In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1177

United States of America,

Plaintiff-Appellee,

v.

Stephen D. Lamb,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 98-30064-WDS--William D. Stiehl, Judge.


Argued January 25, 2000--Decided March 10, 2000



  Before Eschbach, Coffey, and Easterbrook,
Circuit Judges.

  Easterbrook, Circuit Judge. Woefully
equipped for his line of work, Stephen
Lamb broke into a bank. All he had was a
screwdriver, a pair of wire cutters, and
a crowbar. They sufficed to damage the
vault’s handle and locking mechanism,
which only made entry harder. Lamb
managed to stuff $350 from two coin
vaults into a bag before being caught
when police answered the burglar alarm,
which Lamb had failed to disable.
Sentencing is the only subject presented
on appeal.

  Section 2B2.1 of the Sentencing
Guidelines provides the framework for
bank burglaries. The base offense level
is 12, and a table in sec.2B2.1(b)(2)
provides for increases if the loss
exceeds $2,500. Section 2B2.1 is not
self-contained but refers to the
commentary of sec.2B1.1 for all issues of
valuation. According to sec.2B1.1
Application Note 2, "loss" means "the
value of the property taken, damaged, or
destroyed." Lamb concedes that everything
in his bag was "taken" even though he did
not get away. He also concedes that the
$1,500 spent to repair property he
damaged counts as loss. The court ordered
Lamb to pay restitution of $1,519.28, and
he does not contest this part of the
sentence. Nor does he contest a two-level
increase for obstruction of justice,
reflecting the fact that he skipped bond
shortly before trial.

  As Lamb sees things, the total loss was
less than $2,000, so the table in
sec.2B2.1(b)(2) does not come into play.
But the district judge calculated loss at
$215,000: the sum of the property damage,
the contents of the main vault (about
$200,000), the contents of the coin
vaults Lamb pried open, and money in a
storage compartment near the coin vaults.
This produced a three-level increase
under sec.2B2.1(b)(2)(D) (loss between
$50,000 and $250,000). Lamb contends that
he could not have opened the main vault;
he did open the coin vaults and might
have obtained access to the storage
compartment, but counting all of this
(plus the physical harm) as "loss" would
have put him in the $10,000 to $50,000
bracket, for a two-level increase under
sec.2B2.1(b) (2)(C). Because Lamb
received only one month less than the
highest permissible sentence under the
range the district court calculated, the
difference between two levels under
sec.2B2.1(b)(2)(C) and three under
sec.2B2.1(b)(2)(D) matters to the
sentence. Lamb has a criminal history
category of III. If the district court is
right that his final offense level is 17,
then the sentencing range is 30 to 37
months; but if Lamb is right, and the
offense level cannot exceed 16, then the
range is only 27 to 33 months, and his
sentence must be reduced by at least
three months. And if "loss" properly
calculated is under $2,500, then the
final offense level is 14, and the
sentencing range is 21 to 27 months.

  The district judge concluded that Lamb
"intended" to steal everything he could
lay his hands on. Lamb does not deny
having this goal but argued in the
district court, and again here, that he
could not have opened the main vault
using only a screwdriver, a pair of wire
cutters, and a crowbar. That much the
prosecutor concedes. What the district
judge concluded is that intent is all
that matters; ability to carry out one’s
plan is irrelevant. Lamb asks us to
follow United States v. Galbraith, 20
F.3d 1054, 1059 (10th Cir. 1994), and
United States v. Khan, 969 F.2d 218, 220
(6th Cir. 1992), by holding that
impossibility defeats criminal intent for
sentencing purposes; the prosecutor
replies that United States v. Coffman, 94
F.3d 330, 336-37 (7th Cir. 1996), and
United States v. Stockheimer, 157 F.3d
1082, 1089-90 (7th Cir. 1998), commit
this court to a different approach, under
which objective indicators of
impossibility do not matter to
sentencing. We need not resolve that dis
pute, because Galbraith, Khan, Coffman,
and Stockheimer all are fraud cases under
sec.2F1.1, not theft cases. Application
Note 8 to sec.2F1.1 observes that
valuation issues in fraud cases
frequently differ from valuation issues
in theft cases. We think it best to stick
to the approach the Guidelines prescribe
for thefts rather than to jump headlong
into the proper treatment of frauds.
Accord, United States v. Kopp, 951 F.2d
521, 528 (3d Cir. 1991).

  Application Note 2 to sec.2B1.1, which
defines "loss" in theft cases, starts but
does not end with the proposition that
loss is "the value of the property taken,
damaged, or destroyed" (here, about
$2,000). Five paragraphs later,
Application Note 2 has a proviso that
applies to Lamb:

In the case of a partially completed
offense (e.g., an offense involving
a completed theft that is part of a
larger, attempted theft), the
offense level is to be determined in
accordance with the provisions of
sec.2X1.1 (Attempt, Solicitation, or
Conspiracy) whether the conviction
is for the substantive offense, the
inchoate offense (attempt,
solicitation, or conspiracy), or
both; see Application Note 4 in the
Commentary to sec.2X1.1.

Lamb took $350 but tried to purloin much
more, so off we go to sec.2X1.1. The
principal rule is stated in sec.2X1.1(a):

The base offense level [comes] from
the guideline for the substantive
offense, plus any adjustments from
such guideline for any intended
offense conduct that can be
established with reasonable
certainty.
This tells us that "any intended offense
conduct that can be established with
reasonable certainty" counts as "loss"
for purposes of sec.2B2.1, the guideline
for the substantive offense. Although the
district judge did not use the words
"reasonable certainty" when finding that
Lamb intended to steal the contents of
the main vault, there has been no dispute
about that subject; Lamb’s counsel agrees
that Lamb intended to empty the vault, if
he could. Thus as a first approximation
the "loss" was $215,000 and the offense
level 17, just as the district court
held.

  But the Sentencing Commission recognized
that inchoate offenses are less serious
than completed ones. Section 2X1.1(b)(1)
reads:

If an attempt, decrease by 3 levels,
unless the defendant completed all
the acts the defendant believed
necessary for successful completion
of the substantive offense or the
circumstances demonstrate that the
defendant was about to complete all
such acts but for apprehension or
interruption by some similar event
beyond the defendant’s control.

Having added extra levels under
sec.2X1.1(a), the court must subtract
three levels under sec.2X1.1(b)(1),
unless the defendant completed all of the
acts he thought necessary to success, or
he was about to complete them when
caught. See United States v. Kim Tae
Sung, 51 F.3d 92 (7th Cir. 1995), after
remand, 87 F.3d 194 (7th Cir. 1996).
Application Note 4 explains the operation
of sec.2X1.1 as a whole:

In certain cases, the participants
may have completed (or have been
about to complete but for
apprehension or interruption) all of
the acts necessary for the
successful completion of part, but
not all, of the intended offense. In
such cases, the offense level for
the count (or group of closely
related multiple counts) is
whichever of the following is
greater: the offense level for the
intended offense minus 3 levels
(under sec.2X1.1(b)(1), (b)(2), or
(b)(3)(A)), or the offense level for
the part of the offense for which
the necessary acts were completed
(or about to be completed but for
apprehension or interruption). For
example, where the intended offense
was the theft of $800,000 but the
participants completed (or were
about to complete) only the acts
necessary to steal $30,000, the
offense level is the offense level
for the theft of $800,000 minus 3
levels, or the offense level for the
theft of $30,000, whichever is
greater.

This illustration speaks directly to
Lamb’s theft--though here the numbers are
$215,000 and $2,000 rather than $800,000
and $30,000. Lamb set out to steal
$215,000 but completed only those acts
needed to steal a much smaller amount.
Thus "the offense level is the offense
level for the theft of [$215,000] minus 3
levels, or the offense level for the
theft of [$2,000], whichever is greater."
The offense level for a loss of $215,000
is 15 - 3 = 12; the offense level for a
loss of $2,000 is 12; thus the inchoate
portion of Lamb’s offense doesn’t matter.
Add two levels for obstruction of
justice, and the final offense level is
14.

  No one spelled out for the district
judge’s benefit how sec.2X1.1(b)(1)
works, and it is hard to blame the judge
for not subtracting three levels on his
own. But the application of this
guideline is straightforward and has a
direct effect on Lamb’s sentence, so we
deem the oversight plain error. United
States v. Olano, 507 U.S. 725 (1993).
Lamb’s sentence must be recalculated. Two
issues on remand will be how much money
was in the coin vaults, and whether Lamb
was about to open the storage
compartment. Neither of these mattered
given the district judge’s decision to
count the $200,000 in the main vault, but
they do matter under sec.2X1.1. If the
coin vaults contained more than $1,000 in
total, or if Lamb would have gained entry
to the storage area but for the arrival
of the police, then he is accountable for
more than $2,500 of loss and his final
offense level is 15 or 16 (depending on
just how much was in the vaults and
compartment); otherwise it is 14.

Vacated and Remanded
