United States v. Alexis Simon , 858 F.3d 1289 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10203
Plaintiff-Appellee,
D.C. No.
v. 2:13-cr-00148-
JAD-GWF-2
ALEXIS TORRES SIMON,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted En Banc March 22, 2017 *
San Francisco, California
Filed June 8, 2017
Before: Sidney R. Thomas, Chief Judge, and William A.
Fletcher, Ronald M. Gould, Marsha S. Berzon, Jay S.
Bybee, Carlos T. Bea, Sandra S. Ikuta, Mary H. Murguia,
Jacqueline H. Nguyen, Andrew D. Hurwitz, and
Michelle T. Friedland, Circuit Judges.
Opinion by Judge Murguia
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. SIMON
SUMMARY **
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 summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. SIMON 3
should not, however, rely exclusively on the underlying
substantive offense in the United States Code, because
statutory language sheds no light on the question whether a
Guidelines section expressly covers the offense, for purposes
of U.S.S.G. § 2X1.1(c).
Applying this framework, the en banc court held that
Hobbs Act robbery conspiracy is not “expressly covered” by
§ 2B3.1, the Guidelines section covering “Robbery,” and
that in the absence of a separate Guideline section expressly
covering the inchoate offense, the default provisions for
inchoate offenses under § 2X1.1 apply to the defendant’s
sentencing. Because, under § 2X1.1, the defendant’s
intended conduct is a proper basis for enhancements, the en
banc court concluded that the district court did not err in
applying enhancements for loss amount, abduction, and
carjacking based on conduct that the defendant intended but
did not carry out.
COUNSEL
Osvaldo Fumo, Thomas Pitaro, and Dustin R. Marcello,
Pitaro & Fumo CHTD., Las Vegas, Nevada, for Defendant-
Appellant.
Adam Flake, Assistant United States Attorney; Elizabeth O.
White, Appellate Chief; Daniel G. Bogden, United States
Attorney; United States Attorney’s Office, Las Vegas,
Nevada; for Plaintiff-Appellee.
4 UNITED STATES V. SIMON
OPINION
MURGUIA, Circuit Judge:
A jury convicted Defendant Alexis Torres Simon
(“Simon”) of conspiracy to commit robbery under the Hobbs
Act, 18 U.S.C. § 1951, and of other federal crimes. Simon
received an enhanced sentence for conduct that he
contemplated and intended, but did not carry out: abduction,
carjacking, and theft. Simon received these enhancements
because the sentencing court applied § 2X1.1 of the United
States Sentencing Guidelines (the “Guidelines”), 1 which
generally covers inchoate offenses like attempt, solicitation,
and conspiracy. Notably, § 2X1.1 does not apply if the
“attempt, solicitation, or conspiracy is expressly covered by
another offense guideline section.” U.S. Sentencing
Guidelines Manual § 2X1.1(c) (U.S. Sentencing Comm’n
2014). We called the case en banc to clarify how to
determine when another Guidelines section “expressly”
covers an inchoate offense. We affirm.
BACKGROUND
Simon and two co-defendants plotted a robbery, but they
never had the chance to complete their plan. They had
agreed, along with a confidential informant, to abduct the
driver of a delivery van and steal the drugs inside. The
defendants met in a parking lot across the street from the
driver’s house with the tools for the planned robbery,
including a firearm. Officers then converged on the site and
arrested them.
1
The 2014 version of the Sentencing Guidelines was applicable to
Simon at the time of his sentencing. All citations in this opinion are to
the 2014 version of the Guidelines.
UNITED STATES V. SIMON 5
The Government later charged Simon and his
co-defendants in a ten-count indictment; some of the counts
involved earlier completed thefts. Simon faced eight of the
ten counts: conspiracy to interfere with commerce by
robbery (count one), attempted interference with commerce
by robbery (count two), possession of a firearm in
furtherance of a crime of violence (count three), being a
felon in possession of a firearm (count six), conspiracy to
commit theft from interstate shipment (count seven), and
theft from interstate shipment (counts eight, nine, and ten).
After a trial at which the confidential informant was a
pivotal witness, a jury convicted Simon on all eight counts.
The district court overturned for insufficient evidence
Simon’s convictions for attempted robbery and firearm
possession in furtherance of a crime of violence (counts two
and three). The jury also convicted the other two defendants
on all counts charged against them; the district court likewise
overturned the verdicts on counts two and three against
them.
At sentencing, the district court sorted the multiple
counts against the three defendants into three “groups.” See
U.S.S.G. § 3D1.2. 2 The “Group 1” offenses concerned the
defendants’ conspiracy to rob the delivery-van driver. For
2
When a defendant is convicted on multiple counts, the Guidelines
instruct the sentencing court first to “[g]roup the counts resulting in
conviction into distinct Groups of Closely Related Counts (‘Groups’),”
U.S.S.G. § 3D1.1, with “counts involving substantially the same harm []
together into a single Group.” Id. § 3D1.2. Then, the court
“[d]etermine[s] the offense level applicable to each of the Groups”
according to § 3D1.3, and determines the defendant’s “combined offense
level [] by taking the offense level applicable to the Group with the
highest offense level and increasing that offense level by the amount
indicated” in § 3D1.4.
6 UNITED STATES V. SIMON
Simon, the sole Group 1 offense for which he was convicted
was count one, interfering with commerce by robbery, in
violation of 18 U.S.C. § 1951 (Hobbs Act robbery
conspiracy, or robbery conspiracy). Because the Group 1
offense had the highest total offense level, 34, the sentence
Simon received for the robbery conspiracy was the most
important to his overall sentence.
Where an offense involves a conspiracy, attempt, or
solicitation, U.S.S.G. § 1B1.2(a) directs a district court to
start its Guidelines calculation with U.S.S.G. § 2X1.1.
“When an attempt, solicitation, or conspiracy is expressly
covered by another offense guideline section,” however, the
court should instead “apply that guideline section.”
U.S.S.G. § 2X1.1(c). Therefore, when some other section of
the Guidelines expressly covers a specific inchoate
offense—for instance, U.S.S.G. § 2A1.5, “Conspiracy or
Solicitation to Commit Murder”—the sentencing court
leaves the default § 2X1.1 Guideline behind and looks to the
instructions contained in the more specific section of the
Guidelines. To aid the sentencing court in deciding whether
to look somewhere other than § 2X1.1, Application Note 1
to § 2X1.1 includes a non-exclusive list of those Guidelines
sections “expressly” covering inchoate offenses. U.S.S.G.
§ 2X1.1 cmt. n.1 (listing, among other things, U.S.S.G.
§ 2A1.5, “Conspiracy or Solicitation to Commit Murder”).
If no other Guidelines section expressly covers the
specific conduct committed, then the district court simply
applies U.S.S.G. § 2X1.1, the general inchoate crime
provision. Under § 2X1.1(a), the court begins with “[t]he
base offense level from the guideline for the substantive
offense.” Thus, a court calculating the sentence for “attempt
to commit felony X” starts with the base offense level in the
Guidelines section for “felony X.” Section 2X1.1(a) directs
UNITED STATES V. SIMON 7
the sentencing court to draw any upward adjustments “from
such guideline”—that is, the Guidelines section for the
substantive offense—and apply those adjustments for “any
intended offense conduct that can be established with
reasonable certainty” (emphasis added); see also id. cmt. n.2
(noting that the relevant offense characteristics for
sentencing purposes “are those that are determined to have
been specifically intended or actually occurred”). Therefore,
where § 2X1.1(a) applies, defendants convicted for an
inchoate felony may receive sentencing enhancements as if
they had completed the felony, even if they only intended the
conduct. This can have a dramatic impact on the sentences
defendants receive.
Simon and the Government disagreed below on whether
§ 2B3.1, the Guidelines section covering “Robbery,”
“expressly covered” Simon’s conviction for conspiracy to
commit robbery. The parties therefore disagreed on whether
§ 2X1.1 should apply, and, in turn, whether Simon should
receive enhancements for certain conduct he intended but
did not carry out: abduction, carjacking, and theft of more
than $50,000. If § 2B3.1, for “Robbery,” controlled, then
the enhancements would apply only to Simon’s completed
conduct. But if § 2X1.1, the default Guidelines section for
inchoate offenses, controlled, then enhancements would
apply for all conduct Simon specifically intended. Seeking
to avoid enhancements based on this intended conduct,
Simon argued that § 2B3.1 of the Guidelines “expressly
cover[s]” conspiracy to commit robbery because 18 U.S.C.
§ 1951, which criminalizes robbery “affect[ing] [interstate]
commerce,” also criminalizes conspiracy to commit such
robbery. The Government, in response, argued that § 2B3.1
does not “expressly” cover conspiracy to rob, and that the
general default inchoate Guidelines section § 2X1.1 should
8 UNITED STATES V. SIMON
therefore apply, with the accompanying enhancements for
intended conduct.
The district court agreed with the Government,
determining that § 2B3.1 did not “expressly” cover
conspiracy. The district court therefore followed the general
inchoate offense provision, § 2X1.1, and applied
enhancements for Simon’s intended conduct.
Simon’s sentence had the following components 3:
• a base level of 20, applicable to robbery, drawn
from § 2B3.1(a), “Robbery”;
• a five-level increase for a conspiracy member
possessing a firearm, drawn from
§ 2B3.1(b)(2)(C), “Robbery,” possessing or
brandishing a firearm;
• a four-level increase for abduction, drawn from
§ 2B3.1(b)(4), “Robbery,” abduction to facilitate
commission of the offense;
• a two-level increase for carjacking, drawn from
§ 2B3.1(b)(5), “Robbery,” offense involving
carjacking;
• a one-level increase for the object of the offense
being a controlled substance, drawn from
§ 2B3.1(b)(6), “Robbery,” taking of or object to
3
Italics denote enhancements for intended conduct (or mitigating
decreases) that were available because the district court applied § 2X1.1,
but would not have been available otherwise.
UNITED STATES V. SIMON 9
take a firearm, destructive device, or controlled
substance;
• a two-level increase for an intended loss of
$131,000, drawn from § 2B3.1(b)(7)(C),
“Robbery,” loss of more than $50,000 and less
than $250,000;
• a three-level decrease for a failure to complete
certain necessary acts, drawn from
§ 2X1.1(b)(2), “Attempt, Solicitation, or
Conspiracy . . . ,” reduction for uncompleted
conspiracy;
• a two-level enhancement for being a “leader” of
the conspiracy, drawn from § 3B1.1(c),
“Aggravating Role,” organizer, leader, manager,
or supervisor; and
• a one-level enhancement for the “unit” added by
the total offense level for Simon’s Group 3
counts, involving the conspiracy to commit three
earlier thefts, 4 drawn from § 3D1.4,
“Determining the Combined Offense Level.”
In total, Simon’s offense level was 34.
If the district court had instead applied § 2B3.1, the
Robbery provision, Simon would have had a base offense
level of 29. This is because Simon would not have received
eight levels of enhancements for his intended conduct of
4
Simon’s Group 3 offense level was 26. The Group 3 calculation is
not relevant beyond this enhancement, and Simon does not challenge the
Group 3 calculation on appeal.
10 UNITED STATES V. SIMON
carjacking, abduction, and theft of more than $50,000, but
also would not have received a three-level decrease from
§ 2X1.1(b)(2), for failure to complete certain acts.
Simon had a criminal history score of 11, placing him in
Category V. The district court calculated Simon’s
Guidelines sentencing range at 235–293 months. The
probation office recommended a sentence on the lower end
of the Guidelines range, and the court varied downward and
sentenced Simon to a below-Guidelines sentence of
192 months.
Simon timely appealed, challenging his convictions and
his sentence. A three-judge panel previously resolved most
of those issues in a memorandum disposition. 5 The
remaining issue is whether the district court correctly applied
sentencing enhancements based on Simon’s intended
conduct pursuant to § 2X1.1 of the Guidelines.
DISCUSSION
We have jurisdiction to review Simon’s sentence based
on 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. “We review
a district court’s construction and interpretation of the
[Guidelines] de novo and its application of the Guidelines to
5
The panel withdrew submission of the appeals of Simon’s
co-defendants until the complete resolution of Simon’s appeal. The
memorandum disposition resolved all conviction-related issues and all
other sentencing issues related to Simon’s appeal. United States v.
Simon, 665 F. App’x 597 (9th Cir. 2016), reh’g en banc granted, No.
15-10203, 2017 WL 382337 (9th Cir. Jan. 27, 2017). Simon has not
sought rehearing of that decision. We have limited our en banc
consideration to the outstanding sentencing issue involving Guidelines
sections 2B3.1 and 2X1.1. We affirm the district court on the other
issues for the reasons given in the memorandum disposition.
UNITED STATES V. SIMON 11
the facts for abuse of discretion.” United States v. Popov,
742 F.3d 911, 914 (9th Cir. 2014).
I
A
Simon argues that the district court erred in applying
sentencing enhancements for certain conduct that he
intended but never carried out. Whether Simon is correct
depends on whether a Hobbs Act robbery conspiracy is
“expressly covered by” § 2B3.1 or another Guidelines
section. If § 2B3.1 “expressly” covers conspiracy to commit
robbery, then Simon is only liable for enhancements based
on completed conduct. See U.S.S.G. § 2X1.1(c)(1). 6
Simon’s underlying substantive offense was robbery,
criminalized under the Hobbs Act if the robbery affects
interstate commerce. See 18 U.S.C. § 1951; see also Stirone
v. United States, 361 U.S. 212, 215 (1960). The Guidelines
section covering Hobbs Act robbery is § 2B3.1, entitled
“Robbery.” Simon’s conviction, was for an inchoate
offense, conspiracy to rob, and not the completed felony.
Section 2X1.1—entitled “Attempt, Solicitation, or
Conspiracy (Not Covered by a Specific Offense
Guideline)”—is the default Guideline for such inchoate
crimes. The two Guidelines—§ 2X1.1, the general inchoate
offense provision, and § 2B3.1, the robbery-specific
provision—apply sentencing enhancements in different
ways. These enhancements can affect the calculation of the
6
The one exception to this rule, as noted above, concerns Simon’s
intent to steal a controlled substance, which results in a one-point
enhancement under either Guidelines provision. See U.S.S.G.
§ 2B3.1(b)(6) (applying an enhancement where “an object of the
offense” was the taking of a controlled substance).
12 UNITED STATES V. SIMON
total offense level, and therefore the length of the
defendant’s Guidelines sentence range.
Generally speaking, under § 2B3.1, many enhancements
apply only if certain conduct actually occurred during the
robbery. Section 2X1.1 instead allows enhancements “for
any intended offense conduct that can be established with
reasonable certainty.” U.S.S.G. § 2X1.1(a) (emphasis
added). For Simon, the application of § 2X1.1 brought to
bear three enhancements for the carjacking, abduction, and
monetary loss that he intended but that did not take place.
See U.S.S.G. § 2B3.1(b)(4), (5) & (7). If the district court
had instead applied the Robbery provision, § 2B3.1, this
intended conduct would not have been a basis for an
enhancement.
Many Guidelines sections expressly cover conspiracies
by their titles or express provisions. See, e.g., U.S.S.G.
§§ 2D1.7 (“Unlawful Sale or Transportation of Drug
Paraphernalia; Attempt or Conspiracy”), 2T1.9
(“Conspiracy to Impede, Impair, Obstruct, or Defeat Tax”).
Application Note 1 to the general inchoate offense
provision, § 2X1.1, provides that “[c]ertain attempts,
conspiracies, and solicitations are expressly covered by other
offense guidelines” and lists some Guidelines sections that
expressly cover conspiracies, which “include” §§ 2A1.5
(“Conspiracy or Solicitation to Commit Murder”); 2D1.1–
1.2 (“Unlawful Manufacturing, Importing Exporting, or
Trafficking [of Drugs]; Attempt or Conspiracy,” and
similar); 2D1.5–1.13 (similar); 2D2.1–2.2 (“Unlawful
Possession; Attempt or Conspiracy”); 2D3.1–3.2
(“Regulatory Offenses Involving Registration Numbers . . .
Attempt or Conspiracy”); 2H1.1 (“Offenses Involving
Individual Rights”); 2M6.1 (“Unlawful Activity Involving
Nuclear Material . . . Biological Agents . . . Chemical
UNITED STATES V. SIMON 13
Weapons, or Other Weapons of Mass Destruction; Attempt
or Conspiracy”); and 2T1.9 (“Conspiracy to Impede, Impair,
Obstruct, or Defeat Tax”) (emphasis added). The use of the
word “include” suggests that this list is not exhaustive.
Application Note 1 does not list § 2B3.1, the Robbery
provision, as an offense Guideline expressly covering
conspiracy. The title of § 2B3.1 also does not refer to
conspiracy or any other inchoate offense. In fact, nothing
about § 2B3.1 implicitly or explicitly covers conspiracies,
and nothing else in the Guidelines so suggests.
This was not always the case. For some time, until
amendments in 1993, U.S.S.G. § 2E1.5 suggested that
§ 2B3.1 covered Hobbs Act robbery conspiracies. See
United States v. Amato, 46 F.3d 1255, 1261 (2d Cir. 1995).
But following those amendments, which deleted that
reference, “nothing remains in § 2B3.1 (Robbery) to
suggest, much less ‘expressly’ state, that it intends to cover
conspiracies.” Id.
After the 1993 amendments, every other circuit to
address the issue has concluded that § 2B3.1, the Robbery
provision, does not expressly cover Hobbs Act robbery
conspiracy, and applied § 2X1.1, the general inchoate
offense provision, to a conviction for conspiring to commit
a Hobbs Act robbery. See United States v. McKeever,
824 F.3d 1113, 1120–22 (D.C. Cir. 2016); United States v.
Gonzales, 642 F.3d 504, 505 (5th Cir. 2011) (per curiam)
(affirming application of § 2X1.1 to Hobbs Act robbery
conspiracy); United States v. Mershon, 322 F. App’x 232,
236 (3d Cir. 2009) (unpublished) (stating § 2B3.1 does not
expressly cover Hobbs Act conspiracy, and therefore
§ 2X1.1 covers Hobbs Act conspiracy); United States v.
Joost, 94 F.3d 640, 1996 WL 480215, at *12 (1st Cir. 1996)
(unpublished) (endorsing the holding of Amato); Amato,
14 UNITED STATES V. SIMON
46 F.3d at 1261 (holding that because “there is no longer a
provision of guidelines directing Hobbs Act conspiracies to
§ 2B3.1, they are covered by the conspiracy guideline,
§ 2X1.1”). 7 Under this approach, defendants convicted of
conspiracy to commit robbery, like Simon, can receive
sentencing enhancements based on all their specifically
intended conduct.
B
No published case in this circuit has addressed whether
a Hobbs Act robbery conspiracy is “expressly covered by”
§ 2B3.1. But one case within this Circuit suggests it is,
contrary to the weight of the out-of-circuit authority
discussed above.
The defendant in United States v. Hernandez-Franco
had attempted to transport undocumented aliens in violation
of 8 U.S.C. § 1324(a). 189 F.3d 1151, 1153 (9th Cir. 1999).
The Guidelines section for the underlying substantive
offense was § 2L1.1, “Smuggling, Transporting, or
Harboring an Unlawful Alien.” The question on appeal was
whether § 2L1.1 expressly covered attempted transport, or
whether § 2X1.1, the general inchoate offense provision,
controlled, as the default provision. The panel analyzed this
issue as follows:
By its own terms, section 2X1.1 applies to
attempts not covered by a specific guideline.
7
In 1993, the Eleventh Circuit held that § 2X1.1 does not apply to
Hobbs Act robbery conspiracy. United States v. Thomas, 8 F.3d 1552,
1564–65 (11th Cir. 1993). But, as other courts have recognized, that
holding simply adopted a Second Circuit decision that the Second Circuit
later held was overruled by the 1993 amendments to the Guidelines. See
Gonzales, 642 F.3d at 505.
UNITED STATES V. SIMON 15
See U.S.S.G. § 2X1.1(c)(1) (“When an
attempt . . . is expressly covered by another
offense guideline section, apply that
guideline section.”). Here, appellant was
convicted of violating section
1324(a)(1)(A)(ii), which expressly prohibits
the transportation or attempted transportation
of undocumented aliens. See 8 U.S.C.
§ 1324(a)(1)(A)(ii) (holding liable any
person who “transports . . . or attempts to
transport” an alien who has entered the
United States in violation of the law).
Violations of section 1324(a) are covered by
a specific guideline, U.S.S.G. § 2L1.1, which
does not provide for a three-level reduction
for attempt crimes.
Id. at 1158. Based on this analysis, the panel concluded that
§ 2L1.1, the substantive guideline, governed the defendant’s
sentence, and that he could not receive a three-level
reduction under § 2X1.1(b)(1), the general inchoate crime
provision. Id. at 1159. In other words, the panel concluded
that “the substantive guideline, and not section 2X1.1,
appl[ies] to attempt crimes that are specifically included in
the statute defining the offense.” Id. (emphasis added).
Although the list in § 2X1.1 Application Note 1 did not
include § 2L1.1, the transporting provision, the panel
concluded that § 2L1.1 still controlled, based on the
underlying statute. See id. at 1158–59. Under the
Hernandez-Franco approach, if the substantive statute
includes the inchoate offense, then the sentencing court
should read the substantive Guideline to cover sentencing for
the inchoate offense. Thus, Hernandez-Franco directs a
sentencing court to look to the United States Code to
interpret the reach of particular sections of the Guidelines.
16 UNITED STATES V. SIMON
If the method used in Hernandez-Franco extended to the
present appeal, then § 2B3.1, the Robbery provision, would
control, because the Hobbs Act expressly prohibits robbery
and conspiracy to commit robbery. See 18 U.S.C. § 1951(a)
(“Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce, by robbery or extortion or attempts or conspires
so to do . . . shall be fined under this title or imprisoned not
more than twenty years, or both.” (emphasis added)).
Section 2B3.1 of the Guidelines covers robbery in violation
of 18 U.S.C. § 1951. U.S.S.G. app. A at 554. Under this
approach, Simon would not receive sentencing
enhancements for the intended conduct at issue.
The approach in Hernandez-Franco, however, conflicts
with how this Circuit has otherwise evaluated sentencing for
inchoate offenses. In United States v. Johnson, the
defendant conspired to commit promotional money
laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i).
297 F.3d 845 (9th Cir. 2002). Promotional money
laundering includes a “conspiracy” crime, id. § 1956(a)(1);
see also id. § 1956(h) (specifically penalizing conspiracy to
violate any offense defined in § 1956), just as the human
trafficking statute at issue in Hernandez-Franco included
“attempt.” In Johnson, the defendant argued that the
reduction in the general inchoate crime provision,
§ 2X1.1(b)(2), should apply because the substantive offense
was not substantially completed. 297 F.3d at 872. Although
the panel rejected that argument, it did so only because the
defendant failed to carry his burden of showing that his
co-conspirators had failed to complete the substantive
offense—not because § 1956(a)(1) expressly criminalizes
attempted money laundering. Id. at 873. The Johnson panel
did not look to the underlying criminal statute to see whether
§ 2X1.1 should control.
UNITED STATES V. SIMON 17
The approach in Johnson and the approach in
Hernandez-Franco are at least facially inconsistent. Under
Johnson, the sentencing court confines its inquiry to the
Guidelines themselves; under Hernandez-Franco, the
sentencing court looks to the criminal statute to determine
whether another Guideline section “expressly” covers the
inchoate offense. Our case law shows continuing tension on
the basic approach for sentencing courts to apply. See, e.g.,
United States v. Cino, 73 F. App’x 210, 211 (9th Cir. 2003)
(unpublished) (citing to Hernandez-Franco, 189 F.3d at
1158, for the proposition that “because 18 U.S.C. § 1951specifically criminalizes attempt or conspiracy as a
substantive crime . . . U.S.S.G. § 2X1.1(b)(2) does not
apply.”). 8
To be sure, in this appeal, we might attempt to
distinguish Hobbs Act robbery conspiracy from the
Hernandez-Franco approach toward attempt crimes. But
the Guidelines themselves make no relevant distinction in
8
In United States v. Temkin, we held that because “[s]olicitation to
commit murder-for-hire is a solicitation offense not specifically covered
by its own Guidelines section, “U.S.S.G. § 2X1.1 is the correct starting
point.” 797 F.3d 682, 693 (9th Cir. 2015); see also id. (adding that “no
Guidelines section expressly covers solicitation to violate 18 U.S.C.
§ 1958”). Temkin was convicted of soliciting a crime of violence under
18 U.S.C. § 373, where the crime of violence was a violation of
18 U.S.C. § 1958(a). The statute defining the substantive offense,
18 U.S.C. § 1958(a), itself defined the crime of use of interstate
commerce facilities in the commission of murder-for-hire—effectively,
solicitation (an inchoate offense). But the Temkin panel did not appear
to rely on the language of § 1958 in reaching its conclusion.
Temkin is arguably compatible with Hernandez-Franco because in
Temkin the statute of conviction only defined the inchoate offense. But,
because Temkin is consistent with the methodology endorsed in this
opinion, we do not overrule Temkin.
18 UNITED STATES V. SIMON
§ 2X1.1 between attempts and conspiracies. Accordingly,
we today clarify how district courts should apply sentencing
enhancements for inchoate offenses.
Two considerations counsel strongly in favor of rejecting
Hernandez-Franco and limiting sentencing courts’
consideration to the Guidelines themselves. First,
Hernandez-Franco occupies a lonely minority position. The
Tenth Circuit has discussed Hernandez-Franco’s method
and flatly rejected it: “We are not persuaded by this
reasoning. Such an approach does not comport with a
reading of § 2X1.1, which speaks specifically in terms of
relevant guideline sections and not underlying statutes.”
United States v. Martinez, 342 F.3d 1203, 1207 (10th Cir.
2003). The D.C. Circuit also has referred to Hernandez-
Franco negatively. See McKeever, 824 F.3d at 1121 (citing
Hernandez-Franco, 189 F.3d at 1158–59) (rejecting its
conclusion that “because statutes like the Hobbs Act
expressly mention conspiracies, a court should apply the
guideline section listed in the Statutory Index (which, for a
Hobbs Act robbery, is § 2B3.1)”). The D.C. Circuit found
Hernandez-Franco “contrary to the text of § 2X1.1(c),
which speaks specifically in terms of relevant guideline
sections and not underlying statutes.” Id. (internal quotation
marks omitted) (quoting Martinez, 342 F.3d at 1207).
We agree: Hernandez-Franco is not consistent with the
text of the Guidelines. Section 2X1.1(c)(1) asks whether the
inchoate crime “is expressly covered by another offense
guideline section” (emphasis added). Contrary to that plain
text, Hernandez-Franco looks instead to whether the statute
“expressly cover[s]” the inchoate crime. 189 F.3d at 1158.
Hernandez-Franco goes outside of the Guidelines, when the
Guidelines instruct courts to stay within its confines.
UNITED STATES V. SIMON 19
The Hernandez-Franco approach is also in tension with
the basic premise of the Guidelines. Congress intended the
Guidelines to advance its goals for sentencing federal
crimes, and for the Sentencing Commission to draft and
update the Guidelines with those ends in mind. See Rita v.
United States, 551 U.S. 338, 347–50 (2007). “[T]he
Guidelines should be the starting point and the initial
benchmark,” and “a district court should begin all sentencing
proceedings by correctly calculating the applicable
Guidelines range.” Gall v. United States, 552 U.S. 38, 49
(2007). However, the Guidelines also allow the district court
appropriate discretion: the district court should consider the
arguments of the parties, and “not presume that the
Guidelines range is reasonable.” Id. at 50. The district court
remains able to vary from the Guidelines, which are
advisory, but must, as with all sentencing decisions, provide
a reasoned justification for the decision. See id.C
Simon’s challenge to his sentencing enhancements rests
on Hernandez-Franco. That decision is not a sound
cornerstone, and we will not build any further on its
foundation. We today overrule Hernandez-Franco, and hold
that a Guideline other than § 2X1.1 “expressly cover[s]” an
inchoate offense only if the Guidelines themselves so
indicate.
When a sentencing court must determine whether
another Guidelines section “expressly cover[s]” an inchoate
offense, a sentencing court should begin with Application
Note 1 to § 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
20 UNITED STATES V. SIMON
language sheds no light on the question of whether a
Guidelines section expressly covers the offense, for purposes
of § 2X1.1(c).
II
Section 2B3.1, the Guidelines section for robbery, does
not “expressly” cover robbery conspiracies. Application
Note 1 to § 2X1.1, § 2B3.1’s title and express provisions,
and all other relevant Guidelines text offer no indication that
§ 2B3.1 covers conspiracies. Therefore, Hobbs Act robbery
conspiracy is not “expressly covered” by § 2B3.1. In the
absence of a separate Guideline section expressly covering
the inchoate offense, the default provisions for inchoate
offenses under § 2X1.1 apply to Simon’s sentencing. See
§ 2X1.1(c). Under § 2X1.1, moreover, Simon’s intended
conduct is a proper basis for the enhancements the district
court applied. The district court therefore did not err in
applying enhancements for loss amount, abduction, and
carjacking to Simon’s sentence based on conduct that he
intended but did not carry out.
CONCLUSION
The district court correctly applied § 2X1.1, the general
provision for inchoate offenses, to determine Simon’s
sentence and relevant sentencing enhancements because
§ 2B3.1, the Robbery provision, does not expressly cover
conspiracies under the Hobbs Act. We affirm the sentence
of the district court.
AFFIRMED.