The opinion of the court was delivered by: JACK B. WEINSTEIN
Defendant was found guilty by a jury of conspiring to obstruct commerce by robbery. At the Fatico sentencing hearing, he disputed several of the government's suggested offense level calculations under the federal Sentencing Guidelines. Implicit in the defendant's argument was the suggestion that the crime was so ineptly planned and executed that the "real offense" was far less heinous than the Sentencing Guidelines suggested.
The conspirators were recorded discussing whether pedestrians would notice someone carrying a rifle on 42nd Street; whether it would be effective to shoot the gun into the air to distract police officers from noticing the robbery in progress; and which of several alternatives were meritorious -- to drive the armored van into the Hudson River and return later with scuba equipment to retrieve the money, or to drive it into the back of an 18-wheel truck. They decided on driving the van away. Their hope was that the guards would leave the keys in the ignition while they went into the bank; alternatively, the conspirators would use an "ignition puller" to start the van without keys.
When the conspirators assembled in Brooklyn on the morning of the planned robbery, one was carrying a small bag with a protruding rifle. They had decided upon a rifle because they were unable to obtain a handgun (although almost any child in most grade schools in New York City could have told them how to procure one). One conspirator at first demurred from participating because he preferred to sleep well into banking hours. He was forcibly awakened to join the team.
The conspirators had some difficulty obtaining a container to hold the money. The wife of one of the conspirators was prevailed upon to relinquish the family's bright yellow laundry bag for this purpose. She had objected on the grounds that she needed the bag to carry dirty clothes to the laundromat that day. She was not charged in the indictment.
The conspirators had a "slaphammer," sometimes known as a dent-puller or ignition puller, to remove the ignition of the armored van. The tool is readily available on the streets of New York where it is used for the lawful purpose of repairing dents and for the unlawful purpose of pulling out locks in ignitions and car trunks. A key part was missing. After several unsuccessful attempts to locate the part or obtain a new tool, the prospective robbers returned to one conspirator's home to regroup.
Leaving the rifle at the home, they proceeded to Manhattan to survey the scene of the prospective robbery. En route, their vehicle stalled several times on the F.D.R. Drive. FBI vehicles followed and a helicopter hovered overhead. Federal agents properly refrained from pushing the criminals' vehicle to the scene of the crime. Cf. Jacobson v. United States, 112 S. Ct. 1535, 118 L. Ed. 2d 174 (April 1992) (entrapment claim where Nebraska farmer induced into buying child pornography). All of the conspirators were arrested at the 42nd Street exit ramp; one had to be awakened so the FBI could read him his Miranda rights.
At the sentencing hearing, the government suggested a total offense level of 32, which would entail a Guideline range of 135 to 168 months. This was calculated from a base offense level of 20, with additional levels added for a number of offense characteristics. The defendant objects to several of the proposed offense level increases, and in addition urges several reductions.
Defendant urges unsuccessfully that he is entitled to a three-level reduction because he was convicted of a conspiracy under 18 U.S.C. § 1951 (1988), so the appropriate Guideline is not § 2B3.1, relating to robbery, but rather is § 2X1.1, relating to conspiracy. Under Guideline § 2X1.1, a three-level reduction is appropriate where the substantive offense which was the object of the conspiracy is not actually consummated. See Guideline § 2X1.1(2):
If a conspiracy, decrease by 3 levels, unless the defendant 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.
Guideline § 2X1.1, however, does not apply. The appropriate Guideline listed in the Appendix to the Sentencing Guidelines Manual for violations of 18 U.S.C. § 1951 is Guideline § 2E1.5, which triggers § 2B3.1 for the crime "Hobbs Act . . . Robbery" (conceded by the parties to apply). But cf. United States v. Sturm, 671 F. Supp. 79, 91 n.12 (D. Mass. 1987) (decided while the Guidelines were in circulation but before enactment; citing § 2X1.1 in discussion of an attempt under the Hobbs Act), aff'd in relevant part, 870 F.2d 769 (1st Cir. 1989). Guideline § 2B3.1 does not provide for reductions for unsuccessful conspiracies. Cf. United States v. Koenig, 952 ...