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

United States v. Gonzalez, No. 14-40344 (5th Cir. June 23, 2015) (Jones, Smith, Costa)

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.

Section 922(g)(9) “Misdemeanor Crime of Domestic Violence” Only Requires Offensive Touching

United States v. Castleman, No. 12-1371 (U.S. Mar. 26, 2014) (Majority: Sotomayor, Roberts, Kennedy, Ginsburg, Breyer, Kagan; Concurring in part and in the judgment: Scalia; Concurring in the judgment: Alito, Thomas)

A person convicted of a “misdemeanor crime of domestic violence” is prohibited from possessing a firearm.  A “misdemeanor crime of domestic violence” is defined in part as an offense that “has, as an element, the use or attempted use of physical force, or threatened use of a deadly weapon, committed by a . . . person with whom the victim shares a child in common.”  18 U.S.C. §§ 921(a)(33)(A), 922(g)(9).  In Castleman, the Court had to define “physical force” and determine whether Castleman’s conviction of “intentionally or knowingly caus[ing] bodily injury to” the mother of his child, in violation of Tennessee Code § 39-13-111(b), made him a prohibited person under § 922(g)(9). 

Castleman successfully argued before the district court and the Sixth Circuit that his conviction was not a “misdemeanor crime of domestic violence” because one can cause bodily injury without “violent contact” with the victim.  The Sixth Circuit held that the degree of physical force required by § 921(a)(33)(A)(ii) is the same as that required by the Armed Career Criminal Act (“ACCA”), § 924(e)(2)(B)(i), which defines “violent felony” and was addressed by the Supreme Court in Johnson v. United States, 559 U.S. 133 (2010).  In Johnson, the Court held that “physical force” as used to define a “violent felony” does not mean battery or offensive touching but must mean “violent force.”

The Supreme Court reverses.  The majority holds that “physical force” as used in § 921(a)(33)(A)(ii) has the common-law meaning of physical force, which is essentially battery or offensive touching.  The Court reasons that the common-law definition applies because, unlike the term “physical force” in the ACCA, there is no indication that Congress did not intend to incorporate the common-law term of “physical force” in the definition of misdemeanor crime of domestic violence.  To support this, the majority points out that perpetrators of domestic violence are routinely convicted under assault or battery laws, that the term “domestic violence” does not necessarily connote a substantial degree of force, that it makes sense to group domestic abusers convicted under generic assault or battery offenses with the others listed in § 922(g) who can’t possess guns, and that construing the term otherwise would have rendered § 922(g)(9) inoperable in at least ten states.

The majority then applies this definition of “physical force” to Castleman’s offense and finds that “the knowing or intentional causation of bodily injury necessarily involves the use of physical force,” offensive touching.   

In his concurrence, Scalia applies the Johnson definition of “physical force,” meaning “force capable of causing physical pain or injury to another person,” but still finds that Castleman’s offense would necessarily involve the use of violent force.  He thinks that the term “physical force” should mean the same thing in § 921(a)(33)(A)(ii) as in § 924(e)(2)(B)(i) and systematically rejects each of the majority’s reasons for distinguishing the terms.

Alito writes separately to voice his disagreement with the Johnson majority, as he believes “physical force” in both statutes should be given the common-law meaning of battery.

More info: http://www.scotusblog.com/case-files/cases/united-states-v-castleman/

Disassembled Firearm Found Near Drugs Sufficient for § 2K2.1(b)(6)(B) Enhancement & § 922(g)(1) Still Constitutional

United States v. Alcantar, No. 12-10909 (Oct. 7, 2013) (Reavley, Elrod, Haynes)

The panel found that the U.S.S.G. § 2K2.1(b)(6)(B) 4-level enhancement—“[i]f the defendant used or possessed any firearm . . . in connection with another felony offense”—applies to a drug trafficking offense if a disassembled firearm is found in close proximity to drugs, as per the application note.  The PSR described the firearm being found in the bedroom with the drug-manufacturing materials and paraphernalia, and Alcantar didn’t present any evidence rebutting the proximity of the firearm.  Instead, Alcantar provided evidence that the firearm was disassembled, that he didn’t know how to assemble it, and that he didn’t have any ammunition for it.  The panel was unconvinced, basically saying that the Guideline explanation of “in connection with” doesn’t require that the firearm actually be used in furtherance of the offense.  Close proximity is sufficient, and the district court didn’t err in applying the enhancement.

Alcantar also argued that 18 U.S.C. § 922(g)(1), convicted felon in possession of a firearm, is unconstitutional facially and as-applied because it exceeds Congress’s Commerce Clause authority.  He recognized that this argument is foreclosed by Fifth Circuit precedent but argued that the Supreme Court’s decision in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2587 (2012), overrules that precedent.  The panel disagreed since National Federation involved Obamacare and not § 922(g)(1).  Still, food for thought.

Firearms and Drug Trafficking Convictions Affirmed Over Challenges to Indictment, Juror Dismissal, Instructions, Consent-to-Search Question, and Evidence Sufficiency

United States v. Cooper, No. 11-20711 (Apr. 26, 2013) (Stewart, Davis, Clement)

The panel addressed arguments challenging Cooper’s indictment and trial, ultimately affirming his conviction for a number of drug and firearms offenses.

Indictment Sufficient and Jury Instructions Not a Constructive AmendmentCooper challenged the sufficiency of Counts 2 and 4 of the indictment, which alleged violations of 18 U.S.C. § 924(c) with the caption "Possessing a Firearm in Furtherance of a Drug Trafficking Crime" but the allegations that he "knowingly possessed a firearm . . . during and in relation to a drug trafficking crime." Cooper argued that the allegations of "during and in relation to" do not arise to a violation of § 924(c) and that the indictment improperly combined elements of two different types of conduct proscribed by § 924(c). The panel held that the caption cured any ambiguity of the charged offense conduct and that, viewed practically, the indictment contained all the elements of the offenses charged. Since the indictment was sufficient, the panel also held that the district court’s instructions regarding the possession of a firearm "in furtherance of" a drug trafficking offense did not broaden the bases of conviction beyond the indictment and did not amount to a constructive amendment.

No Abuse of Discretion to Not Dismiss Juror
The panel found that the district court did not abuse its discretion by not striking a juror who responded to a question as to whether the race of the black men who had burgled the juror’s home years ago would impact his treatment of Cooper, who is also black, by saying that he "would try to be impartial."

Affirmed Denial of Lesser-Included-Offense InstructionCooper proposed a lesser-included-offense jury instruction of simple possession for the count that charged him with possession with intent to distribute more than fifty grams of crack cocaine. Given the evidence presented at trial of crack cocaine weighing approximately 42 grams and drug manufacturing and distribution paraphernalia found in Cooper’s house, the panel found "no abuse of discretion in the district court’s holding that no jury could rationally find Cooper guilty of only simple possession."

No Due Process Violation by Improper Government Statements at TrialAt trial, the Government asked a police officer witness whether he had asked Cooper for consent to search his house. Cooper objected that this was an impermissible inquiry into Cooper’s invocation of his Fourth Amendment right not to consent to a search. The Government’s witness never answered the question, so the jury never heard whether Cooper had refused permission for a warrantless search. "Because of the extremely limited impact of the objected-to question on the trial proceedings and the substantiality of the evidence presented," the panel concluded "that the Government’s question did not prejudice Cooper’s substantive rights and was, if erroneous at all, harmless error."

Inoperable Firearms Can Support Possession of Firearms ConvictionsCooper argued that the evidence supporting his convictions for possession of firearms was insufficient because the Government did not introduce any evidence showing that the firearms were actually capable of firing. The panel rejected this argument since the definition of "firearm" includes any weapon that "is designed to or may readily be converted to expel a projectile by the action of an explosive . . . ." The panel found that a rational jury could find, based on the evidence presented, that Cooper possessed firearms as defined by 18 U.S.C. § 921(a)(3).

Conviction in ATF-Aided Conspiracy Affirmed; Remanded for Sentencing

United States v. Cervantes, Nos. 11-41385 & 11-41407 (Jolly, Prado, Higginson)

The panel addressed the appellants’ multiple complaints regarding their trial and sentence, affirming their convictions but vacating and remanding the sentences of Cervantes and Alvarez. Here is a brief summary of the highlights:

Appellants Cervantes, Alvarez, and Milan worked with an undercover agent to plan an armed home invasion to steal a large quantity of drugs. The home invasion, though, was a sham, and the appellants were arrested on the day the invasion was set to happen. They were subsequently indicted, and later convicted by jury trial, on six counts.

1. Court can limit number of family members present if limitation adequately explained and trial still "public."  The court only allowed a few family members to be present for voir dire, citing the courtroom’s space limitations and the chilling effect on the jury panel to have too many family members present (comfort and safety concerns). The panel held that the court adequately explained its reasons for limiting the number and that having a few family members present adequately preserved appellants’ right to a public trial.
2. Court did not abuse discretion by failing to ask questions about entrapment during voir dire.  The panel found the appellant’s argument unpersuasive since the court asked jurors if they could follow the law as provided by the court.
3. Court provided sufficient remedy for comment on defendants’ failure to testify.  The first two defendants did not testify. When the third defendant took the stand, the prosecutor asked, "And the first two have already been asked if they wanted to take the stand and they have declined?" Counsel for the first two defendants objected. The court chided the prosecutor and reminded jurors to disregard the comment. The panel held that the comment did not have a clear effect on the jury’s outcome, so it did not warrant reversal.
4. Court did not err in allowing evidence of prior home invasion (Rule 404(b)). This was permissible to prove motive and to rebut the entrapment defense.
5. Evidence was sufficient to support conviction and to support predisposition to commit offense.
6. No cumulative error.
7. Application of firearm enhancement at sentencing was plain error.  Assessment of an enhancement on the drug conspiracy charge for use of a firearm under 2D1.1(b)(1) constituted "inappropriate double punishment" since the appellants were also separately sentenced for possession of a firearm in furtherance of drug trafficking and drug conspiracy. United States v. Benbrook, 119 F.3d 338, 339 (5th Cir. 1997).
8. Application of body armor enhancement was not plain error. The PSR stated that an appellant was wearing bulletproof body armor and the appellant did not object or identify any evidence to show that the PSR was untrue.

 

Sentencing Commission Promulgates Guidelines Amendments for November 2011

Last week the Sentencing Commission issued this press release announcing a new crop of Guidelines amendments. Absent Congressional action, the amendments will take effect on November 1, 2011.  There's some good and some bad for defendants, with changes affecting illegal reentry, firearms, supervised release, mitigating role, health care fraud, and more. The Sentencing Resource Counsel Project has prepared a helpful summary of the amendments, which have not yet been posted on the Commission's website.  For bootleg redlines of the amendments, make your way over here.

Proposed Guidelines Amendments and Requests for Comment

As Professor Berman highlighted last week, the Sentencing Commission has published for public comment a raft of proposed amendments to the Guidelines.  A few of these proposals could be quite significant for those of us in border districts, as well as anyone who represents alien defendants (which is pretty much everyone these days).  There are also some requests for comment on matters perennial (mitigating role for drug mules) and emerging (cross-border gun smuggling).  I'll highlight a few of the bigger ones.

Supervised Release
The Guidelines currently recommend that a court include a term of supervised release whenever a defendant is sentenced to more than one year's imprisonment (and, of course, whenever required by statute). Turns out that, according to a recent Commission study, "supervised release is imposed in almost every case, including in more than 99 percent of cases where the guidelines require imposition of a term of supervised release but there is no statutory requirement to do so."  What's more, "[s]upervised release is imposed in more than 91 percent of cases in which the defendant is a non-citizen[,]" and non-citizens account for nearly half of all federal offenders.

The Commission wants to know whether this is a good idea.  (Although it puts it more bureaucratically: "The Commission is considering whether revisions to the supervised release guidelines would help courts and probation offices focus limited supervision resources on offenders who need supervision.")  To that end, it is floating a few ideas: raising or even eliminating the threshold term of imprisonment that would trigger a recommended term of supervised release, reducing the recommended terms of supervised release, and even doing away with the recommendation entirely unless an applicable statute requires a term of supervised release in the case.  Along with these changes, courts would be encouraged to take a defendant's criminal history into account when making the supervised release determination, recognizing (in accord with that study) that the less serious a defendant's criminal history, the more likely it is that he will successfully complete supervision.

Perhaps the most significant proposed change to the supervised release guidelines is to recommend against imposing a term of supervised release on an alien defendant who is likely to be deported and unlikely to be allowed to return to the United States legally.  The proposal recognizes that a term of supervised release is absurd unnecessary in such cases, because the prospect of an illegal reentry charge provides adequate deterrance to an alien's possible unlawful return.

More proposed amendments and requests for comment after the jump . . .
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