United States v. Susany, 062218 FED6, 17-4093

Docket Nº:17-4093
Opinion Judge:JANE B. STRANCH, Circuit Judge.
Party Name:United States of America, Plaintiff-Appellee, v. Frank Michael Susany, Jr., Defendant-Appellant.
Attorney:RUSSELL S. BENSING, CLEVELAND, OHIO, FOR APPELLANT. MATTHEW B. KALL, UNITED STATES ATTORNEY'S OFFICE, CLEVELAND, OHIO, FOR APPELLEE.
Judge Panel:Before: MOORE, KETHLEDGE, and STRANCH, Circuit Judges.
Case Date:June 22, 2018
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
SUMMARY

Susany conspired with Courtney and Quinn to obtain explosives to crack safes at jewelry and coin shops. They planned to finance their purchase of explosives by breaking into shops. Susany and Quinn met with an FBI confidential informant to discuss procuring explosives, then met again to talk about the informant participating the in break-ins. Susany, Courtney, and the informant planned the... (see full summary)

 
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United States of America, Plaintiff-Appellee,

v.

Frank Michael Susany, Jr., Defendant-Appellant.

No. 17-4093

United States Court of Appeals, Sixth Circuit

June 22, 2018

Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 4:16-cr-00312-1-Donald C. Nugent, District Judge.

Before: MOORE, KETHLEDGE, and STRANCH, Circuit Judges.

ON BRIEF:

RUSSELL S. BENSING, CLEVELAND, OHIO, FOR APPELLANT.

MATTHEW B. KALL, UNITED STATES ATTORNEY'S OFFICE, CLEVELAND, OHIO, FOR APPELLEE.

OPINION

JANE B. STRANCH, Circuit Judge.

Frank Susany, Jr. pled guilty to one count of conspiracy to knowingly receive and transport explosive materials, in violation of 18 U.S.C. §§ 371, 842(a)(3)(A), and 844(a). The district court granted a three-level downward variance from Susany's advisory Guidelines range and imposed a sentence of 21 months of imprisonment, followed by a two year period of supervised release. Susany appeals that sentence, arguing that the district court imposed a sentence that was procedurally unreasonable because it failed to reduce Susany's base offense level by three points, pursuant to the United States Sentencing Guidelines (USSG) § 2X1.1(b)(2). Although the district court erred by not reducing Susany's offense level under § 2X1.1(b)(2), we find the error to be harmless, and therefore AFFIRM.

I. BACKGROUND

Between February and April 2013, Susany entered into a conspiracy with Robert Courtney and James Quinn to obtain explosives that would be used to crack safes at jewelry stores and coin shops. The trio planned to obtain funds to finance their initial purchase of explosives by breaking into jewelry stores and coin shops to steal valuable items. On February 13, 2013, Susany and Quinn met with a confidential informant, who was working with the FBI. During the meeting, Susany and the confidential informant discussed procuring explosives for use in burglaries that Susany planned to commit. Susany and Quinn met with the confidential informant again the next month and this time talked about the confidential informant participating the in break-ins. On April 1, Susany met with the confidential informant and told him to plan for a "job."

On the evening of April 18, Susany, Courtney, and the informant met to plan the details of a break-in at Westlake Coins and Collectibles. Quinn was not present. In the early hours of April 19, Susany, Courtney, and the informant arrived at the store, and Courtney was selected to serve as a lookout. Susany cut the phone line to the store and activated a jamming device to block the cellular backup to the store's alarm system. Officers arrived and arrested the three individuals shortly after the alarm was cut.

Susany, Courtney, and Quinn were indicted on September 28, 2016. In addition to the charges for conspiracy to receive and transport explosives, Susany was also indicted on one count related his use of the jamming device, a violation of 47 U.S.C. §§ 301(d) and 501. Susany pled guilty; in exchange for his plea, the government agreed to drop the charges related to his use of the jamming device. The probation officer prepared a Presentence Investigative Report (PSR) that calculated Susany's base offense...

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