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.
RUSSELL S. BENSING, CLEVELAND, OHIO, FOR APPELLANT.
MATTHEW B. KALL, UNITED STATES ATTORNEY'S OFFICE,
CLEVELAND, OHIO, FOR APPELLEE.
B. STRANCH, Circuit Judge.
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
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
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.
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.
Standard of Review
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 ...