FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

IVAN SOTO-BARRAZA,

Defendant-Appellant.

No. 15-10586

D.C. No.

4:11-cr-00150-

DCB-BPV-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JESUS LIONEL SANCHEZ-MEZA,

AKA Leonel Meza-Portillo, AKA

Lionel Meza-Portillo, AKA Leonel

Portillo-Meza, AKA Lionel PortilloMeza, AKA Jesus Leonel SanchezMeza,

Defendant-Appellant.

No. 15-10589

D.C. No.

4:11-cr-00150-

DCB-BPV-5

OPINION

Appeal from the United States District Court

for the District of Arizona

David C. Bury, District Judge, Presiding
2 UNITED STATES V. SOTO-BARRAZA

Argued and Submitted October 17, 2017

Submission Vacated January 24, 2018

Resubmitted January 17, 2020

San Francisco, California

Filed January 17, 2020

Before: Sandra S. Ikuta and Andrew D. Hurwitz, Circuit

Judges, and Michael J. McShane,*

 District Judge.

Opinion by Judge Ikuta

SUMMARY**

Criminal Law

The panel affirmed two defendants’ convictions for firstdegree murder of a Border Patrol agent, conspiracy to

interfere with and attempted interference with commerce by

robbery in violation of the Hobbs Act, and assault on a U.S.

Border Patrol Agent; and vacated the defendants’ convictions

for carrying and discharging a firearm in furtherance of a

crime of violence.

*The Honorable Michael J. McShane, United States District Judge for

the District of Oregon, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. SOTO-BARRAZA 3

The panel held that the defendants were properly

extradited in accordance with the United States’s treaty with

Mexico. 

The panel held that the district court’s jury instructions

for the Hobbs Act offenses were not plainly erroneous, and

rejected the defendants’ argument that the instructions

constituted a constructive amendment of the indictment that

allowed them to be convicted of extortion. 

The panel held that the district court properly denied the

defendants’ motion for judgment of acquittal as to attempted

robbery because the evidence was sufficient to establish that

the defendants took a substantial step toward commission of

the robbery. 

In a concurrently filed memorandum disposition, the

panel accepted the government’s concession that conspiracy

to commit Hobbs Act robbery is not a crime of violence and

thus vacated the defendants’ convictions under 18 U.S.C.

§ 924(c).

COUNSEL

Ramiro S. Flores (argued), Law Office of Ramiro S. Flores

P.L.L.C., Tucson, Arizona; Andrea Lynn Matheson (argued),

Matheson Law Firm P.C., Tucson, Arizona; for DefendantsAppellants.

David D. Leshner (argued), Special Attorney for the United

States; Jeff Sessions, Attorney General; Office of the United

StatesAttorney, San Diego, California; for Plaintiff-Appellee.
4 UNITED STATES V. SOTO-BARRAZA

OPINION

IKUTA, Circuit Judge:

Ivan Soto-Barraza and Jesus Lionel Sanchez-Meza appeal

their convictions for the first degree murder of United States

Border Patrol Agent Brian Terry; conspiracy to interfere with

and attempted interference with commerce by robbery in

violation of the Hobbs Act; assault on a U.S. Border Patrol

Agent; and carrying and discharging a firearm in furtherance

of a crime of violence. We conclude that the defendants were

properly extradited in accordance with the terms of the

United States’s treaty with Mexico. We hold that the jury

instructions for the Hobbs Act offenses were not plainly

erroneous, and reject defendants’ argument that the

instructions constituted a constructive amendment of the

indictment. And we conclude that the evidence was sufficient

to establish that the defendants took a substantial step toward

commission of the robbery offense.1 For the reasons below

and in our concurrently-filed memorandum disposition, ___

Fed. App’x ___ (9th Cir. 2020), we vacate defendants’

convictions on Count 9 and affirm in all other respects.

I

In September 2010, the United States Border Patrol

Tactical Unit (BORTAC) for the Tucson sector launched

Operation Huckleberry. The goal of Operation Huckleberry

was to apprehend gangs that preyed on drug smugglers in the

Arizona Mesquite Seep.

1 We also deny defendants’ motion to strike the government’s letter

pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure.
UNITED STATES V. SOTO-BARRAZA 5

The Mesquite Seep is an area of rough terrain, covered

with canyons, cliffs, and steep hills, about 11 miles north of

the Mexican border. At the time Operation Huckleberry

commenced, except for two foot trails, the area was

accessible only by all-terrain vehicles. The Mesquite Seep

was well known as part of a drug trafficking corridor. Bands

of eight to twelve men would carry 45 or more pounds of

marijuana in homemade backpacks as they traveled

northbound from Mexico into the Seep, and then east to

Interstate 19. This smuggling corridor was also well known

to “rip crews,” small gangs of bandits armed with assault

weapons who stalked the smugglers to steal their marijuana. 

Operation Huckleberry was aimed at stopping rip crew

activity in the Seep.

In December 2010, six BORTAC agents were deployed

to the Mesquite Seep for a 48-hour operation. The team

consisted of Agents William Castano (the team leader),

Gabriel Fragoza, Timothy Keller, Brian Terry, Christopher

Conner, and Charles Veatch. The agents were deployed in an

area commonly used for smuggling.

Near the end of the 48 hours, the Nogales station alerted

the team to potential traffic moving east towards the team’s

position. Three agents moved to a line above a wash. Using

a thermal monocular, Agent Castano saw armed men

approaching. At least two of the men had weapons in the

“ready position,” aimed forward and ready to fire. As they

approached, Agent Castano yelled “Policia!” Some of the

men ran; others stopped, turned towards the agents, and

raised their weapons. In response, Agent Fragoza fired his

non-lethal shotgun, while announcing in Spanish: “get down,

get down.” The agents saw multiple muzzle flashes from the
6 UNITED STATES V. SOTO-BARRAZA

guns in the wash, and returned fire. Agent Terry was hit by

a gunshot from the wash, and later died of the wound.

At the crime scene, the FBI recovered two AK-47-style

assault rifles and five shell casings, but could not determine

whether either of the rifles fired the bullet that killed Agent

Terry. The FBI also found five backpacks containing food,

water, and ammunition. Fingerprint and DNA analysis linked

the rifles, backpacks, and the backpacks’ contents to SotoBarraza and Sanchez-Meza.

A grand jury indicted Soto-Barraza, Sanchez-Meza, and

the four other rip crew members on nine counts, charging the

defendants with murder of Agent Terry; Hobbs Act

conspiracy to interfere and attempted interference with

commerce by robbery; assault on four Border Patrol officers;

and carrying and discharging a firearm in furtherance of a

crime of violence.2

Almost a year and a half later, Mexican authorities

arrested Sanchez-Meza and transported him to Mexico City,

where he was interviewed by an FBI agent. After being

advised of his Miranda rights, Sanchez-Meza confessed to his

involvement in the Mesquite Seep incident. He admitted that

he entered Arizona from Sonora, obtained AK-47-style

weapons from a hidden cache, and began searching for

2 This indictment was ultimately replaced by a Fifth Superseding

Indictment (the operative pleading here), but the counts remained the

same. The counts at issue here are: Count 1, first-degree murder of United

States Border Patrol Agent Brian Terry, 18 U.S.C §§ 1111, 1114; Count

3, conspiracy to interfere with commerce by robbery, 18 U.S.C. § 1951;

Count 4, attempted interference with commerce by robbery, 18 U.S.C.

§ 1951; and Count 9, carrying and discharging a firearm in furtherance of

a crime of violence, 18 U.S.C. § 924(c)(1)(A)(i), (iii).
UNITED STATES V. SOTO-BARRAZA 7

marijuana traffickers in order to rob them at gunpoint. When

shown photographs of assault rifles recovered at the crime

scene, Sanchez-Meza stated they were “similar types to the

weapon he carried.” Sanchez-Meza signed a written

declaration acknowledging his confession.

A year later, Mexican authorities arrested Soto-Barraza. 

Two FBI agents interviewed Soto-Barraza in Spanish in a

Mexican prison during the following month. After being

advised of his Miranda rights, Soto-Barraza also admitted his

involvement in the events surrounding the shooting. Like

Sanchez-Meza, Soto-Barraza admitted that he entered the

United States on foot from Sonora into Arizona; obtained

weapons from a hidden cache of firearms; and planned to rob

marijuana smugglers. He also admitted to carrying a loaded

assault rifle and stated that a photograph of one of the rifles

found in the wash was similar to the weapon he carried that

night.

The government requested extradition of the defendants

and Mexico granted the requests. The orders from the

Mexican Department of Foreign Affairs stated that: “the

formal international extradition request made by the

government of the United States of America, regarding the

person sought, adheres to the postulates contained in the

Extradition Treaty between the United Mexican States and

the United States of America and that the extradition of the

aforementioned requested person is warranted; therefore the

Department determines that there are sufficient elements to

grant, and does grant, the extradition” of both defendants. 

The orders stated that each defendant could be prosecuted in

district court for all the charges listed in the indictment, and

that the offenses stated in each count met the statutory
8 UNITED STATES V. SOTO-BARRAZA

definitions contained in Mexico’s Federal Penal Code, in

effect at the time of the events.3

Soto-Barraza moved to dismiss the indictment, arguing

that his extradition was unlawful because Mexico did not

have equivalent offenses. He later moved for a declaratory

judgment on the same ground. Sanchez-Meza subsequently

joined the motion, which the district court denied.

The seven-day trial began in September 2015. After the

government rested, the defense moved for a directed verdict,

contending that the rip crew’s preparations did not constitute

a “substantial step” necessary for an attempted robbery. The

court denied the motion.

The jury returned guilty verdicts on all nine counts. The

court denied the defense’s post-conviction motion for a

judgment of acquittal and sentenced Soto-Barraza and

Sanchez-Meza to life imprisonment for Count 1; concurrent

240-month sentences for Counts 3, 6, 7, and 8; and

consecutive sentences of 120 months for Count 9. This

appeal followed.

II

We first address defendants’ claim that the district court

erred in denying their motion to dismiss the indictment and

3 The orders established that Count 1 (first degree murder) met the

statutory definition in §§ 302 and 307 of Mexico’s Federal Penal Code;

Count 3 (conspiracy) met the statutory definition in § 164 of Mexico’s

Federal Penal Code; Count 4 (attempted robbery) met the statutory

definition in §§ 367 and 371 of Mexico’s Federal Penal Code; and Counts

5, 6, 7, and 8 (assault against a federal official) met the statutory definition

of §§ 288 and 293 of Mexico’s Federal Penal Code.
UNITED STATES V. SOTO-BARRAZA 9

for declaratory relief on the ground that their extradition

violated the Mexico-United States Extradition Treaty.

“The right to demand and obtain extradition of an accused

criminal is created by treaty.” United States v. Van

Cauwenberghe, 827 F.2d 424, 428 (9th Cir. 1987) (quoting

Quinn v. Robinson, 783 F.2d 776, 782 (9th Cir. 1986))

(internal quotation marks omitted). The Treaty, effective

January 25, 1980, imposes two requirements relevant to

defendants’ motions.

First, Article 17 of the Treaty incorporates the “rule of

specialty,” which precludes the requesting country from

prosecuting a defendant for any offense other than that for

which the surrendering country consented to extradite, unless

surrendering country approves. See United States v. Iribe,

564 F.3d 1155, 1158 (9th Cir. 2009). Article 17 states: “A

person extradited under the present Treaty shall not be

detained, tried or punished in the territory of the requesting

Party for an offense other than that for which extradition has

been granted nor be extradited by that Party to a third State,”

absent certain exceptions not relevant here.

Second, Article 2 incorporates the principle of “dual

criminality,” that “an accused person can be extradited only

if the conduct complained of is considered criminal by the

jurisprudence or under the laws of both the requesting and

requested nations.” Quinn, 783 F.2d at 783. Article 2(1)

provides that “[e]xtradition shall take place, subject to this

Treaty, for wilful acts which fall within any of the clauses of

the Appendix and are punishable in accordance with the laws

of both Contracting Parties by deprivation of liberty the

maximum of which shall not be less than one year.” The

Appendix to the Treaty lists 31 categories of offenses,
10 UNITED STATES V. SOTO-BARRAZA

including murder and robbery. Article 2(3) provides that

“[e]xtradition shall also be granted for wilful acts which,

although not being included in the Appendix, are punishable,

in accordance with the federal laws of both Contracting

Parties, by a deprivation of liberty the maximum of which

shall not be less than one year.”

We “defer to a surrendering sovereign’s reasonable

determination that the offense in question is extraditable.” 

United States v. Saccoccia, 58 F.3d 754, 766 (1st Cir. 1995);

see also Van Cauwenberghe, 827 F.2d at 429 (courts should

accord “proper deference” to “a surrendering country’s

decision as to whether a particular offense comes within a

treaty’s extradition provision”). But we review de novo the

“district court’s decision that an offense is an extraditable

crime.” Van Cauwenberghe, 827 F.2d at 428. We likewise

review de novo the district court’s “[i]nterpretation of an

extradition treaty, including whether the doctrines of dual

criminality and specialty are satisfied.” United States v.

Anderson, 472 F.3d 662, 666 (9th Cir. 2006).

In their motions to dismiss and for declaratory relief,

Soto-Barraza and Sanchez-Meza argued that their extradition

for felony murder, assault, and conspiracy (or attempt) to

interfere with commerce by robbery violated the Treaty

because Mexico does not criminalize these exact offenses and

they are not listed in the Treaty. Relying on expert testimony

of a law professor, the defendants argue that the Mexican

statutes listed in the Treaty criminalize only simple homicide,

and felony murder is not “punishable in accordance with the

laws” of Mexico. They also argue that Mexican law does not

punish interference with commerce by robbery of an illegal

substance, and does not recognize the crime of assault on a

federal official unless the official was physically injured or
UNITED STATES V. SOTO-BARRAZA 11

feared for his life. Finally, defendants argue that the Treaty

precludes the government from imposing a true life sentence

for their offenses, because life sentences in Mexico last no

more than 70 years.

Their arguments fail. In its extradition orders, Mexico

listed the United States federal charges at issue, and stated

that extradition for these charges conformed to the Treaty’s

terms. The orders also identified analogous statutory

provisions under Mexico’s Federal Penal Code for each of the

offenses in the indictments. The principle of dual criminality

does not require that the crimes be identical; rather, only the

“‘essential character’ of the acts criminalized by the laws of

each country” must be the same, and the laws “substantially

analogous.” Manta v. Chertoff, 518 F.3d 1134, 1141 (9th Cir.

2008) (quoting Oen Yin-Choy v. Robinson, 858 F.2d 1400,

1404 (9th Cir. 1988)). Because Mexico elected to extradite

the defendants on all charges listed in the indictment, the

Treaty’s principles of specialty and dual criminality are

satisfied. See Iribe, 564 F.3d at 1160; Van Cauwenberghe,

827 F.2d at 428–29.

III

We next address defendants’ claim that the district court

erred in instructing the jury on conspiracy to interfere with

and attempted interference with commerce by robbery, in

violation of 18 U.S.C. § 1951 (the Hobbs Act). Because

defendants did not object to these instructions at trial, we

review for plain error. See United States v. Reza-Ramos,

816 F.3d 1110, 1123 (9th Cir. 2016).

We first turn to the district court’s instruction for Count

4, attempted interference with commerce by robbery. Both
12 UNITED STATES V. SOTO-BARRAZA

parties requested that the district court give Ninth Circuit

Model Instruction 8.142, entitled “Hobbs Act Extortion or

Attempted Extortion by Force.”4 The district court gave the

proposed instruction, which included the following element:

“First, the Defendants intended to induce drug smugglers to

part with property by the wrongful use of actual or threatened

force, violence, or fear.”5 The Hobbs Act defines robbery in

4 At the time, the Ninth Circuit model instructions did not have an

instruction for Hobbs Act robbery. In December 2016, the committee

added a new instruction for Hobbs Act robbery. Model Crim. Jury Instr.

9th Cir. 8.143A (2010 ed.), http://www3.ce9.uscourts.gov/juryinstructions/sites/default/files/WPD/Criminal_Instructions_2017_9.pdf

(last updated Sep. 2017) [hereinafter 2017 Instructions]. The committee

most recently modified the instructions for Hobbs Act robbery in April

2019. See Model Crim. Jury Instr. 9th Cir. 8.143A (2010 ed.),

http://www3.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/

Criminal_Instructions_2019_12_0.pdf (last updated Dec. 2019); Manual

of Model Criminal Jury Instructions, http://www3.ce9.uscourts.gov/juryinstructions/model-criminal (stating that Instructions 8.143A was last

modified in April 2019).

5

 The full instruction read:

The defendants are charged in Count 4 of the

indictment with attempted interference with commerce

by robbery in violation of Section 1951 of Title 18 of

the United States Code. In order for the defendants to

be found guilty of that charge, the government must

prove each of the following elements beyond a

reasonable doubt:

First, the defendant intended to induce drug

smugglers to part with property by the wrongful use of

actual or threatened force, violence, or fear;

Second, the defendants acted with the intent to

obtain property;
UNITED STATES V. SOTO-BARRAZA 13

a slightly different manner as “the unlawful taking or

obtaining of personal property from the person or in the

presence of another, against his will, by means of actual or

threatened force, or violence, or fear of injury, immediate or

future, to his person or property, or property in his custody or

possession.” 18 U.S.C. § 1951(b)(1). The instruction differs

from the statutory definition, in that it omits the language that

the defendant took property from the victim “against his will”

by means of “fear of injury,” not just “fear.”

Soto-Barraza and Sanchez-Meza now argue that the

court’s instruction is closer to the definition of “extortion”

under the Hobbs Act, which is “the obtaining of property

from another, with his consent, induced by wrongful use of

actual or threatened force, violence, or fear, or under color of

official right.” 18 U.S.C. § 1951(b)(2). According to the

defendants, the court’s failure to provide instructions that

included the phrases “against his will” and “fear of injury”

resulted in a constructive amendment of the indictment that

allowed them to be convicted of extortion, which is a per se

reversible error.

Third, commerce from one state to another would

have been affected in some way; and

Fourth, the defendants did something that was a

substantial step toward committing the crime.

Mere preparation is not a substantial step toward

committing the crime. To constitute a substantial step,

a defendant’s act or actions must demonstrate that the

crime will take place unless interrupted by independent

circumstances.
14 UNITED STATES V. SOTO-BARRAZA

We disagree. A constructive amendment “occurs when

the charging terms of the indictment are altered, either

literally or in effect, by the prosecutor or a court after the

grand jury has last passed upon them,” United States v. Ward,

747 F.3d 1184, 1189 (9th Cir. 2014) (quoting United States

v. Von Stoll, 726 F.2d 584, 586 (9th Cir. 1984)), such as

“where (1) there is a complex of facts [presented at trial]

distinctly different from those set forth in the charging

instrument, or (2) the crime charged [in the indictment] was

substantially altered at trial, so that it was impossible to know

whether the grand jury would have indicted for the crime

actually proved.” United States v. Adamson, 291 F.3d 606,

615 (9th Cir. 2002) (alterations in original) (internal quotation

marks omitted). Neither of those errors is present here. The

government indicted the defendants for Hobbs Act robbery

and adduced evidence to prove that offense, offering no

evidence that the defendants engaged in extortion. We reject

constructive amendment claims when the government does

not introduce evidence at trial “that would enable the jury to

convict the defendant for conduct with which he was not

charged.” Ward, 747 F.3d at 1191.

The defendants’ claims are better interpreted as a

challenge to the jury instructions. Compare United States v.

Massey, 419 F.3d 1008, 1010 (9th Cir. 2005) (reviewing a

claim that the jury instruction misstated material elements of

a statute), with Ward, 747 F.3d at 1191–92 (reviewing

whether defendant was convicted of a crime not charged in

the indictment). Viewing the defendants’ claim in this light,

we conclude that the slight differences between the court’s

instructions to the jury and the statutory definition of robbery

do not constitute plain error. See Reza-Ramos, 816 F.3d

at 1123. The omission of the phrases “against his will” and

“fear of injury” did not make the instruction “misleading or
UNITED STATES V. SOTO-BARRAZA 15

inadequate to guide the jury’s deliberation.” See United

States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010) (quoting

United States v. Frega, 179 F.3d 793, 806 n.16 (9th Cir.

1999)); see also United States v. Tavakkoly, 238 F.3d 1062,

1066 (9th Cir. 2001) (“Improper jury instructions will rarely

justify a finding of plain error.”) (quoting United States v.

Marin-Cuevas, 147 F.3d 889, 893 (9th Cir. 1998)). Our

conclusion that any error was not “plain” is further supported

by the fact that the seven judges who comprise the Ninth

Circuit Jury Instructions Committee adopted identical

language to that used by the district court here for model

instructions on Hobbs Act attempted robbery: “the defendant

[attempted to induce][induced] [name of victim] to part with

property by the wrongful use of actual or threatened force,

violence, or fear.” 2017 Instructions 8.142A, 8.143A; see

also Hofus, 598 F.3d at 1174–75 (no error when district

court’s instruction “mirrored” the model instruction).6

Moreover, even if the omission of the two phrases

(“against his will” and “fear of injury”) qualified as an error

that was plain, these defendants’ substantial rights were not

affected. Because the government presented overwhelming

evidence that the rip crew members intended to take

marijuana from the smugglers by force and against their will,

including Soto-Barraza’s and Sanchez-Meza’s confessions,

there is no significant possibility that the jury might have

acquitted the defendants if the instruction had included the

omitted language. See United States v. Brooks, 508 F.3d

1205, 1208 (9th Cir. 2007) (holding that a jury instruction is

not plainly erroneous if there is not “a significant possibility

6 While the committee more recently revised Instruction 8.143A,

supra note 4, the district court’s instruction was not plain error because the

committee previously used the same language as the court.
16 UNITED STATES V. SOTO-BARRAZA

the jury might have acquitted if it had considered the matter”)

(quoting United States v. Steward, 16 F.3d 317, 320 (9th Cir.

1994)).7

IV

Finally, we consider Soto-Barraza and Sanchez-Meza’s

challenge to the district court’s denial of their motion for

judgment of acquittal as to attempted robbery. We review de

novo whether sufficient evidence supports a guilty verdict. 

United States v. Rosales-Aguilar, 818 F.3d 965, 970 (9th Cir.

2016). We “assess the evidence in the light most favorable to

the prosecution, determining whether any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt.” Id. at 971 (quoting United States v.

Stewart, 420 F.3d 1007, 1014–15 (9th Cir. 2005)).

“[A]n attempt conviction requires evidence that a

defendant intended to violate the statute and took a

substantial step toward completing the violation.” United

States v. Mincoff, 574 F.3d 1186, 1195 (9th Cir. 2009)

(alterations in original) (quoting United States v. Meek,

366 F.3d 705, 720 (9th Cir. 2004)). “Mere preparation” is not

a substantial step, Hernandez-Cruz v. Holder, 651 F.3d 1094,

1102 (9th Cir. 2011), but we have acknowledged that “[t]he

7 For the same reason, we reject defendants’ argument that the district

court plainly erred in omitting the phrases “against his will” and “fear of

injury” from its instruction on conspiracy to interfere with commerce by

robbery, Count 3, which stated that “there was an agreement between two

or more persons to induce drug smugglers to part with property by the

wrongful use of actual or threatened force, violence, or fear.” SanchezMeza and Soto-Barraza repeatedly conceded their guilt to conspiracy in

their opening statements and closing arguments. See Brooks, 508 F.3d

at 1208.
UNITED STATES V. SOTO-BARRAZA 17

difference between making preparations and taking a

substantial step toward the commission of a crime is one of

degree,” Walters v. Maass, 45 F.3d 1355, 1359 (9th Cir.

1995). “The line between mere preparation and a substantial

step is inherently fact specific; conduct that would appear to

be mere preparation in one case might qualify as a substantial

step in another.” United States v. Villegas, 655 F.3d 662, 669

(7th Cir. 2011). While acknowledging that it is difficult to

identify “the point at which the defendants’ activities ripen

into an attempt,” United States v. Harper, 33 F.3d 1143, 1148

(9th Cir. 1994), we have generally characterized that point as

when a defendant’s actions demonstrate “that the crime will

take place unless interrupted by independent circumstances.”

Mincoff, 574 F.3d at 1195 (quoting United States v. Goetzke,

494 F.3d 1231, 1237 (9th Cir. 2007)).

In addressing this fact-specific inquiry, courts generally

focus on factors such as whether defendants planned to

commit an offense, see United States v. Moore, 921 F.2d 207,

209 (9th Cir. 1990), and whether defendants equipped

themselves with the items needed to commit the offense, see

United States v. Muratovic, 719 F.3d 809, 816 (7th Cir.

2013); United States v. Snell, 627 F.2d 186, 188 (9th Cir.

1980) (per curiam). The key question is whether “the crime

will take place unless interrupted by independent

circumstances.” Mincoff, 574 F.3d at 1195 (quoting Goetzke,

494 F.3d at 1237).

In addition to these general factors, courts also focus on

the type of crime at issue. In bank robbery cases, courts

frequently consider whether the defendant approached the

targeted building to commit the offense. See Moore,

921 F.2d at 209 (holding that a defendant took a substantial

step when he walked towards a bank wearing a ski mask,
18 UNITED STATES V. SOTO-BARRAZA

holding gloves, and carrying a concealed loaded gun,

combined with an informant’s details about the planned

offense); see also Rumfelt v. United States, 445 F.2d 134,

135–37 (7th Cir. 1971) (defendant took a substantial step by

standing in front of a bank while wearing a ski mask and

using a rifle to intimidate a passerby into trying to open the

door to the bank) (cited with approval in United States v.

Buffington, 815 F.2d 1292, 1302 (9th Cir. 1987)). If the

defendants did not move toward the targeted bank, but merely

conducted surveillance in its vicinity, defendants may not

have taken a substantial step. See Buffington, 815 F.2d at

1303; see also Harper, 33 F.3d at 1147 (holding there was no

substantial step where defendants “never made a move

toward the victims or the Bank to accomplish the criminal

portion of their intended mission”); United States v. Still,

850 F.2d 607, 610 (9th Cir. 1988) (holding there was no

substantial step where the facts “do not establish either actual

movement toward the bank or actions that are analytically

similar to such movement”).

In cases involving attempted robberies of armored trucks,

courts have similarly focused on whether the defendants laid

in wait where the truck was expected. See Muratovic,

719 F.3d at 816 (holding that the defendant took a substantial

step towards robbery of an armored car where the defendant

had gathered everything necessary to rob the armored car,

waited for the car in a parking lot with the intention of

following the car to a highway rest stop and robbing it, and

failed to carry through only because he saw activities

indicating that “the truck’s driver had seen his surveillance”);

United States v. Chapdelaine, 989 F.2d 28, 30–31, 33 (1st

Cir. 1993) (holding that the defendant took a substantial step

toward robbery of an armored car when he gathered the

necessary weapons and planned the robbery; drove to a
UNITED STATES V. SOTO-BARRAZA 19

parking lot to lay in wait for the car; but aborted the plan at

the last minute when the armored car left the parking lot just

as the defendant arrived).

And in cases involving planned offenses against

individual victims, courts have focused on whether

defendants had begun traveling to the location where the

victim was expected to be found. See United States v.

Washington, 653 F.3d 1251, 1266 (10th Cir. 2011) (holding

that a defendant took a substantial step towards attempted

murder-for-hire when he equipped himself with a pair of latex

gloves to avoid fingerprints and traveled towards “a city in

which he had no apparent business beyond the planned hit”

with “the person who had facilitated the murder-for-hire

agreement.”); United States v. Young, 613 F.3d 735, 743 (8th

Cir. 2010) (holding that defendant took substantial step

towards enticement of a minor when he traveled to a motel

where he expected to meet the victim); United States v.

Khalil, 279 F.3d 358, 368–69 (6th Cir. 2002) (holding that a

defendant took a substantial step toward committing a violent

crime by participating with motorcycle club members who

“organized themselves, armed themselves, and traveled in

groups to locations where they expected to find their intended

victims,” and aborted their efforts only “due to police

interference”); see also Model Penal Code § 5.01(2)(a)

(“lying in wait, searching for or following the contemplated

victim of the crime” can constitute a substantial step).

In this case, taking the evidence in the light most

favorable to the government, a reasonable jury could

conclude that Soto-Barraza and Sanchez-Meza took a

substantial step toward robbery of marijuana smugglers

because theyequipped themselves with assault-style weapons

(as well as packing food, water and ammunition) and traveled
20 UNITED STATES V. SOTO-BARRAZA

to an area where they expected to find the intended victims. 

See Khalil, 279 F.3d at 368. Given that the defendants

admitted that they entered the Mesquite Seep to search for

marijuana smugglers and to rob them at gunpoint, and given

their preparations for doing so, a reasonable jury could

conclude that defendants would have carried out the crime

once the opportunity presented itself and failed to do so only

because they were interrupted by the BORTAC agents.

The defendants argue that there was insufficient evidence

to establish they had taken a substantial step because there

was no evidence that marijuana smugglers were actually

present in their immediate vicinity or that a robbery was

imminent. In making this argument, defendants rely

primarily on cases considering whether defendants had taken

a substantial step toward robbing a store or bank. See

Hernandez-Cruz, 651 F.3d at 1102–03; Harper, 33 F.3d

at 1147; Still, 850 F.2d at 610; Buffington, 815 F.2d at 1303. 

But here the defendants were targeting individual victims, not

a building. In these circumstances, courts place greater

weight on other factors, such as whether the defendants are

lying in wait for the intended victim, see Muratovic, 719 F.3d

at 816, or have begun traveling to the location where the

victims may be found, see Khalil, 279 F.3d at 368. Because

the central inquiry is whether the evidence is sufficient to

demonstrate that the defendants will carry through with the

offense unless interrupted, “there is no requirement that the

actions constituting the attempt have a particular geographic

proximity to the object of the substantive offense.” United

States v. Turner, 501 F.3d 59, 69 (1st Cir. 2007); see also

Villegas, 655 F.3d at 669 (defendant took substantial step

towards attempted robbery of armored car even though he

was a mile away from the location of the planned robbery). 

Nor need a criminal act be imminent. See Mincoff, 574 F.3d
UNITED STATES V. SOTO-BARRAZA 21

at 1190–91, 1195 (holding that there was a substantial step

even though the attempted drug transaction took place over

the phone across a ten-day period); see also United States v.

Sanchez, 615 F.3d 836, 844 (7th Cir. 2010) (finding a

substantial step made even though crime was at least a week

away).

Because a reasonable jury could have concluded that

Soto-Barraza and Sanchez-Meza did all they could to prepare

to rob marijuana smugglers they would encounter and would

have followed through with the crime had the BORTAC

agents not intervened, the district court correctly denied

defendants’ motion for judgment of acquittal. See Mincoff,

574 F.3d at 1195.8

AFFIRMED IN PART AND VACATED IN PART

8 As discussed in the concurrently filed memorandumdisposition, ___

Fed. App’x ___ (9th Cir. 2020), we accept the government’s concession

that conspiracy to commit Hobbs Act robbery is not a crime of violence

and thus vacate defendants’ convictions on Count 9.