In United States v. Simon, --- F.3d ---,No. 15-10203 (9th Cir. 2017) (en banc), the unanimous en banc Court joined the other Circuits in holding that the proper Guidelines provision for
conspiracy to commit Hobbs Act robbery is U.S.S.G. § 2X1.1 (the general
inchoate crime provision), not 2B1.3 (which covers robbery).
The main difference
is that, under 2X1.1, the defendant can properly receive an enhanced sentence
for conduct that he contemplated and intended, but did not carry out. While, under 2B1.3, intended but
non-completed conduct cannot serve as the basis for an enhancement.
The opinion
addresses when to use 2X1.1 rather than another specific provision.
Section 2X1.1
generally covers inchoate offenses like attempt, solicitation, and conspiracy. But
it does not apply if the “attempt, solicitation, or conspiracy is expressly
covered by another offense guideline section.”
Under prior Ninth Circuit precedent, to determine
when another Guidelines section “expressly” covers an inchoate offense, the
Court looked to the underlying criminal offense. If the substantive statute included the
inchoate offense, then the sentencing court would read the substantive
Guideline to cover sentencing for the inchoate offense.
The en banc Court overruled that prior
precedent. It held, “a Guideline other
than § 2X1.1 ‘expressly cover[s]’ an inchoate offense only if the Guidelines
themselves so indicate.”
When a sentencing court must determine
whether another Guidelines section “expressly cover[s]” an inchoate offense, a
sentencing court should begin with Application Note 1 to § 2X1.1, but also may
look to the title and content of other Guidelines provisions, or other relevant
intra-Guidelines context. Sentencing courts should not, however, rely
exclusively on the underlying substantive offense in the United States Code,
because statutory language sheds no light on the question of whether a
Guidelines section expressly covers the offense, for purposes of § 2X1.1(c).
