United States v. Linares, 60 F.4th 1244 (10th Cir. 2023) Guidelines - USSG § 2X1.1(b)(1) Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline); § 2B3.1. Robbery – specifically car-jacking. A family was doing some yard work. They drove their car (the opinion says car but surely it was a SUV or a truck) into the yard as they cleared stuff out. Our client drives up and parks in front of the house and asks for a ride to a gas-station. The family declines. They move the car to the street. It is a newer car and has the button ignition so you can the key with you outside/away from the car and the car can be locked and running. (Random info: this apparently has led to increase in carbon monoxide deaths because people forget to turn the car off since you don’t have to take the keys out of the ignition. And does anyone know if there is some sort of distance between the car and the key that the car will shut off?) Well, this encouraged our client to approach with an AK-47. When the family noticed the gun, they hustled inside. Someone shut off the car (remotely). Our client demanded the keys and someone else came back outside on the phone with 911. Our client told him to hang up and allegedly threatened to come back and kill him. And then he drove away. Cops caught up with him shortly, and here we are. At sentencing, the district court applied § 2K2.1(c)(1)(A) which applies an enhancement to a sentence where a firearm was used in connection with the substantive offense of attempted robbery (via § 2X1.1(b)(1) (cross-reference) and § 2B3.1(b)(5) (carjacking)). Attempt § 2X1.1(b)(1) – generally our clients get a three-level decrease if they don’t complete the crime. But because there are always exceptions, they don’t get the decrease where: 1) they think they did everything necessary to commit the crime; or 2) they would have completed it except that they got interrupted by something beyond their control. Well, the Tenth agreed with the district court that it was the phone call that interrupted our client’s attempt to take the car so he did not voluntarily stop and exception 2 applies. (I mean it was just a call. He could have still followed through given response times.) Carjacking - § 2B3.1(b)(5) The definition of carjacking used in the application note (“‘Carjacking’ means the taking or attempted taking of a motor vehicle from the person or presence of another by force and violence or by intimidation”) is not the same as the statutory definition of carjacking (“Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle … from the person or presence of another by force and violence or by intimidation … 18 U.S.C. § 2119). As the application notes often interpret and explain how to screw our clients to apply the guidelines they are considered binding unless they “violate[ ] the Constitution or a federal statute, or [are] inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). So, the definition in the application note controls over the statutory definition. (The defense made a lot of great points like the guideline references the statute; the comment definition is inconsistent with the guideline text and so plainly erroneous; and the comment definition paraphrases the statutory language so we should use the statutory language. But as the Tenth themselves put it: “We are unpersuaded.” 60 F.4th at 1250. SIGH.) So, since it doesn’t matter than our client did not intended death or great bodily harm, he still get the carjacking bump. United States v. Batara-Molina, 60 F.4th 1251 (10th Cir. 2023) Traffic Stop-Fourth Amendment Short Version: Third-party rented car, suspiciously short vacation in Sioux Falls, and strong cover order give reasonable suspicion to run a dog sniff. Because of the deference given to cops “to distinguish between innocent and suspicious actions,” (e.g. the cover odor and short vacation) the Court decided a dog sniff was just barely supported by the totality of the circumstances.