§345 Espionage, Export Controls
5th Circuit reverses downward variance and remands terrorism resentencing to a different judge. (197)(345) (742) Defendant pleaded guilty to providing material support to a foreign terrorist organization. The district court varied downward and sentenced him to 18 months. The government appealed, and the Fifth Circuit reversed for failure to apply the terrorist enhancement in § 3A1.4. On remand, the district court imposed the same sentence, and on appeal, the Fifth Circuit reversed again, ruling that the district court failed to give significant weight to the seriousness of the offense, which included recruiting for ISIS. The panel ordered the case to be reassigned to a different judge on remand, because the district judge had characterized the government attorneys as “lazy, useless, unintelligent, or arrogant” and “thugs.” U.S. v. Khan, __ F.3d __ (5th Cir. May 6, 2021) No. 20-20030.
5th Circuit applies terrorism enhancement to person providing material support. (345)(410) Defendant pleaded guilty to providing material support to a foreign terrorist organization, ISIS, in violation of 18 U.S.C. § 2339B(a)(1). At sentencing, the district court found that the terrorism enhancement in § 3A1.4 did not apply. The enhancement applies if the offense “involved” or was “intended to promote” terrorism, as defined in the 18 U.S.C. § 2232b(g)(5), a definition that includes providing material support to terrorism. The district court thought the enhancement did not apply to conduct intended to influence a foreign government and that there are “degrees of terrorism.” On the government’s appeal, the Fifth Circuit reversed, ruling that the enhancement applies to conduct intended to influence a foreign government whenever the requirements of § 2332b(g)(5) are met. U.S, v. Khan, __ F.3d __ (5th Cir. Sept. 16, 2019) No. 18-20519.
7th Circuit finds court adequately addressed mitigating arguments in terrorism case. (345) Defendant pleaded guilty to knowingly attempting to provide material support to a foreign terrorist organization. The district court sentenced him to the statutory maximum of 15 years in prison and a lifetime of supervised release. The Seventh Circuit held that the court adequately addressed defendant’s mitigating arguments. The judge acknowledged several mitigating factors—defendant’s lack of criminal history, mistreatment by others, youth, and depression and isolation. However, the judge explained that the offense was still gravely serious in spite of defendant’s argument that his was not a typical terrorism offense. The judge largely accepted defendant’s argument that specific deterrence was unnecessary, but concluded that there was “great need for general deterrence” and explained why. U.S. v. Tounisi, __ F.3d __ (7th Cir. Aug. 21, 2018) No. 17-3325.
11th Circuit says terrorism increase was not double counting. (125)(345)(400) Defendant, who declared allegiance to ISIS, attempted to recruit others to join him in destroying the United States, and amassed weapons and a bomb in order to carry out an attack on a crowded Key West beach. He was sentenced under § 2M6.1, which applies “if the offense was committed with intent (A) to injure the United States; or (B) to aid a foreign nation or a foreign terrorist organization.” The Eleventh Circuit rejected defendant’s claim, raised for the first time on appeal, that the § 3A1.4 terrorism enhancement constituted impermissible double counting. The two guidelines serve different sentencing considerations. Section 2M6.1 addresses the attempted use of dangerous materials with intent to injure the United States or to aid a foreign nation or a foreign terrorist organization. Section 3A1.4 enhances the sentence for an offense that involved, or was intended to promote, a federal crime of terrorism. These are conceptually distinct considerations that account for different harms. It was irrelevant that these adjustments would often be triggered by the same conduct. U.S. v. Suarez, 893 F.3d 1330 (11th Cir. 2018).
11th Circuit upholds substantive reasonableness of life sentence for terrorist. (345)(742) Defendant, who declared allegiance to ISIS, attempted to recruit others to join him in destroying the United States, and amassed weapons and a bomb in order to carry out an attack on a crowded Key West beach. He argued on appeal that his life sentence was substantively unreasonable because the district court gave too much weight to what might have happened; did not properly weigh the fact that he was a young, immature first-time offender; and did not appropriately consider the fact that nobody was injured and that there was no real risk of anyone getting injured. The Eleventh Circuit held that the life sentence was not substantively unreasonable. The district court applied the guideline-recommended sentence and considered the § 3553(a) factors at sentencing. U.S. v. Suarez, 893 F.3d 1330 (11th Cir. 2018).
5th Circuit says sales of ammunition barred lower offense level. (345) Defendant was convicted of unlawfully exporting firearms components. The district court used a base offense level of 26, the default level for unlawfully exporting firearms under §2M5.2(a)(1). Defendant argued that the offense level should have been 14 under §2M5.2(a)(2) because “the offense involved only (A) non-fully automatic small arms (rifles, handguns, or shotguns), and the number of weapons did not exceed two, (B) ammunition for non-fully automatic small arms, and the number of rounds did not exceed 500, or (C) both.” The district court found that the lower offense level did not apply both because (1) the empty magazines were not “small arms” and (2) the offense involved more than 500 rounds of ammunition. The alternative ammunition ruling was based on a relevant conduct finding that defendant’s export scheme also involved selling thousands of rounds to the same cartel affiliates that purchased the magazines. Defendant did not challenge the ammunition finding on appeal. Because the ammunition finding alone prevented application of the lower offense level, the Fifth Circuit rejected defendant’s argument. U.S. v. Gonzalez, __ F.3d __ (5th Cir. June 23, 2015) No. 14-40344.
1st Circuit holds violation of Libya embargo did not require evidence of threat to national security. (345) Defendant exported computer equipment from the U.S. to Libya in violation of a U.S. trading embargo. Guideline § 2M5.1(a)(1) provides for an eight-level increase to offense level 22 if “national security or nuclear proliferation controls were evaded.” Defendants argued that this “national security” enhancement does not apply in a sale-of-goods case unless the government shows that the particular goods, when or if sold, constituted an actual threat to national security. The First Circuit held that § 2M5.1(a)(1) applies to any offense involving a shipment that offends the embargo to Libya, whether or not the goods are intended for some innocent use. The embargo was based on the President’s determination that Libya posed an “unusual and extraordinary threat to the national security and foreign policy of the United States.” The executive branch has determined that the export of any goods to Libya, excepting only certain humanitarian aid, threatens national security. Federal courts may not substitute their own judgment for this determination. U.S. v. McKeeve, 131 F.3d 1 (1st Cir. 1997).
1st Circuit affirms that radio-controlled detonating device made from readily-available items was sophisticated weaponry. (345) Defendants, highly educated engineers, were involved in a conspiracy to manufacture and export explosives to Northern Ireland. The 1st Circuit affirmed the district court’s determination that the offense involved the export of “sophisticated weaponry” under guideline section 2M5.2, even though almost all of the items defendants exported were readily available at hobby shops and electronic stores and had common, non-military applications. Defendants’ ability to take readily available items and, using knowledge and skills gained through extensive education and training, rework them into a radio-controlled detonating device showed the sophistication of the work. U.S. v. Johnson, 952 F.2d 565 (1st Cir. 1991).
2nd Circuit selects guideline for receipt of classified information for retaining that information. (345) Defendant pleaded guilty to willful retention of documents relating to the national defense, in violation of 18 U.S.C. § 793(e). To calculate defendant’s offense level, the district court used § 2M3.2, the guideline for “Gathering National Defense Information,” which sets a base offense level of 30. Defendant objected that the court should used § 2M3.3, the guideline for transmitting, disclosure, or receipt of classified information, which sets a base offense level of 24. The Second Circuit agreed with defendant, finding that § 2M3.3 was the most appropriate guideline because it covered the offense of receipt of national defense information. U.S. v. Malki, 609 F.3d 503 (2d Cir. 2010).
2nd Circuit upholds obstruction enhancement for deleting cell phone and e-mail records. (345) Defendant was a translator for the U.S. Army in Iraq. Federal agents found classified U.S. Army documents in defendant’s possession. Before and after officers interviewed him, defendant deleted records from his cell phone and deleted e-mails. Defendant pleaded guilty to retention of documents relating to the national defense, in violation of 18 U.S.C. § 793(e). Defendant falsely told the district court that he had obtained the documents by accident. At sentencing, the district court enhanced his offense level under § 3C1.1 for obstruction of justice. The Second Circuit found that the district court properly applied the obstruction-of-justice enhancement. U.S. v. Malki, 609 F.3d 503 (2d Cir. 2010).
2nd Circuit says lower offense level in arms export case did not apply to offense involving ammunition. (345) Defendant was convicted of exporting weapons and other defense articles from the United States to the Philippines, in violation of the Arms Export Control Act (AECA). Guideline § 2M5.2 applies to violations of the AECA. All violations result in an offense level of 26, unless “the offense involved only non-fully automatic small arms (rifles, handguns, or shotguns) and the number of weapons did not exceed ten,” in which case the offense level is 14 under § 2M5.2(a)(2). Defendant argued that the higher offense level did not apply to him because his offense conduct was minor, but included only a small amount of ammunition. The Second Circuit found no error in the application of the higher offense level. The language of the guideline was clear, and does not permit an exception for ammunition, now matter how small the quantity. Because ammunition is included in the Munitions List, set out in 22 C.F.R. Part 121.1, “offenses involving ammunition are not exempted from the scope of U.S.S.G. § 2M5.2.” The panel also upheld the district court’s conclusion that the lower offense level did not apply because the shipment included many parts that could be used in both fully automatic and semi-automatic weapons. The parts were capable of servicing more than 10 fully or non-fully automatic weapons. It is sufficient “if the item in question is a component of a weapon.” U.S. v. Sero, 520 F.3d 187 (2d Cir. 2008).
2nd Circuit says refusal to depart not reviewable where court adequately considered departure. (345) Defendant was convicted of exporting weapons and other defense articles from the United States to the Philippines, in violation of the Arms Export Control Act (AECA). Note 1 to § 2M5.2 provides that the base offense level “assumes that the offense conduct was harmful or had the potential to be harmful to a security or foreign policy interest of the United States. In the unusual case where the offense conduct posed no such risk, a downward departure may be warranted.” Defendant contended that he was entitled to a downward departure because his conduct was beneficial in that he was selling weapons to anti-terrorist groups in the Philippines and not to insurgents. The Second Circuit held that the district court understood its authority to depart, and chose not to, and therefore the refusal to depart was not reviewable. The court stated initially that it rejected defendant’s request because “the policy is reflected in the statute,” but it then went on to consider the degree to which “violation threatened a security or foreign policy interest of the United States,” as required by Application Note 2 before downwardly departing. The district court adequately considered the relevant factors under the application note, and thus, the refusal to depart was not reviewable. U.S. v. Sero, 520 F.3d 187 (2d Cir. 2008).
2nd Circuit says plots to bomb buildings, tunnels and World Trade Center were tantamount to waging war. (345) Defendants were part of a seditious conspiracy to wage a war of urban terrorism against the United States and forcibly oppose its authority. Their activities included assisting the bombing of the World Trade Center, and a campaign of attempted bombings in buildings and tunnels in New York City. Since the guidelines do not specify a guideline for a seditious conspiracy, the district court applied the treason guideline, § 2M1.1, as the most analogous. Section 2M1.1(a)(1) prescribes an offense level of 43 “if the conduct was tantamount to waging war against the United States.” Defendants argued that the treason guideline may not be applied unless the sentencing judge finds that the defendant agreed to wage war. The Second Circuit agreed with the sentencing judge that the conduct of each defendant was “tantamount to waging war.” Each defendant joined either the plot to bomb the World Trade Center, or the plot to bomb major New York City tunnels and buildings, or both plots. Such activity, with its potential for massive loss of lives (beyond the six that actually occurred at the World Trade Center), was clearly conduct “tantamount to waging war.” U.S. v. Rahman, 189 F.3d 88 (2d Cir. 1999).
2nd Circuit upholds use of treason guideline for seditious conspiracy. (345) Defendants were part of a seditious conspiracy to wage a war of urban terrorism against the United States and forcibly oppose its authority. Their activities included attempting to murder Hosni Mubarak, assisting the bombing of the World Trade Center, and a campaign of attempted bombings of buildings and tunnels in New York City. Section 2X5.1 provides that if the offense is a felony for which no specific guideline has been issued, the judge should apply “the most analogous offense guideline.” The Second Circuit upheld the district court’s use of the treason guideline, § 2M1.1, as the most appropriate guideline for the offense of seditious conspiracy, even though treason is punishable by life imprisonment and even death, whereas the maximum statutory penalty for seditious conspiracy is 20 years. Although the district court was forced to impose consecutive sentences for the other counts in order to reach the life sentence mandated by the treason guideline, this was consistent with § 5G1.2(d) and did not violate any constitutional rights. “As a matter of language and logic, treason by waging war is surely analogous to the offense of a seditious conspiracy that includes as a goal levying war against the United States.” U.S. v. Rahman, 189 F.3d 88 (2d Cir. 1999).
2nd Circuit says offense’s potential for harm should be judged from defendant’s perspective. (345) U.S. Customs agents, posing as representatives of Iraq, contracted to purchase from defendant 100 AK-47 assault weapons. Defendant illegally imported the guns into the U.S. and set up meetings for the agents in Germany with suppliers of other military equipment. Note 1 to § 2M5.2 provides that a downward departure might be justified where the offense conduct did not have the potential to be harmful to a security or foreign policy interest of the U.S. Defendant argued that he was eligible for such a downward departure because in a sting operation controlled by the government, there is no “potential to be harmful.” The Second Circuit disagreed. In assessing a defendant’s eligibility for such a downward departure, a court should address the “normal potential of the offense conduct as perceived by that defendant.” The offense conduct here included an attempt to sell prohibited weapons to Iraq, a nation designated by the Secretary of State to have supported acts of international terrorism. Defendant’s sentence should not be reduced because of the fortuity that his purchasers were government agents. U.S. v. Hendron, 43 F.3d 24 (2d Cir. 1994).
3rd Circuit reverses sentence for unauthorized retention of classified documents. (345) Defendant pled guilty to the unauthorized retention of classified documents relating to the national defense, 18 U.S.C. § 793(e). The district court sentenced him under § 2M3.2, a more severe offense category than § 2M3.3, because it found that he acted with a specific state of mind. The Third Circuit reversed, finding no textual support for the court’s mens rea distinction. A defendant should be sentenced under § 2M3.2 only if the following elements are satisfied: a defendant must (1) lack authority to possess, access or control (2) information relating to the national defense (3) in either tangible or intangible format, and (4) willfully (5) undertake the active conduct, inchoate conduct or what might be described as “passive” conduct. Two of the elements – format and conduct – are variable, and a defendant should be sentenced under § 2M3.2 only if these variable elements are satisfied in a specific fashion. Defendant was convicted of the willful retention of tangible information. The offense was excluded from punishment under § 2M3.2 by virtue of both the format of the information in his possession (tangible) and the conduct to which he pleaded (retention). U.S. v. Aquino, 555 F.3d 124 (3d Cir. 2009).
3rd Circuit affirms that optical receivers and infra-red domes for Sidewinder missiles were sophisticated weaponry. (345) Defendant was convicted of conspiring to export to Taiwan certain components of military equipment without the required export license. The 3rd Circuit affirmed an enhancement under guideline section 2M5.2 for “sophisticated weaponry.” Defendant exported DSU-15 optical receivers, which are used in the guidance system of Sidewinder missiles, and infra-red domes, which serve as “windshields” for the guidance of infra-red military missile systems such as the Sidewinder. The enhancement is proper if the item is a component of a sophisticated weapon or weapons system. Since there was testimony from which the district court could find that the dome and optical receiver were “critical” components of the Sidewinder missile, the government proved that the exported equipment was weaponry. In addition, giving the term “sophisticated” its plain and ordinary meaning, and applying deferential review, the district court could conclude that the weaponry was sophisticated. U.S. v. Tsai, 954 F.2d 155 (3rd Cir. 1992).
3rd Circuit rejects upward departure in arms export case based on threat to national security. (345) Defendant was convicted of conspiring to export to Taiwan certain components of military equipment without the required export license. The district court departed upward from level 24 in section 2M5.2 to level 29, based on the threat to national security and the large quantity of commerce involved. The 3rd Circuit reversed, holding that the case clearly fell within the heartland of cases considered by the sentencing commission. Application note 2 to section 2M5.2 indicates that the guideline assumes some threat to national security. Although level 29 is the offense level for unauthorized disclosure of top secret information, where a guideline already contemplates the potential harm of a crime, the court cannot depart upward by analogy to another crime involving the same potential harm. Under application note 2, the amount of commerce would have to be extreme to justify an upward departure. Although defendant requested a price for 5,000 units of the equipment, only 11 units were ever exported, and there was no evidence that defendant’s organization was capable of exporting any greater quantity. U.S. v. Tsai, 954 F.2d 155 (3rd Cir. 1992).
5th Circuit applies higher offense level for exporting a small handgun and ammunition. (345) Border patrol agents discovered a semi-automatic handgun, ammunition magazines, and rounds of ammunition, hidden in the side panels of defendant’s car when he attempted to cross from Texas into Mexico. Guideline § 2M5.2 provides for an offense level of 26, but the offense level is reduced to 14 under subsection (a)(2) “if the offense involved only non-fully automatic small arms (rifles, handguns, or shot-guns), and the number of weapons did not exceed ten.” Because defendant’s offense involved a firearm and ammunition, the district court ruled that subsection (a)(2) did not apply. Defendant argued that the design and purpose of § 2M5.2 was to apply subsection (a)(2) in cases of “truly minor exports of military equipment,” such as his, and that the higher base offense level in subsection (a)(1) was intended for sophisticated weapons such as missiles or aircrafts. The Fifth Circuit disagreed, finding that the plain language of § 2M5.2 did not distinguish between exports of sophisticated, serious weapons and exports of less sophisticated weapons or ammunition. The use of the word “only” meant “only.” Defendant did not have “only” one small gun hidden in his car – he also had more than 600 rounds of ammunition that could be used in the gun. U.S. v. Diaz-Gomez, 680 F.3d 477 (5th Cir. 2012).
5th Circuit says regulations targeted at state sponsors of terrorism are “national security controls.” (345) Defendants were five brothers convicted of illegally exporting computer equipment to Libya and Syria. Section 2M5.1 provides for a base offense level of 26 for evasion of export controls if “(A) national security controls or controls relating to the proliferation of nuclear, biological, or chemical weapons or materials were evaded; or (B) the offense involved a financial transaction with a country supporting international terrorism.” In an Executive Order, the President determined that Libya posed a “extraordinary threat to the national security and foreign policy of the United States” and therefore ordered an embargo covering the exportation of virtually all goods to Libya. As a State Sponsor of Terrorism, Syria was also subject to the export restrictions. The Fifth Circuit, joining every circuit to consider the issue, held that the export regulations targeted against state sponsors of terrorism are “national security controls” under § 2M5.1(a). The district court did not err in holding that defendants’ export violations evaded “national security controls” under § 2M5.1(a). U.S. v. Elashyi, 554 F.3d 480 (5th Cir. 2008).
5th Circuit holds that defendant was not entitled to attempt reduction because apprehension prevented completion of offense. (345) Defendant pled guilty to exporting ammunition to Mexico without a license or authorization. 22 U.S.C. §§ 2278(b)(2) and (c). He argued that he was entitled to a three-level reduction under U.S.S.G. § 2X1.1 because he only attempted to carry out the prohibited act. The Fifth Circuit held that defendant was not entitled to the reduction because the sole reason defendant was not able to export the ammunition was due to his apprehension by government agents at the border. His voluntary confession did not cause his apprehension or interruption of the event because agents had been monitoring his purchases that day. Thus, under § 2X1.1(b)(1), the three-level reduction was not available. U.S. v. Castro-Trevino, 464 F.3d 536 (5th Cir. 2006).
5th Circuit rules that seven Model 204 helicopters were sophisticated weapons. (345) Defendants were convicted of conspiring to illegally export seven Model 204 helicopters. The 5th Circuit affirmed that the offense involved sophisticated weaponry under guideline section 2M5.2. Although the helicopters were civilian aircraft, they were made with reinforced structures permitting the attachment of military hardware. The United States Munitions List controls aircraft specifically designed, modified or equipped for military purposes. Reference to the 1990 amendment to section 2M5.2 did not violate the ex post facto clause since the amendment did not effect a substantive change to the provision. U.S. v. Peters, 978 F.2d 166 (5th Cir. 1992).
5th Circuit applies 2M5.2, rather than 2K2.1, to export of ammunition. (345) Defendant was arrested attempting to smuggle 10,181 cartridges of various caliber ammunition from the United States into Mexico. The 5th Circuit upheld the application of section 2M5.2 (exportation of arms without an export license), rather than section 2K2.1 (unlawful transportation of firearms or ammunition). The court rejected defendant’s argument that section 2M5.2 was intended to apply only to offenses involving “serious military or space hardware,” not firearms ammunition. Section 2M5.2 is not limited to the items listed in application note 1. Moreover, the Statutory Index lists section 2M5.2 as the only guideline applicable to convictions under 22 U.S.C. section 2778. The application note to section 2M5.2 does state that in an unusual case in which the offense does not pose a risk to security or foreign policy interest of the United States, a downward departure may be appropriate. Here, the district court departed downward from a range of 33 to 41 months and imposed a 24-month prison term. U.S. v. Galvan-Revuelta, 958 F.2d 66 (5th Cir. 1992).
5th Circuit holds that export of venturi heaters for F-4 aircraft involved “sophisticated weaponry.” (345) Defendant was convicted of various violations of the Arms Export Control Act. Guideline § 2M5.2 assigns a base offense level of 22 if such an offense involved “sophisticated weaponry,” otherwise the offense level is 14. The district court assigned defendant an offense level of 22, reasoning that although the venturi heaters defendant attempted to export were not of themselves a sophisticated weapon, sophisticated weaponry was involved because the heater was designed for the F-4 Phantom aircraft. The 5th Circuit affirmed this determination. Because the venturi heater ensures proper steerage of the aircraft, it is integral to the plane’s fighting effectiveness. Thus, the heaters were involved in a tangible way with sophisticated weaponry. U.S. v. Nissen, 928 F.2d 690 (5th Cir. 1991).
7th Circuit holds that court applied proper offense level for exporting military equipment. (345) Defendant was convicted of violating the Arms Export Control Act (AECA) by exporting military aircraft parts destined for Iran. Guideline § 2M5.2(a)(1) provides for a base offense level of 22 for all violations of the AECA. The only exception permitted is that instance in which a defendant’s conviction “involved only non-fully automatic small arms (rifles, handguns, or shotguns), and the numbers of weapons did not exceed ten,” in which case the base level should be set at 14. USSG § 2M5.2(a)(2). The Seventh Circuit rejected defendant’s “plethora of arguments” in support of his claim that his base level should have been set at 14. Defendant’s “self-serving ideas about the seriousness of his crimes” were more properly addressed to Congress and the Sentencing Commission. Defendant’s biased opinion dealing with the seriousness of his crime was “of absolutely no import because it is irrelevant under the plain language of the Guideline.” U.S. v. Reyes, 270 F.3d 1158 (7th Cir. 2001).
7th Circuit applies § 2M5.2 to attempt to export ammunition. (345) Defendant attempted to export parcels containing ammunition from the U.S. to Yemen by misrepresenting that the parcels contained honey. He was convicted of using export control documents that contained a false statement to export defense articles, in violation of 22 U.S.C. § 2778(c). He argued that he should have been sentenced under § 2K2.1 rather than § 2M5.2. The Seventh Circuit held that § 2M5.2 properly applies to violations of 22 U.S.C. § 2778 involving ammunition. The Statutory Index states that § 2M5.2 is the only guideline applicable to offenses under § 2778. Thus, § 2M5.2 is applicable unless this is an “atypical case.” This case was not atypical simply because defendant’s offense involved only ammunition. The items set forth in the application notes are not an exclusive list of the defense articles subject to § 2M5.2. The district court properly applied § 2M5.2(a)(1) rather than (a)(2) to defendant. Subsection (a)(2) only applies to offenses involving 10 or less small arms; defendant’s offense involved 56,000 rounds of ammunition. U.S. v. Muthana, 60 F.3d 1217 (7th Cir. 1995).
8th Circuit uses cross-reference to attempted murder guideline in bombing case. (345) Defendant set off a bomb next to the car of a state medical board official. The guideline for crimes involving weapons of mass destruction, § 2M6.1(c)(2), says the court should apply the attempted murder guideline if the offense is “tantamount to attempted murder.” The Eighth Circuit upheld the use of the cross-reference, finding it reasonable for the court to determine that the explosion was intended to kill the victim, and that it was tantamount to attempted first-decree murder. A government explosives expert testified that an MK3A2 grenade, which was used in the bomb, is designed to cause casualties. Additionally, a bomb technician testified that the type of grenade used in the bombing was “almost guaranteed” to kill any individual within a closed-in area where it explodes. The government also produced ample evidence of the life-threatening nature of the victim’s injuries and the numerous and extensive surgeries that were necessary to sustain his life. U.S. v. Mann, 701 F.3d 274 (8th Cir. 2012).
9th Circuit says night-vision device is not a “small arm” carrying lower offense level. (345) Defendant pleaded guilty to exporting night-vision devices without the required export license. The Guideline for that offense, § 2M5.2, provides for an offense level of 26 or, if the offense involved only 10 or fewer “non-fully automatic small arms” of 18. The Ninth Circuit held that night-vision devices are not “non-fully automatic small arms” and are not similar to those weapons and therefore that defendant was not entitled to an offense level of 18. U.S. v. Carper, 659 F.3d 923 (9th Cir. 2011).
9th Circuit upholds below-guidelines sentence for exporting night-vision device. (345) Defendant pleaded guilty to exporting night-vision devices from the U.S. without the required export license. At sentencing, the district court imposed a below-Guidelines sentence of 36 months based on defendant’s military record and low likelihood of recidivism. The Ninth Circuit held that the district court did not abuse its discretion by declining to impose a lower sentence and that the sentence was not substantively unreasonable. U.S. v. Carper, 659 F.3d 923 (9th Cir. 2011).
9th Circuit uses guideline for gathering national defense information where defendant acted as foreign agent. (345) Defendant was convicted of sending trade secrets to China, in violation of 18 U.S.C. §1832, and acting as an unregistered agent of a foreign government, in violation of 18 U.S.C. §951(a). The guideline for § 1832, § 2B1.1, yielded a base offense level of 6. Because there is no guideline for a violation of § 951, the district court concluded that the most analogous guideline was §2M3.2 (“Gathering National Defense Information”), which yields a base offense level of 30. Because §2M3.2 yielded a higher offense level, the district court used that guideline to calculate defendant’s offense level. The Ninth Circuit held that the district court properly chose § 2M3.2 as the most analogous guideline for acting as an unregistered foreign agent. U.S. v. Chung, 659 F.3d 815 (9th Cir. 2011).
9th Circuit reverses four level reduction for prisoner who walked away from work detail. (350) Guideline § 2P1.1(b)(3) provides a reduction of four levels if the defendant escaped from “the nonsecure custody” of a “community corrections center, community treatment center, ‘half-way house’ or similar facility.” Application Note 1 defines “nonsecure custody” as custody with no significant physical restraint, for example “where a defendant walked away from a work detail outside the security perimeter of an institution.” In the present case, defendant was incarcerated at the federal prison camp at Nellis Air Force Base in Nevada, and walked away from an unsupervised work detail at a Las Vegas City Park. The district court reduced the sentence by four levels under § 2P1.1(b)(3), but on appeal, the Ninth Circuit reversed. Relying on U.S. v. McGann, 960 F.2d 846, 847 (9th Cir. 1992), the court held that even though defendant escaped from “nonsecure custody,” he did not qualify for the reduction because he was incarcerated in a federal prison camp, and the guideline applies only to defendants in community corrections centers or similar facilities. U.S. v. Helton, 127 F.3d 819 (9th Cir. 1997).
9th Circuit says smuggling 800 handguns did not justify an upward departure. (345) Defendant was arrested for smuggling 74 handguns into the Philippines. He admitted smuggling 800 guns in two years. He pled guilty to violating 22 U.S.C. section 2778 and 22 CFR 127.2. While free on bail awaiting sentencing, he was caught shipping another 70 handguns, and again pled guilty. He was sentenced to consecutive terms for the two offenses, but in U.S. v. Pedrioli, 931 F.2d 31, 33 (9th Cir. 1991), the 9th Circuit reversed. On remand, the district court departed upward because of the “extremity of the crime.” On appeal, the 9th Circuit again reversed, holding that 800 handguns did not justify a departure. The court rejected the district court’s finding that the handguns were intended to “wage war.” Moreover, the “mere fact that the handguns were intended for a military purpose,” by itself, “cannot support departure under 2M5.2.” Chief Judge Wallace dissented. U.S. v. Pedrioli, 978 F.2d 457 (9th Cir. 1992).
9th Circuit refuses to apply “rule of lenity” in interpreting the term “sophisticated.” (345) The rule of lenity “applies both to the interpretations of the substantive ambit of criminal prohibitions and to the penalties they impose.” “The mere possibility of articulating a more narrow construction of a criminal statute, however, is not sufficient to trigger lenity.” In this case, the issue turned on whether the term “sophisticated” had a well-recognized meaning. Although the guidelines do not define the term, the 9th Circuit followed the 5th and 11th Circuits in holding that the term was sufficiently clear to allow the higher base offense level under guideline section 2M5.2 to be applied to defendants who exported intermediate ballistic missile components. U.S. v. Helmy, 951 F.2d 988 (9th Cir. 1991).
9th Circuit holds that phrase “sophisticated weaponry” is not vague. (345) Appellants argued that section 2M5.2 violated due process and was vague on its face because nothing in the guideline defined the term “sophisticated” as it applied to weaponry. The 9th Circuit rejected the argument, based on evidence that the only use of the material exported by the appellants was for the production of ballistic missiles. The material was necessary to construct flexible engine nozzles and the State Department had specifically found that it met the “munitions list” criteria. The court said that because “missiles fall within any common sense definition of ‘sophisticated weaponry’ and because the government established that the materials exported here were intended for use as missile components, the guideline is not vague with respect to appellants.” U.S. v. Helmy, 951 F.2d 988 (9th Cir. 1991).
10th Circuit departs downward from sabotage guideline for anti-nuclear protesters. (345) Defendants, anti-nuclear protesters, broke into an unmanned nuclear missile facility and caused $21,000 worth of damage. They were convicted of sabotage under 18 U.S.C. § 2155. Relying on the only case where civilian anti-nuclear protesters were sentenced under § 2155, U.S. v. Kabat, 797 F.2d 580 (8th Cir. 1986), and a 1997 proposed but unadopted amendment to USSG § 2M2.3, the court departed downward. Unlike § 2M2.3, Kabat and the proposed amendment provided for gradations in sentence based on the seriousness of the offense. The Tenth Circuit affirmed. Although there is no body of law that defines of heartland of § 2M2.3, the district court properly examined the guideline itself, the decision in Kabat, and the Sentencing Commission’s proposed amendment to implicitly determine that § 2M2.3’s stated offense level covers cases involving significant harm or risk of harm to national defense. Defendant’s conduct fell outside this heartland. Section 2M2.3’s lack of gradations for offense severity was a proper ground for departure. The statutes covered by § 2M2.3 cover a wide range of conduct, and a departure may be warranted based on the seriousness of the offense. The court properly considered that defendants’ conduct was not in aid of a foreign power, but improperly considered the fact that the offense occurred in peacetime, since the existing guidelines already take the peacetime factor into account. However, no remand was necessary, since the court would have imposed the same sentence even without the improper factor. U.S. v. Sicken, 223 F.3d 1169 (10th Cir. 2000).
11th Circuit applies § 3553(a)(2) where there was no guideline for offense. (345) Defendant received a 10-year sentence for acting as an agent of a foreign government without notifying the Attorney General, 18 U.S.C. § 951, and a consecutive five-year sentence for conspiracy to violate § 951 and to defraud the United States, 18 U.S.C. § 371. The Tenth Circuit found no error in the court’s imposition of consecutive sentences. Section 951 is a felony “for which no guideline expressly has been promulgated.” § 2X5.1. Nor has any guideline been promulgated for conspiracy to violate 851. Because “there is not a sufficiently analogous guideline,” the general purposes of sentencing in 18 U.S.C. § 3553 controlled the discretion of the district court. Here, the district court selected the 10-year statutory maximum for the § 951 conviction and a consecutive five-year sentence, also the statutory maximum, for the conspiracy conviction. The district court considering the purposes of sentencing in § 3553(a)(2) and expressly recognized its obligation to impose a sentence sufficient, but not greater than necessary, to comply with the purposes in § 3553(a). U.S. v. Campa, 529 F.3d 980 (11th Cir. 2008).
11th Circuit applies espionage guideline to conspiracy conviction. (345) Defendant, a Cuban agent, was convicted of conspiracy to gather and transmit national-defense information, in violation of 18 U.S.C. § 794. The district court applied § 2M3.1, the guideline applicable to violations of 794. Defendant argued that the court should have applied § 2X1.1(a), which applies to conspiracies not covered by a specific offense guideline. The Eleventh Circuit disagreed. In U.S. v. Thomas, 8 F.3d 1552 (11th Cir. 1993), it held that district court correctly refused to apply 2X1.1(a) to a Hobbs Act conspiracy because a conspiracy to violate the Hobbs Act is itself a violation of the Hobbs Act. Similarly, a conspiracy to violate § 794 is also a violation of § 794. Thomas is still good law in the Eleventh Circuit, even if the Second Circuit case on which it relied is no longer followed in the Second Circuit. U.S. v. Campa, 529 F.3d 980 (11th Cir. 2008).
11th Circuit refuses to require a consultation with an “authorized designee” of the President. (345) Defendant was a Cuban agent convicted of conspiracy to gather and transmit national-defense information, in violation of 18 U.S.C. § 794. Note 3 to § 2M3.1 allows a district court to depart downward upon a representation by the President that the imposition of a non-Guideline sentence is “necessary to protect national security or further the objectives of the nation’s foreign policy.” Defendant argued that the district court erred when it declined to order a consultation with an “authorized designee” of the President so that defendant could take advantage of Note 3. The Eleventh Circuit disagreed. Nothing in the guideline section empowers the district court to require the President or his designee to express any view about a sentence. U.S. v. Campa, 529 F.3d 980 (11th Cir. 2008).
11th Circuit rejects enhancement in case involving top secret information. (345) Defendant was a Cuban agent convicted of conspiracy to gather and transmit national-defense information, in violation of 18 U.S.C. § 794. Section 2M3.1(a)(1) provides for a base offense level of 42, which is appropriate “if top secret information was gathered or transmitted,” instead of a base offense level of 37, which is appropriate “otherwise.” The district court selected the higher base offense level on a finding that the object of the conspiracy was to obtain top secret information. The Eleventh Circuit found this was error – the higher base offense level in § 2M3.1(a)(1) only applies to a completed event – the actual gathering or transmission of top secret information. Because the district court did not find that top secret information was gathered or transmitted, the panel remanded. U.S. v. Campa, 529 F.3d 980 (11th Cir. 2008).
11th Circuit finds no abuse of trust by prison food service employee who smuggled drugs into prison. (350) Defendant, a food service employee in a federal prison, was convicted under 18 U.S.C. § 1791 of bringing cocaine into the prison. He argued that the district court applied a § 3B1.3 enhancement at the wrong point in the calculation of his offense level. Defendant contended that, under § 2P1.2(c), Chapter 3 adjustments are made only after determining whether the offense level in the drug table, § 2D1.1, exceeds the minimum offense level of 26 provided for in § 2P1.2(c). The Eleventh Circuit held that in any event the § 3B1.3 enhancement was improper because defendant did not occupy a position of trust. To the extent that he had any discretion in carrying out his duties as a food service foreman, the government failed to demonstrate that he exercised that discretion to bring cocaine into the prison. Although defendant could enter the prison without being searched, the prison extended this same level of trust to all prison employees. U.S. v. Long, 122 F.3d 1360 (11th Cir. 1997).
11th Circuit affirms that cathode assembly for tube used in Hawk missile battery is “sophisticated weaponry.” (345) Defendant was convicted of attempting to export to Iran a cathode assembly for a tube used in a Hawk missile battery. The 11th Circuit affirmed an increase in defendant’s offense level under guideline § 2M5.2 based upon the involvement of “sophisticated weaponry.” The court had “no difficulty concluding that the Hawk missile, and the cathode assembly that is part of its guidance system, constitutes sophisticated weaponry.” U.S. v. Chung, 931 F.2d 43 (11th Cir. 1991).
Commission increases penalties for firearms crossing the border and straw purchasers. (345) Subsection (b)(6) of the firearms guideline, § 2K2.1, provides a 4-level enhancement, and a minimum offense level of 18, if the defendant used or possessed any firearm or ammunition in connection with another felony offense. In a new amendment, the Commission established a new prong (A) in subsection (b)(6) that applies “if the defendant possessed any firearm or ammunition while leaving or attempting to leave the United States; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be transferred out of the United States”. The existing provision is now prong (B). Under the amendment, a defendant receives the 4-level enhancement and minimum offense level 18 if either prong applies. With regard to straw purchasers, the Commission also amended § 2K2.1 to increase the penalties for a defendant who is convicted under 18 U.S.C. §§ 922(a)(6) or 924(a)(1)(A), and committed the offense with knowledge, intent, or reason to believe that the offense would result in the transfer of a firearm or ammunition to a prohibited person. The amendment increases the base offense level for subsections (a)(4)(B) and (a)(6) to level 14, or 20 if the offense involved either a semiautomatic firearm that is capable of accepting a large capacity magazine or a firearm described in 26 U.S.C. § 5845(a). In addition, the amendment provides a new Application Note 15 stating that, in a case in which the defendant is convicted under any of the three statutes, a downward departure may be warranted if (A) none of the enhancements in subsection (b) of § 2K2.1 apply, (B) the defendant was motivated by an intimate or familial relationship or by threats or fear to commit the offense and was otherwise unlikely to commit such an offense, and (C) the defendant received no monetary compensation from the offense. Third, § 2M5.2 was amended to narrow the application of the alternative base offense level of 14 by reducing the threshold number of small arms in subsection (a)(2) from ten to two. Amendment 753, effective November 1, 2011.
Commission increases sentences for alien and terrorism offenses. (345) In response to the increased penalty in 8 U.S.C. § 1324(a)(4) for smuggling aliens (A) as part of an ongoing commercial organization; (B) transporting aliens in groups of 10 or more; or (C)(i) transporting aliens in a manner that endangered their lives; or (ii) if the aliens presented a life-threatening health risk to people in the United States, the Commission added a two-level increase at § 2L1.1(b)(7). In response to a new offense at 18 U.S.C. § 1038 (False Information and Hoaxes), the Commission referenced § 2A6.1, and added a cross-reference to § 2M6.1 if the conduct supports a threat to use a weapon of mass destruction. Amendment 4, effective November 1, 2006.
Commission increases penalties for crimes associated with terrorism. (345) The Commission adopted a six-part amendment strengthening the guidelines for crimes associated with terrorism, including offenses against mass transportation systems and interstate gas or hazardous liquid pipelines. The amendment also increased sentences for threats that substantially disrupt governmental or business operations or result in costly cleanup measures. It expanded that guideline coverage of offenses involving bioterrorism, and it created a new guideline for providing material support to foreign terrorist organizations. It punished attempts and conspiracies the same as the completed offense and invited an upward departure to the terrorism enhancement in § 3A1.4 for appropriate cases. Finally, it authorized a term of supervised release up to life for terrorism crimes that result in a substantial risk of death or serious bodily injury. Amendment 637, effective November 1, 2002.
Commission increases penalties for importing and exporting nuclear, chemical and biological weapons. (345) Responding to a statutory provision expressing a “sense of Congress,” the Commission provided a four-level increase in §§ 2M5.1 and 2M5.2 for offenses involving the importation and exportation of nuclear, chemical, and biological weapons, materials, or technologies. The amendment also substantially revised § 2M6.1 to incorporate offenses at 18 U.S.C. § 175, relating to biological weapons, and 18 U.S.C. § 229 relating to chemical weapons. Amendment 633, effective November 1, 2001.