcotic in the ashtray, but no narcotics were located. However, the officer discovered twenty-three boxes (460 rounds) of 7.62 x 39mm ammunition in the trunk of the car. This type of ammunition is standard ammunition for AK–47 assault rifles.

Soto initially denied ownership of the ammunition, but after being taken into custody, he stated that he had purchased the ammunition for deer hunting and that he intended to rent a firearm from the owner of the ranch where he would hunt. During a subsequent interview, Soto recanted his initial story and stated that he had purchased the ammunition for someone named "Compadre," whom he met through a prison friend. Soto stated that Compadre was from Mexico but lived in Texas, that Compadre had provided the money to buy the ammunition, and that the ammunition was destined for Mexico. Soto stated that he knew Compadre paid people to buy firearms and ammunition which were then smuggled illegally into Mexico, and he admitted that this was the second time he had purchased ammunition for Compadre.

The Presentence Investigation Report (PSR) assigned Soto a base offense level of 20 and a four-level enhancement because Soto possessed the ammunition "with knowledge, intent, or reason to believe that it would be transported out of the United States," resulting in an offense level of 24. U.S.S.G. § 2K2.1(b)(6)(A)

.² However, because Soto possessed the ammunition in connection with another offense, namely, attempted exportation of ammunition without an export license, the PSR applied the cross reference in U.S.S.G. § 2K2.1(c)(1)(A), which directs the use of § 2X1.1 if the resulting offense level is greater than previously determined. Because the offense level for exportation is 26, the PSR determined that the adjusted offense level was 26, and that the total offense level was 24 after a two-level adjustment for acceptance of responsibility. The only reference in the PSR to Soto's destination at the time of his arrest is Soto's statement that he was on his way home from his mother's house. The PSR did not state that Soto was en route to deliver the ammunition when he was stopped, nor did it state when Soto planned to deliver the ammunition to Compadre, or even that a delivery had been arranged.

In his written objections to the PSR, Soto challenged the application of the cross reference, arguing that he was entitled to a three-level attempt reduction under § 2X1.1(b)(1)

, which would bring the adjusted offense level for the exportation offense to 23 and thus render the cross reference inapplicable because it does not produce a greater offense level than § 2K2.1(b)(6)(A). Soto argued that the exception to the three-level attempt reduction does not apply because "there is no evidence that [Soto] or anyone else had completed all the acts necessary to [illegally export the ammunition] ... nor was there evidence that that offense had been stymied by external events. Certainly, Mr. Soto's own conduct fell well short of that completed offense. He did nothing more than purchase ammunition."

In the addendum to the PSR, the probation officer responded to Soto's objection, stating that the cross reference applied because Soto had purchased the ammunition with the knowledge, intent, or reason to believe that it would be illegally exported to Mexico, and "only needed to transfer the ammunition to co-conspirator(s). However, he was arrested prior to the illegal transfer and eventual illicit smuggle into Mexico." The addendum to the PSR did not state that Soto was on his way to deliver the ammunition to Compadre when he was arrested and did not mention any plan for delivery of the ammunition on the day of Soto's arrest or at any other time.

Soto reurged his objection to the cross reference at sentencing. The district court overruled the objection, stating that Soto "was in route to turn the ammunition over to somebody who would actually be the courier into Mexico" and that the ammunition would have made it to Mexico but for law enforcement intervention. The district court adopted the PSR and, after granting an additional point for acceptance of responsibility, sentenced Soto to 96 months' imprisonment and three years of supervised release. Soto timely appealed his sentence, challenging the application of the cross reference to him.

II.

"We review a district court's interpretation of the sentencing guidelines de novo and its factual findings for clear error." United States v. Griffith, 522 F.3d 607, 611 (5th Cir.2008)

. "The district court's statement that [a defendant] had completed all acts believed necessary for completion of the offense is a factfinding, which we review for clear error." United States v. Knox, 112 F.3d 802, 813 (5th Cir.), vacated in part on other grounds and reinstated, 120 F.3d 42 (5th Cir.1997).

Although we review Guidelines sentencing errors for harmless error, the government has not argued that any error was harmless, nor could it meet its burden to do so in this instance. See United States v. Ibarra–Luna, 628 F.3d 712, 714 (5th Cir.2010)

(proponent of sentence has burden to "convincingly demonstrate[ ] both (1) that the district court would have imposed the same sentence had it not made the error, and (2) that it would have done so for the same reasons it gave at the prior sentencing").

III.

Soto argues that the district court erred in applying the cross reference provision in Section 2K2.1(c)(1)(A)

because there was no evidence that Soto had completed or was about to complete all acts required to export the ammunition to Mexico. Before considering his argument, we first review the relevant provisions of the Sentencing Guidelines.

Section 2K2.1

establishes a base offense level of 20 for unlawful possession of ammunition by a felon convicted of a violent felony and applies a four-level enhancement where the defendant "possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be transported out of the United States." U.S.S.G. § 2K2.1(a)(4)(A), (b)(6)(A). Section 2K2.1(c) contains a "cross reference" provision allowing for a greater offense level:

(c) Cross Reference

(1) If the defendant used or possessed any firearm or ammunition cited in the offense of conviction in connection with the commission or attempted commission of another offense, or possessed or transferred a firearm or ammunition cited in the offense of conviction with knowledge or intent that it would be used or possessed in connection with another offense, apply—

(A) § 2X1.1

(Attempt, Solicitation, or Conspiracy) in respect to that other offense,

if the resulting offense level is greater than that determined above[.]

U.S.S.G. § 2K2.1(c)

. This cross reference provision applies where the ammunition "facilitated, or had the potential of facilitating," another offense. U.S.S.G. § 2K2.1 cmt. n. 14(A).

Section 2X1.1

, in turn, provides in relevant part:

(a) Base Offense Level: The base offense level from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.

(b) Specific Offense Characteristics

(1) If an attempt, decrease by 3 levels, unless the defendant completed all the acts the defendant believed necessary for successful completion of the substantive offense or the circumstances demonstrate that the defendant was about to complete all such acts but for apprehension or interruption by some similar event beyond the defendant's control.

U.S.S.G. § 2X1.1

;³

see also id. § 2X1.1 cmt. background (explaining that no reduction of the offense level is warranted where "the substantive offense was substantially completed or was interrupted or prevented on the verge of completion by the intercession of law enforcement authorities or the victim," but when "the arrest occurs well before the defendant or any co-conspirator has completed the acts necessary for the substantive offense ... a reduction of 3 levels is provided under § 2X1.1(b)(1) or (2)").

In United States v. Waskom, we explained that determining whether a three-level reduction under § 2X1.1(b)

is warranted requires a fact-specific inquiry that "resists a precise standard." 179 F.3d 303, 308 (5th Cir.1999).⁴ However, we identified four non-exhaustive...