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Click here for the full text of this decision FACTS:In August 2004, based on information from a confidential informant, the Bureau of Alcohol, Tobacco and Firearms began investigating James Rankin due to his apparent involvement with manufacturing and distributing illegal explosive devices. An undercover ATF agent contacted Rankin in October 2004 and requested that he build a timed explosive device for her to purchase. The two later met in person and Rankin discussed a variety of devices that he could make, including a briefcase bomb that would detonate when the briefcase was opened. Rankin told the officer that if she wanted someone “taken care of” that his devices would suffice. The undercover officer did not arrange to buy anything at this time. On Nov. 6, 2004, the officer again contacted Rankin to purchase a bomb. The two met on Nov. 9, 2004, in a Home Depot parking lot. Rankin removed a briefcase from the back of his car and put it in the officer’s vehicle. He told her that the bomb would detonate when the briefcase was opened and that there was no way to turn the bomb off. The undercover agent then told Rankin that she wanted to use the bomb to kill her ex-husband, and Rankin assured her that the bomb would kill him. The officer then closed her trunk and drove away. Authorities arrested Rankin as he left the parking lot. Explosives experts confirmed that the bomb would have worked and then safely detonated it. Rankin was tried and convicted of three counts of criminal violations related to his receipt of materials to build the bomb, his manufacture of the device and his delivery of the weapon to the agent. At sentencing, the probation officer applied U.S. Sentencing Guideline �2K1.3 to count one and �2K2.1 to counts two and three. The Presentence Report (PSR) applied �2K1.3(b)(3)(B) and �2K2.1(b)(5), both specific offense characteristic provisions, to calculate Rankin’s offense level. The government objected, arguing that �2K2.1(c)(1)(a) and �2K1.3(c)(1)(a), the cross-reference provisions, should be applied, because Rankin knew that the bomb was going to be used to commit murder. Alternatively, the government argued that the district court should upwardly depart when sentencing Rankin. The probation officer declined to accept the government’s objection, stating that “[i]n the instant offense, there was no commission or attempted commission of any further felony offense since this was a sting operation.” The district court agreed with the probation officer and declined to apply the cross-reference or to upwardly depart. Rankin was sentenced to 51 months of imprisonment on count one to run concurrently with a 51-month sentence on counts two and three. The government appealed, arguing both that the district court erred in not applying the cross-reference and in not upwardly departing. HOLDING:Vacated and remanded. The court reviewed de novo “the legal determination of the district court that the cross-reference provision does not apply in the context of a sting operation.” The court noted that the district court did not make factual findings and thus did not determine whether Rankin actually did have knowledge or intent that another felony would be committed. The relevant portions of �2K1.3(c)(1), the court stated, read: “If the defendant . . . possessed or transferred any explosive material with knowledge or intent that it would be used or possessed in connection with another offense, apply (A) �2X1.1 (Attempt, Solicitation, Conspiracy) in respect to that other offense if the resulting offense level is greater than that determined above . . . .” The government argued that �2A2.1 for attempted murder would be the appropriate cross-reference in this case, raising the sentencing range to 121 to 150 months. The statutory maximum for Rankin’s convictions is 10 years; thus, Rankin’s sentence would be 120 months under the cross-reference provision. The court held that the district court erred in determining that factual impossibility rendered the application of the guideline inappropriate. Factual impossibility, the court stated, is not a defense to a charge of attempt. Instead, the court stated, attempt liability requires that the government prove two elements: “[F]irst, that the defendant acted with the kind of culpability otherwise required for the commission of the underlying substantive offense, and second, that the defendant had engaged in conduct which constitutes a substantial step toward the commission of the crime.” Having reviewed the transcript of the sentencing hearing, the court concluded that the district court relied on solely this legal error in sentencing Rankin. Therefore, the court vacated his sentence and remanded this case to the district court for resentencing. OPINION:Stewart, J.; Jones, C.J., and Jolly and Stewart, J.J.

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