The Honorable Joseph S. Van Bokkelen of the United States 1

District Court for the Northern District of Indiana, sitting by

designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2679

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SAUL ALEJANDER SANCHEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 CR 786—John W. Darrah, Judge.

ARGUED MAY 12, 2009—DECIDED AUGUST 11, 2010 

Before KANNE and SYKES, Circuit Judges, and

VAN BOKKELEN, District Judge.

1

SYKES, Circuit Judge. Saul Sanchez was convicted of

conspiracy and attempted kidnapping in violation of

18 U.S.C. § 1201(a)(1), (c), and (d), and conspiracy
2 No. 08-2679

to retaliate against a witness in violation of 18 U.S.C.

§ 1513(e) and (f). The convictions arose out of a plot

to kidnap Ignacio Vega and Maria Jimenez, who were

witnesses in a trial against a Chicago-based drug kingpin. On appeal Sanchez argues that the district court

erroneously admitted substantial evidence about the

underlying uncharged drug conspiracy. He also contends that the evidence was insufficient to sustain any

of his three convictions. Finally, Sanchez challenges his

sentence.

We affirm in part and reverse in part. The district court

did not abuse its discretion in admitting evidence regarding the underlying uncharged drug-trafficking

conspiracy; this evidence was highly probative of

Sanchez’s motive for orchestrating the kidnapping. We

also conclude that the evidence is sufficient to sustain

Sanchez’s convictions for conspiracy to kidnap and attempted kidnapping. But the same cannot be said of

his conviction for conspiracy to retaliate against a witness. The government presented no evidence, circumstantial or otherwise, that Sanchez knew the two targets

of the kidnapping plot had given testimony against

the drug trafficker for whom Sanchez was purportedly

working; the evidence suggested instead that Sanchez

thought the targets owed the drug kingpin money. Accordingly, we vacate Sanchez’s conviction on the retaliation count and remand for resentencing. As an independent ground for resentencing, the district judge erroneously withheld a three-level reduction under

U.S.S.G. § 2X1.1(b)(1) because he mistakenly concluded

that Sanchez was “about to complete” the kidnapping.
No. 08-2679 3

The background of this case is complicated by the fact that 2

several of the key players share the surname “Jimenez.” This

requires that we occasionally use their given names to distinguish between them.

I. Background

Luis Vasquez was the ringleader of a Chicago-based

drug-trafficking cell and in 2004 became the subject of a

law-enforcement investigation when federal agents

learned that Jose Jimenez had ordered several kilograms

of cocaine from Vasquez on credit. Agents seized the 2

cocaine from a stash house Jimenez used and made it

appear as though Jimenez had been the victim of the

burglary. When Vasquez demanded payment for the

lost cocaine, Jose Jimenez approached his cousin

Maria Jimenez and her husband Ignacio Vega for help.

The couple owned two Chicago restaurants named

“Yolanda’s,” and they agreed to transfer one of the restaurants to Vasquez as partial payment for Jose’s debt.

The transfer never occurred. Vasquez was arrested, and

both Vega and Maria Jimenez testified against Vasquez

at his November 2005 trial for drug trafficking, money

laundering, and other related offenses.

Almost a year later, on October 10, 2006, Saul Sanchez

and a coconspirator approached a confidential informant named Francisco Jimenez and asked for assistance in kidnapping two individuals and taking them

to Mexico. Sanchez identified the kidnapping targets as

“Jimenez” and someone named “Yolanda” who owned

a restaurant at 31st Street and Lawndale Avenue in Chi-
4 No. 08-2679

cago. Sanchez was actually referring to Ignacio Vega

and Maria Jimenez, who owned the Yolanda’s restaurants, one of which was located just blocks from the

intersection Sanchez had identified. Sanchez explained

to Francisco that he was kidnapping the two individuals

on Vasquez’s behalf because he believed that they

owed Vasquez money. Sanchez asked Francisco for

$25,000 to finance the kidnapping. When Francisco said

he did not have that much money, Sanchez dialed back

his request and asked for help in securing a minivan and

a safehouse to use in the kidnapping.

Francisco Jimenez agreed to help Sanchez but instead

contacted federal agents and offered to assist them in

interrupting the kidnapping plot. The agents secured

wiretap authority and recorded many of Sanchez’s conversations, including several in which he discussed

his progress in bringing the kidnapping plot to fruition.

The wiretap authorization also permitted the FBI to

track the cellular towers on which Sanchez’s phone calls

were hitting. During the ensuing several weeks, Sanchez’s

call history revealed that his phone was hitting on cell

towers located in Laredo, Texas—on the Mexican border—and cell towers elsewhere in Texas, Oklahoma, and

southern Illinois. Based on these phone calls, federal

agents decided the time had come to arrest Sanchez. They

arranged for a minivan to be placed in a garage at an

undercover house in Burbank, Illinois, outside of Chicago.

Francisco Jimenez called Sanchez to tell him he had

secured a van fitting his specifications.

Sanchez and his coconspirator made arrangements to

inspect the van. They met Francisco Jimenez at a prear-
No. 08-2679 5

ranged location in Chicago and proceeded from there to

the Burbank garage where the FBI had placed the van.

Surveillance continued, and Sanchez inspected the van

and confirmed that it met his needs. He then discussed

various details of the kidnapping plot. He told Francisco

that he had located a horse ranch in Joliet, Illinois, where

he planned to take the kidnapping victims before continuing on to the Mexican border, at which point he

would turn them over to members of a drug cartel who

would take them to Sinaloa, Mexico. But Sanchez said

he could not take the van with him that day because it

did not have any license plates. He said he would need

about a week to secure usable plates. As Sanchez and the

coconspirator left the garage, the FBI moved in and

made the arrest.

Sanchez was indicted on three counts: (1) conspiracy

to kidnap, 18 U.S.C. § 1201(a)(1), (c); (2) attempted kidnapping, 18 U.S.C. § 1201(a), (d); and (3) conspiracy

to retaliate against a witness in violation of 18 U.S.C.

§ 1513(e) and (f). Sanchez was convicted by a jury on all

three counts, and the district court sentenced him to

concurrent terms of 218 months in prison on the first

and second counts and 120 months on the third count.

II. Discussion

Sanchez raises multiple challenges to his convictions

and sentence, which we can group into three categories.

First, he maintains that the district court should not

have allowed the government to introduce evidence of

Vasquez’s drug activities or at least should have limited
6 No. 08-2679

the quantity of this evidence under Rule 403 of the

Federal Rules of Evidence. Second, Sanchez challenges

the sufficiency of the evidence to support each of his

three convictions. Finally, he attacks his sentence, arguing

that he was entitled to a three-level reduction under

U.S.S.G. § 2X1.1.

A. Evidence of Underlying Uncharged Drug Trafficking

Sanchez argues that the government should not have

been permitted to introduce evidence of the underlying

uncharged drug-trafficking conspiracy led by Vasquez.

Evidentiary rulings are usually reviewed for abuse of

discretion. See United States v. McCulley, 178 F.3d 872,

875 (7th Cir. 1999). But because Sanchez did not object to

the admission of this evidence, our review is for plain

error. Accordingly, he must establish that the admission

of this evidence was an error that implicated his substantial rights and “ ‘seriously affect[ed] the fairness,

integrity, or public reputation’ ” of the trial. United States

v. LeShore, 543 F.3d 935, 939 (7th Cir. 2008) (quoting

United States v. James, 464 F.3d 699, 709 (7th Cir. 2006)).

Sanchez argues first that because the district court did

not treat the underlying drug- trafficking activity as “relevant conduct” for purposes of calculating his sentencingguidelines range, the drug-conspiracy evidence should

likewise be considered irrelevant under Rules 401 and 402

of the Federal Rules of Evidence. This argument makes

little sense. “Relevant conduct” is a sentencing-guidelines

concept and generally refers to conduct so intimately

related to the charged conduct that the sentencing court
No. 08-2679 7

may consider it along with the charged offense in calculating the appropriate guidelines range. See U.S.S.G.

§ 1B1.1-3. This usually requires a finding that the

uncharged conduct was either part of a common scheme

or occurred in preparation of or during the charged crime.

See id. § 1B1.3. The burden is on the government to

show that the evidence adduced at trial makes it more

probable than not that the charged and uncharged conduct

are sufficiently related for sentencing purposes. See, e.g.,

United States v. Womack, 496 F.3d 791, 797 (7th Cir. 2007).

The standard of relevancy for admission of evidence at

trial is, of course, much broader; it asks only whether

the evidence sought to be admitted has any tendency to

make a fact of consequence any more or less probable.

See FED. R. EVID. 401. This standard was easily satisfied

here. The evidence of the underlying drug conspiracy

provided key factual background for the charged

crimes and was unquestionably probative of Sanchez’s

motive for kidnapping. It established the rationale for

Sanchez’s plot by linking Vasquez to the kidnapping

victims, explaining their prior agreement to transfer

a “Yolanda’s” restaurant to Vasquez as payment for a

drug debt owed by the cousin of one of the victims.

Without this evidence the jury would not have understood why Sanchez targeted the two.

Sanchez next argues that the evidence should have

been excluded under Rule 403, which permits the exclusion of otherwise relevant evidence “if its probative

value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury,
8 No. 08-2679

or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” There

was no error here. To be sure, the record reveals that a

significant part of the government’s case involved

evidence related to the underlying uncharged drug conspiracy. But as we have explained, this evidence was

critical to put Sanchez’s kidnapping plot in context.

Moreover, the district court took care to reduce any risk

of undue prejudice. The judge repeatedly restricted the

scope of the government’s inquiry and issued two

limiting instructions advising the jury that the evidence

was relevant only as background and for the purpose

of showing Sanchez’s motive. And the judge reinstructed the jury on this point at the close of evidence.

See United States v. Strong, 485 F.3d 985, 991 (7th Cir.

2007) (assuming, absent indication to the contrary, that

the jury followed the court’s limiting instruction).

B. Sufficiency of the Evidence 

We turn now to the heart of Sanchez’s appeal—whether

sufficient evidence supports each of his three convictions. We review the evidence “ ‘in the light most

favorable to the government and ask whether any

rational trier of fact could find the essential elements of

the crime beyond a reasonable doubt.’ ” United States v.

Richardson, 208 F.3d 626, 631 (7th Cir. 2000) (quoting

United States v. Rogers, 89 F.3d 1326, 1334 (7th Cir. 1996)).

A conviction will be overturned “only when the record

contains no evidence, regardless of how it is weighed,

upon which a rational trier of fact could find guilt
No. 08-2679 9

beyond a reasonable doubt.” United States v. Starks, 309

F.3d 1017, 1021 (7th Cir. 2002).

1. Conspiracy to Kidnap

To obtain a conviction for conspiracy, the government

was required to prove that Sanchez: (1) agreed to commit

an illegal act; (2) committed an overt act in furtherance

of that agreement; and (3) had “an intent to commit the

substantive offense,” in this case kidnapping. United

States v. Cueto, 151 F.3d 620, 635 (7th Cir. 1998). As applicable here, the kidnapping statute punishes “[w]hoever

unlawfully seizes, confines, inveigles, decoys, kidnaps,

abducts, or carries away and holds for ransom or reward

or otherwise any person,” and the person so kidnapped

is “wilfully transported in interstate or foreign commerce.” 18 U.S.C. § 1201(a)(1).

Sanchez argues that the evidence was not sufficient for

a jury to find that he intended to kidnap Vega and

Maria Jimenez. We disagree. The government presented

ample evidence of Sanchez’s intent. Francisco Jimenez

testified that at a face-to-face meeting with Sanchez on

October 10, 2006, Sanchez explained that he planned

to kidnap two people who owed Vasquez money.

Francisco told the jury that Sanchez said he was going

to take the kidnapping victims to Mexico and claimed to

be acting with Vasquez’s consent. Sanchez said he

would need money, a safehouse, and an automobile

to accomplish the kidnapping, and asked for Francisco’s

help. He identified the intended kidnapping targets
10 No. 08-2679

as “Yolanda,” who owned a restaurant at 31st and

Lawndale, and someone with the last name “Jimenez.”

After this initial meeting, Francisco Jimenez spoke

with Sanchez on several occasions about the kidnapping,

and recordings of these conversations were played for

the jury at trial. The two spoke on the telephone a day

after the initial meeting, at which time Sanchez again

discussed his plans for the kidnapping and told Francisco

that he needed a van “that will allow me to head down

there with the person.” Sanchez called Francisco again

about a week later. Although Sanchez used coded language, Francisco testified that Sanchez was discussing

the arrangements for the kidnapping that he had just

made on a trip to Mexico. More specifically, Sanchez

said the Mexican drug cartel had agreed to assist once

Sanchez brought the victims to the intended drop-off

point at the border. Sanchez repeated his initial request

that Francisco help him find a safehouse and a van to

use in the kidnapping. A few days later Sanchez said he

no longer needed help in securing a safehouse because

he had located a ranch in Joliet for that purpose. The

two further discussed the specifications for the van,

agreeing that it should have tinted windows and

new license plates.

The recording of the last meeting between Sanchez and

Francisco Jimenez completed the picture for the jury.

Sanchez inspected the van and said it was “more or less”

what he needed but that it would take about a week

to secure license plates. Asked about how many people

would be traveling in the van, Sanchez initially said
No. 08-2679 11

“two” and then clarified, “[t]wo and two of us that might

be going.” He then explained that he might need more

people to help with the “pick up . . . who will get into the

car with the guys.” Sanchez also described in some

detail the ranch in Joliet that he had secured as a temporary safehouse for the victims. He then explained how

he would take “them” to the Mexican border where

members of the drug cartel would be waiting to take

“them” to Sinaloa, Mexico.

That Sanchez referred to the victims as “Jimenez” and

“Yolanda” does not undermine the government’s case, as

Sanchez contends. First, one of the kidnapping targets

was in fact named “Jimenez,” and although neither went

by the name “Yolanda,” they were a married couple

who owned two restaurants called “Yolanda’s.” Second,

although neither of the “Yolanda’s” restaurants was

located at 31st and Lawndale, one was located approximately two blocks from that address. Finally, the background evidence regarding the underlying drug-trafficking

conspiracy and the payment of Jose Jimenez’s drug

debt to Vasquez convincingly tied Vasquez to Maria

Jimenez (Jose’s cousin) and her husband Ignacio Vega;

their ownership of restaurants named “Yolanda’s” made

it clear that Sanchez understood who the targets of the

kidnapping were.

Sanchez argues in the alternative that most of the taped

conversations introduced at trial related to the drugtrafficking activity of the Vasquez organization and

that the evidence is really more consistent with a drugsmuggling conspiracy, not a conspiracy to kidnap. This
12 No. 08-2679

is an attempt to invoke the principle that reversal is

required whenever evidence “ ‘gives equal or nearly equal

circumstantial support to a theory of guilt and a theory

of innocence,’ ” and as such “ ‘a reasonable jury must

necessarily entertain a reasonable doubt.’ ” United States

v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999) (quoting

United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996)).

This is not remotely a case in which the evidence is in

equipoise. Although there was significant background

evidence of drug trafficking, Sanchez’s recorded conversations during October 2006 are sufficient to establish

the kidnapping conspiracy. Though he often used coded

language, Sanchez’s intent to kidnap is clear from the

detailed descriptions of the minivan he needed, the

safehouse he secured, and the plans that were in place

to deliver the victims to the waiting members of the

Mexican drug cartel on the border.

2. Attempted Kidnapping

Sanchez also challenges the sufficiency of the evidence

supporting his conviction for attempted kidnapping. To

obtain a conviction for an attempt crime, the government

must prove that the defendant “intend[ed] the completed

crime and t[ook] a ‘substantial step’ toward its completion.” United States v. Gladish, 536 F.3d 646, 648 (7th Cir.

2008) (citing Braxton v. United States, 500 U.S. 344, 349

(1991)). Sanchez claims the evidence is insufficient on

both elements, but we have already explained why the

evidence was sufficient to establish that Sanchez

intended to kidnap Vega and Jimenez. The remaining
No. 08-2679 13

question is whether the government proved that Sanchez

took a substantial step toward completing this crime.

A substantial step is “ ‘some overt act adapted to, approximating, and which in the ordinary and likely course

of things will result in, the commission of the particular

crime.’ ” Id. (quoting United States v. Manley, 632 F.2d 978,

988 (2d Cir. 1980)); see also United States v. Rovetuso,

768 F.2d 809, 821 (7th Cir. 1985) (noting that a substantial step is an overt act “strongly corroborative of the

firmness of the defendant’s criminal intent” (quotation marks omitted)). It is “something more than mere

preparation, but less than the last act necessary before

the actual commission of the substantive crime.” United

States v. Barnes, 230 F.3d 311, 315 (7th Cir. 2000). 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. See United States v. Magana,

118 F.3d 1173, 1199 (7th Cir. 1997).

Although there is no easy way to separate mere preparation from a substantial step, we are guided by two

general principles. First, a substantial step must be

“something that makes it reasonably clear that had [the

defendant] not been interrupted or made a mistake . . .

[he] would have completed the crime.” Gladish, 536 F.3d

at 648; see also United States v. Pratt, 351 F.3d 131,

136 (4th Cir. 2003) (“To determine whether conduct

is preparation or an attempt, a court must assess how

probable it would have been that the crime would have

been committed—at least as perceived by the defen-
14 No. 08-2679

dant—had intervening circumstances not occurred.”);

Barnes, 230 F.3d at 315 (noting that a substantial step

occurs “where events ha[ve] moved beyond the preparation stage and would have resulted in the completed

crime but for the government’s intervention”). Second,

we have said that the focus is on the actions already

taken to complete the underlying crime, not on the acts

that remain uncompleted at the time of the arrest. See

Barnes, 230 F.3d at 315.

The evidence of Sanchez’s conspiratorial conduct in

this case was strongly corroborative of his firmness to

carry out the kidnapping plot. He explained in recorded conversations that he had secured a safehouse

in Joliet and arranged for the cooperation of the

Mexican drug cartel—indeed, he had traveled to

Mexico and back in furtherance of this aspect of the plot.

In Sanchez’s final meeting with Francisco Jimenez, he

approved the van as meeting his specifications for use

in the kidnapping and offered a detailed description of

additional logistics of the scheme. This is sufficient evidence for the jury to infer that the kidnapping plot had

progressed well beyond the planning stage. To be sure, the

kidnapping was not imminent at the moment Sanchez

was arrested; he said he would need a week to secure

license plates for the van. But it is clear that Sanchez

was fully committed and well along the way to putting

the kidnapping in motion.

Sanchez insists nonetheless that he has been convicted of a thought crime—that the taped conversations

reveal only “mental preparations” from which the jury
No. 08-2679 15

could infer at most that he was “all talk and no more.” We

have said that “[t]reating speech . . . as the ‘substantial

step’ would abolish any requirement of a substantial

step.” Gladish, 536 F.3d at 650. The Fourth Circuit has

also expressed a similar view: “[W]ords and discussions

would usually be considered preparations for most

crimes.” Pratt, 351 F.3d at 136. But the government’s

case here went well beyond “words and discussions” and

included evidence of concrete actions Sanchez took

toward the completion of the kidnapping—including

securing the safehouse and traveling to Mexico to enlist

the assistance of the drug cartel. Viewed in the light

most favorable to the government, this evidence was

sufficient to sustain Sanchez’s conviction for attempted

kidnapping.

3. Conspiracy to Retaliate Against a Witness

Sanchez also challenges the sufficiency of the evidence

to support his conviction for conspiracy to retaliate

against a witness. The retaliation statute makes it a

crime to “knowingly, with the intent to retaliate, take[]

any action harmful to any person . . . for providing to a

law enforcement officer any truthful information relating to the commission or possible commission of any

Federal offense.” 18 U.S.C. § 1513(e). Sanchez argues

that there was no evidence to permit the jury to infer

beyond a reasonable doubt that he plotted to kidnap

Ignacio Vega and Maria Jimenez in retaliation for their

testimony against Vasquez at his trial. We agree. There is

no record evidence from which the jury could infer that
16 No. 08-2679

Sanchez even knew that Vega and Maria Jimenez had

testified against Vasquez, let alone that the motive for

the kidnapping was to retaliate against them for that

testimony. Rather, the evidence strongly supports the

inference that Sanchez targeted the kidnapping victims

because he believed they owed Vasquez money.

The government responds that the jury could have

inferred that Sanchez learned about Vega’s and Maria

Jimenez’s testimony from Vasquez himself or from someone associated with the Mexican drug cartel. But no evidence supports either inference; this argument relies

entirely on speculation. See United States v. Robinson, 161

F.3d 463, 472 (7th Cir. 1998) (“ ‘[W]e recognize that in

reviewing a guilty verdict based on circumstantial evidence, we must insure that the verdict does not rest

solely on the piling of inference upon inference . . . .’ ”

(quoting United States v. Moore, 115 F.3d 1348, 1364 (7th

Cir. 1997))). The inference might be sustainable had the

government offered evidence to show that the victims’

testimony at Vasquez’s trial was widely publicized

and that Sanchez was so closely tied to the underlying

conspiracy that he might reasonably be presumed to

have knowledge of that trial. See, e.g., United States v.

Johnson, 903 F.2d 1084, 1087-89 (7th Cir. 1990). But there

was no such evidence in this case. The evidence established instead that Sanchez thought his targets owed

Vasquez money and that that was the reason for the

kidnapping. Accordingly, we vacate Sanchez’s conviction for conspiracy to retaliate against a witness.
No. 08-2679 17

C. Sentencing

Resentencing is in order based on our decision to vacate

the retaliation count. The government argues that the

sentence can be affirmed even if the retaliation count

is vacated because the sentence on that count was much

shorter than the other two (120 months, as compared to

the 218-month terms imposed on the kidnapping counts)

and because the prison terms are concurrent. We disagree. The advisory sentencing-guidelines range for

the conspiracy to kidnap and attempted kidnapping

counts was 188 to 235 months, and 218 months falls near

the high end of that range. We cannot know how the

district judge might have fashioned the total sentence

in this case had the retaliation count not been part of the

package. See United States v. Colon, 549 F.3d 565, 572 (7th

Cir. 2008) (“[T]he district judge sentenced [the defendant]

very near the top of the applicable guideline range, and

in doing so may have been influenced by the fact that

the jury had found the defendant guilty of conspiracy

and aiding and abetting as well as of possession.”).

There is another reason Sanchez is entitled to

resentencing. The attempt guideline, U.S.S.G. § 2X1.1(b)(1),

provides: 

If an attempt, decrease [the defendant’s base offense

level] 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.
18 No. 08-2679

(Emphasis added.) The judge declined to apply this threelevel downward adjustment because he concluded that

Sanchez was “about to complete” all the acts “necessary

for successful completion of” the kidnapping. Sanchez

contends that even if his actions satisfied the “substantial step” requirement for the crime of attempted kidnapping, they did not establish that he was “about to

complete” the crime for purposes of denying the threelevel adjustment under the attempt guideline.

Neither § 2X1.1 nor its commentary offer much

guidance for determining when a defendant is “about to

complete” the acts necessary to commit the substantive

offense. The commentary states only that “[s]ometimes . . . the arrest occurs well before the defendant . . . has

completed the acts necessary for the substantive offense.

Under such circumstances, a reduction of 3 levels is

provided under § 2X1.1(b)(1) or (2).” U.S.S.G. § 2X1.1 cmt.

background. Other circuits have identified several factors

that may inform the district court’s decision to grant or

deny the sentencing-guidelines adjustment for an attempt. These include the quality (as opposed to quantity)

of the uncompleted necessary acts, the degree to which

the defendant was prepared to complete the necessary

remaining acts, and the imminence of completion of the

substantive offense at the time of the arrest. See United

States v. Waskom, 179 F.3d 303, 308-09 (5th Cir. 1999)

(collecting cases). These factors suggest that the focus

of the inquiry is on whether the defendant was “on

the verge” of completing the substantive crime.

Here, although the evidence is sufficient to sustain

the attempt conviction, it does not support the district
No. 08-2679 19

court’s conclusion that Sanchez was about to complete

the kidnapping. At the time of his arrest, Sanchez was

still a week away from securing license plates for the

van, and the van was essentially unusable without

plates. The government suggests that it would have

been easy for Sanchez to obtain license plates and because that was all that remained to be done before he

actually put the kidnapping in motion, the district court

properly denied the 3-level adjustment. See United States

v. Brown, 74 F.3d 891, 893 (8th Cir. 1996) (affirming denial

of reduction where the only step remaining to possess

an incendiary device was to procure “easily obtainable”

items such as wire and an ordinary spark plug). But

there is nothing in the record to support the factual premise of the government’s argument, and it is hardly selfevident that finding license plates for an apparently

stolen vehicle is easy to do.

The government’s argument blurs the line between the

“substantial step” necessary for an attempt conviction

and the § 2X1.1 inquiry, which asks whether the

defendant was “about to complete” the crime. We conclude that the district court erred in withholding the 3-

level downward adjustment for attempt under § 2X1.1.

For the foregoing reasons, we AFFIRM Sanchez’s convictions for conspiracy to kidnap and attempted kidnapping; we REVERSE Sanchez’s conviction for conspiracy to

retaliate against a witness; and we VACATE Sanchez’s

sentences and REMAND for resentencing consistent with

this opinion.

8-11-10