United States of America v. Miljkan Dosen

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2223
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
MILJKAN D OSEN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 217‐1 — James B. Zagel, Judge.
____________________
A RGUED NOVEMBER 19, 2013 — DECIDED D ECEMBER 31, 2013
____________________
Before P OSNER , SYKES , and HAMILTON, Circuit Judges.
P OSNER , Circuit Judge. The defendant pleaded guilty to
conspiring to commit a robbery affecting interstate com‐
merce, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and
to carrying firearms during and in relation to a crime of vio‐
lence (the conspiracy to rob), in violation of 18 U.S.C.
§ 924(c)(1)(A). The plan was that, armed with guns and other
weapons, the defendant and his co‐conspirators would rob a
truck used by a gang of marijuana traffickers to transport

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2 No. 13‐2223
large amounts of cash from Addison, an Illinois village a
short distance west of Chicago, to California for the purchase
of marijuana that they would then haul back to the Chicago
area. But the conspirators lost the truck in traffic and so were
unable to complete the robbery.
The district judge sentenced the defendant to a total of 90
months in prison—30 months on the conspiracy count plus
60 months on the firearms count, which both is the statutory
minimum and is required to run consecutively to the sen‐
tence for conspiracy. 18 U.S.C. §§ 924(c)(1)(A)(i),
924(c)(1)(D)(ii). A second conspirator, guilty of the same two
offenses, received an identical sentence. The third conspira‐
tor is a fugitive; he has not yet been convicted, let alone sen‐
tenced.
The appeal challenges two aspects of the defendant’s sen‐
tence, both relating just to the conspiracy count. The first is
the judge’s addition of two levels to the defendant’s base of‐
fense level for conspiring (as part of the overall robbery con‐
spiracy) to subject the robbery victims to physical restraint.
See U.S.S.G. §§ 2X1.1(a), 2B3.1(b)(4)(B). The second is the
judge’s refusal to reduce the base offense level by three lev‐
els because the conspiracy did not come to fruition in the
substantive crime (as distinct from the conspiracy itself, an
agreement to commit a substantive crime) that the conspira‐
tors had agreed to commit—namely the robbery. U.S.S.G.
§ 2X1.1(b)(2). The two‐level enhancement raised the defen‐
dant’s total offense level for the conspiracy count to 19,
which given his criminal history category (II) made his
guidelines sentencing range 33 to 41 months. The judge thus
gave him a slightly below‐guidelines sentence on that count.

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No. 13‐2223 3
He did that in part because he’d already sentenced the sec‐
ond conspirator to 30 months on the same count.
Without the enhancement for conspiracy to restrain,
Dosen’s total offense level would have been 17 and his
guidelines sentencing range 27 to 33 months. With that en‐
hancement but with a three‐level reduction for incomplete
conspiracy the sentencing range would have been 24 to 30
months. It would have been only 18 to 24 months had he re‐
ceived the reduction and been spared the enhancement,
which is the dual relief that his appeal seeks.
The challenge to the enhancement for conspiracy to re‐
strain need detain us only briefly. As part of their prepara‐
tions for the robbery the conspirators bought duct tape.
Conversations surreptitiously recorded by a government in‐
formant posing as one of the conspirators indicated that the
defendant and his two accomplices (the defendant of course
thought he had three) planned to use the tape to bind the
robbery victims. The defendant argues that it was just a
“possibility,” which of course is true, because no one can be
certain what would have happened had the robbery been
attempted. But this could be said of any conspiracy—that no
one could be certain what would have happened had the
conspiracy not collapsed before the commission of the sub‐
stantive offense that was its aim. That uncertainty does not
negate the enhancement for conduct that the conspirators
would have engaged in had the conspiracy been consum‐
mated, provided that the “intended offense conduct … can
be established with reasonable certainty.” U.S.S.G.
§ 2X1.1(a). What has to be established with reasonable cer‐
tainty is thus the forbidden conduct that the conspirators
“specifically intended” to engage in—in this case physically

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4 No. 13‐2223
restraining a person (probably more than one). U.S.S.G.
§ 2X1.1, Application Note 2; see also United States v. Jones,
950 F.2d 1309, 1316–17 (7th Cir. 1991).
The requirement was satisfied in this case. Besides what
the taped conversations revealed, Dosen’s plea agreement
and post‐arrest statement admit that his intent was to re‐
strain the robbery victims. The plea agreement states that he
and a co‐conspirator “purchased supplies to be used in
committing the robbery, including … duct tape (to bind and
restrain the truck occupants),” and his post‐arrest statement
states that “Dosen advised that they purchased duct tape to
tie up the driver and a knife to cut the duct tape.”
The difficult issue presented by the appeal is the judge’s
refusal to reduce the defendant’s guidelines sentencing
range by three levels because the conspiracy was not carried
out. U.S.S.G. § 2X1.1(b)(2) entitles the defendant to such a
reduction unless he “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 cir‐
cumstances demonstrate that the conspirators were about to
complete all such acts but for apprehension or interruption
by some similar event beyond their control.” The Sentencing
Commission’s commentary explains that “in most prosecu‐
tions for conspiracies or attempts, the substantive offense
was substantially completed or was interrupted or pre‐
vented on the verge of completion by the intercession of law
enforcement authorities or the victim. In such cases, no re‐
duction of the offense level is warranted. Sometimes, how‐
ever, the arrest occurs well before the defendant or any co‐
conspirator has completed the acts necessary for the substan‐
tive offense. Under such circumstances, a reduction of 3 lev‐

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No. 13‐2223 5
els is provided” by the guideline. U.S.S.G. § 2X1.1 Back‐
ground.
The defendant fastens on the phrase “about to complete”
in the guideline to contest the judge’s refusal to grant him
the three‐level discount. He takes sharp issue with the
judge’s statement that the exception for cases in which all
the acts necessary for committing the substantive offense
would have been completed had it not been for an occur‐
rence outside of the conspirators’ control is not “temporal.”
But the judge was right. The guideline says nothing about
the interval between the completion of the conspirators’
preparations for the substantive offense and that offense.
True, the guideline commentary that we quoted refers to
“verge of completion.” Whereas “about to complete” in the
guideline itself refers to imminent completion of the pre‐
paratory acts, not of the substantive offense, “verge of com‐
pletion” in the commentary seems to mean verge of commit‐
ting the substantive offense that was the conspiracy’s object.
So understood, however, the commentary amplifies rather
than glosses the guideline and so must be interpreted cau‐
tiously.
Not that “imminence of completion of the substantive of‐
fense at the time of the arrest” is irrelevant to deciding
whether the defendant was “about to complete” all the acts
preparatory to committing the offense. United States v. San‐
chez, 615 F.3d 836, 846 (7th Cir. 2010). But though relevant, it
is not determinative. Imagine a terrorist, who pursuant to a
conspiracy with other terrorists, plants a bomb but sets the
timer to trigger the explosion in a week, in order to give him
ample time for a getaway. He is not entitled to the three‐
level reduction. His preparations were complete, even

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6 No. 13‐2223
though commission of the substantive crime that was the
goal of the conspiracy might not be considered “imminent.”
Our conspirators equipped themselves for the heist
with—besides the duct tape—disguises, cans of gasoline to
enable them to refuel without having to stop at a gas station,
firearms, a knife, and pepper spray. These preparations were
necessary because the drug traffickers who were the in‐
tended victims, consisting of a driver, and a buddy to pro‐
vide protection, would probably be armed, given the nature
and value of the cargo; and if so they might well resist an
assault on the truck violently.
The conspirators planned to trail the truck to the Mis‐
souri border (they knew that was where the truck would
leave Illinois), and then pounce. They knew who the traf‐
fickers were and where the truck was parked in Addison.
They parked nearby and waited for the traffickers to arrive.
Finally they did arrive. The conspirators became concerned
that the quarry might have spotted them and guessed what
they were up to, but decided to follow the truck anyway, as
it pulled away from its parking place. They followed it for
some distance—past Springfield—and at some point saw the
traffickers handed a bag that the conspirators guessed con‐
tained the cash. They continued to trail the truck but eventu‐
ally, as we said, lost it in traffic. The driver may have taken
evasive measures, suspecting (as the conspirators thought he
might) that he was being followed.
At best it would have taken them hours to catch up with
the truck at the state line and mount their attack, but the
temporal interval as we said is not critical. The defendant
denies that the conspirators had (in the language of the
guideline) either “completed” or were “about to complete”

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No. 13‐2223 7
“all the acts [they] believed necessary on their part for the
successful completion of the substantive offense.” This is an
“about to complete” case (which was what the district judge
considered it to be), rather than a “completed” case like
United States v. Lucas, 670 F.3d 784, 791 (7th Cir. 2012), where
the three‐level reduction was denied because the defendant
”thought that he did everything necessary to complete [a]
kidnapping” by knocking on the victim’s door, pointing a
gun at the victim’s mother, and demanding that the victim
come to the door; or United States v. Emmett, 321 F.3d 669,
673 (7th Cir. 2003), where the defendant had already begun
the robbery he had conspired to commit, by handing a
threatening note to a teller; or United States v. Chapdelaine,
989 F.2d 28, 35–36 (1st Cir. 1993), where the defendants had
arrived at the site of the planned robbery prepared to carry it
out, and only the intended victim’s early departure foiled
their plans. This case is more like United States v. Brown, 74
F.3d 891, 893 (8th Cir. 1996), where the reduction was denied
because the preparations for committing the crime of pos‐
sessing an incendiary device were complete except for ob‐
taining wire and a spark plug, which would be easy to do,
though until it was done the substantive offense couldn’t be
committed. In contrast, the three‐level reduction was prop‐
erly allowed in United States v. Sanchez, supra, 615 F.3d at
846–47, which involved the parallel three‐level reduction for
an interrupted attempt, see U.S.S.G. § 2X1.1(b)(1), because
the defendant hadn’t yet secured license plates for a stolen
van to be used in the kidnapping, and United States v. John,
597 F.3d 263, 283–84 (5th Cir. 2010), in which a number of
preparatory steps remained to be taken in order to complete
a conspiracy to commit computer fraud.

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8 No. 13‐2223
The preparatory acts in this case were the procurement of
weapons and other supplies, the identification of the mari‐
juana traffickers’ truck, the surveillance of it, and its pursuit.
When the conspirators set off after the truck their prepara‐
tions were complete and all that remained was to rob the
truck—commit the substantive offense—as soon as it
reached the Missouri border. When the preparations for the
commission of a crime are complete, it can be assumed that
the crime will take place unless some unforeseen event in‐
tervenes, as happened in this case; and when that happens,
as distinct from when the preparations for committing the
crime are interrupted, there is no sentencing discount. Cf.
United States v. Chapdelaine, supra, a factually similar case in
which the court rejected the discount.
A conspiracy is just an agreement, almost always an oral
one. And talk is cheap. Many conspiracies never get off the
ground, never pose a real danger. The conspirators are pun‐
ished anyway, but it makes sense that conspirators thwarted
before their conspiracy’s aim is achieved should be punished
more heavily the greater the probability that the conspiracy
would have resulted in a substantive offense, which is to say
(usually) that it would have inflicted tangible injury, had it
not been for a fortuitous interruption. See United States v.
Chapdelaine, supra, 989 F.2d at 36. For that marks it as a dan‐
gerous conspiracy, though the danger did not materialize.
Much of criminal law is about taking dangerous people out
of circulation, preferably before they cause harm. See Henry
M. Hart, Jr., “The Aims of the Criminal Law,” 23 Law & Con‐
temporary Problems 401 (1958). In this respect criminal law is
sharply different from tort law, since, as we keep saying, in‐
cluding very recently in Jackson v. Pollion, 733 F.3d 786, 790
(7th Cir. 2013), there is no tort without an injury. The less

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No. 13‐2223 9
dangerous the conspiracy, therefore, the less needful it is to
impose long sentences on the conspirators in order to protect
potential victims. But the conspirators in this case were dan‐
gerous people. There is little reason to doubt that had they
not been spotted by their prospective victims they would
have attacked the truck a few hours later, with mayhem a
likely result. To ignore that possibility and treat them as
comical failures would disserve the aims of criminal justice.
Recall that with the enhancement for conspiracy to restrain
but a three‐level reduction for incomplete conspiracy,
Dosen’s guidelines sentencing range would have been only
24 to 30 months. That is too low. His 30‐month sentence for
conspiracy was a gift, though his overall sentence of 90
months seems reasonable.
A FFIRMED.

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