United States v. Brian McGarr ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3277
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Brian C. McGarr, *
*
Defendant-Appellant. *
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Submitted: March 11, 2003
Filed: June 6, 2003
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Before HANSEN,1 Chief Judge, RILEY and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
Defendant-Appellant Brian McGarr appeals the district court's2 refusal to apply
1
The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
2
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
a three level reduction in the calculation of his offense level for an uncompleted
conspiracy. See U.S.S.G. § 2X1.1(b)(2). We affirm.
I.
McGarr was an Independence, Missouri police officer. He came under
investigation by the FBI after it was learned that he solicited assistance and
information to aid in the theft of drugs and/or money from drug dealers. Through a
cooperating witness, authorities informed McGarr of the location of a parked car that
contained drug proceeds. After receiving this information, McGarr took a leave from
work. Authorities then filmed McGarr as he approached the parked car in civilian
clothes, broke one of the car's windows with a rock, and stole $6,700. He later gave
a portion of these proceeds to the cooperating witness.
Next, again through the cooperating witness, authorities informed McGarr that
two potential robbery targets were in a parking lot awaiting an illicit delivery. In fact,
the targets were female, undercover FBI agents. Recorded conversations between
McGarr and the cooperating witness contained a detailed account of McGarr's
attempts to rob the targets. McGarr first approached the targets' parked car while he
was on duty. During this encounter, a local officer who happened to be in the vicinity
saw McGarr and stopped to provide possible back-up. McGarr then called in a
motorist assistance report and continued the encounter under the guise of a motorist
assistance stop. Due to the interruption, McGarr merely assessed the situation and
allowed the targets to remain. After he left the parking lot, McGarr told the
cooperating witness that it would be better to approach the targets in civilian clothes.
The conspirators, however, did not pursue this plan because McGarr instead decided
to enlist his brother, Scott McGarr ("Scott"), in the conspiracy and have Scott commit
the robbery.
Local authorities knew Scott as a potentially violent person. When it was
discovered through the cooperating witness that Scott was to consummate the
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robbery, the undercover agents were recalled. After the targets left the parking lot,
authorities witnessed Scott driving in the parking lot and through the surrounding
areas, including behind businesses and vacant buildings. McGarr reported to the
cooperating witness that Scott had sought out the targets, but was unable to locate
them because they were no longer in the parking lot. McGarr and the cooperating
witness then discussed other ways they could rob the targets.
McGarr was arrested the next day. He pled guilty to conspiracy to commit a
Hobbs Act robbery in violation of 18 U.S.C. § 1951(a). He argued at sentencing that
a three level reduction under U.S.S.G. § 2X1.1(b)(2) should apply because the
government failed to prove that, but for official interference, the conspirators were
about to complete all acts necessary to carry out the robbery.3 In support of his
arguments, McGarr asserted that he did not dispatch Scott to commit the robbery, but
rather dispatched him to a gas station near the targets' location to await further
instructions while McGarr and the cooperating witness worked out the final details
of how Scott should carry out the robbery. Ultimately, Scott called McGarr to report
the missing targets before McGarr and the cooperating witness could finalize the
details and relay instructions to Scott.
McGarr argued that these facts demonstrated the conspiracy was still in the
planning stages and had not moved into its final phase of execution. According to
McGarr, because the conspirators had not advanced their scheme to its absolute, final
stage of execution, it was impermissively speculative for the district court to conclude
3
U.S.S.G. § 2X1.1(b)(2) provides:
If a conspiracy, decrease [the offense level] by 3 levels, 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.
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that the conspirators would have consummated the robbery but for official
intervention.
The district court rejected McGarr's argument. The district court did not reject
McGarr's factual assertion that he and the cooperating witness continued planning the
offense after summoning Scott to the vicinity of the targets. Rather, the district court
found that the conspirators had conducted sufficient planning and had sufficiently set
in motion those events necessary for execution to make completion of the offense
reasonably certain. In addition, the district court found no meaningful indication that,
absent official interference, any of the conspirators were likely to abandon the
enterprise.4 Therefore, the district court refused to apply the three level reduction of
U.S.S.G. § 2X1.1(b)(2). We affirm.
II.
We review the district court's interpretation of the sentencing guidelines de
novo and its factual determinations for clear error. United States v. Ballew, 40 F.3d
936, 943 (8th Cir. 1994). The underlying facts are essentially undisputed.
Accordingly, as a matter of law to be reviewed de novo, we must determine whether
these essentially undisputed facts support the district court's conclusion that the
4
The district court recognized the possibility that the conspiracy might have
collapsed of its own accord, but discounted this possibility as too improbable. For
example, the district court noted:
I recognize that it's conceivable that Brian McGarr would get into a
dispute with Scott McGarr about the weapon and would – that it could
have – possibly the plan could have blown up because of disagreement
between the two. But it seems to me that having summoned Scott
McGarr to come up from Lee's Summit, that it's really quite unlikely that
Brian McGarr would then say well, I have changed my mind, if you're
going to have a weapon, go on home. So I would rule for the
government on the calculation.
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conspirators were about to carry out all the acts necessary for successful completion
of the robbery.
As correctly noted by the district court, a determination under U.S.S.G. §
2X1.1(b)(2) is a ruling "based on probabilities." Such a ruling necessarily involves
uncertainty. The question in this case, then, is whether the amount of uncertainty
rises to the level of impermissible speculation, as argued by McGarr, or whether
completion of the offense was "reasonably certain" as required under the standard
applicable to U.S.S.G. § 2X1.1(b)(2). See U.S.S.G. § 2X1.1(a) (stating that the
offense level is "the base offense level from the guideline for the substantive offense,
plus any adjustments from such guideline for any intended offense conduct that can
be established with reasonable certainty") (emphasis added).
This court has held that completion of the substantive offense may be
reasonably certain where conspirators have not yet advanced their conspiracy into its
final stage of execution. United States v. Brown, 74 F.3d 891, 893 (8th Cir. 1996)
("[C]ourts have upheld the denial of a reduction even though a defendant had not
reached the 'last step' before completion of the substantive offense."); United States
v. Johnson, 962 F.2d 1308, 1312 (8th Cir. 1992) (holding that conspirators would
have completed their offense but for the intervention of law enforcement officials
where the conspirators "crossed the 'shadowy line' from mere preparation to attempt"
by approaching a bank with weapons and disguises, driving around the bank three
times, and stopping on one occasion to open a door of their vehicle). Here the only
activity that remained uncompleted was the "go-ahead" call from McGarr to Scott and
the actual robbery itself. Scott was in the vicinity with a shotgun and he had circled
the area looking for the targets. Removal of the targets due to safety concerns was
clearly an event beyond the conspirators' control. As such, we agree with the district
court that "the circumstances demonstrate[d] that the conspirators were about to
complete all [acts necessary for successful completion] but for apprehension or
interruption by some similar event beyond their control."
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The decision of the district court is affirmed.
A true copy.
Attest.
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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