United States v. Gabriel Popa
835 F.3d 506
| 5th Cir. | 2016Background
- Gabriel Popa was convicted for attempting to fraudulently possess 15+ unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3) and (b)(1).
- At sentencing the district court declined to apply the three-level attempt adjustment under U.S.S.G. § 2X1.1(b)(1), finding Popa had been "about to complete all acts necessary" for the substantive offense when apprehended.
- Popa argued he should have received the § 2X1.1 attempt reduction per comment (n.4) because the court assessed intended losses (over $200,000) though no actual losses occurred and his broader theft scheme was not completed.
- The district court’s factual finding that Popa had completed the acts necessary to complete the possession offense was not challenged on appeal.
- The Fifth Circuit compared Popa’s case to prior precedents, distinguishing United States v. John and finding United States v. Thomas more analogous, and affirmed the denial of the attempt adjustment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2X1.1(b)(1) three-level attempt reduction applies | Popa: comment (n.4) requires reduction where defendant only partially completed scheme but was sentenced on intended losses | Government: Substantive offense (possession of 15+ devices) does not require use or actual loss; Popa had completed possession conduct | Court: No reduction; denial affirmed because focus is on the substantive offense and Popa had completed acts necessary for that offense |
Key Cases Cited
- United States v. John, 597 F.3d 263 (5th Cir. 2010) (addressed partially completed offenses and sentencing based on intended losses versus actual losses)
- United States v. Thomas, [citation="585 F. App'x 869"] (5th Cir. 2014) (refused attempt-reduction where substantive offense did not require actual loss and defendant’s conduct fit completed offense)
- United States v. Soto, 819 F.3d 213 (5th Cir. 2016) (explaining focus on the substantive offense and defendant’s conduct for § 2X1.1 analysis)
- United States v. Granado, [citation="608 F. App'x 247"] (5th Cir. 2015) (following Thomas in denying partially-completed-offense reduction)