United States v. Adiaris Figuerola , 375 F. App'x 946 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 21, 2010
No. 09-12570 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-21012-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADIARIS FIGUEROLA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
Before TJOFLAT, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Appellant was sentenced to a prison term of 27 months on a plea of guilty
(pursuant to a plea agreement) to conspiracy to commit mail fraud, in violation of
18 U.S.C. § 1349. She now appeals her sentence, contending that it is procedurally
unreasonable because the district court erred by not awarding her a three-level
reduction of her base offense level for an incomplete conspiracy offense, pursuant
to U.S.S.G. § 2X1.1(b)(2).
The Sentencing Guideline applicable to appellant’s conviction for
conspiracy to commit mail fraud is U.S.S.G. § 2X1.1, which applies to attempt,
solicitation, and conspiracy offenses not covered by a specific offense guideline.
U.S.S.G. § 2X1.1. Section § 2X1.1(b)(2) provides for a three-level reduction to
the defendant’s base offense level:
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.
U.S.S.G. § 2X1.1(b)(2). The commentary to § 2X1.1 provides the following
clarification:
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 co-conspirator has completed the acts necessary
for the substantive offense. Under such circumstances, a reduction of
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3 levels is provided under § 2X1.1(b)(1) or (2).
U.S.S.G. § 2X1.1, comment. (backg’d).
In United States v. Khawaja, we concluded that defendants convicted of
conspiracy to commit money laundering were entitled to the three-level reduction
in § 2X1.1(b)(2) for the following reason:
The record shows that although the conspirators intended to
launder $2 million, they managed to launder only $570,556
prior to apprehension. The conspiracy was dependent on the
IRS’s fronting of the purported drug money, and the record
does not show that at the time the IRS terminated its sting
operation, Appellants had arranged for specific transactions to
occur in the future. Accordingly, the conspirators had not taken
crucial steps (including for example, preparing falsified
documentation, securing cashier’s checks, or arranging
meetings for the exchange) to launder the remaining balance of
$2 million. Consequently, Appellants neither believed that they
had completed all the acts necessary on their part nor were they
about to complete all such acts for the laundering of the entire
$2 million.
118 F.3d 1454, 1458 (11th Cir. 1997).
Applying Khawaja, we subsequently held in United States v. Puche that
money-laundering conspirators were similarly entitled to the three-level reduction
because, although they had previously laundered over $700,000, they had not
“taken crucial steps, such as contacting the [undercover] agents or preparing
paperwork for more transfers, to launder the remaining six million dollars.” 350
F.3d 1137, 1156 (11th Cir. 2003). Indeed, the defendants in Puche specifically
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told the undercover agent that they “wanted to hold off on [future] transfers” for
the time being. Id.More recently, in Watkins, we addressed whether the analogous three-level
reduction for solicitation offenses in § 2X1.1(b)(3)(A) applied where the defendant
solicited an undercover agent to commit arson. 477 F.3d at 1278; see U.S.S.G.
§ 2X1.1(b)(3)(A). After we “adopt[ed] the approach taken in [its] application of
§ 2X1.1(b)(2),” the issue became “whether or not the person solicited had taken all
the ‘crucial steps’ necessary to demonstrate to the defendant that the offense was
about to be completed.” Watkins, 477 F.3d at 1281. We ultimately remanded the
case to the district court for further findings, since “the only steps taken were a
diagram and a discussion about the placement of the incendiary devices. There
was no evidence, however, that the undercover officer had obtained the actual
devices or means to complete the arson.
In this case, appellant and her co-conspirators had taken “crucial steps”
towards completing the substantive mail fraud offense at the time law enforcement
intervened. This is so because they had established a detailed plan to carry out the
offense, they had the means to execute the plan, and they were on the verge of
executing the plan. The district court therefore correctly distinguished Khawaja
and Puche. We thus conclude that the district court committed no error in
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declining to award appellant a three-level reduction, pursuant to § 2X1.1(b)(2), and
that her sentence is not procedurally unreasonable.
AFFIRMED.
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