United States v. Reynaldo Soto
819 F.3d 213
| 5th Cir. | 2016Background
- Soto, a convicted felon, was stopped in Pharr, Texas; officers found 23 boxes (460 rounds) of 7.62x39mm ammunition in his trunk.
- Soto initially denied ownership, later said he bought the ammunition for hunting, then said he bought it for a man dubbed “Compadre,” who pays others to buy munitions that are smuggled to Mexico.
- The PSR applied a base offense level under U.S.S.G. § 2K2.1 and a four-level enhancement for intent to transport the ammunition out of the U.S.; it also applied the § 2K2.1(c)(1)(A) cross-reference to attempted exportation (using § 2X1.1 and § 2M5.2), producing a higher offense level.
- Soto objected, arguing he was entitled to a three-level attempt reduction under § 2X1.1(b)(1) because he had only purchased and possessed the ammunition and there was no evidence he was about to deliver it when arrested.
- The district court overruled the objection, finding Soto was “en route” to transfer the ammunition to a courier for smuggling; it adopted the PSR and sentenced Soto to 96 months.
- On appeal the Fifth Circuit found no record evidence Soto was on the verge of delivery when stopped and held he was entitled to the three-level attempt reduction, making the cross-reference inapplicable; the court vacated and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument (Soto) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether § 2K2.1(c)(1)(A) cross-reference to § 2X1.1 applies | Soto: he only bought/possessed the ammo; entitled to 3-level attempt reduction under § 2X1.1(b)(1); no evidence he was about to deliver it | Gov: purchase was the major step; only remaining act was transfer to co-conspirator, so reduction not warranted and cross-reference applies | Held: cross-reference inapplicable because district court clearly erred in finding Soto was en route to deliver the ammo; Soto entitled to 3-level attempt reduction |
| Whether district court’s factual finding that Soto was "in route" to deliver ammo was supported by record | Soto: no evidence of arranged delivery or timing; PSR silent on temporal frame | Gov: can infer imminent delivery from prior conduct and proximity of recipient | Held: finding unsupported—no evidence of arranged meeting or that delivery was imminent; clear error |
| Proper application of § 2X1.1(b)(1) attempt reduction where substantive offense is exportation | Soto: reduction applies because substantive offense was not substantially complete nor interrupted on verge of completion | Gov: attempted-export guideline or facts justify denying reduction | Held: § 2X1.1(b)(1) three-level reduction applies on this record; district court should have reduced offense level |
| Whether any alternative guideline or interpretive argument saves the cross-reference | Gov: § 2M5.2 may “expressly cover” attempts so § 2X1.1 reduction not required (raised below) | Gov later abandoned at oral argument; even if raised, § 2M5.2 does not explicitly cover attempts | Held: alternative argument fails because § 2M5.2 does not expressly cover attempts; district court erred to apply cross-reference without reduction |
Key Cases Cited
- United States v. Griffith, 522 F.3d 607 (5th Cir.) (standard: de novo review of guideline interpretation, clear error for facts)
- United States v. Knox, 112 F.3d 802 (5th Cir.) (district court factual findings about completion of acts reviewed for clear error)
- United States v. Ibarra-Luna, 628 F.3d 712 (5th Cir.) (proponent of sentence must prove harmless error on appeal)
- United States v. Waskom, 179 F.3d 303 (5th Cir.) (fact-specific four-factor guide for applying § 2X1.1 attempt/conspiracy reduction)
- United States v. John, 597 F.3d 263 (5th Cir.) (examples showing even substantial preparatory steps can still warrant § 2X1.1 reduction)
- United States v. Ogle, 328 F.3d 182 (5th Cir.) (substantive guideline that lacks any reference to attempts does not render § 2X1.1 inapplicable)