United States v. Frank Susany, Jr., 893 F.3d 364

Frank Susany Jr. pleaded guilty to one count of conspiracy to knowingly receive and transport explosive materials in violation of 18 U.S.C. §§ 371, 842(a)(3)(A), and 844(a).
The conspiracy involved plans to obtain explosives to crack safes at jewelry and coin shops; defendants were arrested during an attempted burglary before securing any explosives.
The PSR set a base offense level of 16, reduced to 13 for acceptance of responsibility under USSG § 3E1.1.
Defense requested a three-level reduction under USSG § 2X1.1(b)(2) (for an incomplete conspiracy); the district court denied that specific reduction but granted a three-level downward variance on other grounds, resulting in an offense level of 10 and a 21–27 month Guidelines range.
The court imposed a 21-month sentence; Susany appealed, arguing the district court procedurally erred by not applying the § 2X1.1(b)(2) reduction.
The Government conceded the district court erred in declining the § 2X1.1 reduction, but argued the error was harmless because the district court’s variance produced an equal or lower Guidelines result than the correct Guidelines application would have.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Susany was entitled to a 3-level reduction under USSG § 2X1.1(b)(2) for an incomplete conspiracy	Susany: conspiracy was incomplete; they had not procured explosives or taken the necessary steps, so § 2X1.1(b)(2) requires a 3-level reduction	Government: district court reasonably exercised discretion; any error was harmless because the court granted a comparable downward adjustment by variance	Court: § 2X1.1(b)(2) reduction should have been applied (district court erred)
Whether the district court’s error was harmless	Susany: error was not harmless because guidelines calculation was incorrect	Government: error harmless; district court’s variance produced an equal/lower Guidelines outcome and judge indicated she would not have granted the variance if § 2X1.1 applied	Court: error was harmless; no prejudice and no remand required

United States v. Ramer, 883 F.3d 659 (6th Cir. 2018) (standard for reviewing sentencing factual findings and guideline application)
United States v. Triana, 468 F.3d 308 (6th Cir. 2006) (legal-question review of guideline application)
United States v. Soto, 819 F.3d 213 (5th Cir. 2016) (focus on defendant’s conduct relative to the substantive offense for § 2X1.1)
United States v. Martinez-Martinez, 156 F.3d 936 (9th Cir. 1998) (when conspirators are “about to complete” remaining steps for substantive offense)
Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (harmless-error framework for Guidelines miscalculations)
United States v. Davis, 751 F.3d 769 (6th Cir. 2014) (harmless error at sentencing where judge’s error did not increase defendant’s sentence)
United States v. Gillis, 592 F.3d 696 (6th Cir. 2010) (same)