Appeal from the United States District Court for the Northern District of Ohio at Cleveland.
No. 1:17-cr-00342-2—Benita Y. Pearson, District Judge.
Argued: June 14, 2023
Decided and Filed: August 28, 2023
Before: ROGERS, KETHLEDGE, and NALBANDIAN, Circuit Judges.
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OPINION
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ROGERS, Circuit Judge. Defendant Eduardo Velasquez was convicted of conspiracy to
use interstate commerce to commit murder-for-hire, in violation of 18 U.S.C. § 1958(a). After a
remand from our panel, the only substantial remaining issue is whether the district court erred
by denying Velasquez a sentencing guideline reduction under U.S.S.G. § 2X1.1(b)(2),
which provides for a three-level decrease “unless the defendant or a co-conspirator completed [or
was about to complete] all the acts the conspirators believed necessary on their part for the
successful completion of the substantive offense[.]” On remand, the district court denied the
three-level reduction, based upon its determination that Velasquez completed the underlying
offense of using interstate commerce with intent to commit murder-for-hire. Denial of the
§ 2X1.1(b)(2) reduction was correct, however, for a more fundamental reason. The cross-reference in U.S.S.G. § 2X1.1(c) provides that when the “conspiracy is expressly covered by
another offense guideline section, apply that guideline section.” The guideline that covers
Velasquez’s case—as we held in our previous opinion—is U.S.S.G. § 2A1.5, which expressly
covers conspiracy to commit murder. U.S.S.G. § 2X1.1(b) is accordingly not applicable to
Velasquez in the first place. |