United States v. Saul Sanchez ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2679
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S AUL A LEJANDER S ANCHEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 786—John W. Darrah, Judge.
A RGUED M AY 12, 2009—D ECIDED A UGUST 11, 2010
Before K ANNE and S YKES, Circuit Judges, and
V AN B OKKELEN, District Judge.1
S YKES, Circuit Judge. Saul Sanchez was convicted of
conspiracy and attempted kidnapping in violation of
18 U.S.C. § 1201(a)(1), (c), and (d), and conspiracy
1
The Honorable Joseph S. Van Bokkelen of the United States
District Court for the Northern District of Indiana, sitting by
designation.
2 No. 08-2679
to retaliate against a witness in violation of 18 U.S.C.
§ 1513(e) and (f). The convictions arose out of a plot
to kidnap Ignacio Vega and Maria Jimenez, who were
witnesses in a trial against a Chicago-based drug king-
pin. On appeal Sanchez argues that the district court
erroneously admitted substantial evidence about the
underlying uncharged drug conspiracy. He also con-
tends that the evidence was insufficient to sustain any
of his three convictions. Finally, Sanchez challenges his
sentence.
We affirm in part and reverse in part. The district court
did not abuse its discretion in admitting evidence re-
garding the underlying uncharged drug-trafficking
conspiracy; this evidence was highly probative of
Sanchez’s motive for orchestrating the kidnapping. We
also conclude that the evidence is sufficient to sustain
Sanchez’s convictions for conspiracy to kidnap and at-
tempted kidnapping. But the same cannot be said of
his conviction for conspiracy to retaliate against a wit-
ness. The government presented no evidence, circum-
stantial or otherwise, that Sanchez knew the two targets
of the kidnapping plot had given testimony against
the drug trafficker for whom Sanchez was purportedly
working; the evidence suggested instead that Sanchez
thought the targets owed the drug kingpin money. Ac-
cordingly, we vacate Sanchez’s conviction on the retalia-
tion count and remand for resentencing. As an indep-
endent ground for resentencing, the district judge er-
roneously withheld a three-level reduction under
U.S.S.G. § 2X1.1(b)(1) because he mistakenly concluded
that Sanchez was “about to complete” the kidnapping.
No. 08-2679 3
I. Background
Luis Vasquez was the ringleader of a Chicago-based
drug-trafficking cell and in 2004 became the subject of a
law-enforcement investigation when federal agents
learned that Jose Jimenez had ordered several kilograms
of cocaine from Vasquez on credit.2 Agents seized the
cocaine from a stash house Jimenez used and made it
appear as though Jimenez had been the victim of the
burglary. When Vasquez demanded payment for the
lost cocaine, Jose Jimenez approached his cousin
Maria Jimenez and her husband Ignacio Vega for help.
The couple owned two Chicago restaurants named
“Yolanda’s,” and they agreed to transfer one of the res-
taurants to Vasquez as partial payment for Jose’s debt.
The transfer never occurred. Vasquez was arrested, and
both Vega and Maria Jimenez testified against Vasquez
at his November 2005 trial for drug trafficking, money
laundering, and other related offenses.
Almost a year later, on October 10, 2006, Saul Sanchez
and a coconspirator approached a confidential in-
formant named Francisco Jimenez and asked for assist-
ance in kidnapping two individuals and taking them
to Mexico. Sanchez identified the kidnapping targets as
“Jimenez” and someone named “Yolanda” who owned
a restaurant at 31st Street and Lawndale Avenue in Chi-
2
The background of this case is complicated by the fact that
several of the key players share the surname “Jimenez.” This
requires that we occasionally use their given names to distin-
guish between them.
4 No. 08-2679
cago. Sanchez was actually referring to Ignacio Vega
and Maria Jimenez, who owned the Yolanda’s restau-
rants, one of which was located just blocks from the
intersection Sanchez had identified. Sanchez explained
to Francisco that he was kidnapping the two individuals
on Vasquez’s behalf because he believed that they
owed Vasquez money. Sanchez asked Francisco for
$25,000 to finance the kidnapping. When Francisco said
he did not have that much money, Sanchez dialed back
his request and asked for help in securing a minivan and
a safehouse to use in the kidnapping.
Francisco Jimenez agreed to help Sanchez but instead
contacted federal agents and offered to assist them in
interrupting the kidnapping plot. The agents secured
wiretap authority and recorded many of Sanchez’s con-
versations, including several in which he discussed
his progress in bringing the kidnapping plot to fruition.
The wiretap authorization also permitted the FBI to
track the cellular towers on which Sanchez’s phone calls
were hitting. During the ensuing several weeks, Sanchez’s
call history revealed that his phone was hitting on cell
towers located in Laredo, Texas—on the Mexican bor-
der—and cell towers elsewhere in Texas, Oklahoma, and
southern Illinois. Based on these phone calls, federal
agents decided the time had come to arrest Sanchez. They
arranged for a minivan to be placed in a garage at an
undercover house in Burbank, Illinois, outside of Chicago.
Francisco Jimenez called Sanchez to tell him he had
secured a van fitting his specifications.
Sanchez and his coconspirator made arrangements to
inspect the van. They met Francisco Jimenez at a prear-
No. 08-2679 5
ranged location in Chicago and proceeded from there to
the Burbank garage where the FBI had placed the van.
Surveillance continued, and Sanchez inspected the van
and confirmed that it met his needs. He then discussed
various details of the kidnapping plot. He told Francisco
that he had located a horse ranch in Joliet, Illinois, where
he planned to take the kidnapping victims before con-
tinuing on to the Mexican border, at which point he
would turn them over to members of a drug cartel who
would take them to Sinaloa, Mexico. But Sanchez said
he could not take the van with him that day because it
did not have any license plates. He said he would need
about a week to secure usable plates. As Sanchez and the
coconspirator left the garage, the FBI moved in and
made the arrest.
Sanchez was indicted on three counts: (1) conspiracy
to kidnap, 18 U.S.C. § 1201(a)(1), (c); (2) attempted kid-
napping, 18 U.S.C. § 1201(a), (d); and (3) conspiracy
to retaliate against a witness in violation of 18 U.S.C.
§ 1513(e) and (f). Sanchez was convicted by a jury on all
three counts, and the district court sentenced him to
concurrent terms of 218 months in prison on the first
and second counts and 120 months on the third count.
II. Discussion
Sanchez raises multiple challenges to his convictions
and sentence, which we can group into three categories.
First, he maintains that the district court should not
have allowed the government to introduce evidence of
Vasquez’s drug activities or at least should have limited
6 No. 08-2679
the quantity of this evidence under Rule 403 of the
Federal Rules of Evidence. Second, Sanchez challenges
the sufficiency of the evidence to support each of his
three convictions. Finally, he attacks his sentence, arguing
that he was entitled to a three-level reduction under
U.S.S.G. § 2X1.1.
A. Evidence of Underlying Uncharged Drug Trafficking
Sanchez argues that the government should not have
been permitted to introduce evidence of the underlying
uncharged drug-trafficking conspiracy led by Vasquez.
Evidentiary rulings are usually reviewed for abuse of
discretion. See United States v. McCulley, 178 F.3d 872,
875 (7th Cir. 1999). But because Sanchez did not object to
the admission of this evidence, our review is for plain
error. Accordingly, he must establish that the admission
of this evidence was an error that implicated his sub-
stantial rights and “ ‘seriously affect[ed] the fairness,
integrity, or public reputation’ ” of the trial. United States
v. LeShore, 543 F.3d 935, 939 (7th Cir. 2008) (quoting
United States v. James, 464 F.3d 699, 709 (7th Cir. 2006)).
Sanchez argues first that because the district court did
not treat the underlying drug- trafficking activity as “rele-
vant conduct” for purposes of calculating his sentencing-
guidelines range, the drug-conspiracy evidence should
likewise be considered irrelevant under Rules 401 and 402
of the Federal Rules of Evidence. This argument makes
little sense. “Relevant conduct” is a sentencing-guidelines
concept and generally refers to conduct so intimately
related to the charged conduct that the sentencing court
No. 08-2679 7
may consider it along with the charged offense in cal-
culating the appropriate guidelines range. See U.S.S.G.
§ 1B1.1-3. This usually requires a finding that the
uncharged conduct was either part of a common scheme
or occurred in preparation of or during the charged crime.
See id. § 1B1.3. The burden is on the government to
show that the evidence adduced at trial makes it more
probable than not that the charged and uncharged conduct
are sufficiently related for sentencing purposes. See, e.g.,
United States v. Womack, 496 F.3d 791, 797 (7th Cir. 2007).
The standard of relevancy for admission of evidence at
trial is, of course, much broader; it asks only whether
the evidence sought to be admitted has any tendency to
make a fact of consequence any more or less probable.
See F ED. R. E VID. 401. This standard was easily satisfied
here. The evidence of the underlying drug conspiracy
provided key factual background for the charged
crimes and was unquestionably probative of Sanchez’s
motive for kidnapping. It established the rationale for
Sanchez’s plot by linking Vasquez to the kidnapping
victims, explaining their prior agreement to transfer
a “Yolanda’s” restaurant to Vasquez as payment for a
drug debt owed by the cousin of one of the victims.
Without this evidence the jury would not have under-
stood why Sanchez targeted the two.
Sanchez next argues that the evidence should have
been excluded under Rule 403, which permits the ex-
clusion of otherwise relevant evidence “if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury,
8 No. 08-2679
or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” There
was no error here. To be sure, the record reveals that a
significant part of the government’s case involved
evidence related to the underlying uncharged drug con-
spiracy. But as we have explained, this evidence was
critical to put Sanchez’s kidnapping plot in context.
Moreover, the district court took care to reduce any risk
of undue prejudice. The judge repeatedly restricted the
scope of the government’s inquiry and issued two
limiting instructions advising the jury that the evidence
was relevant only as background and for the purpose
of showing Sanchez’s motive. And the judge rein-
structed the jury on this point at the close of evidence.
See United States v. Strong, 485 F.3d 985, 991 (7th Cir.
2007) (assuming, absent indication to the contrary, that
the jury followed the court’s limiting instruction).
B. Sufficiency of the Evidence
We turn now to the heart of Sanchez’s appeal—whether
sufficient evidence supports each of his three convic-
tions. We review the evidence “ ‘in the light most
favorable to the government and ask whether any
rational trier of fact could find the essential elements of
the crime beyond a reasonable doubt.’ ” United States v.
Richardson, 208 F.3d 626, 631 (7th Cir. 2000) (quoting
United States v. Rogers, 89 F.3d 1326, 1334 (7th Cir. 1996)).
A conviction will be overturned “only when the record
contains no evidence, regardless of how it is weighed,
upon which a rational trier of fact could find guilt
No. 08-2679 9
beyond a reasonable doubt.” United States v. Starks, 309
F.3d 1017, 1021 (7th Cir. 2002).
1. Conspiracy to Kidnap
To obtain a conviction for conspiracy, the government
was required to prove that Sanchez: (1) agreed to commit
an illegal act; (2) committed an overt act in furtherance
of that agreement; and (3) had “an intent to commit the
substantive offense,” in this case kidnapping. United
States v. Cueto, 151 F.3d 620, 635 (7th Cir. 1998). As ap-
plicable here, the kidnapping statute punishes “[w]hoever
unlawfully seizes, confines, inveigles, decoys, kidnaps,
abducts, or carries away and holds for ransom or reward
or otherwise any person,” and the person so kidnapped
is “wilfully transported in interstate or foreign com-
merce.” 18 U.S.C. § 1201(a)(1).
Sanchez argues that the evidence was not sufficient for
a jury to find that he intended to kidnap Vega and
Maria Jimenez. We disagree. The government presented
ample evidence of Sanchez’s intent. Francisco Jimenez
testified that at a face-to-face meeting with Sanchez on
October 10, 2006, Sanchez explained that he planned
to kidnap two people who owed Vasquez money.
Francisco told the jury that Sanchez said he was going
to take the kidnapping victims to Mexico and claimed to
be acting with Vasquez’s consent. Sanchez said he
would need money, a safehouse, and an automobile
to accomplish the kidnapping, and asked for Francisco’s
help. He identified the intended kidnapping targets
10 No. 08-2679
as “Yolanda,” who owned a restaurant at 31st and
Lawndale, and someone with the last name “Jimenez.”
After this initial meeting, Francisco Jimenez spoke
with Sanchez on several occasions about the kidnapping,
and recordings of these conversations were played for
the jury at trial. The two spoke on the telephone a day
after the initial meeting, at which time Sanchez again
discussed his plans for the kidnapping and told Francisco
that he needed a van “that will allow me to head down
there with the person.” Sanchez called Francisco again
about a week later. Although Sanchez used coded lan-
guage, Francisco testified that Sanchez was discussing
the arrangements for the kidnapping that he had just
made on a trip to Mexico. More specifically, Sanchez
said the Mexican drug cartel had agreed to assist once
Sanchez brought the victims to the intended drop-off
point at the border. Sanchez repeated his initial request
that Francisco help him find a safehouse and a van to
use in the kidnapping. A few days later Sanchez said he
no longer needed help in securing a safehouse because
he had located a ranch in Joliet for that purpose. The
two further discussed the specifications for the van,
agreeing that it should have tinted windows and
new license plates.
The recording of the last meeting between Sanchez and
Francisco Jimenez completed the picture for the jury.
Sanchez inspected the van and said it was “more or less”
what he needed but that it would take about a week
to secure license plates. Asked about how many people
would be traveling in the van, Sanchez initially said
No. 08-2679 11
“two” and then clarified, “[t]wo and two of us that might
be going.” He then explained that he might need more
people to help with the “pick up . . . who will get into the
car with the guys.” Sanchez also described in some
detail the ranch in Joliet that he had secured as a tempo-
rary safehouse for the victims. He then explained how
he would take “them” to the Mexican border where
members of the drug cartel would be waiting to take
“them” to Sinaloa, Mexico.
That Sanchez referred to the victims as “Jimenez” and
“Yolanda” does not undermine the government’s case, as
Sanchez contends. First, one of the kidnapping targets
was in fact named “Jimenez,” and although neither went
by the name “Yolanda,” they were a married couple
who owned two restaurants called “Yolanda’s.” Second,
although neither of the “Yolanda’s” restaurants was
located at 31st and Lawndale, one was located approxi-
mately two blocks from that address. Finally, the back-
ground evidence regarding the underlying drug-trafficking
conspiracy and the payment of Jose Jimenez’s drug
debt to Vasquez convincingly tied Vasquez to Maria
Jimenez (Jose’s cousin) and her husband Ignacio Vega;
their ownership of restaurants named “Yolanda’s” made
it clear that Sanchez understood who the targets of the
kidnapping were.
Sanchez argues in the alternative that most of the taped
conversations introduced at trial related to the drug-
trafficking activity of the Vasquez organization and
that the evidence is really more consistent with a drug-
smuggling conspiracy, not a conspiracy to kidnap. This
12 No. 08-2679
is an attempt to invoke the principle that reversal is
required whenever evidence “ ‘gives equal or nearly equal
circumstantial support to a theory of guilt and a theory
of innocence,’ ” and as such “ ‘a reasonable jury must
necessarily entertain a reasonable doubt.’ ” United States
v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999) (quoting
United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996)).
This is not remotely a case in which the evidence is in
equipoise. Although there was significant background
evidence of drug trafficking, Sanchez’s recorded con-
versations during October 2006 are sufficient to establish
the kidnapping conspiracy. Though he often used coded
language, Sanchez’s intent to kidnap is clear from the
detailed descriptions of the minivan he needed, the
safehouse he secured, and the plans that were in place
to deliver the victims to the waiting members of the
Mexican drug cartel on the border.
2. Attempted Kidnapping
Sanchez also challenges the sufficiency of the evidence
supporting his conviction for attempted kidnapping. To
obtain a conviction for an attempt crime, the government
must prove that the defendant “intend[ed] the completed
crime and t[ook] a ‘substantial step’ toward its comple-
tion.” United States v. Gladish, 536 F.3d 646, 648 (7th Cir.
2008) (citing Braxton v. United States, 500 U.S. 344, 349
(1991)). Sanchez claims the evidence is insufficient on
both elements, but we have already explained why the
evidence was sufficient to establish that Sanchez
intended to kidnap Vega and Jimenez. The remaining
No. 08-2679 13
question is whether the government proved that Sanchez
took a substantial step toward completing this crime.
A substantial step is “ ‘some overt act adapted to, ap-
proximating, and which in the ordinary and likely course
of things will result in, the commission of the particular
crime.’ ” Id. (quoting United States v. Manley, 632 F.2d 978,
988 (2d Cir. 1980)); see also United States v. Rovetuso,
768 F.2d 809, 821 (7th Cir. 1985) (noting that a substan-
tial step is an overt act “strongly corroborative of the
firmness of the defendant’s criminal intent” (quota-
tion marks omitted)). It is “something more than mere
preparation, but less than the last act necessary before
the actual commission of the substantive crime.” United
States v. Barnes, 230 F.3d 311, 315 (7th Cir. 2000). The
line between mere preparation and a substantial step
is inherently fact specific; conduct that would appear to
be mere preparation in one case might qualify as a sub-
stantial step in another. See United States v. Magana,
118 F.3d 1173, 1199 (7th Cir. 1997).
Although there is no easy way to separate mere prepa-
ration from a substantial step, we are guided by two
general principles. First, a substantial step must be
“something that makes it reasonably clear that had [the
defendant] not been interrupted or made a mistake . . .
[he] would have completed the crime.” Gladish, 536 F.3d
at 648; see also United States v. Pratt, 351 F.3d 131,
136 (4th Cir. 2003) (“To determine whether conduct
is preparation or an attempt, a court must assess how
probable it would have been that the crime would have
been committed—at least as perceived by the defen-
14 No. 08-2679
dant—had intervening circumstances not occurred.”);
Barnes, 230 F.3d at 315 (noting that a substantial step
occurs “where events ha[ve] moved beyond the prepara-
tion stage and would have resulted in the completed
crime but for the government’s intervention”). Second,
we have said that the focus is on the actions already
taken to complete the underlying crime, not on the acts
that remain uncompleted at the time of the arrest. See
Barnes, 230 F.3d at 315.
The evidence of Sanchez’s conspiratorial conduct in
this case was strongly corroborative of his firmness to
carry out the kidnapping plot. He explained in rec-
orded conversations that he had secured a safehouse
in Joliet and arranged for the cooperation of the
Mexican drug cartel—indeed, he had traveled to
Mexico and back in furtherance of this aspect of the plot.
In Sanchez’s final meeting with Francisco Jimenez, he
approved the van as meeting his specifications for use
in the kidnapping and offered a detailed description of
additional logistics of the scheme. This is sufficient evi-
dence for the jury to infer that the kidnapping plot had
progressed well beyond the planning stage. To be sure, the
kidnapping was not imminent at the moment Sanchez
was arrested; he said he would need a week to secure
license plates for the van. But it is clear that Sanchez
was fully committed and well along the way to putting
the kidnapping in motion.
Sanchez insists nonetheless that he has been con-
victed of a thought crime—that the taped conversations
reveal only “mental preparations” from which the jury
No. 08-2679 15
could infer at most that he was “all talk and no more.” We
have said that “[t]reating speech . . . as the ‘substantial
step’ would abolish any requirement of a substantial
step.” Gladish, 536 F.3d at 650. The Fourth Circuit has
also expressed a similar view: “[W]ords and discussions
would usually be considered preparations for most
crimes.” Pratt, 351 F.3d at 136. But the government’s
case here went well beyond “words and discussions” and
included evidence of concrete actions Sanchez took
toward the completion of the kidnapping—including
securing the safehouse and traveling to Mexico to enlist
the assistance of the drug cartel. Viewed in the light
most favorable to the government, this evidence was
sufficient to sustain Sanchez’s conviction for attempted
kidnapping.
3. Conspiracy to Retaliate Against a Witness
Sanchez also challenges the sufficiency of the evidence
to support his conviction for conspiracy to retaliate
against a witness. The retaliation statute makes it a
crime to “knowingly, with the intent to retaliate, take[]
any action harmful to any person . . . for providing to a
law enforcement officer any truthful information re-
lating to the commission or possible commission of any
Federal offense.” 18 U.S.C. § 1513(e). Sanchez argues
that there was no evidence to permit the jury to infer
beyond a reasonable doubt that he plotted to kidnap
Ignacio Vega and Maria Jimenez in retaliation for their
testimony against Vasquez at his trial. We agree. There is
no record evidence from which the jury could infer that
16 No. 08-2679
Sanchez even knew that Vega and Maria Jimenez had
testified against Vasquez, let alone that the motive for
the kidnapping was to retaliate against them for that
testimony. Rather, the evidence strongly supports the
inference that Sanchez targeted the kidnapping victims
because he believed they owed Vasquez money.
The government responds that the jury could have
inferred that Sanchez learned about Vega’s and Maria
Jimenez’s testimony from Vasquez himself or from some-
one associated with the Mexican drug cartel. But no evi-
dence supports either inference; this argument relies
entirely on speculation. See United States v. Robinson, 161
F.3d 463, 472 (7th Cir. 1998) (“ ‘[W]e recognize that in
reviewing a guilty verdict based on circumstantial evi-
dence, we must insure that the verdict does not rest
solely on the piling of inference upon inference . . . .’ ”
(quoting United States v. Moore, 115 F.3d 1348, 1364 (7th
Cir. 1997))). The inference might be sustainable had the
government offered evidence to show that the victims’
testimony at Vasquez’s trial was widely publicized
and that Sanchez was so closely tied to the underlying
conspiracy that he might reasonably be presumed to
have knowledge of that trial. See, e.g., United States v.
Johnson, 903 F.2d 1084, 1087-89 (7th Cir. 1990). But there
was no such evidence in this case. The evidence estab-
lished instead that Sanchez thought his targets owed
Vasquez money and that that was the reason for the
kidnapping. Accordingly, we vacate Sanchez’s convic-
tion for conspiracy to retaliate against a witness.
No. 08-2679 17
C. Sentencing
Resentencing is in order based on our decision to vacate
the retaliation count. The government argues that the
sentence can be affirmed even if the retaliation count
is vacated because the sentence on that count was much
shorter than the other two (120 months, as compared to
the 218-month terms imposed on the kidnapping counts)
and because the prison terms are concurrent. We dis-
agree. The advisory sentencing-guidelines range for
the conspiracy to kidnap and attempted kidnapping
counts was 188 to 235 months, and 218 months falls near
the high end of that range. We cannot know how the
district judge might have fashioned the total sentence
in this case had the retaliation count not been part of the
package. See United States v. Colon, 549 F.3d 565, 572 (7th
Cir. 2008) (“[T]he district judge sentenced [the defendant]
very near the top of the applicable guideline range, and
in doing so may have been influenced by the fact that
the jury had found the defendant guilty of conspiracy
and aiding and abetting as well as of possession.”).
There is another reason Sanchez is entitled to
resentencing. The attempt guideline, U.S.S.G. § 2X1.1(b)(1),
provides:
If an attempt, decrease [the defendant’s base offense
level] by 3 levels, unless the defendant completed all
the acts the defendant believed necessary for successful
completion of the substantive offense or the circum-
stances demonstrate that the defendant was about to com-
plete all such acts but for apprehension or interruption by
some similar event beyond the defendant’s control.
18 No. 08-2679
(Emphasis added.) The judge declined to apply this three-
level downward adjustment because he concluded that
Sanchez was “about to complete” all the acts “necessary
for successful completion of” the kidnapping. Sanchez
contends that even if his actions satisfied the “substan-
tial step” requirement for the crime of attempted kid-
napping, they did not establish that he was “about to
complete” the crime for purposes of denying the three-
level adjustment under the attempt guideline.
Neither § 2X1.1 nor its commentary offer much
guidance for determining when a defendant is “about to
complete” the acts necessary to commit the substantive
offense. The commentary states only that “[s]ome-
times . . . the arrest occurs well before the defendant . . . has
completed the acts necessary for the substantive offense.
Under such circumstances, a reduction of 3 levels is
provided under § 2X1.1(b)(1) or (2).” U.S.S.G. § 2X1.1 cmt.
background. Other circuits have identified several factors
that may inform the district court’s decision to grant or
deny the sentencing-guidelines adjustment for an at-
tempt. These include the quality (as opposed to quantity)
of the uncompleted necessary acts, the degree to which
the defendant was prepared to complete the necessary
remaining acts, and the imminence of completion of the
substantive offense at the time of the arrest. See United
States v. Waskom, 179 F.3d 303, 308-09 (5th Cir. 1999)
(collecting cases). These factors suggest that the focus
of the inquiry is on whether the defendant was “on
the verge” of completing the substantive crime.
Here, although the evidence is sufficient to sustain
the attempt conviction, it does not support the district
No. 08-2679 19
court’s conclusion that Sanchez was about to complete
the kidnapping. At the time of his arrest, Sanchez was
still a week away from securing license plates for the
van, and the van was essentially unusable without
plates. The government suggests that it would have
been easy for Sanchez to obtain license plates and be-
cause that was all that remained to be done before he
actually put the kidnapping in motion, the district court
properly denied the 3-level adjustment. See United States
v. Brown, 74 F.3d 891, 893 (8th Cir. 1996) (affirming denial
of reduction where the only step remaining to possess
an incendiary device was to procure “easily obtainable”
items such as wire and an ordinary spark plug). But
there is nothing in the record to support the factual prem-
ise of the government’s argument, and it is hardly self-
evident that finding license plates for an apparently
stolen vehicle is easy to do.
The government’s argument blurs the line between the
“substantial step” necessary for an attempt conviction
and the § 2X1.1 inquiry, which asks whether the
defendant was “about to complete” the crime. We con-
clude that the district court erred in withholding the 3-
level downward adjustment for attempt under § 2X1.1.
For the foregoing reasons, we A FFIRM Sanchez’s con-
victions for conspiracy to kidnap and attempted kidnap-
ping; we R EVERSE Sanchez’s conviction for conspiracy to
retaliate against a witness; and we V ACATE Sanchez’s
sentences and R EMAND for resentencing consistent with
this opinion.
8-11-10