PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ASAEL LINARES, Defendant - Appellant. No. 21-3210

________________ _________________ Appeal from the United States District Court for the District of Kansas (D.C. No. 2:21-CR-20010-JAR-1)

________________ _________________ Daniel T. Hansmeier, Appellate Chief (Mel ody Brannon, Federal Public Defender, and Kayla Gassmann, Assistant Federal Public De fender, with him on the briefs), Office of the Federal Public Defender, Kansas C ity, Kansas, for Defendant-Appellant. Bryan C. Clark, Assistant United States A ttorney (Duston J. S linkard, United States Attorney, District of Kansas, and James A. Brown, Assistant United States Attorney, Chief, Appellate Division, with him on the br ief), Office of the Un ited States Attorney, Kansas City, Kansas, for Plaintiff-Appellee.

________________ _________________ Before TYMKOVICH , SEYMOUR , and PHILLIPS , Circuit Judges.

________________ _________________ TYMKOVICH , Circuit Judge.

________________ _________________
Asael Linares was indicted as a felon in possessi on of a firearm after an attempted carjacking. He pled guilty but objected to a sentencing enhancement and FILED United States Court of Appeals Tenth Circuit 

### February 22, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 21-3210 Document: 010110816242 Date Filed: 02/22/2023 Page: 12 the failure to apply a sentencing decrea se proposed by the government, arguing that he did not complete an attempted carjacki ng, nor did he meet the required mental state for the carjacking enhancement. Finding that Mr. Linares was about to complete a carjacking while possessing an AK-47, the district court overruled Mr. Linares’s objections and sentenced him to 63 months. Mr. Linares challenges the enhancements in this appeal. We affirm. The district court did not err in concluding that the facts—the presence of a rifle while con fronting a car owner, demanding the keys, approaching the car, threatening the car owner and her family while they were calling 911, and leaving the scene when the victims continued ca lling 911—met the Sentencing Guideline requirements for carjacking. 

### I. Background This case arises from an encounter between Mr. Linares and a family in a Kansas City neighborhood. The victim, Marian Di az, her brother, Ruben, and his young son, were cleaning up scrap constr uction materials in Ms. Diaz ’s front yard. During the project, Ms. Diaz had parked her car in the ya rd. Mr. Linares drove down the street and parked his car in front of the home. Mr. Linares asked for a ride to a gas station, claiming car troubles, but Ruben declined. Ms. Diaz eventually moved he r car and parked it on the street. She left the car, which had a remote “automatic start feature, ” locked but still running. As Ms. Diaz walked back to her yard, Mr. Li nares walked to the driver’s si de door of her car. He was carrying a semi-automatic rifle, later identifie d as an AK-47. When Ruben saw the rifle, Appellate Case: 21-3210 Document: 010110816242 Date Filed: 02/22/2023 Page: 23 he and the others hurried into the house. At the same time, Ms. Diaz remotely turned off the engine to her car. Then Mr. Linares turn ed his attention to the house and demanded that Ms. Diaz give him the keys. Ruben returned to the yard while calling 911 on his phone. On the 911 call, he reported that Mr. Linares had an AR-15 or AK gun and was trying to steal his sister’s car. He also told the operator that Mr. Linare s had ordered him to hang up the phone or he threatened to come back (“I’ll come back and kill yo u”). Having been prevented from stealing the vehicle, Mr. Linares returned to his car and drove away. Police soon arrested Mr. Linares at a nearby gas station. Offi cers discovered two handguns on Mr. Linares and another two firearms in the car, including an AK-47 and a pistol. A grand jury indicted Mr. Linares fo r unlawful possession of firearms by a convicted felon under 18 U.S.C. § 922(g)(1). He pled guilty without a plea agreement. At sentencing, agreeing with the presente nce report, the dist rict court applied § 2K2.1(c)(1)(A) of the U.S. Sentencing Guidelines (USSG), which applies an enhancement to a sentence where a fire arm was used in connection with the substantive offense of attempted robbery . (Applying USSG § 2X1.1(b)(1)(crossreference) and USSG § 2B3.1 (attempted ca rjacking)). Combinin g the offense level and Mr. Linares’s criminal hi story category, the district court calculated his guideline range to be 63 to 78 months’ imprisonment. The court sentenced him to 63 months of imprisonment, the bottom of the guideline range. Appellate Case: 21-3210 Document: 010110816242 Date Filed: 02/22/2023 Page: 34 

### II. Analysis Mr. Linares makes two challenges to his sentence. He contends the district court (1) erred in rejecting a three-level decrea se for an attempt under § 2X1.1(b)(1) and (2) used the incorrect defin ition of carjacking to apply a two-level enhancement under § 2B3.1(b)(5).
A. Attempted Vehicle Robbery - § 2X1.1(b)(1) Mr. Linares argues the district court e rred by rejecting a three-level decrease because he did not complete the crime of vehicle robbery. We review legal questions de novo and the district c ourt’s factual findings for clear error, giving due deferen ce to its application of the guidelines to the facts. United States v. Maldonado-Passage , 4 F.4th 1097, 1103 (10th Cir. 2021). Under the clear error standard, “we may reverse only if the district court’s finding lacks factual support in the record or if, after reviewing all the evidence, we have a definite and firm conviction that the district court erred.” Middleton v. Stephenson , 749 F.3d 1197, 1200 (10th Cir. 2014). 1 Mr. Linares relies on USSG § 2X1.1(b)(1 ), which provides for a three-level decrease in a defendant’s offense level calculati on for an incomplete, or attempted, crime. An attempt requires that the defendant (1) intended to commit the substantive offense, and (2) took a substantial step towards commission of the substantive offense. United

1 Mr. Linares advocates for a burden sh ifting approach, which would require the government to prove the exceptions apply after the defendant proves attempt. For our purposes here, it does not matter who has the burden to establish certain aspects of the guideline. Appellate Case: 21-3210 Document: 010110816242 Date Filed: 02/22/2023 Page: 45 States v. Washington , 653 F.3d 1251, 1264 (10th Cir. 2011). A de fendant, however, will not receive the decrease if his conduct meets one of the two exceptions to the attempt guideline: [1] the defendant completed all the acts the defendant believed necessary for successful completi on of the substantive offense or [2] 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

. USSG § 2X1.1(b)(1) (brackets and emphasis a dded). The second exception is at issue here. The guidelines explain: In most prosecutions for conspiracies or attempts, the substantive offense was subs tantially completed or was interrupted or prevented on the verge of completion by the intercession of law enforc ement authorities or the victim . In such cases, no reduction of the offense level is warranted. USSG § 2X1.1, comment (emphasis added). This is a fact intensive inquiry. See United
States v. Soto , 819 F.3d 213, 217 (5th Cir. 2016). The district court found by a preponderance of the evid ence that Mr. Linares’s acts met the second attempt exception; he was ab out to complete the substantive offense of vehicle robbery under Kansas law, K.S.A. § 21-5420, 2 but for apprehension or interruption by some similar even t beyond his control. In reaching this conclusion, the

2 That provision prohibits “knowingly taking prope rty from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. § 21-5420(a). Appellate Case: 21-3210 Document: 010110816242 Date Filed: 02/22/2023 Page: 56 district court relied on a police officer’s te stimony, home survei llance video, and a recording of the 911 call. In particular, the court found:

 Mr. Linares “approached the Fo rd Fusion, was very close to it, backed off, came back up to it, at some point says leave the keys, I’ve got you.”

 Mr. Linares “essentially demand[ed]” the victims give him the keys.

 Mr. Linares interacted with Ruben while Ruben was calling the police on 911, and th en told Ruben not to call the police.

 Mr. Linares was aware of the 911 call, threatened Ruben, and said, “I’ll come back and kill you.” R., Vol. 3 at 69–70. In resisting these findings, Mr. Linares focuses on the court’s conclusion that the 911 call caused Mr. Linares to back away from the car and abandon his plan to steal the car. But the reco rding of the 911 call and statem ents made by Ruben in the aftermath of the incident s upport the district court’s c onclusion. During the 911 call, Ruben made an unprompted statement that Mr. Linares “is telling me not to call because he’s going to come back for me, whatever.” Supp. R., Vol. 2 Ex. 1 (911 Recording) (in a later interview Ruben u nderstood Mr. Linares as saying “I’ll come back and kill you”). Ruben’s statements demonstrate that Mr. Linares was close enough to Ruben to see what he was doing a nd talk to him. Th e record supports the district court’s findings that Ruben was in the yard, the two interacted, Mr. Linares was aware of the 911 call, and then Mr. Lina res abandoned his efforts to steal the car because of the 911 call. With this factual basis, the district court conclude d Mr. Linares’s actions in approaching the car multiple ti mes met the “complete all su ch acts” component of the Appellate Case: 21-3210 Document: 010110816242 Date Filed: 02/22/2023 Page: 67 attempt exception, and that the 911 call constituted an interruption by an event beyond Mr. Linares’s control. In other words, Mr. Linares was about to complete the substantive offense of vehicle robbery but for interruption by the victims. 3
Our conclusion is consistent w ith several of our cases. In United States v.
Owens , for example, we declined to apply the reduction where the defendant stopped abruptly in front of the vict im’s car, pulled a gun out of his pocket, told the victim to “Get out!”, pointed the gun at the victim, a nd attempted to open the locked door. 20 F. App’x 785, 786 (10th Cir. 2001). Ther e we explained the combination of the victim’s decision to drive away, and the st eps taken to steal th e car met the second § 2X1.1(b)(1) exception. Id. at 788. Likewise, in United States v. Orr , we upheld a district court’s decision to decline to apply the reducti on where a defendant confessed to his escape plans. 172 F.3d 64, 199 9 WL 51827, at *1, *4 (10th Cir. 1999) (unpublished table decision). We noted th at the prisoner’s mother had encouraged him to confess and that he had only minor details left to complete the escape

. Mr. Linares, like the defendant in Owens , only needed the victims to hand over the keys for him to complete the offense of stealing the car. He had repeatedly approached the car, hovered near it, dema nded the keys, and verbally threatened Ruben. While he did not point his gun at the victims like the defendant in Owens , Mr. Linares allowed his firearm to be vi sible to the victims and the threat was

3 The attempt exception requires “the circumstances demonstrate that the defendant was about to complete a ll such acts,” not that the defendan t intended to co mplete all such acts as the district court stated. Even so , as discussed above, the facts found by the district court support applying the second attempt exception. Appellate Case: 21-3210 Document: 010110816242 Date Filed: 02/22/2023 Page: 78 obvious. In addressing the USSG § 2B1.1 i ssue, the district court remarked, “[i]t would be hard to believe that someone would not be intimidated by seeing someone in possession of an AK-47 or AR-15, whatever it was.” R., Vol. 3 at 67. The district court’s findings of fact s upport the conclusion that Mr . Linares’s actions met the “about to complete” a ttempt exception. Similarly, as noted above, the district court’s findings regarding the 911 call and Mr. Linares’s awareness of the 911 call are sufficient to support the apprehension or interruption component of the exception. Mr. Linares tried to stop the 911 call but failed. Mr. Linares’s attempt to stop the call is the “prima ry reason [he] opted not to carry out the final stages of his [carjacking].” Orr , 1999 WL 51827, at *4. Mr. Linares was still hovering near the car when Ruben made the 911 call. Despite his threats, Mr. Linares was unable to prevent R uben from calling the poli ce. In short, it seems obvious the fear of a police respons e motivated Mr. Linares to abandon his attempt. And the district court’s findings show Mr. Linares’s awareness that police would be arriving soon satisfied the interr uption requirement of the exception. Our conclusion is likewis e consistent with cases from other circuits. See, e.g. , United States v. Rill , 592 F.3d 863, 865– 66 (8th Cir. 2010) (explaining in an attempted prison escape case that the “fact that the plexiglass was stronger than Rill expected is an interruption by some similar event beyond [his] control”); United States v. Shakur , 7 F. App’x 289, 289 (4th Cir. 2001) (upholding district court’s refusal to apply reduction where victim’s ca r was equipped with an anti-theft device which prevented him from starting the engine); United States v. Chapdelaine , 989 Appellate Case: 21-3210 Document: 010110816242 Date Filed: 02/22/2023 Page: 89 F.2d 28, 35 (1st Cir. 1993) (upholding refusal to apply reduction where evidence showed that defendant and comrades arri ved at the mall prepared and equipped to “carry out a robbery and were thwarted only by the unexpected early departure of the Wells Fargo truck”). The district court did not err in concl uding Mr. Linares was about to complete the carjacking but for his fear of apprehension by law enforcement or interruption by a victim thwarted his plans.
B. Carjacking—Intent to Cause Death or Bo dily Harm – U.S.S.G § 2B3.1(b)(5) Mr. Linares next argues the district c ourt erred by failing to apply the federal definition of carjacking found in 18 U.S.C. § 2119. He c ontends the court erred by failing to find that he intended to cause death or serious bod ily harm in the attempt, as required by § 2119. 4 We disagree. Sentencing Commission Guidelines Section 2B 3.1(b)(5) increases a sentence if the “offense involved carjacking.” The comment to § 2B3.1 defines “carjacking” as “the taking or attempted taking of a motor vehicle from the person or presence of another by force and violence or by intimidation .” USSG § 2B3.1, co mment. (n.1) (emphasis added). In contrast, § 2119 defines carjacking as when a person “with the intent to cause death or serious bodily harm ta kes a motor vehicle that has be en transported, shipped, or

4 The government argues Mr. Linares waived this argument by not raising it below. We find Mr. Linares sufficien tly raised this argument to the district court by contending that the statutory defin ition of carjacking applied. Appellate Case: 21-3210 Document: 010110816242 Date Filed: 02/22/2023 Page: 910 received in interstate or foreign commerce from the person or pr esence of another by force and violence or by intimid ation, or attempts to do so .” 18 U.S.C. § 2119. The statute requires the “intent” to cause death or serious bodily harm, while the guidelines do

not. But the Sentencing Commission does not ha ve “to use the word [in a guideline] the same way that the statute did.” United States v. Thomas , 939 F.3d 1121, 1130 (10th Cir. 2019). “The Commentary that accompanies the guide line . . . may interpret the guideline or explain how it is to be applied.” USSG § 1B1.7. “Fa ilure to follow such commentary could constitute an incorrect application of the guidelines.” Id. Indeed, the “commentary [is] essential in correctly and uniformly applying the guidelines.” United States v. Smith , 900 F.2d 1442, 1447 (1 0th Cir. 1990) (internal quotations omitted). Guideline application notes are “authoritative unless [they] violate [] the Constitution or a federal statute, or [are] inconsistent with , or a plainly erroneous reading of, that guideline.” Stinson v. United States , 508 U.S. 36, 38 (1993). Applying these principles, the district court correctly used th e definition in th e guidelines. Mr. Linares advances four arguments as to why the district court should have applied the § 2119 statutory definition, instead of the Sentencing Commission’s definition: (1) the history of Anti Car Thef t Act and comment show that the Commission intended to use the same defi nition as Congress; (2) § 2B3. 1 references § 2119; (3) the comment definition is inconsistent with the guideline text and plainly erroneous; and (4) we should not defer to the comment de finition because it paraphrases statutory language. We are unpersuaded. Appellate Case: 21-3210 Document: 010110816242 Date Filed: 02/22/2023 Page: 1011 To understand Mr. Linares’s first argument, it helps to consider the history of § 2119, the guidelines, and the commentary to the guidelines. In 1992, Congress passed the Anti Car Theft Act, which defined “armed carjacking” without a mens rea element. In 1993, the Sentencing Commission added th e 1992 definition of carjacking to comment 1 of § 2B3.1 but excluded the statute’s fi rearm component. The following year, Congress added a mens rea requirement to the carjack ing definition in the Anti Car Theft Act and removed the firearm component. But the Sentencing Commission never amended its definition of carjacking. Mr. Linares contends the Commission’ s nearly identical 1993 carjacking definition demonstrates its intention to mirror Congress’s definition. In our view, the district court used the correct “carjacking” definition—the comment definition that lacks a mens rea co mponent. The Commission’s decision not to modify the comment after Congress amended the previous § 2119 definition suggests the Commission’s “satisfaction with the interpretation.” Thomas , 939 F.3d at 1131. And persuasive authority from two other circuits underscores using the comment definition in this context. See United States v. Bates , 213 F.3d 1336, 1340 (11th Cir. 2000) (explaining that “the Sentencing Commission has had ample time to alter the guidelines to comport with the amended statute, but has not changed the guidelines”); United States v. Knighton , 171 F. App’x 939, 942 (3d Cir. 2006) (“The Application Notes do not state that their definition of carjacking tracks the el ements of the carjacking statute and there is no indication that the Sentencing Commission in tended for the terms of the statute to control the definition.”). We agree with these cases. Appellate Case: 21-3210 Document: 010110816242 Date Filed: 02/22/2023 Page: 1112 As for Mr. Linares’s second argument, we recognize that § 2B3.1 includes a citation to § 2119. But nothing in the guide lines or comment 1 requires the court to import the substantive elements of § 2119. It is axioma tic that the Commission knows how to use a cross-referenc e to incorporate a particul ar statutory definition. See Thomas , 939 F.3d 1128–29 (discussing th at the Commission’s use of statutory cross-reference in a guideline signifies its decision to not include su ch a cross-reference in other guidelines is intentional). The Commission, for exampl e, incorporated Congress’s definition of murder in USSG § 2B3.1(c)(1 ). No such cross-reference exists for the definition of carjacking. See Knighton , 171 F. App’x at 942. Third, Mr. Linares’s arguments that the comment definition is inconsistent and plainly erroneous are conclusory and recite the same history-based arguments previously addressed. Besides the historical backgr ound, Mr. Linares fails to fill the gap establishing that the § 2119 definition ap plies to this guideline enhancement. Finally, Mr. Linares insists that because the Commission elected to use a nearly identical carjacking definition to the one in the 1992 Act, it intended to copy that definition as it evolved through congression al action. While the comment definition parallels the 1992 definition, the Commission’s inaction in amending the definition to follow congressional action speaks for itself. See Bates , 213 F.3d at 1340. In sum, the district court used the co rrect “carjacking” definition located in Comment 1 of § 2B3.1. Mr. Linares’s enhancement was therefore not in error. Appellate Case: 21-3210 Document: 010110816242 Date Filed: 02/22/2023 Page: 1213 

### III. Conclusion Mr. Linares is not eligible for a thre e-level sentencing decrease for attempt because he would have complete d the crime but for an interruption. And Mr. Linares is eligible for a two-level sentencing increase because the district court used the correct carjacking definition. We a ffirm the district court. Appellate Case: 21-3210 Document: 010110816242 Date Filed: 02/22/2023 Page: 13