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United States v. Susany

United States Court of Appeals, Sixth Circuit

June 22, 2018

United States of America, Plaintiff-Appellee,
v.
Frank Michael Susany, Jr., Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 4:16-cr-00312-1-Donald C. Nugent, District Judge.

          Before: MOORE, KETHLEDGE, and STRANCH, Circuit Judges.

         ON BRIEF:

          RUSSELL S. BENSING, CLEVELAND, OHIO, FOR APPELLANT.

          MATTHEW B. KALL, UNITED STATES ATTORNEY'S OFFICE, CLEVELAND, OHIO, FOR APPELLEE.

          OPINION

          JANE B. STRANCH, Circuit Judge.

         Frank Susany, Jr. pled 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 district court granted a three-level downward variance from Susany's advisory Guidelines range and imposed a sentence of 21 months of imprisonment, followed by a two year period of supervised release. Susany appeals that sentence, arguing that the district court imposed a sentence that was procedurally unreasonable because it failed to reduce Susany's base offense level by three points, pursuant to the United States Sentencing Guidelines (USSG) § 2X1.1(b)(2). Although the district court erred by not reducing Susany's offense level under § 2X1.1(b)(2), we find the error to be harmless, and therefore AFFIRM.

         I. BACKGROUND

         Between February and April 2013, Susany entered into a conspiracy with Robert Courtney and James Quinn to obtain explosives that would be used to crack safes at jewelry stores and coin shops. The trio planned to obtain funds to finance their initial purchase of explosives by breaking into jewelry stores and coin shops to steal valuable items. On February 13, 2013, Susany and Quinn met with a confidential informant, who was working with the FBI. During the meeting, Susany and the confidential informant discussed procuring explosives for use in burglaries that Susany planned to commit. Susany and Quinn met with the confidential informant again the next month and this time talked about the confidential informant participating the in break-ins. On April 1, Susany met with the confidential informant and told him to plan for a "job."

         On the evening of April 18, Susany, Courtney, and the informant met to plan the details of a break-in at Westlake Coins and Collectibles. Quinn was not present. In the early hours of April 19, Susany, Courtney, and the informant arrived at the store, and Courtney was selected to serve as a lookout. Susany cut the phone line to the store and activated a jamming device to block the cellular backup to the store's alarm system. Officers arrived and arrested the three individuals shortly after the alarm was cut.

         Susany, Courtney, and Quinn were indicted on September 28, 2016. In addition to the charges for conspiracy to receive and transport explosives, Susany was also indicted on one count related his use of the jamming device, a violation of 47 U.S.C. §§ 301(d) and 501. Susany pled guilty; in exchange for his plea, the government agreed to drop the charges related to his use of the jamming device. The probation officer prepared a Presentence Investigative Report (PSR) that calculated Susany's base offense level to be 16, which was reduced to 13 as a result of Susany's timely acceptance of responsibility, pursuant to USSG § 3E1.1. Counsel for Susany filed a sentencing memorandum arguing that Susany should receive a three-level decrease in his base offense level pursuant to USSG § 2X1.1(b)(2), which mandates a decrease when the defendant and the co-conspirators have not completed all the acts necessary for the substantive offense. USSG § 2X1.1(b)(1)-(2). Defense counsel raised the § 2X1.1 issue again at Susany's sentencing hearing. The district court rejected Susany's argument stating, "I'm not comfortable under the 2X1.1(b)(2) to grant the three-level reduction because I'm not quite sure that would be right." The district court instead decided to grant a three-level downward variance based on the nature and circumstances of the offense and reduced Susany's base offense level to ten, yielding a Guidelines range of 21 to 27 months of imprisonment. The district court imposed a sentence of 21 months. Susany filed a timely notice of appeal.

         II. ANALYSIS

         A. Standard of Review

         We review the "sentencing court's factual findings for clear error." United States v. Ramer, 883 F.3d 659, 684 (6th Cir. 2018) (citing United States v. Kennedy, 714 F.3d 951, 957 (6th Cir. 2013)) petition for cert. filed, No. 17-9085 (U.S. May 23, 2018). "But 'whether those facts as determined by the district court warrant the application of a particular guideline provision is purely a legal question and is reviewed de novo by this court.'" Id. (quoting United States v. Triana, 468 F.3d 308, 321 (6th Cir. 2006)). We review a district court's sentencing determination "'under a deferential abuse-of-discretion standard,' for reasonableness." United States v. Albaadani, 863 F.3d 496, 504 (6th Cir. 2017) (quoting United States v. Solano-Rosales, 781 ...


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