IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40478

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee,

v.

REYNALDO SOTO, 

 Defendant – Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before DENNIS, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:

Reynaldo Soto appeals his sentence for unlawful possession of

ammunition by a felon. Soto argues that in determining his Sentencing 

Guidelines range, the district court incorrectly determined that when Soto was 

arrested, he was on the verge of delivering the ammunition to a co-conspirator 

who would smuggle it across the border into Mexico, and therefore erroneously

applied the cross reference in U.S.S.G. § 2K2.1(c)(1)(A) without giving Soto a 

three-level attempt reduction under § 2X1.1(b)(1). Because the cross reference

is inapplicable, we VACATE Soto’s sentence and REMAND for resentencing.

United States Court of Appeals

Fifth Circuit

FILED

April 7, 2016

Lyle W. Cayce

Clerk

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I.

Reynaldo Soto pleaded guilty to being a felon in possession of 

ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Soto, a 

convicted felon, was pulled over for a traffic violation in Pharr, Texas.1 During 

the traffic stop, Soto stated that he and his one-year-old son, who was in the 

car, were on their way home from Soto’s mother’s residence. The police officer 

detected the smell of marijuana and Soto consented to a search of the car. A 

drug-sniffing dog alerted to the presence of a narcotic in the ashtray, but no 

narcotics were located. However, the officer discovered twenty-three boxes 

(460 rounds) of 7.62 x 39mm ammunition in the trunk of the car. This type of 

ammunition is standard ammunition for AK-47 assault rifles.

Soto initially denied ownership of the ammunition, but after being taken 

into custody, he stated that he had purchased the ammunition for deer hunting 

and that he intended to rent a firearm from the owner of the ranch where he 

would hunt. During a subsequent interview, Soto recanted his initial story and 

stated that he had purchased the ammunition for someone named “Compadre,” 

whom he met through a prison friend. Soto stated that Compadre was from 

Mexico but lived in Texas, that Compadre had provided the money to buy the 

ammunition, and that the ammunition was destined for Mexico. Soto stated 

that he knew Compadre paid people to buy firearms and ammunition which 

were then smuggled illegally into Mexico, and he admitted that this was the 

second time he had purchased ammunition for Compadre.

The Presentence Investigation Report (PSR) assigned Soto a base offense 

level of 20 and a four-level enhancement because Soto possessed the 

ammunition “with knowledge, intent, or reason to believe that it would be 

 

1 Pharr is located in Hidalgo County, bordering McAllen, and is connected by bridge 

to Reynosa, Mexico.

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transported out of the United States,” resulting in an offense level of 24. 

U.S.S.G. § 2K2.1(b)(6)(A).2 However, because Soto possessed the ammunition 

in connection with another offense, namely, attempted exportation of 

ammunition without an export license, the PSR applied the cross reference in 

U.S.S.G. § 2K2.1(c)(1)(A), which directs the use of § 2X1.1 if the resulting 

offense level is greater than previously determined. Because the offense level 

for exportation is 26, the PSR determined that the adjusted offense level was 

26, and that the total offense level was 24 after a two-level adjustment for

acceptance of responsibility. The only reference in the PSR to Soto’s 

destination at the time of his arrest is Soto’s statement that he was on his way 

home from his mother’s house. The PSR did not state that Soto was en route 

to deliver the ammunition when he was stopped, nor did it state when Soto 

planned to deliver the ammunition to Compadre, or even that a delivery had 

been arranged.

In his written objections to the PSR, Soto challenged the application of

the cross reference, arguing that he was entitled to a three-level attempt 

reduction under § 2X1.1(b)(1), which would bring the adjusted offense level for 

the exportation offense to 23 and thus render the cross reference inapplicable 

because it does not produce a greater offense level than § 2K2.1(b)(6)(A). Soto 

argued that the exception to the three-level attempt reduction does not apply 

because “there is no evidence that [Soto] or anyone else had completed all the 

acts necessary to [illegally export the ammunition] . . . nor was there evidence 

that that offense had been stymied by external events. Certainly, Mr. Soto’s 

own conduct fell well short of that completed offense. He did nothing more 

than purchase ammunition.”

 

2 All references in this opinion are to the 2014 version of the Sentencing Guidelines, 

under which Soto was sentenced.

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In the addendum to the PSR, the probation officer responded to Soto’s 

objection, stating that the cross reference applied because Soto had purchased 

the ammunition with the knowledge, intent, or reason to believe that it would 

be illegally exported to Mexico, and “only needed to transfer the ammunition 

to co-conspirator(s). However, he was arrested prior to the illegal transfer and 

eventual illicit smuggle into Mexico.” The addendum to the PSR did not state 

that Soto was on his way to deliver the ammunition to Compadre when he was 

arrested and did not mention any plan for delivery of the ammunition on the 

day of Soto’s arrest or at any other time.

Soto reurged his objection to the cross reference at sentencing. The 

district court overruled the objection, stating that Soto “was in route to turn 

the ammunition over to somebody who would actually be the courier into 

Mexico” and that the ammunition would have made it to Mexico but for law 

enforcement intervention. The district court adopted the PSR and, after 

granting an additional point for acceptance of responsibility, sentenced Soto to 

96 months’ imprisonment and three years of supervised release. Soto timely 

appealed his sentence, challenging the application of the cross reference to 

him.

II.

“We review a district court’s interpretation of the sentencing guidelines 

de novo and its factual findings for clear error.” United States v. Griffith, 522 

F.3d 607, 611 (5th Cir. 2008). “The district court’s statement that [a defendant] 

had completed all acts believed necessary for completion of the offense is a 

factfinding, which we review for clear error.” United States v. Knox, 112 F.3d 

802, 813 (5th Cir.), vacated in part on other grounds and reinstated, 120 F.3d 

42 (5th Cir. 1997).

Although we review Guidelines sentencing errors for harmless error, the 

government has not argued that any error was harmless, nor could it meet its 

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burden to do so in this instance. See United States v. Ibarra-Luna, 628 F.3d 

712, 714 (5th Cir. 2010) (proponent of sentence has burden to “convincingly 

demonstrate[] both (1) that the district court would have imposed the same 

sentence had it not made the error, and (2) that it would have done so for the 

same reasons it gave at the prior sentencing”).

III.

Soto argues that the district court erred in applying the cross reference 

provision in Section 2K2.1(c)(1)(A) because there was no evidence that Soto 

had completed or was about to complete all acts required to export the 

ammunition to Mexico. Before considering his argument, we first review the 

relevant provisions of the Sentencing Guidelines.

Section 2K2.1 establishes a base offense level of 20 for unlawful 

possession of ammunition by a felon convicted of a violent felony and applies a 

four-level enhancement where the defendant “possessed or transferred any 

firearm or ammunition with knowledge, intent, or reason to believe that it 

would be transported out of the United States.” U.S.S.G. § 2K2.1(a)(4)(A), 

(b)(6)(A). Section 2K2.1(c) contains a “cross reference” provision allowing for a 

greater offense level:

(c) Cross Reference

(1) If the defendant used or possessed any firearm or ammunition 

cited in the offense of conviction in connection with the commission 

or attempted commission of another offense, or possessed or 

transferred a firearm or ammunition cited in the offense of 

conviction with knowledge or intent that it would be used or 

possessed in connection with another offense, apply—

(A) § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that 

other offense, if the resulting offense level is greater than that 

determined above[.]

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U.S.S.G. § 2K2.1(c). This cross reference provision applies where the 

ammunition “facilitated, or had the potential of facilitating,” another offense. 

U.S.S.G. § 2K2.1 cmt. n.14(A).

Section 2X1.1, in turn, provides in relevant part:

(a) Base Offense Level: The base offense level 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.

(b) Specific Offense Characteristics

(1) 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.

U.S.S.G. § 2X1.1;3 see also id. § 2X1.1 cmt. background (explaining that no 

reduction of the offense level is warranted where “the substantive offense was 

substantially completed or was interrupted or prevented on the verge of 

completion by the intercession of law enforcement authorities or the victim,” 

but when “the arrest occurs well before the defendant or any co-conspirator has

completed the acts necessary for the substantive offense . . . a reduction of 3 

levels is provided under § 2X1.1(b)(1) or (2)”).

 

3 Section 2X1.1(b)(2) contains a provision for conspiracies that parallels the attempt 

provision in § 2X1.1(b)(1). The government at oral argument argued for the first time that 

the probation officer and the district court actually found that Soto’s activity constituted a 

conspiracy, not an attempt. The government points to a single reference to § 2X1.1(b)(2) in 

the probation officer’s written response to Soto’s objections to the PSR. However, the PSR

itself, Soto’s written objections and his argument at sentencing, and the district court’s 

statements at sentencing all refer generally to § 2X1.1(b) and could apply equally to its nearly 

identical subsections for conspiracies and attempts. Indeed, the government conceded at 

argument that the district court’s statement covers both conspiracy and attempt. Because 

both parties have briefed the issues before us exclusively in terms of attempt, not conspiracy, 

and because the difference is immaterial to the outcome in this case, we address only the 

attempt subsection.

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In United States v. Waskom, we explained that determining whether a 

three-level reduction under § 2X1.1(b) is warranted requires a fact-specific 

inquiry that “resists a precise standard.” 179 F.3d 303, 308 (5th Cir. 1999).4 

However, we identified four non-exhaustive considerations that guide a court’s 

application of the guideline:

First, the § 2X1.1(b)(2) inquiry focuses on the substantive offense 

and the defendant’s conduct in relation to that specific offense. 

Second, § 2X1.1(b)(2) does not require the reduction for a 

conspirator who has made substantial progress in his criminal 

endeavor simply because a significant step remains before 

commission of the substantive offense becomes inevitable. Third, 

in order to support a denial of the reduction under § 2X1.1(b)(2), 

the circumstances must demonstrate that the balance of the 

significant acts completed and those remaining tips toward 

completion of the substantive offense. This requires that the 

district court consider the quality of the completed and remaining 

acts, not simply the relative quantities of each. Fourth, a 

sentencing court should consider the temporal frame of the scheme 

and the amount of time the defendant would have needed to finish 

his plan, had he not been interrupted. As the completion of the 

offense becomes more imminent, the reduction will become less 

appropriate.

Id. at 308 (citations omitted).5

The PSR, which was adopted by the district court, stated that because 

Soto admitted that the ammunition was destined for Mexico, he had the 

knowledge or intent that it would be used or possessed in connection with 

another offense, namely, exportation of ammunition to Mexico without the 

 

4 Waskom discussed a reduction under § 2X1.1(b)(2), involving conspiracies, but its 

standard is equally relevant to the parallel provision in § 2X1.1(b)(1) involving attempts. See 

United States v. Harris, 598 F. App’x 288, 290 (5th Cir.) (applying Waskom’s considerations

to attempt reduction under § 2X1.1(b)(1)), cert. denied, 136 S. Ct. 139 (2015). 5 Waskom identified a fifth consideration, which involved the conspirators’ subjective 

belief as to what was necessary for completion of the offense. As we have noted, the 

Guidelines were amended after our decision in Waskom, removing this consideration, but the 

other four considerations set forth in Waskom remain pertinent. See United States v. John, 

597 F.3d 263, 283 (5th Cir. 2010).

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required export license. That offense has a base offense level of 26 pursuant 

to U.S.S.G. § 2M5.2(a)(1). Because the PSR did not reduce that level by three 

under § 2X1.1(b), the offense level for the exportation offense exceeded the 

adjusted offense level under § 2K2.1(b)(6)(A), and the PSR applied the cross 

reference. If, as Soto argues, he was entitled to the three-level reduction in 

§ 2X1.1(b)(1), then the cross reference offense level—reduced to 23—was not 

greater than the offense level under § 2K2.1, rendering the cross reference 

inapplicable.

The addendum to the PSR stated that the three-level reduction did not 

apply because “[t]he defendant purchased the ammunition and only needed to 

transfer the ammunition to fellow co-conspirator(s). However, he was arrested 

prior to the illegal transfer and eventual illicit smuggle into Mexico.” The PSR 

and its addendum did not state that Soto had made arrangements for delivery 

of the ammunition to Compadre or that he was on his way to do so when he 

was arrested; indeed, these documents were silent as to the “temporal frame 

of the scheme.” Waskom, 179 F.3d at 308.

Soto argued at sentencing that he did not complete all of the acts 

necessary for completion of the substantive offense and there was no evidence 

that he was about to complete those actions but for his apprehension by law 

enforcement. The district court disagreed:

I mean, I just don’t agree with you factually that this would not 

have occurred even if there had not been this apprehension. I 

mean, it would’ve -- these rounds of ammunition, which I believe 

were for assault rifles, were destined for Mexico and would have 

ended up there but for law enforcement intervening.

. . .

Alright, I just don’t agree with you factually. I believe that all the 

evidence suggests that it was on his was -- that he was in route to 

turn the ammunition over to somebody who would actually be the 

courier into Mexico and but for law enforcement interdiction, it 

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didn’t make its way into Mexico. Alright, your objection’s noted 

but again, I just overrule it because I disagree with your factual 

premise.

It is undisputed that neither Soto nor anyone else actually completed all the 

acts necessary to commit the offense of illegally exporting the ammunition to

Mexico. Accordingly, whether the district court correctly applied the cross 

reference depends on the correctness of its determination that Soto was “in 

route” to deliver the ammunition to someone who would transport it to Mexico 

when he was arrested.6 See U.S.S.G. § 2X1.1(b)(1).

Soto argues that there is no evidence to support the district court’s 

finding that he was on the verge of delivering the ammunition to Compadre. 

We agree. The PSR did not address the timing of the expected delivery or even 

whether any delivery had been arranged. The government concedes that Soto 

bought the ammunition three days before he was stopped, and points to no

evidence that Soto had arranged to meet with Compadre on the day of his 

arrest or even that any arrangements whatsoever had been made for delivering

the ammunition. Indeed, the government conceded at oral argument that 

there is no evidence in the record as to when Soto planned to deliver the 

ammunition. Nor is there any evidence controverting Soto’s statement that he 

was on his way home from his mother’s house when he was stopped. At oral 

argument, the government contended that the court can infer that he was on 

 

6 To the extent that the district court’s statement that the ammunition was “destined 

for Mexico and would have ended up there but for law enforcement intervening” suggests 

that Soto was ineligible for the three-level reduction simply because the ammunition would 

have ended up in Mexico eventually but for police intervention, that understanding overlooks

our admonition that “a sentencing court should consider the temporal frame of the scheme 

and the amount of time the defendant would have needed to finish his plan, had he not been 

interrupted.” Waskom, 179 F.3d at 308; see also id. at 312 (“Although the district court may 

very well have been correct that the defendants eventually would have secured the materials 

they needed to construct the explosive devices, the relevant question is whether they were 

about to do so.”). However, the district court went on to state its belief that Soto was “in 

route” to deliver the ammunition.

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his way to meet Compadre because Compadre lived in a nearby town, but this 

proximity argument is unavailing because Soto lived in Pharr itself, where he 

was stopped. The fact that Soto had once before delivered ammunition to 

Compadre, absent evidence of the circumstances of that transaction, reveals 

nothing about the expected timing of the delivery. In sum, there is no evidence 

whatsoever in the record that Soto was en route to deliver the ammunition to 

Compadre when he was pulled over.

The government nevertheless argues that the district court did not err 

because purchasing the ammunition was the most significant step in exporting 

the ammunition and the only remaining step for Soto was to give the 

ammunition to Compadre. See Waskom, 179 F.3d at 308. In the cases upon 

which the government relies, however, defendants who were held ineligible for 

a reduction under § 2X1.1(b) had done far more than Soto towards completing 

their offenses. In United States v. Avila-Ortiz, the court upheld denial of the 

reduction where the defendant had taken “many significant steps” and made 

“substantial progress” towards completing a bulk cash smuggling offense, 

noting that when the defendant was arrested “the only step left was for him to 

take his unreported cash across the border.” 415 F. App’x 524, 525 (5th Cir. 

2011). In United States v. Harris, the court determined that “[i]n light of the 

record as a whole, the district court found plausibly that Harris was about to 

complete all acts necessary for the completion of the crime [of using counterfeit 

credit cards] but for his apprehension” where he “not only possessed 131 credit 

card numbers, but also possessed text messages referencing ‘dumps,’ the sale 

of diesel fuel, and an ICQ profile,” and had “fraudulently used 42 counterfeit 

credit cards, and used each several times, over the course of less than a month.” 

598 F. App’x 288, 290–91 (5th Cir.), cert. denied, 136 S. Ct. 139 (2015).

Here, in contrast, based on the evidence in the record, all Soto had done 

was buy ammunition and put it in his car. In United States v. John, the 

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defendant had done far more than Soto and was still entitled to the three-level 

reduction.7 597 F.3d 263 (5th Cir. 2010). John stole customer information 

from seventy-six accounts, provided the information to her co-conspirator, and

used the stolen information to incur fraudulent charges on four of the accounts. 

Id. at 269. We nevertheless held that the district court had clearly erred in 

failing to apply the three-level reduction under § 2X1.1(b)(2) because the acts 

necessary to complete the intended offense had not occurred at the time of 

John’s arrest. Id. at 283–84. We noted that in order to complete the scheme, 

someone had to call Citigroup, request a change of a mailing address for a 

particular stolen account, and then have a confederate added as an authorized 

user so that the account could be accessed. Id. at 284. Because this process 

had not been completed for most of the accounts, we determined that the 

intended offense had only been partially completed and thus the reduction 

applied. Id. at 284. We vacated John’s sentence after determining that all four 

prongs of plain error review had been satisfied. Id. at 289. See also Waskom, 

179 F.3d at 312 (“Although the district court may very well have been correct 

that the defendants eventually would have secured the materials they needed 

to construct the explosive devices, the relevant question is whether they were 

about to do so. . . . In sum, the record does not support a finding that, at the 

point of their arrests, the defendants were on the verge of completing the acts 

they believed necessary to commit the substantive offense of robbing the 

armored car. We therefore find that the district court clearly erred in denying 

the three-level reduction under § 2X1.1(b)(2).”); United States v. McCrumby, 

402 F. App’x 961, 963 (5th Cir. 2010) (holding that district court clearly erred 

in failing to apply the three-level reduction under § 2X1.1(b)(2) where “the acts 

 

7 John, like Waskom, discussed a reduction under § 2X1.1(b)(2).

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to complete the intended offense . . . had not been completed at the time 

McCrumby was apprehended”).

Applying our precedent, on this record Soto was entitled to the threelevel reduction under § 2X1.1(b)(1). No evidence before the district court 

supported its finding that Soto was en route to deliver the ammunition for 

smuggling to Mexico when he was arrested. Accordingly, that finding was 

clearly erroneous. After the three-level reduction, the offense level under

§ 2X1.1 for attempted exportation of ammunition is not greater than the 

offense level under § 2K2.1 for being a felon in possession of ammunition, and 

the district court therefore erred in applying the cross reference in 

§ 2K2.1(c)(1)(A).8

IV.

For the foregoing reasons, we VACATE Soto’s sentence and REMAND 

for resentencing.

 

8 In its brief, the government argued in the alternative that the district court was not 

required to consider the three-level reduction under § 2X1.1(b)(1) because the cross reference 

provision in § 2X1.1(c)(1) instructs that “[w]hen an attempt, solicitation, or conspiracy is 

expressly covered by another offense guideline section, [the court should] apply that guideline 

section,” and, according to the government, § 2M5.2 covers attempts to export ammunition. 

The government effectively abandoned this argument at oral argument, stating that it was 

“inapplicable.” Even assuming, arguendo, that this argument was not abandoned by the 

government, the argument fails because § 2M5.2 does not “expressly cover[]” attempts. It 

does not mention attempts and is not listed among the dozens of offense guidelines that are 

identified in the Application Notes as expressly covering offenses. See U.S.S.G. § 2X1.1 cmt. 

n.1; cf. United States v. Ogle, 328 F.3d 182, 191 (5th Cir. 2003) (rejecting analogous argument 

that a substantive offense guideline rendered § 2X1.1(b) inapplicable where the substantive 

offense provision contained “no reference whatsoever to either attempts or conspiracies”). 

Although we held in two unpublished opinions that a district court’s contrary conclusion was 

not reversible plain error, United States v. Caballero, 544 F. App’x 395, 397 (5th Cir. 2013); 

United States v. Oyervides, 546 F. App’x 362, 365 (5th Cir. 2013), plain error does not apply 

here. Caballero and Oyervides did not decide the correct interpretation of §§ 2X1.1(c)(1) and 

2M5.2, and, in any event, they are not binding authority.

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