United States v. Linares ( 2023 )

Appellate Case: 21-3210 Document: 010110816242 Date Filed: 02/22/2023 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 22, 2023
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-3210
ASAEL LINARES,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:21-CR-20010-JAR-1)
_________________________________
Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender, and
Kayla Gassmann, Assistant Federal Public Defender, with him on the briefs), Office of
the Federal Public Defender, Kansas City, Kansas, for Defendant-Appellant.
Bryan C. Clark, Assistant United States Attorney (Duston J. Slinkard, United States
Attorney, District of Kansas, and James A. Brown, Assistant United States Attorney,
Chief, Appellate Division, with him on the brief), Office of the United States Attorney,
Kansas City, Kansas, for Plaintiff-Appellee.
_________________________________
Before TYMKOVICH, SEYMOUR, and PHILLIPS, Circuit Judges.
_________________________________
TYMKOVICH, Circuit Judge.
_________________________________
Asael Linares was indicted as a felon in possession of a firearm after an
attempted carjacking. He pled guilty but objected to a sentencing enhancement and
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the failure to apply a sentencing decrease proposed by the government, arguing that
he did not complete an attempted carjacking, nor did he meet the required mental
state for the carjacking enhancement. Finding that Mr. Linares was about to
complete a carjacking while possessing an AK-47, the district court overruled Mr.
Linares’s objections and sentenced him to 63 months. Mr. Linares challenges the
enhancements in this appeal.
We affirm. The district court did not err in concluding that the facts—the
presence of a rifle while confronting a car owner, demanding the keys, approaching the
car, threatening the car owner and her family while they were calling 911, and leaving the
scene when the victims continued calling 911—met the Sentencing Guideline
requirements for carjacking.
I. Background
This case arises from an encounter between Mr. Linares and a family in a Kansas
City neighborhood. The victim, Marian Diaz, her brother, Ruben, and his young son,
were cleaning up scrap construction materials in Ms. Diaz’s front yard. During the
project, Ms. Diaz had parked her car in the yard. Mr. Linares drove down the street and
parked his car in front of the home. Mr. Linares asked for a ride to a gas station,
claiming car troubles, but Ruben declined.
Ms. Diaz eventually moved her car and parked it on the street. She left the car,
which had a remote “automatic start feature,” locked but still running. As Ms. Diaz
walked back to her yard, Mr. Linares walked to the driver’s side door of her car. He was
carrying a semi-automatic rifle, later identified as an AK-47. When Ruben saw the rifle,
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he and the others hurried into the house. At the same time, Ms. Diaz remotely turned off
the engine to her car. Then Mr. Linares turned his attention to the house and demanded
that Ms. Diaz give him the keys.
Ruben returned to the yard while calling 911 on his phone. On the 911 call, he
reported that Mr. Linares had an AR-15 or AK gun and was trying to steal his sister’s car.
He also told the operator that Mr. Linares had ordered him to hang up the phone or he
threatened to come back (“I’ll come back and kill you”). Having been prevented from
stealing the vehicle, Mr. Linares returned to his car and drove away. Police soon arrested
Mr. Linares at a nearby gas station. Officers discovered two handguns on Mr. Linares
and another two firearms in the car, including an AK-47 and a pistol.
A grand jury indicted Mr. Linares for unlawful possession of firearms by a
convicted felon under 18 U.S.C. § 922(g)(1). He pled guilty without a plea agreement.
At sentencing, agreeing with the presentence report, the district court applied
§ 2K2.1(c)(1)(A) of the U.S. Sentencing Guidelines (USSG), which applies an
enhancement to a sentence where a firearm was used in connection with the
substantive offense of attempted robbery. (Applying USSG § 2X1.1(b)(1)(cross-
reference) and USSG § 2B3.1 (attempted carjacking)). Combining the offense level
and Mr. Linares’s criminal history category, the district court calculated his guideline
range to be 63 to 78 months’ imprisonment.
The court sentenced him to 63 months of imprisonment, the bottom of the
guideline range.
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II. Analysis
Mr. Linares makes two challenges to his sentence. He contends the district court
(1) erred in rejecting a three-level decrease for an attempt under § 2X1.1(b)(1) and
(2) used the incorrect definition of carjacking to apply a two-level enhancement under
§ 2B3.1(b)(5).
A. Attempted Vehicle Robbery - § 2X1.1(b)(1)
Mr. Linares argues the district court erred by rejecting a three-level decrease
because he did not complete the crime of vehicle robbery.
We review legal questions de novo and the district court’s factual findings for
clear error, giving due deference to its application of the guidelines to the facts. United
States v. Maldonado-Passage, 4 F.4th 1097, 1103 (10th Cir. 2021). Under the clear error
standard, “we may reverse only if the district court’s finding lacks factual support in the
record or if, after reviewing all the evidence, we have a definite and firm conviction that
the district court erred.” Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th Cir.
2014).1
Mr. Linares relies on USSG § 2X1.1(b)(1), which provides for a three-level
decrease in a defendant’s offense level calculation for an incomplete, or attempted, crime.
An attempt requires that the defendant (1) intended to commit the substantive offense,
and (2) took a substantial step towards commission of the substantive offense. United
1
Mr. Linares advocates for a burden shifting approach, which would require the
government to prove the exceptions apply after the defendant proves attempt. For
our purposes here, it does not matter who has the burden to establish certain aspects
of the guideline.
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States v. Washington, 653 F.3d 1251, 1264 (10th Cir. 2011). A defendant, however, will
not receive the decrease if his conduct meets one of the two exceptions to the attempt
guideline:
[1] the defendant completed all the acts the defendant believed
necessary for successful completion of the substantive offense
or [2] the circumstances demonstrate that the defendant was
about to complete all such acts but for apprehension or
interruption by some similar event beyond the defendant’s
control.
USSG § 2X1.1(b)(1) (brackets and emphasis added). The second exception is at issue
here.
The guidelines explain:
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.
USSG § 2X1.1, comment (emphasis added). This is a fact intensive inquiry. See United
States v. Soto, 819 F.3d 213, 217 (5th Cir. 2016).
The district court found by a preponderance of the evidence that Mr. Linares’s acts
met the second attempt exception; he was about to complete the substantive offense of
vehicle robbery under Kansas law, K.S.A. § 21-5420,2 but for apprehension or
interruption by some similar event beyond his control. In reaching this conclusion, the
2
That provision prohibits “knowingly taking property from the person or presence of
another by force or by threat of bodily harm to any person.” K.S.A. § 21-5420(a).
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district court relied on a police officer’s testimony, home surveillance video, and a
recording of the 911 call. In particular, the court found:
 Mr. Linares “approached the Ford Fusion, was very close
to it, backed off, came back up to it, at some point says
leave the keys, I’ve got you.”
 Mr. Linares “essentially demand[ed]” the victims give him
the keys.
 Mr. Linares interacted with Ruben while Ruben was calling
the police on 911, and then told Ruben not to call the police.
 Mr. Linares was aware of the 911 call, threatened Ruben,
and said, “I’ll come back and kill you.”
R., Vol. 3 at 69–70.
In resisting these findings, Mr. Linares focuses on the court’s conclusion that
the 911 call caused Mr. Linares to back away from the car and abandon his plan to
steal the car. But the recording of the 911 call and statements made by Ruben in the
aftermath of the incident support the district court’s conclusion. During the 911 call,
Ruben made an unprompted statement that Mr. Linares “is telling me not to call
because he’s going to come back for me, whatever.” Supp. R., Vol. 2 Ex. 1 (911
Recording) (in a later interview Ruben understood Mr. Linares as saying “I’ll come
back and kill you”). Ruben’s statements demonstrate that Mr. Linares was close
enough to Ruben to see what he was doing and talk to him. The record supports the
district court’s findings that Ruben was in the yard, the two interacted, Mr. Linares
was aware of the 911 call, and then Mr. Linares abandoned his efforts to steal the car
because of the 911 call.
With this factual basis, the district court concluded Mr. Linares’s actions in
approaching the car multiple times met the “complete all such acts” component of the
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attempt exception, and that the 911 call constituted an interruption by an event
beyond Mr. Linares’s control. In other words, Mr. Linares was about to complete the
substantive offense of vehicle robbery but for interruption by the victims.3
Our conclusion is consistent with several of our cases. In United States v.
Owens, for example, we declined to apply the reduction where the defendant stopped
abruptly in front of the victim’s car, pulled a gun out of his pocket, told the victim to
“Get out!”, pointed the gun at the victim, and attempted to open the locked door. 20
F. App’x 785, 786 (10th Cir. 2001). There we explained the combination of the
victim’s decision to drive away, and the steps taken to steal the car met the second
§ 2X1.1(b)(1) exception. Id. at 788. Likewise, in United States v. Orr, we upheld a
district court’s decision to decline to apply the reduction where a defendant confessed
to his escape plans. 172 F.3d 64, 1999 WL 51827, at *1, *4 (10th Cir. 1999)
(unpublished table decision). We noted that the prisoner’s mother had encouraged
him to confess and that he had only minor details left to complete the escape.
Mr. Linares, like the defendant in Owens, only needed the victims to hand over
the keys for him to complete the offense of stealing the car. He had repeatedly
approached the car, hovered near it, demanded the keys, and verbally threatened
Ruben. While he did not point his gun at the victims like the defendant in Owens,
Mr. Linares allowed his firearm to be visible to the victims and the threat was
3
The attempt exception requires “the circumstances demonstrate that the defendant
was about to complete all such acts,” not that the defendant intended to complete all such
acts as the district court stated. Even so, as discussed above, the facts found by the
district court support applying the second attempt exception.
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obvious. In addressing the USSG § 2B1.1 issue, the district court remarked, “[i]t
would be hard to believe that someone would not be intimidated by seeing someone
in possession of an AK-47 or AR-15, whatever it was.” R., Vol. 3 at 67. The district
court’s findings of fact support the conclusion that Mr. Linares’s actions met the
“about to complete” attempt exception.
Similarly, as noted above, the district court’s findings regarding the 911 call
and Mr. Linares’s awareness of the 911 call are sufficient to support the apprehension
or interruption component of the exception. Mr. Linares tried to stop the 911 call but
failed. Mr. Linares’s attempt to stop the call is the “primary reason [he] opted not to
carry out the final stages of his [carjacking].” Orr, 1999 WL 51827, at *4. Mr.
Linares was still hovering near the car when Ruben made the 911 call. Despite his
threats, Mr. Linares was unable to prevent Ruben from calling the police. In short, it
seems obvious the fear of a police response motivated Mr. Linares to abandon his
attempt. And the district court’s findings show Mr. Linares’s awareness that police
would be arriving soon satisfied the interruption requirement of the exception.
Our conclusion is likewise consistent with cases from other circuits. See, e.g.,
United States v. Rill, 592 F.3d 863, 865–66 (8th Cir. 2010) (explaining in an
attempted prison escape case that the “fact that the plexiglass was stronger than Rill
expected is an interruption by some similar event beyond [his] control”); United
States v. Shakur, 7 F. App’x 289, 289 (4th Cir. 2001) (upholding district court’s
refusal to apply reduction where victim’s car was equipped with an anti-theft device
which prevented him from starting the engine); United States v. Chapdelaine, 989
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F.2d 28, 35 (1st Cir. 1993) (upholding refusal to apply reduction where evidence
showed that defendant and comrades arrived at the mall prepared and equipped to
“carry out a robbery and were thwarted only by the unexpected early departure of the
Wells Fargo truck”).
The district court did not err in concluding Mr. Linares was about to complete
the carjacking but for his fear of apprehension by law enforcement or interruption by a
victim thwarted his plans.
B. Carjacking—Intent to Cause Death or Bodily Harm – U.S.S.G § 2B3.1(b)(5)
Mr. Linares next argues the district court erred by failing to apply the federal
definition of carjacking found in 18 U.S.C. § 2119. He contends the court erred by
failing to find that he intended to cause death or serious bodily harm in the attempt, as
required by § 2119.4 We disagree.
Sentencing Commission Guidelines Section 2B3.1(b)(5) increases a sentence if the
“offense involved carjacking.” The comment to § 2B3.1 defines “carjacking” as “the
taking or attempted taking of a motor vehicle from the person or presence of another by
force and violence or by intimidation.” USSG § 2B3.1, comment. (n.1) (emphasis
added).
In contrast, § 2119 defines carjacking as when a person “with the intent to cause
death or serious bodily harm takes a motor vehicle that has been transported, shipped, or
4
The government argues Mr. Linares waived this argument by not raising it below.
We find Mr. Linares sufficiently raised this argument to the district court by
contending that the statutory definition of carjacking applied.
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received in interstate or foreign commerce from the person or presence of another by
force and violence or by intimidation, or attempts to do so.” 18 U.S.C. § 2119. The
statute requires the “intent” to cause death or serious bodily harm, while the guidelines do
not.
But the Sentencing Commission does not have “to use the word [in a guideline]
the same way that the statute did.” United States v. Thomas, 939 F.3d 1121, 1130 (10th
Cir. 2019). “The Commentary that accompanies the guideline . . . may interpret the
guideline or explain how it is to be applied.” USSG § 1B1.7. “Failure to follow such
commentary could constitute an incorrect application of the guidelines.” Id. Indeed, the
“commentary [is] essential in correctly and uniformly applying the guidelines.” United
States v. Smith, 900 F.2d 1442, 1447 (10th Cir. 1990) (internal quotations omitted).
Guideline application notes are “authoritative unless [they] violate[] the Constitution or a
federal statute, or [are] inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). Applying these principles,
the district court correctly used the definition in the guidelines.
Mr. Linares advances four arguments as to why the district court should have
applied the § 2119 statutory definition, instead of the Sentencing Commission’s
definition: (1) the history of Anti Car Theft Act and comment show that the Commission
intended to use the same definition as Congress; (2) § 2B3.1 references § 2119; (3) the
comment definition is inconsistent with the guideline text and plainly erroneous; and
(4) we should not defer to the comment definition because it paraphrases statutory
language. We are unpersuaded.
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To understand Mr. Linares’s first argument, it helps to consider the history of
§ 2119, the guidelines, and the commentary to the guidelines. In 1992, Congress passed
the Anti Car Theft Act, which defined “armed carjacking” without a mens rea element.
In 1993, the Sentencing Commission added the 1992 definition of carjacking to comment
1 of § 2B3.1 but excluded the statute’s firearm component. The following year, Congress
added a mens rea requirement to the carjacking definition in the Anti Car Theft Act and
removed the firearm component. But the Sentencing Commission never amended its
definition of carjacking.
Mr. Linares contends the Commission’s nearly identical 1993 carjacking
definition demonstrates its intention to mirror Congress’s definition.
In our view, the district court used the correct “carjacking” definition—the
comment definition that lacks a mens rea component. The Commission’s decision not to
modify the comment after Congress amended the previous § 2119 definition suggests the
Commission’s “satisfaction with the interpretation.” Thomas, 939 F.3d at 1131. And
persuasive authority from two other circuits underscores using the comment definition in
this context. See United States v. Bates, 213 F.3d 1336, 1340 (11th Cir. 2000)
(explaining that “the Sentencing Commission has had ample time to alter the guidelines
to comport with the amended statute, but has not changed the guidelines”); United States
v. Knighton, 171 F. App’x 939, 942 (3d Cir. 2006) (“The Application Notes do not state
that their definition of carjacking tracks the elements of the carjacking statute and there is
no indication that the Sentencing Commission intended for the terms of the statute to
control the definition.”). We agree with these cases.
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As for Mr. Linares’s second argument, we recognize that § 2B3.1 includes a
citation to § 2119. But nothing in the guidelines or comment 1 requires the court to
import the substantive elements of § 2119. It is axiomatic that the Commission knows
how to use a cross-reference to incorporate a particular statutory definition. See Thomas,
939 F.3d 1128–29 (discussing that the Commission’s use of statutory cross-reference in a
guideline signifies its decision to not include such a cross-reference in other guidelines is
intentional). The Commission, for example, incorporated Congress’s definition of
murder in USSG § 2B3.1(c)(1). No such cross-reference exists for the definition of
carjacking. See Knighton, 171 F. App’x at 942.
Third, Mr. Linares’s arguments that the comment definition is inconsistent and
plainly erroneous are conclusory and recite the same history-based arguments previously
addressed. Besides the historical background, Mr. Linares fails to fill the gap
establishing that the § 2119 definition applies to this guideline enhancement.
Finally, Mr. Linares insists that because the Commission elected to use a nearly
identical carjacking definition to the one in the 1992 Act, it intended to copy that
definition as it evolved through congressional action. While the comment definition
parallels the 1992 definition, the Commission’s inaction in amending the definition to
follow congressional action speaks for itself. See Bates, 213 F.3d at 1340.
In sum, the district court used the correct “carjacking” definition located in
Comment 1 of § 2B3.1. Mr. Linares’s enhancement was therefore not in error.
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III. Conclusion
Mr. Linares is not eligible for a three-level sentencing decrease for attempt
because he would have completed the crime but for an interruption. And Mr. Linares is
eligible for a two-level sentencing increase because the district court used the correct
carjacking definition. We affirm the district court.
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