United States v. Tulaner

THOMAS, Circuit Judge,

concurring in part and dissenting in part:

I agree that the district court did not clearly err in finding that the intended loss of Tulaner’s fraudulent scheme was approximately $2.3 million, the value of the twelve sputtering discs Tulaner sought to obtain. I respectfully dissent, however, from the conclusion that Tulaner was ineligible for an “attempt reduction” for partially completed offenses.

Application Note 17 to Sentencing Guideline § 2B1.1 and Application Note 4 to Sentencing Guideline § 2X1.1 provide that in the case of a “partially completed offense” — including a completed fraud that is part of a larger attempted fraud — the offense level for the count is the greater of “the offense level for the intended offense minus three levels ... or the offense level for the part of the offense for which the necessary acts were completed.”

The offense of wire fraud is complete when the relevant wire transmission is made. United States v. Blitz, 151 F.3d 1002, 1011 (9th Cir.1998). Thus, the telephone call — in connection with which Tulaner pled guilty to wire fraud-was undoubtedly a completed offense.

I respectfully disagree, however, with the conclusion that Tulaner’s conviction for the completed offense of wire fraud precludes application of the partially completed offense provision. This construction is contradicted by the plain language of Application Note 17, which explicitly contemplates that a completed fraud may be part of a larger attempted fraud. Such is the case here: Tulaner placed a phone call in furtherance of the delivery of four sputtering discs. The phone call was a completed *582fraud, but was also part of a larger fraudulent scheme, the object of which was to obtain twelve discs. To hold otherwise would be in conflict with the district court’s finding, which we have upheld on appeal, that the intended loss was the value of the twelve sputtering discs. In short, this is a paradigmatic case of a partially completed offense to which Application Note 17 applies.

Tulaner’s position is indistinguishable from that of the defendants in United States v. Martinez-Martinez, 156 F.3d 936, 940 (9th Cir.1998). In Martinez-Martinez, we held an attempt reduction to be appropriate because the defendants would have had to take additional steps to realize the proceeds of their crime. Here, although Tulaner had completed the offense of wire fraud, he would have had to take additional steps to realize the proceeds of the entire fraudulent scheme. Because Tulaner’s completed fraudulent offense was also part of a larger attempted fraud, Tulaner’s offense level should thus be calculated under the partially completed offense provision. Therefore, I would vacate the sentence and remand to the district court for proper sentence calculation taking into consideration the import of Application Note 17.