                            ___________

                            No. 94-3665
                            ___________

United States of America,        *
                                 *
          Appellee,              *
                                 *   Appeal from the United States
     v.                          *   District Court for the
                                 *   Eastern District of Missouri.
Larry Brown,                     *
                                 *
          Appellant.             *


                            ___________

                  Submitted:    September 12, 1995

                       Filed: January 30, 1996
                            ___________

Before FAGG, Circuit Judge, and FLOYD R. GIBSON and HENLEY, Senior
     Circuit Judges.

                            ___________

HENLEY, Senior Circuit Judge.


     Larry Brown appeals from a 57-month sentence imposed by the
district court1 following his guilty plea to possession of an
incendiary device, in violation of 18 U.S.C. § 371. We affirm.


     During a meeting between Brown, a union business agent, and
Keith Milton, a union member, regarding Milton's dissatisfaction
with the union's handling of a grievance, the two came to blows.
The union suspended Brown after Milton filed a complaint against
him.   A few days later, on August 13, 1993, Brown sought the
assistance of Martin Dames, an acquaintance who was also an FBI
undercover informant, in injuring Milton and his property.    On
August 17, Brown introduced Dames to Donald Vaughn, who was on


    1
     The Honorable Carol E. Jackson, United States District Judge
for the Eastern District of Missouri.
parole for murder.


     On August 26, the trio met and Vaughn suggested putting a
wired spark plug in the gas tank of Milton's car, which would cause
the car to explode when it was started, a feat Vaughn said he had
successfully performed in the past. During the course of several
meetings, Brown and Vaughn discussed various ways of harming Milton
and his property. They also made several attempts to locate Milton
and his house. In September, Department of Labor agents questioned
Brown as to whether he was stalking Milton and told him he would be
a suspect if Milton were hurt.       Brown told Dames about this
conversation and said he had to be careful. In May 1994, Brown was
charged with conspiracy to possess an incendiary device.


     The presentence report (PSR) calculated a total offense level
of 23, a criminal history category of I, and a Guidelines range of
46 to 57 months. Brown filed objections to the PSR, contending,
inter alia, that he was entitled to a three-level reduction under
U.S.S.G. § 2X1.1(b)(2) because he had not completed the acts
necessary for the successful completion of the substantive offense.
In relevant part, Section 2X1.1(b)(2) provides for a three-level
reduction in conspiracy cases, "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."


     At sentencing, Brown again claimed he was entitled to the
reduction, attempting to characterize the substantive offense as
arson or murder. Terry Coff, an FBI agent who investigated the
case, testified that the conspirators had met seven times and
during these meetings the plans regarding harming Milton "changed
a few times," but at the last meeting Brown insisted that "we're
still going to burn his house and blow up his car."


     The court overruled Brown's objection.   The court stated that

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the focus of the guideline was on the substantive offense and what
a defendant thought was necessary on his part for successful
completion of the offense.     The court indicated that had the
substantive offense been arson or murder, as Brown had suggested,
a reduction might have been warranted. However, the court found
that the substantive offense was possession of an incendiary device
and that by hiring somebody "who could do the job" Brown did "what
he thought was necessary to successfully complete the act."

     On appeal, Brown first suggests that the district court erred
as a matter of law in applying 2X1.1(b)(2) by failing to
distinguish between the conspiracy and the substantive offense.
See United States v. Rothman, 914 F.2d 708, 710-11 (5th Cir. 1990)
("offense" in § 2X1.1(b)(2) refers to "underlying offense and not
the conspiracy"). However, he reluctantly admits that the court
did distinguish between the conspiracy and the substantive offense.
In fact, as the government points out, the district court was
careful to note that the substantive offense was possession of an
incendiary device, and not arson or murder, as Brown had suggested.
See United States v. Westerman, 973 F.2d 1422, 1428 (8th Cir. 1992)
(court erred in applying 2X1.1(b)(2) by treating arson rather than
mail fraud as substantive offense).


     In the alternative, Brown argues that, as a matter of fact,
the denial of the reduction was clearly erroneous because the
conspirators did not possess the incendiary device. The government
responds that a reduction was not warranted because a spark plug
and wire were easily obtainable and, as the district court found,
by hiring Vaughn who "could do the job," Brown did all he believed
was necessary for completion of the offense. We agree. As the
government notes, whether a reduction under Section 2X1.1 is
warranted is a fact-specific inquiry, and courts have upheld the
denial of a reduction even though a defendant had not reached the
"last step" before completion of the substantive offense.      For
example, in an analogous situation, in United States v. Barton, 32

                               -3-
F.3d 61, 64 (4th Cir. 1994), a defendant pleaded guilty to
attempted money laundering. Section 2X1.1(b)(1) provides a three-
level reduction for an attempt, "unless the defendant completes all
the acts [he] believed necessary for successful completion of the
substantive offense." The court rejected the defendant's argument
that a reduction was warranted because his money laundering
"schemes were patently ridiculous . . . not one of [them] could
ever have led to the successful completion of a money laundering
transaction."   Id.   "Despite [the defendant's] protestations of
naivete and ineptitude," the court upheld the denial of the
reduction because defendant had accepted a suitcase containing
money, which was "the first step or initiation of his planned
delivery of what he believed was drug money to his associate[,]"
who had given assurances that she could launder money. Id.


     Brown also argues that the district court erred in restricting
his cross-examination of Coff and thereby prevented him from
proving that he had abandoned the spark plug conspiracy and had
moved on to other conspiracies. We find no error. In fact, the
court allowed cross-examination about the various plans to harm
Milton, but noted the discussion of other plans was irrelevant to
the conspiracy to which Brown had pleaded guilty - possession of an
incendiary device. Moreover, we note that after Brown's cross-
examination, on redirect, Coff stated that even though other plans
had been discussed at the last meeting Brown still insisted on
"burn[ing] [Milton's] house and blow[ing] up his car."


     Accordingly, the judgment is affirmed.




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A true copy.


     Attest:


          CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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