To illustrate impermissible speculation, the commentary provides an example that shares a striking resemblance to the facts of this case: " f two defendants are arrested during the conspiratorial stage of planning an armed bank robbery, the offense level ordinarily would not include aggravating factors regarding. The note goes on to caution that " peculative specific offense characteristics will not be applied." Id. Application Note 2 to section 2X1.1 states that the only "specific offense characteristics" from the guideline for the substantive offense that apply are those that are determined to have been "specifically intended" or "actually occurred." Id. However, we also conclude that the District Court's finding that Velez specifically intended to steal a "substantial" amount was insufficiently grounded in the record to warrant a 6-level enhancement under section 2B3.1(b) (7) (G). Given these facts, we conclude that the District Court did not err in refusing to apply the 3-level reduction. Nor can he dispute that the arrest was beyond his control.
Velez has not objected to any of the facts contained in the PSR regarding the planning, attempted execution, or termination of the Patriot robbery conspiracy.
The PSR states that "the circumstances demonstrate" that Velez and his co-conspirators "were about to complete the robbery had they not been arrested." PSR ¶ 20. no reduction of the offense level is warranted."). § 2X1.1, Background (Where the substantive offense is "prevented on the verge of completion by the intercession of law enforcement authorities. That section expressly instructs the sentencing court not to impose the reduction where "the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control." Id. We find no error in the District Court's refusal to apply the 3-level reduction under section 2X1.1(b) (2). For support, the government cites section 2X1.1(a), which provides that an adjustment is appropriate "for any intended offense conduct that can be established with reasonable certainty." It then points out that the undisputed evidence shows that Velez joined a conspiracy to rob a business that collected and stored cash, the conspiracy was spearheaded by a former employee of that business, the robbery was planned to coincide with a day on which Patriot received significant deposits, and there was $5,000,000 in the vault on the day of the planned robbery. The government also claims that the Court correctly imposed the 6-level enhancement because there was sufficient evidence to support a finding that the intended loss was $5,000,000, the amount subsequently found in the vault. The government maintains that Velez is not entitled to the 3-level reduction because it is undisputed that he and his co-conspirators were about to complete the Patriot robbery had they not been apprehended by law enforcement officers, an event beyond Velez's control. He further contends that the Court erred by applying the 6-level enhancement for an intended loss of $5,000,000 under section 2B3.1(b) (7) (G) because the intended loss was not properly determined. 10, 2002 at 5-6, 12.Īs noted, Velez argues that the District Court erred by failing to reduce his offense level by 3 points for the Patriot robbery conspiracy under section 2X1.1(b) (2) since that crime was never completed. Here, the District Court applied the 6-level enhancement after finding both that Velez intended to rob a vault that contained a "substantial" amount of cash and that $5,000,000 was subsequently found in the vault. If the loss is more than $2,500,000, but not more than $5,000,000, 6 levels are added. On the other hand, the base offense level under section 2B3.1 is enhanced by the amount of the loss.
the circumstances demonstrate that the conspirators were about to complete all but for apprehension or interruption by some similar event beyond their control." Id. That offense level is reduced by 3 levels "unless. The base offense level for robbery is 20.
HOUSE OF VELEZ PART 2 NO COMMENTARY PLUS
To determine the offense level for a conspiracy, a sentencing court must look to " he base offense level from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty." U.S.S.G.
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