Before: Reinhardt, Trott, T.g. Nelson, Circuit Judges.
The opinion of the court was delivered by: Reinhardt, Circuit Judge
Appeal from the United States District Court for the Central District of California George H. King, District Judge, Presiding
Argued and Submitted August 7, 1998 Pasadena, California
Opinion by Judge Reinhardt
In this case, we consider what it means to be "about to complete" all acts necessary for commission of a crime under United States Sentencing Guideline 2X1.1(b)(2). This phrase becomes important when a person arrested before completing the substantive offense is convicted of a conspiracy to commit the crime and that conspiracy is not covered by a specific offense guideline. The Sentencing Guidelines entitle a defendant convicted of such a conspiracy to be sentenced at an offense level three points below that applicable to the underlying substantive offense, unless he had completed or was about to complete the intended offense. We conclude that here the defendant was entitled to the three point reduction authorized by 2X1.1(b)(2).
Jorge Martinez-Martinez worked as a truck driver for the MSL Transportation Group. On December 29, 1996, Martinez offered an MSL security guard $15,000 to allow him to steal cargo containers from the MSL lot. The guard agreed and arranged for Martinez to examine the contents of the containers at a time when he would be the only guard on duty. The guard then told his employer what had transpired, and the FBI was contacted.
On January 3, Martinez met with the guard to arrange the theft. That night, Martinez arrived at the MSL yard with his co-conspirator, Acxel Aroldo Avila. Martinez, Avila, and the guard used bolt cutters supplied by Avila to break into nine containers. Martinez and Avila thought that the contents of these containers probably could not be sold, so they resealed the containers and agreed to return when new shipments arrived. On January 8, the guard told Martinez that new containers with valuable merchandise would be arriving the next day. On the night of January 9, Martinez and Avila broke into the containers, one of which contained electronic equipment, but were unable to contact their "boss;"*fn1 they therefore did not steal any of the merchandise.
The next night, January 10, Martinez and Avila returned and opened several containers. The FBI had wired the guard, and the recording reveals that Martinez and Avila discovered boxes containing electronics, drills, and cloth. Martinez called the boss, and then proceeded to gather samples to take to him. At a time when the guard was alone, he told the FBI what was taking place:
Okay, guys . . . . [W]hat I understood is that, . . . they called their boss already, he's preparing the trucks, they're gonna take samples to him, they'll probably take a load with them. You know, they're gonna take samples with them to show the boss. Okay, and if they're gonna take a load I'll tell you guys, . . . taking a load, taking a load. But they're setting up some samples, and . . . supposedly the truck is gonna come here with MSL insignias. The words . . . they have on the side of the truck, they say MSL. They're preparing all their (UI) so supposedly . . . it won't look too much suspicious coming out with a different truck. . . . I think they're gonna come back with four drivers, take four loads out, four loads. Repeat, they're gonna take out four load[s] when they come back.
Martinez and Avila loaded one stereo system, a drill, and a small piece of denim into their car to show their boss. Martinez told the guard that before "dropping by" he would call him on the nearby pay phone. The guard asked how many trucks there would be. Martinez did not answer, but told the guard that he would be in one of the trucks. After Martinez and Avila loaded the samples, they resealed the opened containers. They then left the MSL yard with the samples to show the boss, but the Los Angeles Sheriff's Department arrested them while they were en route to meet with him.
During a post-arrest interview, Martinez explained that their procedure was to open the containers and then obtain approval from "Fernando" before stealing any goods, and that on the occasion that led to the ...