Friday, June 09, 2017

US v. Simon, No. 15-10203 (6-8-17)(Murguia for the en banc). In an en banc decision, the 9th affirmed a district court's use of 2X1.1, the provision for inchoate offenses.  In this, a Hobbs Act robbery, the use of the conspiracy guideline, rather than the robbery guideline, determined the sentence, including relevant conduct and enhancements.  Section 2X1.1 does not apply if an attempt, solicitation, or conspiracy is expressly covered by another guideline.  A conspiracy to commit a Hobbs Act robbery is not expressly covered under the robbery guideline.  The 9th overrules US v. Hernandez-Franco, 189 F.3d 1151 (9th Cir. 1999), in holding that the guidelines themselves must "expressly cover" the inchoate offense.  A court starts with 2X1.1, and the application note, but can use other content from the guidelines.  However, courts should avoid exclusive reliance on the US Code or non-guideline language.

The decision is here:


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