In U.S. v. Watkins, No. 05-15444 (Feb. 8, 2007) (Carnes, Marcus, Kravitch), the Court held that USSG § 2X1.1(b), which provides for a three-level decrease in the base offense level for solicitation offenses, does not apply when the circumstances demonstrate to the defendant that the person solicited was about to complete the substantive offense.
Watkins solicited a person to commit arson. Unbeknownst to him, the person was an undercover police agent. At sentencing, the district court declined to reduce the sentence pursuant to § 2X1.1(b) for solicitation, because, from Watkins’ perspective, everything was done to successfully complete the arson.
Reversing, the Court held that the relevant test was whether the person solicited had taken all the crucial steps necessary to demonstrate to the defendant that the offense was about to be completed. Here, more fact-finding was necessary to determine whether the undercover agent’s actions made it clear to Watkins that the agent was about to complete the offense. The Court therefore remanded for resentencing, noting that post-Booker, the district court was not bound by the attempt guideline.
