Tuesday, July 14, 2015

AK-47 Magazines Are “Components” for Purposes of Firearm Exportation Laws

Gone are the days of the Civil War musket, when one’s life depended on quickly loading the gun, only to fire a single, anti-climactic shot at the enemy. Fast-forward a couple wars later, and the AK-47, a high-powered, automatic rifle (“automatic” being the “A” in AK-47), made its debut. Used since WWII, the detachable magazine of an AK-47 derives its “use” from the gun itself. That is the issue the panel takes up in this case: whether a magazine of the AK-47 is a “component” of the gun under laws that prohibit the unlicensed exportation of firearms and their items. The panel affirmed the district court’s ruling that the magazine of the AK-47 is a “component.”

The Defendant, Arturo Gonzalez, was convicted of unlawfully exporting hundreds of AK-47 magazines to the henchmen of Mexican drug cartels. Gonzalez, whose shop was four blocks from the border, received $30,000 cash for the magazines in a “no-questions-asked” sale t a man named “El Gordo.” The man told Gonzalez that he “was going to take the magazines to Mexico.” Gonzalez argued that exporting empty magazines, however, was not prohibited under the smuggling statute of which he was convicted.       

The Arms Control Export Act “criminalizes the unlicensed export of items ‘designated by the President’ as ‘defense articles’.” These designated items are set forth in the U.S. Munitions List, compiled by the State Department’s Directorate of Defense Trade Controls, which includes certain firearms and their “components, parts, accessories, and attachments.” 

The panel looked at the State Department’s regulatory scheme, where it defined an “end-item” as a “system, equipment, or an assembled article ready for intended use,” and a “component” as an “item that is useful only when used in conjunction with an ‘end-item’.”

The AK-47 was the “end-item” and the panel found that the magazine was in fact the “component” to that item. The magazine’s purpose is “increasing the firearm’s ammunition capacity and rate of fire.” Thus the magazine is only “useful” with the AK-47. Also, the State Department confirmed that the Munitions List “covers magazines,” foreclosing Gonzalez’s argument. The panel found that even when viewed generally, the magazine fit the “component” meaning, as it served “the larger whole,” the gun. Also, on the issue of the magazines being unloaded, the panel reasoned that the Munitions List “covers articles not loaded at time of export” because otherwise offenders could easily export magazines and cartridges, later to be combined, separately, defeating the purpose of illegal exportation laws.

The panel also affirmed the district court’s sentence of 63 months, which was within the advisory Guidelines range using base offense level 26.  Gonzalez argued level 14, which applies to offenses involving non-fully automatic small arms or less than 500 rounds, was the proper base offense level because magazines should be considered “small arms” for the Guideline.  The district court held that the magazines support level 26 precisely because they are not “small arms.”  Additionally, Gonzalez did not challenge the factual finding that his export scheme involved selling thousands of rounds of ammunition, which would independently support the higher offense level.

Thanks to FPD Intern Adam Pena for this post.

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