theft"); Application Note 6 to Guideline § 1B1.3 ("a partially completed offense . . . [is] (e.g., an offense involving an attempted theft of $ 800,000 and a completed theft of $ 30,000")).
As an example, where malfeasants intend to burn down a farm but succeed in dousing only the barn with gasoline and lighting a match, they would have completed all the preliminary acts necessary to commit the crime of arson to the barn. Under such circumstances, the conspirators would be sentenced according to the greater of: the offense level for the larger crime (arson to the farm), minus three levels, or the offense level for the smaller crime (arson to the barn). Thus the government, were the court to adopt its use of the $ 800,000 - $ 30,000 theft example, would be arguing for application of the three-level reduction it opposed in connection with defendant's § 2X1.1 argument, supra, that this should not be considered a Hobbs Act conspiracy.
Applying the quoted commentary from Guideline § 2B1.1 as the government requests would present further problems, since it is in conflict with the commentary to Guideline § 2X1.1, to which it refers internally. Application Note 2 to Guideline § 2X1.1 cautions against using "speculative" specific offense characteristics of the substantive crime to increase offense levels where a defendant is charged with the inchoate offense -- solicitation, conspiracy, or attempt. A court should take into account only those offense characteristics which were specifically intended by the defendant or which actually occurred. The commentary uses the example of defendants arrested during the conspiratorial stage of planning an armed bank robbery, suggesting that the offense level should not include "aggravating factors regarding possible injury to others, hostage taking, discharge of a weapon, or obtaining a large sum of money, because such factors would be speculative." See Application Note 2 to Guideline § 2X1.1 (emphasis added).
In the instant case, there was no proof that the conspirators "intended," within the meaning of the Guidelines, to take a specific amount from the armored van. This is not to say that the government must show that conspirators know exactly how much money they will acquire if the conspiracy succeeds. In United States v. Davis, 922 F.2d 1385, 1392 (9th Cir. 1991), the defendant did not know the precise value of the jewelry he tried to steal by fraud; nonetheless he was sentenced taking into account the intent to steal its actual value.
Similarly, in drug cases, a drug courier will be sentenced for carrying 100 grams of heroin even if he states that he intended to carry 75 grams of cocaine. See generally Guidelines § 2D1.1(a)(3) and § 2D1.1(c). Cf. United States v. Cardenas, 917 F.2d 683, 687 (2d Cir. 1990) (in conspiracy case, defendant properly sentenced for actual amount of narcotics since the conspiracy involved that amount and the defendant could reasonably have foreseen it).
There was evidence that the defendant and his conspirators discussed their hope of recovering $ 5,000,000 or perhaps even more than $ 5,000,000 as a result of the conspiracy. The government proved that the conspirators had agreed to steal an armored van which they believed might be loaded with cash. But there was a failure of proof as to the amount the conspirators "intended" to steal within the meaning of the Guidelines, since there was no evidence of what was or would be in the van. At midday in midtown Manhattan, and in light of the inept planning by the conspirators, the van could have been arriving to pick up currency from the bank. Unlike United States v. Davis, 922 F.2d 1385, 1392 (9th Cir. 1991), where a specific ring was involved and the plan was to defraud the victim of that specific piece of property, or United States v. Van Boom, 961 F.2d 145 (9th Cir. 1992), where the bank robber demanded a specific amount from the bank tellers within the bank, here no proof established that the conspirators "intended" to steal $ 5,000,000. Assessing an amount as a basis for an increase in offense levels would be speculative under such circumstances. Defendant is entitled to a finding that he intended to steal the least amount recognized by the Guidelines -- up to $ 10,000. See Guideline § 2B3.1(b)(6)(A).
The government had calculated a total offense level of 32. Taking into account the base offense level, the suggested increases, and the defendant's criminal history category, the defendant would have been subject, as previously noted, to imprisonment for 135 to 168 months. Reducing the offense levels in accordance with this memorandum, the proper total offense level is 21 and the relevant Guideline range is 41 to 51 months.
The defendant is sentenced to 41 months in prison, a 50 dollar assessment, and 3 years probation. The minimum term under the Guideline range is applicable since the defendant has now conceded that he is not cut out for a life of crime, and probation believes that he is now motivated towards honest work in support of his family, which still expresses its love for him.
The defendant will serve approximately three years in prison. Given the dangerous activity he participated in, his lack of contrition and cooperation and the fact that he put the government to the expense of a trial and considerable police activity, the sentence is fair. Application of the Guidelines as interpreted presents no conflict with the conscience of the court.
Jack B. Weinstein
United States District Judge
Dated: Brooklyn, New York
April 23, 1992
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