Sentencing; United States v. Ramer; United States v. Kennedy; Whether defendant & his co-conspirators failed to complete all the acts necessary to commit the substantive offense entitling him to a three-level decrease under USSG § 2X1.1(b)(2); United States v. Soto (5th Cir.); United States v. Martinez-Martinez (9th Cir.); Harmless error; Molina-Martinez v. United States; United States v. Johnson; United States v. Davis; United States v. Gillis; United States v. Quinn

The court held that even though the district court erred by refusing to reduce defendant-Susany’s offense level under USSG § 2X1.1(b) when sentencing him for conspiracy to knowingly receive and transport explosive materials, his sentence was not “procedurally unreasonable,” and the error was harmless. Section § 2X1.1(b)(2) provides for a decrease where co-conspirators have not completed all the acts necessary to commit the substantive offense. At sentencing, the district court stated that it was “not comfortable” with a § 2X1.1(b)(2) reduction and instead granted Susany “a three-level downward variance based on the nature and circumstances of the offense,” reducing his base offense level and resulting in a within Guidelines 21-month sentence. The court considered whether Susany and his co-conspirators had “either completed all of the acts necessary to receive and transport explosives or were about to complete those acts but for their apprehension[,]” and concluded that they had not where they never actually secured a source for the explosives or identified a potential fence for the goods to be stolen. Thus, the court held that the district court erred by not granting Susany a sentencing reduction under § 2X1.1(b)(2). However, “had the district court properly applied the § 2X1.1 Guideline, Susany would have had a higher base offense level, yielding a higher advisory sentencing range.” Thus, his case fell “within a very unusual circumstance—the district court’s error resulted in a lower advisory sentencing range than would have resulted under the correct Guidelines calculation.” The court was also “persuaded that the district court indicated that it provided Susany a downward variance based on the nature and circumstances of the offense, giving him ‘what [he] asked for; in a different way.’” Accordingly, he was not prejudiced by the district court’s error, and remand was not necessary. Affirmed.