was convicted under the export violation statute, 18 U.S.C. § 554(a), for
buying, receiving, or concealing “merchandise, articles and object”—to wit:
five semi-automatic pistols—knowing they were intended for export contrary to
the Arms Export Control Act, 22 U.S.C. § 2778(b)(2), and the International
Trafficking in Arms Regulations, 22 C.F.R. §§ 121.3, 123.1, and 127.1. The question is whether § 554(a) is divisible
such that a court can look to the elements of those arms export and trafficking
statutes and regulations to determine whether Franco-Casosola’s conviction is
an aggravated felony. If § 554(a) is
indivisible, the conviction would not be an aggravated felony.
panel finds that § 554 is divisible and that, under the modified categorical
approach, Franco-Casasola’s conviction is the aggravated felony of illicit
trafficking in firearms.
Section 554, in
part, makes it unlawful to fraudulently or knowingly buy, receive, conceal, or
facilitate the transportation, concealment or sale of
“any merchandise, article, or object” from
the United States “contrary to any law or regulation of the United States.”
substitutes this published decision for an unpublished one, attempting to
explain Descamps in a manner that
supports its finding that § 554 is divisible. The majority essentially finds that the elements
of Franco-Casasola’s conviction included unlawful exportation of defense
articles, which the majority finds to be illicit trafficking in firearms. The majority recognizes that it has “gone one
step further than the Supreme Court has had to so far” in terms of the modified
categorical approach but attests that it has “not strayed from the path it has marked.”
Graves, in dissent, criticizes the majority’s analysis and casts its “one step”
as a giant leap.
Simply put, Judge
Graves finds that the phrase “any law or regulation of the United States” is
not an “explicitly finite list” as required by Descamps
to apply the modified categorical approach.
Further, since § 554(a) prohibits buying,
selling, and other activities regarding “merchandise, article[s], or
object[s],” the conviction cannot be narrowed to illicit trafficking in firearms
He also disagrees with the majority’s conclusion
that the elements of the “law or regulation of the United States” cited in the
indictment would necessarily be elements of the § 554(a) offense.
Labels: Aggravated Felony, Taylor/Shepard