USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 1 of 23
[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 20-11035 ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CHRISTOPHER DANIEL STINES,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:19-cr-20566-JEM-1 ____________________ USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 2 of 23
2 Opinion of the Court 20-11035
Before WILSON, LUCK, and LAGOA, Circuit Judges. WILSON, Circuit Judge: In this sentencing appeal, we interpret U.S.S.G. § 2M5.2(a)(2) for the first time in a published decision. That sub- section sets a lower base offense level for defendants convicted of illegally exporting weapons if the offense involved only non-fully automatic small arms and there were no more than two weapons. The question here is whether a defendant who exports enough weapons parts for two operable firearms, along with additional parts to service additional firearms, can take advantage of the lower base offense level. After careful review, and with the benefit of oral argument, we answer that question in the negative. Such an of- fense involves more than the two weapons § 2M5.2(a)(2) allows. We therefore affirm. I One late-summer day in 2019, Christopher Stines, a Haitian gunsmith, arrived at Miami International Airport. He was sched- uled to take Air France Flight 619 to Port-au-Prince, Haiti. As it turned out, United States Customs and Border Protection agents were conducting an outbound border search that day. When the agents searched Stines’s luggage, they found 23 AR-15 parts: eight triggers, five selector switches, three hammers, two disconnectors, three hammer and trigger pins, and two trigger guards. These parts are designated “defense articles” by the United States USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 3 of 23
20-11035 Opinion of the Court 3
Munitions List, and they cannot be exported from the United States without an export license. Stines did not have an export license. The authorities detained Stines for questioning. After waiv- ing his Miranda rights, Stines agreed to speak with agents from Homeland Security Investigations (HSI). He told the agents that he had purchased weapons only a few times through various web- sites. A search of his iPhone, however, cast doubt on that claim. The email account on Stines’s iPhone contained more than 20 in- voices for purchases of weapons parts dating back to 2012. An HSI agent inquired whether Stines had exported these parts, but Stines did not respond, and the agent ended the interview. Federal law enforcement conducted a follow-up investigation and found that Stines had purchased hundreds of weapons parts between 2013 and 2019. He had those parts shipped to the residence of his aunt and uncle in Homestead, Florida. The government filed an indictment charging Stines with smuggling goods from the United States in violation of 18 U.S.C. § 554(a) (Count One), and with attempting to unlawfully export de- fense articles in violation of 22 U.S.C. § 2778(b)(2) and (c) (Count Two). Stines pleaded guilty to Count One in exchange for the gov- ernment dismissing Count Two. Following the guilty plea, the United States Probation Office prepared a presentence investigation report (PSI). The PSI ex- plained that a probation officer had confirmed with the govern- ment that the 23 weapons parts seized from Stines “were not capa- ble of being converted to more than two firearms.” But the PSI USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 4 of 23
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also stated that when considering all the weapons parts Stines had purchased since 2013, those parts could be converted to at least four firearms. The PSI then calculated Stines’s base offense level as 26, pursuant to § 2M5.2(a)(1) of the United States Sentencing Guidelines. After a three-point reduction for acceptance of respon- sibility and assisting authorities, Stines’s total offense level was 23. With a criminal history category of I, his recommended Guidelines range was 46–57 months. Stines objected to the PSI, arguing that, pursuant to § 2M5.2(a)(2), his base offense level should have been 14 rather than 26 because the weapons parts that were seized could be converted to only two functional weapons. He also filed a motion for a down- ward departure. At the sentencing hearing, the district court over- ruled Stines’s objection and denied his motion for a downward de- parture. Although the district court did not explicitly address Stines’s objection to his base offense level, it explained its reasoning for denying the downward departure. The district court observed that Stines appeared to have been working in concert with the Hai- tian police force, who were engaged “in fire-fights with the Haitian Army.” Noting the “extremely volatile political situation” in Haiti, the court found that Stines’s conduct affected the foreign policy in- terests of the United States, which militated against granting a downward departure. Accordingly, the court sentenced Stines to 46 months’ imprisonment and two years of supervised release—a sentence at the low end of the Guidelines range. USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 5 of 23
20-11035 Opinion of the Court 5
II On appeal, Stines argues that the district court erred in over- ruling his objection to his base offense level. He also contends that the district court should have granted a downward departure from the Sentencing Guidelines. We address those contentions in turn. A We review de novo the district court’s interpretation and application of the Sentencing Guidelines, and we review its under- lying factual findings for clear error. United States v. Maddox, 803 F.3d 1215, 1220 (11th Cir. 2015) (per curiam). “When interpreting the guidelines, we apply the ‘traditional rules of statutory construc- tion[.]’” United States v. Fulford, 662 F.3d 1174, 1177 (11th Cir. 2011) (quoting United States v. Shannon, 631 F.3d 1187, 1189 (11th Cir. 2011)). The Guideline at issue, § 2M5.2,“Exportation of Arms, Munitions, or Military Equipment or Services Without Required Validated Export License,” provides: (a) Base Offense Level: (1) 26, except as provided in subdivision (2) be- low; (2) 14, if 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 au- tomatic small arms, and the number of rounds did not exceed 500, or (C) both. USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 6 of 23
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U.S.S.G. § 2M5.2. Stines does not contest that his offense involved the expor- tation of weapons parts and thus falls under the umbrella of § 2M5.2(a). He argues, however, that his offense fits within § 2M5.2(a)(2)(A)’s carveout for less serious offenses. To that end, Stines makes two arguments. First, he argues that his relevant conduct for sentencing purposes encompasses only the 23 AR-15 parts that were seized at the airport and with which he was charged. Although the government produced in- voices showing that Stines purchased hundreds of weapons parts over the last decade, Stines argues that purchasing weapons parts is not by itself criminal activity. Without a showing that Stines ex- ported those parts, the argument goes, the purchases are not rele- vant conduct for sentencing purposes. The government does not meaningfully dispute this point in its brief. Second—and building on his first argument—Stines contends that his offense for exporta- tion of 23 weapons parts is an “offense involv[ing] only [ ] non-fully automatic small arms,” where “the number of weapons did not ex- ceed two.” See § 2M5.2(a)(2)(A). That is so, he argues, because the 23 weapons parts could be converted to no more than two fully- functioning AR-15s. As a result, he says that he was entitled to the lower base offense level of 14 under § 2M5.2(a)(2). The govern- ment does not dispute that AR-15s are non-fully automatic small arms, but it argues that Stines’s offense cannot qualify for the lower base offense level because the carveout does not apply to offenses involving firearm parts. USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 7 of 23
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Resolution of this case does not require us to decide whether Stines is correct on the first point because, for the reasons explained below, he cannot qualify for the lower base offense level even as- suming his offense involved only 23 weapons parts. As a starting point, we must consider whether subsection (a)(2) can ever apply to an offense like Stines’s that involves AR-15 parts. We think it can for a simple reason: the Guidelines do not purport to distinguish between assembled and disassembled weap- ons. At least in theory, then, an offense involving nothing more than the parts of two AR-15s—that is, two AR-15s broken down to their components—could fit within the scope of § 2M5.2(a)(2). This view is supported by the fact that appellate courts, in- cluding this Court, have equated “weaponry” with component parts for weaponry, when interpreting prior versions of § 2M5.2. For example, in United States v. Fu Chin Chung, we concluded that the Guidelines did not distinguish between sophisticated weaponry and parts that could be mapped to sophisticated weaponry. 931 F.2d 43, 46 (11th Cir. 1991) (per curiam) (“[W]e have no difficulty in concluding that . . . the cathode assembly that is part of [a missile] guidance system, constitutes sophisticated weaponry.”); see also United States v. Tsai, 954 F.2d 155, 163 (3d Cir. 1992) (“[I]t is suffi- cient if the item in question is a component of a sophisti- cated weapon or weapons system. That is the more sensible read- ing of the Guideline since otherwise the enhancement would be inapplicable to a defendant who separately shipped component parts of a sophisticated weapons system.”); United States v. USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 8 of 23
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Nissen, 928 F.2d 690, 694 (5th Cir. 1991) (per curiam) (holding that parts were “sophisticated weaponry” because they “were ‘in- volved’ in a tangible way with ‘sophisticated weaponry.’”). Be- cause the term “weaponry,” which was used in the prior version of § 2M5.2, is synonymous with the term “weapons,” which is used in the current version of § 2M5.2, see Weaponry, Oxford English Dictionary (3d ed.) (defining the term “weaponry” as “[w]eapons collectively”), we see no reason to depart from our, and our sister courts’, prior interpretation. A simple example illustrates the point. Imagine that a dis- trict judge is tasked with sentencing a defendant who tried to smug- gle two AR-15s out of the country by disassembling the guns and placing their parts in his luggage. On those facts, the district judge could find that the offense “involved only [ ] non-fully automatic small arms,” albeit in disassembled form, “and the number of weapons did not exceed two.” § 2M5.2(a)(2). Such an offense would thus qualify for a base offense level of 14. Stines’s offense, however, is unlike the one in our hypothet- ical because his offense did not involve a set of parts that could be mapped to only two AR-15s. His offense involved, for example, eight AR-15 triggers that would service eight AR-15s. So to the ex- tent Stines’s offense involving AR-15 parts can be described as an offense involving non-fully automatic small arms, the number of AR-15s involved would exceed the maximum two weapons per- mitted by subsection (a)(2)(A). USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 9 of 23
20-11035 Opinion of the Court 9
In fairness to Stines, we recognize that our interpretation could lead to results that are at least counterintuitive. See Oral Ar- gument Recording at 6:00–6:44. Under our reading, for instance, a defendant exporting just three AR-15 triggers—and nothing else— would get the higher base offense level (because those triggers would service three AR-15s), while a defendant with two fully op- erable AR-15s would get the lower base offense level. Yet for at least two reasons, this sort of hypothetical does not persuade us to depart from the Guidelines’ plain meaning. First, we apply the absurd results canon quite cautiously, and we cannot say that it is truly absurd to measure the harm caused by the smuggling of weapons parts by mapping those parts to the weapons they would service. 1 See CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1228 (11th Cir. 2001). Second, the absurd results canon could cut both ways here. Under Stines’s ap- proach, we would focus on the number of fully-functioning weap- ons to which the relevant weapons parts could be converted. The government’s brief points out that, under that view, “[a] criminal
1 We note that the Ninth Circuit, without even mentioning the absurd results canon, held that offenses involving the exportation of military equipment, such as night-vision devices, trigger a base offense level of 26. See United States v. Carper, 659 F.3d 923, 925 (9th Cir. 2011). Such offenses did not fit within § 2M5.2(a)(2) because they did not involve “non-fully automatic small arms.” Id. Though one might question the wisdom of treating a defendant with one set of night-vision goggles more harshly than a defendant with two AR-15s, the Ninth Circuit found itself bound to follow the “plain meaning of . . . § 2M5.2(a)(2).” Id. USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 10 of 23
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who exported thousands of nearly operable firearms—perhaps missing only one necessary piece—would automatically receive a base offense level of 14.” That result is at least as dubious as any that our reading might produce. Therefore, we adhere to the Guidelines’ plain meaning, under which the district court correctly applied a base offense level of 26. B The second issue in this appeal is straightforward. Stines ar- gues that the district court should have departed downward from the recommended Guidelines range when imposing his sentence. Stines points to Application Note 1 of the Guidelines, which pro- vides that “[t]he base offense level assumes that the offense conduct was harmful or had the potential to be harmful to a security or for- eign policy interest of the United States. In the unusual case where the offense conduct posed no such risk, a downward departure may be warranted.” U.S.S.G. § 2M5.2 n.1. Stines argues that his conduct posed no risk to national security, and that, accordingly, the district court should have departed downward. The problem for Stines is that a district court’s denial of a downward departure request is a discretionary decision that is not reviewable unless the district court erroneously believed it lacked the authority to grant one. United States v. Chase, 174 F.3d 1193, 1195 (11th Cir. 1999). That was not the case here. The district court reasoned that a downward departure was unwarranted be- cause Stines’s conduct had the potential to harm national security. In support of its finding, the court referenced political instability USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 11 of 23
20-11035 Opinion of the Court 11
and violence in Haiti, the proximity of Haiti to the United States, and the fact that Stines had worked as a gunsmith for the Haitian police, who were at times “engaged in fire-fights” with the Haitian government. Because the district court knew it had the authority to grant a downward departure but chose not to grant one, we lack jurisdiction to review that determination. See id. III In conclusion, we hold that: (1) the district court applied the correct base offense level because Stines’s offense does not fit within the narrow carveout set forth in § 2M5.2(a)(2)(A); and (2) we lack jurisdiction to review the district court’s discretionary de- cision not to depart downward from the Guidelines. Accordingly, we affirm. AFFIRMED. USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 12 of 23 USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 13 of 23
20-11035 LUCK, J., Concurring in part and in the judgment 1
LUCK, Circuit Judge, concurring in part and in the judgment: The majority opinion concludes that: (1) we don’t have ju- risdiction to review the district court’s denial of Christopher Daniel Stines’s motion for downward departure under application note one in sentencing guideline section 2M5.2; and (2) the district court correctly applied guideline section 2M5.2(a)(1)’s base offense level of twenty-six because Stines’s offense conduct didn’t fit within the narrow carveout for a base offense level of fourteen in section 2M5.2(a)(2). I proudly join the part of the majority opinion (part II.B) on the downward departure issue. As to the base offense level issue (part II.A), I agree with the majority opinion’s conclusion that the base offense level is twenty-six under section 2M5.2(a)(1), and the narrow carveout in section 2M5.2(a)(2) doesn’t apply, but I would get there in a slightly different way. Everyone agrees that guideline section 2M5.2 applies to Stines’s attempted shipment of gun parts. The only question is which base offense level within section 2M5.2 applies here. There are two options. The first option is in section 2M5.2(a)(1), which sets a default base offense level of twenty-six for offense conduct that falls within the guideline for the exportation of arms, muni- tions, or military equipment or services without a required vali- dated export license. U.S.S.G. § 2M5.2(a)(1). The second option is a “narrow” “except[ion]” to the default base offense level. Id.; see also id. App. C, Amend. 753 (Reason for Amendment). “[I]f the offense involved only . . . non-fully automatic small arms (rifles, handguns, or shotguns), and the number of weapons did not USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 14 of 23
2 LUCK, J., Concurring in part and in the judgment 20-11035
exceed two,” then the base offense level is fourteen instead of twenty-six. Id. § 2M5.2(a)(2)(A). 1 The district court calculated Stines’s advisory guideline range using the default base offense level in section 2M5.2(a)(1). Stines argued to the district court, and argues to us on appeal, that his offense level should have been calculated using the narrow ex- ception in section 2M5.2(a)(2)(A) because the gun parts he at- tempted to export, if assembled, could make only two complete AR-15 rifles—with some parts to spare—which are non-fully auto- matic small arms and no more than two weapons. So, the issue is whether the twenty-three gun parts that Stines attempted to export into Haiti are “non-fully automatic small arms.” Are gun parts “arms”? If they’re not, then the narrow exception—which only ap- plies to “non-fully automatic small arms”—doesn’t apply, and the default base offense level does. The section 2M5.2(a)(2)(A) narrow exception has three tex- tual clues that gun parts are not “arms.” First, the term “arms” is not defined in the guidelines, but the Oxford English Dictionary defines “arms” as “[w]eapons of war or combat; (items of) military equipment, both offensive and defensive”; “[f]irearms; [and] weap- ons, such as pistols, rifles, shotguns, or muskets, from which a
1 The narrow exception also applies “if the offense involved only . . . ammuni- tion for non-fully automatic small arms, and the number of rounds did not exceed 500,” id. § 2M5.2(a)(2)(B), but this is not an ammunition case, so this part of the narrow exception doesn’t apply to Stines. USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 15 of 23
20-11035 LUCK, J., Concurring in part and in the judgment 3
missile can be propelled at speed by means of an explosive charge.” Arms, Oxford English Dictionary (online ed.) (last visited Apr. 14, 2022). See United States v. Dougherty, 754 F.3d 1353, 1359 (11th Cir. 2014) (using dictionaries, including the Oxford English Dic- tionary, to define the undefined guideline term “immediate flight”). Triggers, switches, hammers, disconnectors, pins, and guards—the parts Stines attempted to export—may be compo- nents of an offensive or defensive weapon, but they are not them- selves weapons. No one ever used just a trigger or just a switch in combat without more. Second, the section 2M5.2(a)(2)(A) narrow exception gives some examples of “small arms.” After the phrase “small arms,” the narrow exception lists, inside a parenthetical, “rifles, handguns, or shotguns.” U.S.S.G. § 2M5.2(a)(2)(A). Those are the kinds of “small arms” that fall within the narrow exception to the default base offense level for exporting munitions without a license. Each of the examples in the narrow exception supports the common def- inition of “arms.” They are each weapons of war or combat and firearms. But the parts Stines had in his suitcase—like disconnect- ors and pins—are not similar to, or the equivalent of, rifles, hand- guns, or shotguns. A disconnector, unlike those guns, can’t propel a missile. And third, section 2M5.2(a)(2)(A) says that the narrow ex- ception applies “only” to “non-fully automatic small arms” like “ri- fles, handguns, or shotguns.” Id. (emphasis added). By adding the word “only,” the guidelines emphasized that anything that is not a USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 16 of 23
4 LUCK, J., Concurring in part and in the judgment 20-11035
“small arm” like a rifle, handgun, or shotgun does not fall within the narrow exception. As the Fifth Circuit succinctly explained in interpreting the same guideline, “‘only’ means ‘only.’” United States v. Diaz-Gomez, 680 F.3d 477, 480 (5th Cir. 2012). Gun parts are not “only” rifles, handguns, or shotguns. They are the parts of those things, but they are not “only” those things. The few circuits that have interpreted the section 2M5.2(a)(2)(A) narrow exception have read it the same way. The narrow exception now includes “non-fully automatic small arms” and “ammunition,” but before 2011, section 2M5.2(a)(2) only ap- plied to “non-fully automatic small arms.” “Ammunition” wasn’t mentioned. Before section 2M5.2(a)(2) was amended, the Seventh and Fifth Circuits addressed whether exporting ammunition fell within the carveout to the default base offense level. In United States v. Muthana, 60 F.3d 1217 (7th Cir. 1995), the defendant was convicted of “knowingly and willfully using an ex- port control document which contained a false statement and omitted a material fact to export defense articles.” Id. at 1219. The defendant wrote on the export control document that the “ship- ment to Yemen contained 3,086 pounds of honey rather than ap- proximately 56,000 rounds of ammunition.” Id. As here, the Muthana defendant argued that the district court erred in applying the default base offense level rather than the base offense level in the section 2M5.2(a)(2) narrow exception. Id. at 1224. The narrow exception, the court explained, “establishes a base offense level of fourteen ‘if the offense involved only non-fully automatic small USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 17 of 23
20-11035 LUCK, J., Concurring in part and in the judgment 5
arms (rifles, handguns, or shotguns), and the number of weapons did not exceed ten.’” Id. (quoting section 2M5.2(a)(2)). (The nar- row exception has since been amended to two weapons.) The Sev- enth Circuit rejected the defendant’s argument because his “of- fense involved approximately 56,000 rounds of ammunition, so [g]uideline [section] 2M5.2(a)(2) d[id] not apply.” Id. The Fifth Circuit reached the same conclusion in Diaz- Gomez. There, the defendant pleaded guilty to “(1) attempting to export a nine-millimeter semi-automatic handgun, five ammuni- tion magazines, 611 rounds of nine-millimeter ammunition, and fifty rounds of .38 caliber ammunition, and (2) concealing the items for export.” Diaz-Gomez, 680 F.3d at 478. The defendant argued that the default base offense level in section 2M5.2(a)(1) didn’t ap- ply to his offense conduct “because he pleaded guilty to an offense involving only one semi-automatic weapon.” Id. at 479. The Fifth Circuit focused on “whether the use of the word ‘only’ in subsec- tion (a)(2) limits the application of the lower base offense level to an offense that truly involves only non-fully automatic weapons and no ammunition.” Id. at 480. The court explained that it saw “no reason to interpret the plain meaning of the term ‘only’ to mean anything other than ‘only.’” Id. The 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,” and “the guideline does not permit finding an exception for including am- munition.” Id. at 480–81 (quoting United States v. Sero, 520 F.3d 187, 190 (2d Cir. 2008)). USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 18 of 23
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Just as one necessary component of a gun—the ammuni- tion—is not “only” an “arm,” so too is another necessary part of the gun—the trigger—not only an arm. The hilt of a sword is a component of a weapon, but it is not itself a weapon. By itself— like a trigger or a guard—the hilt does nothing. Triggers and guards are parts of a gun, but they are not themselves weapons used in combat like “rifles, handguns, or shotguns.” Stines’s gun parts do not fall within the section 2M5.2(a)(2)(A) narrow excep- tion. Stines argues that, despite the guideline’s plain language, reading “arms” as excluding gun parts would lead to an absurd re- sult that the sentencing commission couldn’t have intended. See Small v. United States, 544 U.S. 385, 404 (2005) (Thomas, J., dissent- ing) (explaining that the “canon against absurdities” should be em- ployed “where the result of applying the plain language would be, in a genuine sense, absurd, i.e., where it is quite impossible that Congress could have intended the result and where the alleged ab- surdity is so clear as to be obvious to most anyone” (quotation and ellipsis omitted)). If he had attempted to transport two assembled AR-15s and nothing else, Stines argues, the narrow exception would have applied to give him a base offense level of fourteen, but if he had broken those two AR-15s down into their constituent parts to transport, the higher default base offense level of twenty- six would have applied. This result is not absurd. The sentencing commission, in 2011, amended section 2M5.2(a)(2)(A) to reduce, from ten to two, USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 19 of 23
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the amount of “non-fully automatic small arms” carved out from the default base offense level. The commission narrowed the ex- ception because, it determined, “export offenses involving more than two firearms are more serious and more likely to involve traf- ficking.” U.S.S.G. App. C, Amend. 753 (Reason for Amendment). The commission intended greater punishment (through a higher base offense level) for offense conduct more likely to involve traf- ficking. If Stines had tried to ship two AR-15 rifles from the United States to Haiti, it would be less likely that the shipment was meant to traffic the firearms. But, if those two rifles were disassembled into twenty parts and he tried to ship those twenty parts, the at- tempted shipment of twenty gun parts would have involved more than two firearms and thus would have been more serious and more likely to involve trafficking. This is because each part is a component of one AR-15 rifle, so the twenty parts are components of as many as twenty AR-15 rifles. And that amount of rifles, as the sentencing commission explained, is much more likely to involve trafficking in firearms. Shipping gun parts instead of whole guns is also more likely to involve trafficking in firearms because a trafficker is more likely to ship small parts to avoid detection. A trafficker can tuck a rifle pin away in a little suitcase compartment better than he can con- ceal a whole rifle. But if he shipped two guns, that shipment would have involved only two hard-to-miss guns. USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 20 of 23
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Stines shipped twenty-three easier-to-conceal gun parts. Necessary parts that can service up to twenty-three guns are more dangerous and worthier of the higher default base offense level than two guns are. Because gun parts are not “non-fully automatic small arms,” and applying the default base offense level is not absurd, I agree with the majority opinion that we should affirm Stines’s sentence. USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 21 of 23
20-11035 LAGOA, J., Concurring 1
LAGOA, Circuit Judge, concurring: I concur in full with the majority’s opinion. I write sepa- rately to explain why I disagree with Judge Luck’s opinion concur- ring in part. That opinion disagrees with the majority opinion’s interpre- tation of U.S.S.G. § 2M5.2(a)(2): that component parts of a non- fully automatic small arm are weapons. Looking at the definition of the term “arms,” the concurrence in part suggests that the rele- vant AR-15 parts are not themselves “arms” that can be taken into combat or war. Luck, J., Concur. Op. at 2–3. But an AR-15 is an end-item that is the sum of its component parts. And the parts Stines attempted to export are “(items of) military equipment,” as designated by the United States Munitions List, even though the parts are not, themselves, the end-item. Arms, Oxford English Dic- tionary (3d ed.) (defining the term “arms” as “[w]eapons of war or combat; (items of) military equipment, both offensive and defen- sive; munitions”); see 22 C.F.R. § 121.1(a)(1) (the United States Mu- nitions List categories “usually start by enumerating or otherwise describing end-items, followed by major systems and equipment; parts, components, accessories, and attachments”). Indeed, the Munitions List—which is referenced in § 2M5.2, Application Note 1—categorizes both firearms and component parts of firearms and guns and components parts of guns, as single categories of defense articles. See 22 C.F.R. § 121.1 (“Category I Firearms and Related Articles” and “Category II Guns and Armament”). USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 22 of 23
20-11035 LAGOA, J., Concurring 2
The concurrence in part also suggests that exporting com- ponent parts of non-fully automatic small arms does not involve only “non-fully automatic small arms.” Luck, J. Concur. at 3–4. In support, the opinion cites cases which held that, under a prior ver- sion of § 2M5.2(a)(2), exporting ammunition in addition to non- fully automatic firearms was not an offense that involved only non- fully automatic weapons. Id. at 4–7 (citing United States v. Muthana, 60 F.3d 1217 (7th Cir. 1995) and United States v. Diaz- Gomez, 680 F.3d 477 (5th Cir. 2012)). But unlike firearm parts or gun parts, which together with their end-items form a single cate- gory of defense articles, ammunition is its own separate category of defense articles under the U.S. Munitions List. See 22 C.F.R. § 121.1 (“Category III Ammunition and Ordinance”). And the parties do not dispute that the relevant parts are components only for “non-fully automatic small arms.” Finally, a note about the “canon against absurdities.” Both the majority and the concurrence in part reject Stines’s resort to that canon. And rightfully so, because, as noted in the concurrence in part, proper application of that canon is limited to a truly excep- tional case. See Small v. United States, 544 U.S. 385, 404 (2005) (Thomas, J., dissenting) (the canon against absurdities “should [be] employ[ed] only . . . where it is quite impossible that Congress could have intended the result . . . and where the alleged absurd- ity is so clear as to be obvious to most anyone” (quotation omit- ted)). Neither the majority’s nor the concurrence in part’s read of USCA11 Case: 20-11035 Date Filed: 05/31/2022 Page: 23 of 23
20-11035 LAGOA, J., Concurring 3
section 2M5.2(a)(2) comes anywhere close to implicating that canon of construction. Based on the Guideline’s text, including its references to the United States Munitions List, and our decision in United States v. Fu Chin Chung, 931 F.2d 43, 46 (11th Cir. 1991), I agree with the majority opinion’s interpretation of § 2M5.2(a)(2).