United States v. Adams

REVISED, July 14, 1999

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-10128
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
CARL JAY WASKOM, JR.,

Defendant-Appellant,

* * * * * * * * * * * *
________________

No. 98-10166
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
EDWARD TAYLOR, JR.,

Defendant-Appellant.

* * * * * * * * * * * *
________________

No. 98-10167
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
SHAWN DEE ADAMS,

Defendant-Appellant.

* * * * * * * * * * * *
_________________

No. 98-10168
_________________
 UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
CATHERINE DEE ADAMS,

Defendant-Appellant.

______________________________________________

Appeals from the United States District Court
for the Northern District of Texas
______________________________________________

June 22, 1999

Before KING, Chief Judge, POLITZ and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Carl J. Waskom, Jr., Edward Taylor, Jr., Shawn Dee Adams, and

Catherine Dee Adams appeal the sentences imposed on them by the

district court. With respect to the sentences imposed on Waskom

and the Adamses, we vacate and remand for resentencing. Because

the sentencing judge should have granted Taylor’s motion for

recusal, we vacate his sentence and remand for new sentencing

proceedings before a different judge.

I

Pursuant to a written plea agreement, Waskom, Taylor, Shawn

Adams, and Catherine Adams (collectively “the defendants”) pleaded

guilty to conspiracy to obstruct and delay interstate commerce by

robbery and physical violence, in violation of 18 U.S.C. § 1951.

Taylor and the Adamses also pleaded guilty to possession of an

unregistered firearm and aiding and abetting, in violation of 26

U.S.C. §§ 5845, 5861(d) and 18 U.S.C. § 2. After the entry of the

guilty pleas, the district court applied the federal Sentencing

2
Guidelines to sentence each defendant. Taylor received a 262-month

term of imprisonment, to be followed by a three-year term of

supervised release, and a $200 special assessment. Shawn Adams

received a 168-month term of imprisonment, to be followed by a

three-year term of supervised release, and a $200 special

assessment. Catherine Adams received a 180-month term of

imprisonment, to be followed by a three-year term of supervised

release, and a $200 special assessment. Waskom received a 110-

month term of imprisonment, to be followed by a three-year term of

supervised release, and a $100 special assessment.

Because the defendants did not proceed to trial, the factual

résumés accompanying their pleas, the Presentence Reports (PSRs)

and their addenda,1 preliminary and sentencing proceedings before

the district court, and tapes admitted into evidence provide the

background for the appellants’ sentences. These sources reveal

that in or about March 1997, the defendants entered into a

conspiracy to commit a number of criminal acts that would culminate

in the robbery of an armored car. The car they planned to rob

routinely traveled to federally insured banks located in

Bridgeport, Texas and Chico, Texas to pick up and deliver United

States currency. In order to prevent law enforcement officers from

responding adequately to the heist, the defendants intended to

create a diversion by detonating several explosive devices at the

1
As a general rule, a PSR bears sufficient indicia of
reliability such that the sentencing judge may consider it as
evidence in making the factual determinations required by the
guidelines. See, e.g., United States v. Alford, 142 F.3d 825, 831-
32 (5th Cir. 1998).

3
nearby Mitchell Energy Corporation gas refinery. The defendants

planned to finance their criminal activities by robbing two

different individuals, whom they suspected to be narcotics

traffickers.

Before the police interrupted the plan, the defendants took

several steps toward accomplishing their goal. For example, the

four conducted surveillance of one of the drug traffickers they had

targeted, and Taylor traveled to Bridgeport and Chico to conduct

surveillance of the armored car.

On March 29 and April 1, the defendants met to discuss plans

for the robbery. They agreed that they should conduct a “test”

detonation. On April 5, Shawn Adams, Catherine Adams, and Waskom

met at the Adamses’ residence, where they constructed two small

explosive devices. They then traveled to the LBJ Grasslands and

detonated the two devices. On April 6, Catherine Adams and Waskom

went to the Mitchell Energy Corporation gas refinery to survey the

facility. They drew a small sketch of the plant and the

surrounding area. One week later, Shawn Adams, Catherine Adams,

and Waskom met at the Adamses’ residence to discuss the

construction of explosive devices. The three met again, two days

later, to continue their discussions. Ultimately, the defendants

settled on a plan to detonate explosive devices at the gas refinery

and rob the armored car on May 1. Waskom informed his employer

that he would be away from work on that day.

Unbeknownst to the four conspirators, a confidential informant

had been recording their interactions and relaying their plans to

4
law enforcement authorities since March. As a consequence, the

defendants were arrested on April 22, before they could execute

their plans. According to Detective Charles Storey, the lead

investigating agent, the defendants’ plan to rob one of the

targeted drug traffickers on the evening of April 22 prompted the

authorities to make the arrests that day.

II

On appeal, all four defendants argue that the district court

erred in denying them a three-point reduction of their base offense

level. This claim relates to § 2X1.1(b)(2) of the United States

Sentencing Guidelines. In addition, Waskom raises several other

issues pertaining to the district court’s calculation of his

sentence.

We review de novo the sentencing court’s application of the

federal Sentencing Guidelines and review for clear error its

associated findings of fact. See, e.g., United States v. Goynes,

– F.3d –, 1999 WL 288261, at *2 (5th Cir. May 10, 1999). We uphold

a defendant’s sentence “unless it was imposed in violation of law;

imposed as a result of an incorrect application of the sentencing

guidelines; or outside the range of the applicable sentencing

guideline and is unreasonable.” United States v. Garcia, 962 F.2d

479, 480-81 (5th Cir. 1992).

In addition to his specific challenges to his sentence, Taylor

argues that the sentencing judge, the Honorable John McBryde,

should have granted Taylor’s motion for recusal pursuant to 28

U.S.C. § 455(a). Because the decision whether to recuse is within

5
the discretion of the district court judge, we review for abuse of

discretion the denial of a motion for recusal. See United States

v. Anderson, 160 F.3d 231, 233 (5th Cir. 1998).

We begin with the issue that is common to all of the

defendants: whether the district court properly denied them a

three-level reduction under § 2X1.1(b)(2) of the United States

Sentencing Guidelines. We then discuss the issues raised

individually by Waskom and Taylor.

III

A

In cases of attempt, solicitation, or conspiracy, the federal

Sentencing Guidelines direct the sentencing court to calculate the

applicable offense level by using the base offense level from the

guideline for the substantive offense, unless there is a specific

offense guideline for the conspiracy charge that forms the basis of

the sentencing. See U.S. Sentencing Guidelines Manual § 2X1.1

(1997) (hereinafter U.S.S.G.).2 After ascertaining the base

offense level, the sentencing court makes adjustments from the

substantive offense guideline for any intended offense conduct that

is established with reasonable certainty. See id. In the case of

conspiracy, the guidelines further direct:

[D]ecrease by 3 levels, unless the defendant or a co-
conspirator completed all the acts the conspirators
believed necessary on their part for the successful
completion of the substantive offense or the

2
The PSRs and the district court relied on the 1997 Guidelines
Manual to calculate the defendants’ sentences. The subsequent
amendments to the guidelines do not affect the provisions at issue
here.

6
 circumstances demonstrate that the conspirators were
about to complete all such acts but for apprehension or
interruption by some similar event beyond their control.

U.S.S.G. § 2X1.1(b)(2). The commentary accompanying § 2X1.1

explains this adjustment:

In most prosecutions for conspiracies . . . , the
substantive offense was substantially completed or was
interrupted or prevented on the verge of completion by
the intercession of law enforcement authorities or the
victim. In such cases, no reduction of the offense level
is warranted. Sometimes, however, the arrest occurs well
before the defendant or any co-conspirator has completed
the acts necessary for the substantive offense. Under
such circumstances, a reduction of 3 levels is provided
under [§ 2X1.1(b)(2)].

U.S.S.G. § 2X1.1, comment. (backg’d). The focus of § 2X1.1(b)(2)

is “on the conduct of the defendant, not on the probability that a

conspiracy would have achieved success.” United States v. Medina,

74 F.3d 413, 418 (2d Cir. 1996). In effect, the guideline “gives

the defendant a three-level discount if he is some distance from

completing the crime.” United States v. Egemonye, 62 F.3d 425, 429

(1st Cir. 1995).

Determining whether a reduction under § 2X1.1(b)(2) is

warranted necessarily requires a fact-specific inquiry. With its

focus on the conspirators’ conduct in relation to the object

offense, the application of § 2X1.1(b)(2) thus resists a precise

standard. This is particularly so in a case such as this, where

there is no dispute that the defendants had not completed all the

acts they believed necessary to commit the substantive offense and

the question is only whether they were “about to” do so.

Certain principles nonetheless exist to guide a sentencing

court’s application of the guideline in this type of case. First,

7
the § 2X1.1(b)(2) inquiry focuses on the substantive offense and

the defendant’s conduct in relation to that specific offense. See

United States v. Westerman, 973 F.2d 1422, 1428-29 (8th Cir. 1992)

(finding that the sentencing court erred in focusing on the

conspirators’ completion of an arson where the object offense was

mail fraud); United States v. Rothman, 914 F.2d 708 (5th Cir. 1990)

(holding that the relevant inquiry under § 2X1.1(b)(2) is the

degree of completion of the underlying offense). Second,

§ 2X1.1(b)(2) does not require the reduction for a conspirator who

has made substantial progress in his criminal endeavor simply

because a significant step remains before commission of the

substantive offense becomes inevitable. Cf. United States v. Knox,

112 F.3d 802, 813 (5th Cir.) (upholding the district court’s denial

of the reduction despite the defendant’s claim that he was

unprepared to launder the full amount at issue), vacated in part on

other grounds, 120 F.3d 42 (5th Cir. 1997); United States v. Brown,

74 F.3d 891, 893 (8th Cir. 1996) (noting that the reduction may be

denied “even though a defendant had not reached the ‘last step’

before completion of the substantive offense”). Third, in order to

support a denial of the reduction under § 2X1.1(b)(2), the

circumstances must demonstrate that the balance of the significant

acts completed and those remaining tips toward completion of the

substantive offense. This requires that the district court

consider the quality of the completed and remaining acts, not

simply the relative quantities of each. See United States v.

Martinez-Martinez, 156 F.3d 936, 939 (9th Cir. 1998) (considering

8
the substantiality of the steps remaining before the defendants

could complete the substantive offense). Fourth, a sentencing

court should consider the temporal frame of the scheme and the

amount of time the defendant would have needed to finish his plan,

had he not been interrupted. As the completion of the offense

becomes more imminent, the reduction will become less appropriate.

See U.S.S.G. § 2X1.1(b)(2) & comment. (backg’d). Fifth, the

sentencing court should assess the conspirator’s degree of

preparedness to accomplish the remaining acts believed necessary to

complete the substantive offense. See, e.g., United States v.

Khawaja, 118 F.3d 1454 (11th Cir. 1997) (concluding that defendants

were not about to complete the acts they believed necessary to

launder the remaining balance of the funds at issue because they

“had not taken crucial steps [such as] preparing falsified

documentation, securing cashier’s checks, or arranging meetings for

the exchange”); United States v. Sung, 51 F.3d 92, 95 (7th Cir.

1995) (holding that a commodity counterfeiter had not completed all

the acts he believed necessary to complete the substantive offense

with respect to any sales of counterfeit goods beyond 17,600

bottles because he possessed only enough liquid to fill that number

of bottles). Where conspirators are substantially prepared to

complete the remaining acts they believe necessary for their plan,

they are more likely to be “on the verge” of completing the

substantive offense, U.S.S.G. § 2X1.1, comment. (backg’d), and are

thus unlikely to deserve the reduction. See, e.g., United States

v. Medina 74 F.3d 413, 419 (2d Cir. 1996) (finding that

9
conspirators--having procured a floor plan, firearms, handcuffs,

ski masks, and a get-away vehicle for use during a robbery--were

“about to complete” their planned offense when they were arrested

as they approached the front door of the targeted business); United

States v. Chapdelaine, 989 F.2d 28,35 (1st Cir. 1993) (concluding

that conspirators were “about to complete” a robbery based on

evidence that they “arrived . . . prepared and equipped to carry

out a robbery and were thwarted only by the unexpected early

departure of the Wells Fargo truck”); United States v. Johnson, 962

F.2d 1308 (8th Cir. 1992) (upholding the denial of § 2X1.1(b)(2)’s

reduction where, at the time of their arrest, the conspirators--

possessing firearms, stolen vehicles, nylon stockings and stocking

caps, and gloves--had pulled into the parking lots of the banks

they planned to rob). These five considerations do not exhaust the

factors that may be relevant in a given case, but they do provide

a framework for assessing whether a § 2X1.1(b)(2) reduction is

inappropriate because a conspirator was about to complete the acts

believed necessary to accomplish the substantive offense.

B

With these principles in mind, we turn to the question

whether the denial of a § 2X1.1(b)(2) three-level reduction was

warranted in this case. Detective Storey, the lead investigator,

testified at a preliminary hearing and at the two sentencing

hearings. He provided an overview of the defendants’ planning and

the extent to which the defendants had taken the steps they

believed necessary to complete the substantive offense underlying

10
the conspiracy charge. His testimony revealed that significant

aspects of the defendants’ plan were uncertain or unrealized at the

time of their arrest.

According to Detective Storey, the defendants backed out of

their planned robbery of the targeted drug traffickers on two

occasions before April 22. Ultimately, the defendants never robbed

either drug trafficker. The defendants also failed to obtain the

component parts to construct the explosive devices needed to create

the planned diversion at the gas refinery. At one point, Waskom

had indicated that he would attempt to obtain two fifty-five gallon

barrels of explosive material from an uncle in Chicago. It became

apparent that he would not be able to do so, however, and the

defendants consequently developed a contingency plan involving the

use of a large pipe bomb. Detective Storey testified that Waskom

never tried to obtain explosives from the Chicago uncle, who in

fact may not have existed. Searches of the defendants’ homes and

vehicles did not turn up any pipe. Detective Storey suggested that

the failure to recover any pipe indicated that the conspirators

still needed to acquire pipe to manufacture the explosive devices.

The defendants did possess a small amount of black powder, but

Detective Storey testified that the quantity was insufficient to

execute their plan to detonate several explosive devices.

Detective Storey posited that, had the defendants succeeded in

accomplishing the drug-trafficker robbery that they had

contemplated, then they would have had money to purchase the items

needed to construct the explosive devices. He acknowledged,

11
however, that the underlying robberies had not occurred and that

the defendants did not have money from any other source. As a

consequence, at the time of their arrests, the defendants had not

constructed any explosive devices to be used to create a diversion

during the robbery, nor did they even have the funds to do so.

That the conspirators were, in the words of Detective Storey,

“still in the planning stages” is further evidenced by a recording

of a conversation that the confidential informant and three of the

defendants had just minutes before the defendants’ arrests. During

this conversation, the defendants discussed the manner in which

they would plant the explosive devices and the way in which they

would confront the armored car and bank personnel. Taylor stated

that they still needed a vehicle or the assistance of other

individuals to remove the money from the armored car. As an

alternative, the defendants discussed the possibility of stealing

the armored car itself. Taylor observed, “I don’t know if May

first is pushing it, well [sic] we go back to June first or we can

take May fifteenth or, it don’t matter.” Later in the

conversation, he stated, “You know like I say we got way too much

planning to do between now and then to [sic], let’s see once, once

we get this all figured out here, and get this down pact [sic],

well then we can move on together to the decisions that we gotta

make.” Thus, moments before their arrest, these defendants

believed that there were significant aspects of their plot that

required additional planning, decisionmaking, and implementation.

The PSRs prepared for Waskom, Taylor, and the Adamses

12
nonetheless advised that the three-level reduction was not

applicable. The addenda to those reports stated that the

conspirators had completed all the acts they believed necessary for

the successful completion of the substantive offense but were

apprehended before implementing their final plans. According to

the addenda,

The conspirators had conducted extensive surveillance of
the armored car, the car’s route, the gas refinery, and
escape routes for leaving the area. They had obtained
pipes, fittings, and manuals with the full intention of
making the destructive devices. They had exploded two
prototypes in preparation for building the large devices
and had begun to make back up plans to use readily
available black powder in the bombs. It is evident that
the plan was on schedule and would have been completed if
the defendants had not been arrested. A three level
reduction should not be applied.

The district court overruled the defendants’ objections to the

PSR’s recommendation, adopted the PSR’s findings and conclusions,

and denied the three-level reduction under § 2X1.1(b)(2). In

rendering his decision, the sentencing judge stated:

I . . . find that they were far enough along that
they were about to complete all such acts but for their
apprehension. There were, as the witness, Storey,
indicated, two things lacking to make it as elaborate as
they had discussed, and that is more black powder and
some pipe. But they certainly had it within their means
to obtain those things readily, and even if they didn’t
they had something in their control that could cause a
lot of damage and certainly create the diversion.
And the fact that one of the conspirators had
already arranged to be off work on the day they had
discussed doing it, would certainly be a strong
indication that they were ready to do it. So I’ll
overrule that objection.

After thoroughly reviewing the record, we conclude that the

district court clearly erred in concluding that, at the time of

their arrest, the conspirators were about to complete all the acts

13
they believed necessary to rob the armored car. We reach this

conclusion because the conspirators’ plan required significant

steps to be taken before they could complete the substantive

offense. The record reveals that the acts the defendants believed

they needed to accomplish for the success of the armored-car

robbery were far more complex than any acts they had actually

committed and their completion of the remaining acts was neither

imminent nor a foregone conclusion. Successful completion of the

acts leading up to the robbery of the armored car would have

entailed the commission of the planned robberies of the suspected

drug traffickers; the purchase of component parts for the explosive

devices; the assembly, planting, and carefully timed detonation of

those devices; and formulation and execution of a concrete plan of

attack to make off with the contents of the armored car. At the

time of their arrest, the defendants had taken none of these steps.

Of particular importance to the district court’s decision to

deny the § 2X1.1(b)(2) reduction was the fact that Waskom had

arranged to be away from his job on May 1, the target date for the

robbery. According to the sentencing judge, this indicated that at

least one of the defendants thought the offense was “complete

enough” and that the conspirators were “ready” to commit the

robbery. Although Waskom’s plan to be away from work is of some

persuasive value, it is more indicative of his belief that the

group would be prepared to commit the robbery by that date than a

finding that the group was already equipped to do so. Further,

that Waskom set aside the target date becomes less weighty when

14
considered in the context of the defendants’ penchant for selecting

dates to commit robberies only to back out as the time for action

approached.3 When viewed in light of the full record, Waskom’s

plan to be away from work on May 1 does not persuade us that the

defendants were about to complete the armored-car robbery at the

time of their arrest on April 22.

Despite uncontroverted evidence that the conspirators lacked

the component parts to construct the explosive devices and had

insufficient resources to secure those materials, the district

court concluded that “they had it within their means to obtain

those things readily.” This finding is not supported by the

record. In the alternative, the court found that they possessed

“something . . . that could cause a lot of damage and certainly

create the diversion.” In reaching this conclusion, the court

presumably relied on the testimony that the conspirators possessed

a small amount of black powder, which could have been used to

construct a single pipe bomb with the potential to damage the

energy facility and cause injuries. Given the fact that the

authorities were unable to recover any pipe, this conclusion is

3
According to the PSRs, the conspirators initially planned to
rob the first drug trafficker on March 25, the second on March 30,
and the armored car on April 2, but they did not meet any of these
target dates. They also planned to rob an individual on April 15
but did not do so. April 22, the day the defendants were arrested,
was the next target date for the robbery of a drug trafficker. The
defendants had pushed back the scheduled date of the armored car
robbery to May 1 but, on the day of their arrest, discussed the
prospect of another postponement because significant preparations
remained. The record thus reveals a pattern of delay on the part
of the conspirators in taking certain steps they believed necessary
to complete the substantive offense--a pattern that continued up to
the moments before their arrest.

15
speculative. More importantly, there is no indication in the

record that the defendants would have proceeded if they had been

unable to construct the size and number of explosive devices they

had planned to detonate at the plant.

Although the district court may very well have been correct

that the defendants eventually would have secured the materials

they needed to construct the explosive devices, the relevant

question is whether they were about to do so. The record is clear

that, at the time of their arrest, the defendants lacked the

resources and materials they needed for their plan and were thus

unprepared to accomplish the remaining acts they believed necessary

to rob the armored car without interference from the authorities.

Certainly, the defendants had taken steps in furtherance of their

conspiracy. Those steps, however, pale in comparison to the acts

remaining to complete the intended offense. In sum, the record

does not support a finding that, at the point of their arrests, the

defendants were on the verge of completing the acts they believed

necessary to commit the substantive offense of robbing the armored

car. We therefore find that the district court clearly erred in

denying the three-level reduction under § 2X1.1(b)(2).

C

With the benefit of the § 2X1.1(b)(2) discount, the adjusted

offense levels for Taylor and the Adamses allow ranges of

imprisonment below the actual sentences imposed, so the error was

not harmless. See United States v. Mills, 9 F.3d 1132, 1139 (5th

Cir. 1993). Accordingly, we vacate the sentences of Taylor, Shawn

16
Adams, and Catherine Adams and remand for resentencing.

Based on the assistance that Waskom provided the government,

he received a downward departure pursuant to § 5K1.1 of the

guidelines. Although his guideline range of imprisonment was 168

to 210 months, Waskom was sentenced to a 110-month term of

incarceration. With the benefit of the three-level reduction,

Waskom’s guideline range of imprisonment is 121 to 151 months. The

Supreme Court has held that, if “the district court misapplied the

Guidelines, a remand is appropriate unless the reviewing court

concludes, on the record as a whole, . . . that the error did not

affect the district court’s selection of the sentence imposed.”

Williams v. United States, 503 U.S. 193, 203, 112 S. Ct. 1112,

1120-21 (1993). Although Waskom’s sentence falls below the

corrected guideline range, we cannot conclude that the

§ 2X1.1(b)(2) error was harmless. Waskom’s 110-month sentence was

the result of a significant downward departure based on the

government’s motion pursuant to § 5K1.1 of the Guidelines and the

sentencing judge’s finding that Waskom substantially assisted the

government. We cannot discern from the record whether the

sentencing judge would have imposed the same sentence had he been

departing from the range set by an offense level of thirty-two,

instead of thirty-five. See United States v. Bush, 70 F.3d 557,

560 n.3 (10th Cir. 1995) (stating that an error in calculating the

base offense level was not harmless because it might have affected

the extent of the § 5K1.1 downward departure that had resulted in

a sentence falling below the corrected sentencing range). As it is

17
the prerogative of the district court, in the first instance, to

determine the degree of departure warranted by a defendant’s

assistance, we vacate Waskom’s sentence and remand for

resentencing.

IV

Waskom raises several additional issues pertaining to the

calculation of his sentence. We address each in turn.

A

Waskom argues that the district court erred in applying

§ 2X1.1 of the Guidelines. Waskom pleaded guilty to conspiracy to

obstruct and delay interstate commerce by robbery and physical

violence, in violation of 18 U.S.C. § 1951. In the case of

conspiracy, the offense level is to be determined in accordance

with the provisions of § 2X1.1, unless a specific offense guideline

expressly covers the conspiracy charge at issue. See U.S.S.G.

§ 2X1.1. Before the district court, Waskom objected to the PSR’s

application of § 2X1.1, arguing that there was no partially

completed offense. In response, his PSR’s addendum set forth facts

to demonstrate that the offense was partially completed. Waskom

then filed several objections to the PSR’s addendum but stated that

he “accept[ed] the Addendum” as it pertained to his initial § 2X1.1

objection.

On appeal, Waskom asserts in wholly conclusory fashion that

“there was no ‘partially completed’ offense” and that the district

court therefore erred in applying § 2X1.1 for the calculation of

his offense level. In seeking the benefit of the three-level

18
reduction under § 2X1.1(b)(2), however, Waskom urges that § 2X1.1

should apply to his case. Because Waskom acceded below to the

application of § 2X1.1, has presented this Court with no

substantive basis to find this provision inapplicable, and argues

that it does apply for purposes of the reduction under

§ 2X1.1(b)(2), we find that Waskom has waived his challenge to the

applicability of § 2X1.1. See Yohey v. Collins, 985 F.2d 222, 225

(5th Cir. 1993). The district court did not err in applying

§ 2X1.1 in calculating Waskom’s sentence.

B

Waskom also argues that the district court erred by refusing

to decrease his offense level pursuant to § 3B1.2(a) of the

Guidelines, which provides for a four-level reduction if the

defendant was a minimal participant in the offense. The commentary

accompanying the guideline notes that § 3B1.2(a)'s reduction

applies to a defendant who plays a minimal role in
concerted activity. It is intended to cover defendants
who are plainly among the least culpable of those
involved in the conduct of a group. Under this
provision, the defendant’s lack of knowledge or
understanding of the scope and structure of the
enterprise and of the activities of others is indicative
of a role as minimal participant.

U.S.S.G. § 3B1.2, comment. (n.1). The commentary further directs

that “[i]t is intended that the downward adjustment for a minimal

participant will be used infrequently.” Id., comment. (n.2). Only

those rare defendants who are “substantially less culpable than

the average participant” in a conspiracy will warrant the reduction

under § 3B1.2. Id., comment. (backg’d).

The PSR did not recommend that Waskom receive a reduction in

19
his offense level for his role in the offense, and Waskom objected.

The district court overruled Waskom’s objection but indicated that,

in determining where to sentence Waskom within the applicable

guideline range, it would consider his conduct in relation to that

of the other conspirators. As with other sentencing-related

factual findings, this court reviews for clear error the district

court’s determination that a defendant did not play a minimal role

in the offense. See United States v. Zuniga, 18 F.3d 1254, 1261

(5th Cir. 1994).

The PSR established that Waskom was more than a minimal

participant in the conspiracy. Waskom conducted surveillance of

one of the drug traffickers whom the defendants planned to rob;

accompanied his co-defendants to complete that robbery, which was

aborted due to an unforeseen complication; discussed plans for the

robberies with his co-defendants; showed the Adamses a model of an

explosive device that the defendants intended to use; advised the

informant that he planned to obtain powerful explosive material in

two 55-gallon drums from his uncle in Chicago; accompanied his co-

defendants to observe the detonation of two explosive devices;

conducted surveillance of the gas refinery and drew a sketch of the

plant and its surrounding area; and discussed building the

explosive devices and backup plans for obtaining the explosive

devices with his co-defendants. As his PSR’s addendum aptly

stated, Waskom “was aware of the scope and target of the offense,

the planned diversionary explosions, and the possibility of the

explosions causing injuries or death to innocent victims.” In

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light of these facts, the district court did not err in denying the

reduction under § 3B1.2.

C

The remaining issues raised by Waskom pertain to increases in

his offense level based on specific offense characteristics.

Waskom argues that the district court erred by increasing his

offense level pursuant to § 2B3.1(b)(1), (b)(2), and (b)(3)(C) of

the Guidelines. The PSR recommended each of these enhancements,

and the district court overruled Waskom’s objections to the

increases. In considering Waskom’s challenges to the offense-

specific increases, we adhere to § 2X1.1, which set Waskom’s base

offense level by reference to the guideline for the substantive

offense. Section 2X1.1 directs that adjustments be made “for any

intended offense conduct that can be established with reasonable

certainty.” U.S.S.G. § 2X1.1(a). Thus, Waskom’s sentence accounts

for conduct that he specifically intended, even if the conduct did

not actually occur. See id. § 2X1.1, comment. (n.2).

Section 2B3.1(b)(1) directs a two-level increase “[i]f the

property of a financial institution was taken.” Waskom’s PSR

recommended the enhancement under § 2B3.1(b)(1), asserting that the

property of a financial institution was the target of the offense.

As he did below, Waskom contends that the object of the offense was

an armored car, not a financial institution, and that the car might

well have contained payrolls and receipts, instead of financial

institution property. The PSR noted that the targeted armored car

routinely traveled through Bridgeport and Chico, making regular

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pick-ups and deliveries at federally insured banks. The PSR

further stated that one of Waskom’s co-conspirators conducted

surveillance on the armored car as it made deliveries to the banks.

The district court did not clearly err by determining that the

taking of the property of a financial institution was an object of

the offense.

Waskom next argues that the district court erred by increasing

his offense level by six pursuant to § 2B3.1(b)(2), which directs

such an increase if a firearm was “otherwise used.” A “firearm”

includes a destructive device such as the explosive devices the

defendants planned to detonate at the gas refinery, and “otherwise

used” is defined as conduct that “did not amount to the discharge

of a firearm but was more than brandishing, displaying, or

possessing a firearm or other dangerous weapon.” U.S.S.G. § 1B1.1,

comment. (nn.e & g); accord United States v. Burton, 126 F.3d 666,

678 (5th Cir. 1997). Before the district court and this Court,

Waskom argued that the enhancement applies only to the use of a

firearm during the commission of the substantive offense. Waskom

also claimed that the enhancement should not apply because he had

not pleaded guilty to the firearms charge that appeared in the

superceding indictment filed against the other defendants. The

district court overruled Waskom’s objection, finding that the

information in the PSR “establishe[d] with reasonable certainty

that the defendants, as part of their conspiracy, intended to use

an explosive device or firearm.”

The PSR stated that the defendants constructed bombs and

22
exploded the bombs in furtherance of the scheme to carry out the

planned robbery. The construction and detonation of the bombs

constituted more than brandishing, displaying, or possessing the

dangerous weapons. Further, the defendants intended to detonate

more bombs as a diversionary tactic during the commission of the

robbery. In light of these facts, the district court did not err

in determining that there was a reasonable certainty that a

destructive device would be “otherwise used” during the commission

of the offense. Once the record established with reasonable

certainty that the conspirators intended to detonate explosive

devices at the gas refinery, the defendants became subject to the

corresponding adjustment for such conduct, even though they did not

accomplish their planned acts and regardless of whether they were

charged with a separate firearms offense.

Waskom’s challenge to the adjustment pursuant to

§ 2B3.1(b)(3)(C) also fails. Section 2B3.1(b)(3)(C) directs a six-

level increase in the base offense level for the robbery if any

victim sustained permanent or life-threatening bodily injury. See

U.S.S.G. § 2B3.1(b)(3)(C).4 The PSR recommended this enhancement

because the defendants planned to cause permanent or life-

threatening bodily injury by using diversionary explosives and

targeting the maximum number of law enforcement personnel possible.

The PSR stated that the defendants planned to make anonymous

4
Although Waskom warranted a six-level increase under
§ 2B3.1(b)(2) and a six-level increase under § 2B3.1(b)(3)(C), he
received an eleven-level increase under these two provisions
because the the guideline directs that the cumulative adjustments
under § 2B3.1(b)(2) and (3) should not exceed eleven.

23
telephone calls to local law enforcement agencies advising of the

existence and location of a bomb to ensure that numerous officers

would be present when the explosive devices were detonated.

According to the PSR, the defendants were fully aware that the

planned diversionary explosion would probably kill many people,

primarily law enforcement personnel, but showed no concern about

that effect. Indeed, one of Waskom’s co-conspirators told the

confidential informant that a nearby state prison might be blown up

due to the anticipated size of the planned explosion and that he

planned on placing bombs in locations where they would “hurt the

most cops.” The PSR noted that case agents had reviewed the

conspirators’ plans and the refinery’s lay-out and had concluded

that the destruction intended by the defendants could have happened

as planned. The PSR concluded that, had the defendants had not

been arrested prior to execution of their plan, they would have

caused permanent or life-threatening bodily injury and probably

death.

The district court determined that “the defendants, as part of

their conspiratorial activities, did intend in relation to the

robbery and the overall events related to the robbery of the

armored vehicle to cause permanent or life-threatening bodily

injury,” and that such intent was “established with reasonable

certainty.” Waskom’s complaint that the adjustment is warranted

only in cases in which the injury actually occurs is unavailing

under § 2X1.1. Because the guideline allows adjustments for

intended offense conduct that is established with a reasonable

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certainty, the district court did not err in increasing Waskom’s

offense level under § 2B3.1(b)(3)(C), as the PSR demonstrates with

reasonable certainty that the defendants intended that their

victims would sustain permanent or life-threatening bodily

injuries.

V

Pursuant to 28 U.S.C. § 455(a), Taylor moved for the recusal

of the presiding judge, the Honorable John McBryde, and

reassignment of his case to a different district court judge within

the Northern District of Texas. The proffered ground for recusal

was the appearance of Taylor’s attorney, Paul D. Stickney, as a

subpoenaed witness before a special investigatory committee of the

Fifth Circuit Judicial Council. During those proceedings, Stickney

provided testimony adverse to Judge McBryde. The district court

denied Taylor’s motion and proceeded to accept his guilty plea and

impose the challenged sentence. Taylor now appeals the district

court’s denial of his motion for recusal. Taylor seeks only to be

resentenced. Our decisions in United States v. Anderson, 160 F.3d

231 (5th Cir. 1998), and United States v. Avilez-Reyes, 160 F.3d 258

(5th Cir. 1998), dictate the resolution of Taylor’s appeal. Those

cases involved similar motions under 28 U.S.C. § 455(a) by

defendants represented by Stickney after his testimony before the

Judicial Council. We held that Judge McBryde abused his discretion

and committed reversible error in failing to recuse himself. We

reached this conclusion notwithstanding the fact that neither

Anderson nor Avilez-Reyes alleged a specific sentencing error other

25
than the failure to recuse. Here, Taylor challenges not only the

denial of his recusal motion, but also the four-level enhancement

under § 3B1.1 of the Guidelines, based on his role in the offense,

and the denial of the three-level reduction under § 2X1.1. In

accordance with our holdings in Anderson and Avilez-Reyes, we

vacate Taylor’s sentence and remand for a new sentencing proceeding

before a different district court judge in the Northern District of

Texas.5

VI

For the foregoing reasons, we vacate the defendants’ sentences

with respect to the denial of the three-level reduction under

§ 2X1.1(b)(2), and we remand for resentencing in accordance with

this opinion. With respect to the enhancements of Waskom’s offense

level pursuant to § 2B3.1(b)(1), (b)(2)(B), and (b)(3)(C) and the

denial of a reduction under § 3B1.2(a), we find no clear error.

Finally, because the district court abused its discretion in

denying Taylor’s motion to recuse pursuant to 28 U.S.C. § 455(a),

we vacate his sentence and remand for new sentencing proceedings

before a different district court judge within the Northern

District of Texas.

VACATE AND REMAND.

5
Because Taylor is to be resentenced, we do not address his
claim that the four-level increase of his offense level, pursuant
to § 3B1.1 of the Guidelines, was improper.

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