Wednesday, May 16, 2007

"Another Offense" Cross-Reference In U.S.S.G. §2K1.3(c)(1) Can Apply Even If Conviction Results from Sting Operation

United States v. Rankin, No. 06-60340 (5th Cir. May 15, 2007) (Jones, Jolly, Stewart)

Rankin involves the cross-reference found in U.S.S.G. §2K1.3(c)(1)(A), the guideline applicable to transportation, possession of, and other acts pertaining to explosives. At the risk of oversimplification, if the explosives offense was related to some other offense, then the cross-reference essentially directs the court to sentence the defendant under the guideline for that other offense if that would result in a higher offense level.

In this case, an undercover ATF agent solicited Rankin to build a briefcase bomb. Rankin told the agent that the bomb would "take care of" someone if that's what she was looking for. When the agent picked up the bomb from Rankin, she mentioned that she wanted to use it to kill her ex-husband. Rankin assured her it would, and offered to give her another bomb for free if the first one didn't work.

At sentencing, the Government urged the court to apply the attempted murder guideline (§2A1.2) via §2K1.3(c)(1)(A). The district court declined to do so, following the probation officer's recommendation that the cross-reference does not apply in the case of a sting operation. The Government appealed.

The court of appeals reversed. It held that "[t]he district court legally erred in determining that factual impossibility rendered the application of the guideline inappropriate . . . [because] '[f]actual impossiblity is not a defense to a charge of attempt.'" The district court relied on that legal error in calculating Rankin's guidelines, so the court of appeals vacated the sentence and remanded for resentencing. Although it's a little unclear from the opinion, the court doesn't appear to be saying that the cross-reference actually should have been applied. Instead, the remand appears to call for the district court to consider whether the facts of the case support application of the attempted murder guideline.



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