United States v. Alexis Simon
2017 U.S. App. LEXIS 10192
9th Cir.2017Background
- Alexis Torres Simon and two co-defendants were arrested while preparing to abduct a delivery-van driver and steal drugs; the conspiracy to commit Hobbs Act robbery was charged in count one.
- A jury convicted Simon on multiple counts including conspiracy to commit Hobbs Act robbery; the district court later vacated convictions on two counts for insufficient evidence but sentenced on the conspiracy conviction.
- At sentencing the court grouped counts under § 3D1.2 and started calculations for the robbery-conspiracy group; the court treated the inchoate conviction under U.S.S.G. § 2X1.1 (the general inchoate guideline) rather than under § 2B3.1 (Robbery).
- Applying § 2X1.1, the court imported enhancements for intended-but-uncompleted conduct (abduction, carjacking, and intended loss over $50,000) from the substantive robbery guideline, increasing the offense level from what it would have been under § 2B3.1 alone.
- Simon appealed the sentencing enhancements, arguing § 2B3.1 "expressly covers" Hobbs Act robbery conspiracy (so § 2X1.1 would not apply); the government argued § 2B3.1 does not expressly cover conspiracies and § 2X1.1 governs.
- The Ninth Circuit (en banc) considered whether a Guidelines section "expressly" covers an inchoate offense based on the Guidelines themselves or by reference to the underlying statute, and affirmed the district court’s use of § 2X1.1.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a substantive Guidelines section (here § 2B3.1 for robbery) "expressly covers" an inchoate offense so as to preclude application of § 2X1.1 | The Government: § 2B3.1 does not expressly cover conspiracy; therefore § 2X1.1 applies and enhancements for intended conduct are proper | Simon: Because the Hobbs Act statute criminalizes robbery and conspiracy, § 2B3.1 (Robbery) should be read to expressly cover conspiracy and § 2X1.1 should not apply | The court held § 2B3.1 does not "expressly" cover conspiracy; courts must look to the Guidelines (Application Note 1, titles, text), not the underlying statute; § 2X1.1 applies and enhancements for intended conduct were proper |
Key Cases Cited
- Stirone v. United States, 361 U.S. 212 (discusses Hobbs Act affecting commerce)
- Rita v. United States, 551 U.S. 338 (Guidelines as starting point for sentencing)
- Gall v. United States, 552 U.S. 38 (district court duties in sentencing and reasoned explanations)
- United States v. McKeever, 824 F.3d 1113 (D.C. Cir.) (held § 2B3.1 does not expressly cover Hobbs Act conspiracy)
- United States v. Gonzales, 642 F.3d 504 (5th Cir.) (applied § 2X1.1 to Hobbs Act conspiracy)
- United States v. Amato, 46 F.3d 1255 (2d Cir.) (discusses historical treatment and amendments affecting coverage)
- United States v. Hernandez-Franco, 189 F.3d 1151 (9th Cir.) (precedent that looked to statute to decide whether substantive guideline covered inchoate offense; overruled here)
- United States v. Martinez, 342 F.3d 1203 (10th Cir.) (rejected Hernandez-Franco approach)
- United States v. Johnson, 297 F.3d 845 (9th Cir.) (considered § 2X1.1 in money-laundering conspiracy context)
- United States v. Temkin, 797 F.3d 682 (9th Cir.) (solicitation context; the court declined to overrule)