United States v. Dosen No. 13-2223. The defendant pleaded guilty to conspiring to commit a robbery affecting interstate commerce, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and to carrying firearms during and in relation to a crime of violence (the conspiracy to rob), in violation of 18 U.S.C. § 924(c)(1)(A).

The plan was that, armed with guns and other weapons, the defendant and his co-conspirators would rob a truck used by a gang of marijuana traffickers to transport large amounts of cash from Addison, an Illinois village a short distance west of Chicago, to California for the purchase of marijuana that they would then haul back to the Chicago area. But the conspirators lost the truck in traffic and so were unable to complete the robbery.

The appeal challenges two aspects of the defendant's sentence, both relating just to the conspiracy count. The first is the judge's addition of two levels to the defendant's base offense level for conspiring (as part of the overall robbery conspiracy) to subject the robbery victims to physical restraint. See U.S.S.G. §§ 2X1.1(a), 2B3.1(b)(4)(B). The second is the judge's refusal to reduce the base offense level by three levels because the conspiracy did not come to fruition in the substantive crime (as distinct from the conspiracy itself, an agreement to commit a substantive crime) that the conspirators had agreed to commit—namely the robbery. U.S.S.G. § 2X1.1(b)(2).

The difficult issue presented by the appeal is the judge's refusal to reduce the defendant's guidelines sentencing range by three levels because the conspiracy was not carried out. U.S.S.G. § 2X1.1(b)(2) entitles the defendant to such a reduction unless he "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."

The Sentencing Commission's commentary explains that "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.

Sometimes, however, the arrest occurs well before the defendant or any coconspirator has completed the acts necessary for the substantive offense. Under such circumstances, a reduction of 3 levels is provided" by the guideline. U.S.S.G. § 2X1.1

Background

The defendant fastens on the phrase "about to complete" in the guideline to contest the judge's refusal to grant him the three-level discount. He takes sharp issue with the judge's statement that the exception for cases in which all the acts necessary for committing the substantive offense would have been completed had it not been for an occurrence outside of the conspirators' control is not "temporal."

But the judge was right. The guideline says nothing about the interval between the completion of the conspirators' preparations for the substantive offense and that offense. True, the guideline commentary that we quoted refers to "verge of completion." Whereas "about to complete" in the guideline itself refers to imminent completion of the preparatory acts, not of the substantive offense, "verge of completion" in the commentary seems to mean verge of committing the substantive offense that was the conspiracy's object.

Not that "imminence of completion of the substantive offense at the time of the arrest" is irrelevant to deciding whether the defendant was "about to complete" all the acts preparatory to committing the offense. United States v. Sanchez, 615 F.3d 836, 846 (7th Cir. 2010). But though relevant, it is not determinative.

Imagine a terrorist, who pursuant to a conspiracy with other terrorists, plants a bomb but sets the timer to trigger the explosion in a week, in order to give him ample time for a getaway. He is not entitled to the three-level reduction. His preparations were complete, even though commission of the substantive crime that was the goal of the conspiracy might not be considered "imminent."

Our conspirators equipped themselves for the heist with—besides the duct tape—disguises, cans of gasoline to enable them to refuel without having to stop at a gas station, firearms, a knife, and pepper spray. These preparations were necessary because the drug traffickers who were the intended victims, consisting of a driver, and a buddy to provide protection, would probably be armed, given the nature and value of the cargo; and if so they might well resist an assault on the truck violently.

The conspirators planned to trail the truck to the Missouri border (they knew that was where the truck would leave Illinois), and then pounce. They knew who the traffickers were and where the truck was parked in Addison. They parked nearby and waited for the traffickers to arrive. Finally they did arrive. The conspirators became concerned that the quarry might have spotted them and guessed what they were up to, but decided to follow the truck anyway, as it pulled away from its parking place. They followed it for some distance—past Springfield—and at some point saw the traffickers handed a bag that the conspirators guessed contained the cash. They continued to trail the truck but eventually, as we said, lost it in traffic. The driver may have taken evasive measures, suspecting (as the conspirators thought he might) that he was being followed.

At best it would have taken them hours to catch up with the truck at the state line and mount their attack, but the temporal interval as we said is not critical. This is an "about to complete" case (which was what the district judge considered it to be), rather than a "completed" case like United States v. Lucas, 670 F.3d 784, 791 (7th Cir. 2012), where the three-level reduction was denied because the defendant "thought that he did everything necessary to complete [a] kidnapping" by knocking on the victim's door, pointing a gun at the victim's mother, and demanding that the victim come to the door; or United States v. Emmett, 321 F.3d 669, 673 (7th Cir. 2003), where the defendant had already begun the robbery he had conspired to commit, by handing a threatening note to a teller; or United States v. Chapdelaine, 989 F.2d 28, 35-36 (1st Cir. 1993), where the defendants had arrived at the site of the planned robbery prepared to carry it out, and only the intended victim's early departure foiled their plans. This case is more like United States v. Brown, 74 F.3d 891, 893 (8th Cir. 1996), where the reduction was denied because the preparations for committing the crime of possessing an incendiary device were complete except for obtaining wire and a spark plug, which would be easy to do, though until it was done the substantive offense couldn't be committed.

The preparatory acts in this case were the procurement of weapons and other supplies, the identification of the marijuana traffickers' truck, the surveillance of it, and its pursuit. When the conspirators set off after the truck their preparations were complete and all that remained was to rob the truck—commit the substantive offense—as soon as it reached the Missouri border. When the preparations for the commission of a crime are complete, it can be assumed that the crime will take place unless some unforeseen event intervenes, as happened in this case; and when that happens, as distinct from when the preparations for committing the crime are interrupted, there is no sentencing discount. Cf. United States v. Chapdelaine, supra, a factually similar case in which the court rejected the discount.

A conspiracy is just an agreement, almost always an oral one. And talk is cheap. Many conspiracies never get off the ground, never pose a real danger. The conspirators are punished anyway, but it makes sense that conspirators thwarted before their conspiracy's aim is achieved should be punished more heavily the greater the probability that the conspiracy would have resulted in a substantive offense, which is to say (usually) that it would have inflicted tangible injury, had it not been for a fortuitous interruption. See United States v. Chapdelaine, supra, 989 F.2d at 36. For that marks it as a dangerous conspiracy, though the danger did not materialize.

The less dangerous the conspiracy, therefore, the less needful it is to impose long sentences on the conspirators in order to protect potential victims. But the conspirators in this case were dangerous people. There is little reason to doubt that had they not been spotted by their prospective victims they would have attacked the truck a few hours later, with mayhem a likely result.

Recall that with the enhancement for conspiracy to restrain but a three-level reduction for incomplete conspiracy, Dosen's guidelines sentencing range would have been only 24 to 30 months. That is too low. His 30-month sentence for conspiracy was a gift, though his overall sentence of 90 months seems reasonable.

AFFIRMED.

For more about Chicago Federal Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com  or call 312-913-1111

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