                      United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT


                                     No. 00-4047


United States of America,                 *
                                          *
                   Appellee,              *   Appeal from the United States
                                          *   District Court for the Eastern District
      v.                                  *   of Arkansas
                                          *
Bobby Franklin Simmons                    *
                                          *
                   Appellant.             *


                               Submitted: June 13, 2001
                                Filed: August 15, 2001


Before McMILLIAN and RICHARD S. ARNOLD, Circuit Judges, and
ROSENBAUM,* District Judge.



ROSENBAUM, District Judge.


       While high on painkillers, Bobby Franklin Simmons conspired with another
individual, Terry Sanders, to steal money orders and an imprinting machine from two




      *
        The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, sitting by designation.
post offices in rural Arkansas.1 Simmons, however, chose his co-conspirator unwisely,
because Sanders went to the authorities and, as part of his cooperation, recorded
numerous conversations between himself and Simmons detailing the planned crime.
Those recordings reveal Simmons planned to incapacitate the postmasters with a
concoction of pure grain alcohol and Valium, shoot any police officers who responded
to the scene, and escape with over $50,000 in money orders.


       In order to forestall death or injury to postal or law enforcement personnel,
Simmons was arrested before he could actually effectuate his plan. After being charged
with attempted robbery of a post office,2 he pleaded guilty. At the sentencing hearing,
the government took the position that various specific offense characteristics applied
to Simmons’ crime. Simmons objected to the application of any enhancements to his
offense level beyond the 2-level enhancement imposed because the object of his
offense was a post office. See U.S.S.G. § 2B3.1(b)(1).


       The parties agreed to use the transcripts of the recorded conversations to supply
a factual rubric by which the district court3 would determine the applicable sentencing
guidelines.4 Based on Simmons’ stated intentions, the district court determined the

      1
       Simmons, a paraplegic, took morphine to control his pain. Over time, he began
to abuse his pain medication.
      2
       The three-count indictment charged Simmons with attempted robbery, soliciting
another to participate in a crime of violence, and being a felon in possession of
ammunition. After Simmons was sentenced for attempted robbery, the remaining
counts were dismissed on motion of the government.
      3
        The Honorable William R. Wilson, United States District Judge for the Eastern
District of Arkansas.
      4
       Because of his drug use at the time, Simmons could neither confirm nor deny
the substance of his conversations with Sanders.

                                           2
intended offense conduct included possession of a firearm, injury to a victim, and loss
exceeding $50,000. The court sentenced Simmons to 120 months imprisonment, the
maximum sentence allowed under the law, but less than his presumptive guideline
range of 130 to 162 months. Simmons now appeals the district court’s Guidelines
application, contending the intended offense conduct could not be established with
reasonable certainty, as required by the Guidelines.


        We reject Simmons’ contention that the district court erred in applying
enhancements for his intended conduct. In dealing with attempted offenses, the district
court must begin with the guideline for the substantive offense, and then include those
adjustments for any intended offense conduct “that can be established with reasonable
certainty.” U.S.S.G. § 2X1.1(a). Simmons argues the facts do not support a finding
of “reasonable certainty.” He makes this claim because no firearms, grain alcohol, or
Valium were ever found in searches of his property, no evidence was introduced to
show his alcohol and Valium cocktail would cause injury to someone who consumed
it, and, because he discussed varying amounts of money, no specific intended amount
of loss could be established. Contrary to Simmons’ belief, the lack of physical proof,
or metaphysical certainty, regarding his intended conduct does not remove that conduct
from the Guidelines’ reach.


      The Guidelines require “reasonable certainty” regarding a defendant’s intended
conduct. Here, the district court considered Simmons’ own words to determine his
intended conduct. That the government interrupted Simmons before he could complete
the robberies, or even obtain the elements necessary to carry out his plan, does not
relieve him of responsibility for his intended conduct. The Commentary to § 2X1.1,
the guideline addressing attempt, explicitly approves enhancements imposed for
specific offense characteristics that are actually intended, although not carried out. See
U.S.S.G. § 2X1.1, Application Note 2.


                                            3
        We do not deny the possibility that in certain circumstances the distance between
thought and deed could be sufficiently broad to preclude any enhancement for intended
conduct under § 2X1.1. Nor do we deny the possibility that a case might arise where
it is impossible to acquire a reasonable certainty as to a defendant’s intended conduct.
This, however, is not such a situation. Simmons’ own words reveal his actual intent
to steal and to harm -- that he did not consummate his plan is a fortuity, and one for
which he cannot be rewarded. The district court properly calculated Simmons’
sentence based on his intended conduct, as proven with reasonable certainty by his own
admissions.


      We affirm.


      A true copy.


             Attest:


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




                                           4
