Argued Nov. 19, 2013.
Matthew B. Burke, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Marc M. Barnett, Attorney, Chicago, IL, for Defendant-Appellant.
Before POSNER, SYKES, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge.
The defendant pleaded guilty to conspiring to commit a robbery affecting interstate commerce, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and to carrying firearms during and in relation to a crime of violence (the conspiracy to rob), in violation of 18 U.S.C. § 924(c)(1)(A). The plan was that, armed with guns and other weapons, the defendant and his co-conspirators would rob a truck used by a gang of marijuana traffickers to transport large amounts of cash from Addison, an Illinois village a short distance west of Chicago, to California for the purchase of marijuana that they would then haul back to the Chicago area. But the conspirators lost the truck in traffic and so were unable to complete the robbery.
The district judge sentenced the defendant to a total of 90 months in prison— 30 months on the conspiracy count plus 60 months on the firearms count, which both is the statutory minimum and is required to run consecutively to the sentence for conspiracy. 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(D)(ii). A second conspirator, guilty of the same two offenses, received an identical sentence. The third conspirator is a fugitive; he has not yet been convicted, let alone sentenced.
The appeal challenges two aspects of the defendant's sentence, both relating just to the conspiracy count. The first is the judge's addition of two levels to the defendant's base offense level for conspiring (as part of the overall robbery conspiracy) to subject the robbery victims to physical restraint. See U.S.S.G. §§ 2X1.1(a), 2B3.1(b)(4)(B). The second is the judge's refusal to reduce the base offense level by three levels because the conspiracy did not come to fruition in the substantive crime (as distinct from the conspiracy itself, an agreement to commit a substantive crime) that the conspirators had agreed to commit— namely the robbery. U.S.S.G. § 2X1.1(b)(2). The two-level enhancement raised the defendant's total offense level for the conspiracy count to 19, which given his criminal history category (II) made his guidelines sentencing range 33 to 41 months. The judge thus gave him a slightly below-guidelines sentence on that count. He did that in part because he'd already sentenced the second conspirator to 30 months on the same count.
Without the enhancement for conspiracy to restrain, Dosen's total offense level would have been 17 and his guidelines sentencing range 27 to 33 months. With that enhancement but with a three-level reduction for incomplete conspiracy the sentencing range would have been 24 to 30 months. It would have been only 18 to 24 months had he received the reduction and been spared the enhancement, which is the dual relief that his appeal seeks.
The challenge to the enhancement for conspiracy to restrain need detain us only briefly. As part of their preparations for the robbery the conspirators bought duct tape. Conversations surreptitiously recorded by a government informant posing as one of the conspirators indicated that the defendant and his two accomplices (the defendant of course thought he had three) planned to use the tape to bind the robbery victims. The defendant argues that it was just a " possibility," which of course is true, because no one can be certain what would have happened had the robbery been attempted. But this could be sad of any conspiracy— that no one could be certain what would have happened had the conspiracy not collapsed before the commission of the substantive offense that was its aim. That uncertainty does not negate the enhancement for conduct that the conspirators would have engaged in had the conspiracy been consummated, provided that the " intended offense conduct ... can be established with
reasonable certainty." U.S.S.G. § 2X1.1(a). What has to be established with reasonable certainty is thus the forbidden conduct that the conspirators " specifically intended" to engage in— in this case physically restraining a person (probably more than one). U.S.S.G. § 2X1.1, Application Note 2;
see also United States v. Jones, 950 F.2d 1309, 1316-17 (7th Cir.1991).
The requirement was satisfied in this case. Besides what the taped conversations revealed, Dosen's plea agreement and post-arrest statement admit that his intent was to restrain the robbery victims. The plea agreement states that he and a co-conspirator " purchased supplies to be used in committing the robbery, including ... duct tape (to bind and restrain the truck occupants)," and his post-arrest statement states that " Dosen advised that they purchased duct tape to tie up the driver and a knife to cut the duct tape."
The difficult issue presented by the appeal is the judge's refusal to reduce the defendant's guidelines sentencing range by three levels because the conspiracy was not carried out. U.S.S.G. § 2X1.1(b)(2) entitles the defendant to such a reduction unless he " 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 Sentencing Commission's commentary explains that " in most prosecutions for conspiracies or attempts, 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. In such cases, no reduction of the offense level is warranted. Sometimes, ...