United States v. Simon, No. 15-10203 (9th Cir. 2017)
Annotate this CaseThe en banc court overruled United States v. Hernandez-Franco, 189 F.3d 1151 (9th Cir. 1999), and held that a Sentencing Guideline other than USSG 2X1.1 expressly covers an inchoate offense only if the Guidelines themselves so indicate. In this case, defendant was convicted of conspiracy to commit robbery under the Hobbs Act, 18 U.S.C. 1951, and of other federal crimes. Defendant received sentencing enhancements under USSG 2X1.1 for conduct that he contemplated and intended, but did not carry out: abduction, carjacking, and theft. The en banc court affirmed the sentence and clarified how to determine when another Guidelines section "expressly" covers an inchoate offense. The en banc court explained that a sentencing court should begin with Application Note 1 to section 2X1.1, but also may look to the title and content of other Guidelines provisions, or other relevant intra-Guidelines context. Sentencing courts should not, however, rely exclusively on the underlying substantive offense in the United States Code, because statutory language sheds no light on the question of whether a Guidelines section expressly covers the offense, for purposes of section 2X1.1(c). Here, the district court correctly applied section 2X1.1 to determine defendant's sentence and relevant sentencing enhancements because USSG 2B3.1, the Robbery provision, did not expressly cover conspiracies under the Hobbs Act.
Court Description: Criminal Law. Affirming a sentence in a case in which the defendant was convicted of conspiracy to commit robbery under the Hobbs Act, and other federal offenses, the en banc court clarified how district courts should apply sentencing enhancements for inchoate offenses. The defendant received enhancements because the district court applied U.S.S.G. § 2X1.1, which generally covers inchoate offenses like attempt, solicitation, and conspiracy, and under which defendants may receive enhancements as if they had completed the felony, even if they only intended the conduct. Section 2X1.1 does not apply if the “attempt, solicitation, or conspiracy is expressly covered by another offense guideline section.” Overruling United States v. Hernandez-Franco, 189 F.3d 1151 (9th Cir. 1999), the en banc court held that a Guideline other than § 2X1.1 “expressly cover[s]” an inchoate offense only if the Guidelines themselves so indicate. The en banc court wrote that a sentencing court should begin with § 2X1.1’s Application Note 1, which includes a non-exclusive list of Guidelines sections “expressly” covering inchoate offenses, but the sentencing court also may look to the title and content of other Guidelines provisions or other relevant intra-Guidelines context. The en banc court held that sentencing courts
This opinion or order relates to an opinion or order originally issued on November 9, 2016.
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