                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                                 APR 21, 2010
                               No. 09-12570                       JOHN LEY
                           Non-Argument Calendar                    CLERK
                         ________________________

                     D. C. Docket No. 08-21012-CR-JLK

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

ADIARIS FIGUEROLA,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________



Before TJOFLAT, BARKETT and FAY, Circuit Judges.

PER CURIAM:

     Appellant was sentenced to a prison term of 27 months on a plea of guilty
(pursuant to a plea agreement) to conspiracy to commit mail fraud, in violation of

18 U.S.C. § 1349. She now appeals her sentence, contending that it is procedurally

unreasonable because the district court erred by not awarding her a three-level

reduction of her base offense level for an incomplete conspiracy offense, pursuant

to U.S.S.G. § 2X1.1(b)(2).

       The Sentencing Guideline applicable to appellant’s conviction for

conspiracy to commit mail fraud is U.S.S.G. § 2X1.1, which applies to attempt,

solicitation, and conspiracy offenses not covered by a specific offense guideline.

U.S.S.G. § 2X1.1. Section § 2X1.1(b)(2) provides for a three-level reduction to

the defendant’s base offense level:

       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 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 to § 2X1.1 provides the following

clarification:

       In most prosecutions for conspiracies or attempts, 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

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      3 levels is provided under § 2X1.1(b)(1) or (2).

U.S.S.G. § 2X1.1, comment. (backg’d).

      In United States v. Khawaja, we concluded that defendants convicted of

conspiracy to commit money laundering were entitled to the three-level reduction

in § 2X1.1(b)(2) for the following reason:

      The record shows that although the conspirators intended to
      launder $2 million, they managed to launder only $570,556
      prior to apprehension. The conspiracy was dependent on the
      IRS’s fronting of the purported drug money, and the record
      does not show that at the time the IRS terminated its sting
      operation, Appellants had arranged for specific transactions to
      occur in the future. Accordingly, the conspirators had not taken
      crucial steps (including for example, preparing falsified
      documentation, securing cashier’s checks, or arranging
      meetings for the exchange) to launder the remaining balance of
      $2 million. Consequently, Appellants neither believed that they
      had completed all the acts necessary on their part nor were they
      about to complete all such acts for the laundering of the entire
      $2 million.

118 F.3d 1454, 1458 (11th Cir. 1997).

      Applying Khawaja, we subsequently held in United States v. Puche that

money-laundering conspirators were similarly entitled to the three-level reduction

because, although they had previously laundered over $700,000, they had not

“taken crucial steps, such as contacting the [undercover] agents or preparing

paperwork for more transfers, to launder the remaining six million dollars.” 350

F.3d 1137, 1156 (11th Cir. 2003). Indeed, the defendants in Puche specifically

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told the undercover agent that they “wanted to hold off on [future] transfers” for

the time being. Id.

      More recently, in Watkins, we addressed whether the analogous three-level

reduction for solicitation offenses in § 2X1.1(b)(3)(A) applied where the defendant

solicited an undercover agent to commit arson. 477 F.3d at 1278; see U.S.S.G.

§ 2X1.1(b)(3)(A). After we “adopt[ed] the approach taken in [its] application of

§ 2X1.1(b)(2),” the issue became “whether or not the person solicited had taken all

the ‘crucial steps’ necessary to demonstrate to the defendant that the offense was

about to be completed.” Watkins, 477 F.3d at 1281. We ultimately remanded the

case to the district court for further findings, since “the only steps taken were a

diagram and a discussion about the placement of the incendiary devices. There

was no evidence, however, that the undercover officer had obtained the actual

devices or means to complete the arson.

      In this case, appellant and her co-conspirators had taken “crucial steps”

towards completing the substantive mail fraud offense at the time law enforcement

intervened. This is so because they had established a detailed plan to carry out the

offense, they had the means to execute the plan, and they were on the verge of

executing the plan. The district court therefore correctly distinguished Khawaja

and Puche. We thus conclude that the district court committed no error in



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declining to award appellant a three-level reduction, pursuant to § 2X1.1(b)(2), and

that her sentence is not procedurally unreasonable.

      AFFIRMED.




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