IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 91-8467 Summary Calendar ____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SALVADOR GALVAN-REVUELTA, a/k/a SALVADOR REVUELTA-GALVAN,
Defendant-Appellant.
__________________________________________________________________
Appeal from the United States District Court for the Western District of Texas _________________________________________________________________ (March 27, 1992)
Before JOLLY, DAVIS, and SMITH, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Sylvester Galvan-Revuelta pleaded guilty to unlicensed export
of munitions and was sentenced accordingly. He appeals his
sentence, arguing that the district court applied the wrong
sentencing guideline. For the reasons set forth below, we affirm.
I
On April 11, 1991, United States Customs Service agents
received information from a confidential informant that two
individuals had purchased a large quantity of ammunition at a
hardware store in El Paso, Texas, and were planning to smuggle it
into Mexico. The information included a description of the vehicle being used by the two individuals. The Customs agents located the
vehicle and placed it under surveillance. When the appellant,
Sylvester Galvan-Revuelta, attempted to drive it across the border,
Customs agents stopped and searched the vehicle, finding 10,181
cartridges of various caliber firearms ammunition. The United
States charged the appellant with exporting defense articles in
violation of 22 U.S.C. § 2778(b)(1)(A)1. The appellant pleaded
guilty.
II
At sentencing on May 28, 1991, the appellant objected to the
recommendation in the presentencing report that United States
Sentencing Commission Guidelines Manual, § 2M5.2 (1991)
(hereinafter U.S.S.G. § 2M5.2) is the offense guideline most
applicable to his offense conduct. That guideline establishes a
base offense level of 22 and applies to offenses involving the
exportation of arms, munitions, or military equipment or services
without an export license. The appellant argued that the most
applicable offense guideline is U.S.S.G. § 2K2.1 (November 1,
1990), which establishes a base offense level of six and applies to
offenses involving unlawful receipt, possession, or transportation
1 "As prescribed in regulations issued under this section, every person . . . who engages in the business of manufacturing, exporting, or importing any defense articles . . . designated by the President under subsection (a)(1) of this section shall register . . . and shall pay a registration fee . . .." 22 U.S.C. § 2278.
-2- 2 of firearms or ammunition. The district court overruled the
objection. The appellant now challenges that ruling.
III
A
On appeal, Galvan-Revuelta argues that the district court
erred in applying U.S.S.G. § 2M5.2 and reiterates his argument that
the sentencing commission intended that section to apply only to
situations "involving serious military or space hardware," not
firearms ammunition. For this conclusion, the appellant relies on
the following language contained in an application note to that
section: "The items subject to control constitute the United
States Munitions List, which is set out in 22 C.F.R. Part 121.1.
Included in this list are such things as military aircraft,
helicopters, artillery, shells, missiles, rockets, bombs, vessels
of war, explosives, military and space electronics, and certain
firearms." U.S.S.G. § 2M5.2, application note 1. The appellant
points out the absence of any mention of ammunition in that section
and notes that U.S.S.G. § 2K2.1 (November 1, 1990), on the other
hand, expressly addresses offenses involving the transportation of
ammunition.
B
The appellant's contention is a challenge to the court's
application of the sentencing guidelines and, as such, is reviewed
de novo. See U.S. v. Otero, 868 F.2d 1412, 1414 (5th Cir. 1989).
Having reviewed the charge against Galvan-Revuelta, the sentencing
-3- 3 guideline applied by the district court, the guideline urged by the
appellant and the record in this case, we conclude that the
appellant's contention is untenable for two reasons.
First, the language of U.S.S.G. § 2M5.2 unmistakably reveals
that the Commission intended for it to apply to the export of
ammunition. The application note states: "Under 22 U.S.C. § 2778,
the President is authorized . . . to control exports of defense
articles . . .. The items subject to control constitute the United
States Munitions List, which is set out in 22 C.F.R. Part 121.1."
U.S.S.G. § 2M5.2, application note 1 [emphasis ours].2 No
reasonable reading of the application note yields the conclusion
that the scope of that section is limited to sentencing for
unlicensed export of only the enumerated items rather than all of
the items contained on the Munitions List. Furthermore, the
application note does specifically mention "certain firearms,"
which are defined in the Munitions List to include, inter alia,
revolvers, pistols, and rifles up to .50 caliber.3 These items no
2 The United States Munitions List, 22 C.F.R. Part 121.1, specifically lists: CATEGORY III--AMMUNITION (a) Ammunition for the arms in Category I . . . of this section. [Nonautomatic, semi-automatic, and fully automatic firearms to caliber .50]. Id. Part 121.9 specifies that "Category I includes revolvers, pistols, rifles, carbines, [etc.] to caliber .50." Id. The ammunition discovered in the vehicle driven by Galvan-Revuelta was rifle or pistol (i.e., "firearms") ammunition of less than .50 caliber. It was, therefore, on the United States Munitions List and within the contemplated application of section 2M5.2. 3 See 22 C.F.R., Parts 121.1, 121.9.
-4- 4 more constitute "serious military or space hardware" than does the
ammunition that goes in them.
Second, the statutory index of the guidelines, U.S.S.G. App.
A, lists U.S.S.G. § 2M5.2 as the only offense guideline applicable
to convictions under 22 U.S.C. § 2778. Accordingly, the Sentencing
Commission intended for the courts to use that guideline unless the
particular offense conduct renders the conviction an "atypical
case" in light of the statute. U.S.S.G. App. A, intro. comment;
see U.S. v. Beard, 913 F.2d 193, 197-98 & n.2 (5th Cir. 1990).
The appellant's case is not atypical on the ground that it
involved only ammunition. As explained above, offenses involving
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 91-8467 Summary Calendar ____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SALVADOR GALVAN-REVUELTA, a/k/a SALVADOR REVUELTA-GALVAN,
Defendant-Appellant.
__________________________________________________________________
Appeal from the United States District Court for the Western District of Texas _________________________________________________________________ (March 27, 1992)
Before JOLLY, DAVIS, and SMITH, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Sylvester Galvan-Revuelta pleaded guilty to unlicensed export
of munitions and was sentenced accordingly. He appeals his
sentence, arguing that the district court applied the wrong
sentencing guideline. For the reasons set forth below, we affirm.
I
On April 11, 1991, United States Customs Service agents
received information from a confidential informant that two
individuals had purchased a large quantity of ammunition at a
hardware store in El Paso, Texas, and were planning to smuggle it
into Mexico. The information included a description of the vehicle being used by the two individuals. The Customs agents located the
vehicle and placed it under surveillance. When the appellant,
Sylvester Galvan-Revuelta, attempted to drive it across the border,
Customs agents stopped and searched the vehicle, finding 10,181
cartridges of various caliber firearms ammunition. The United
States charged the appellant with exporting defense articles in
violation of 22 U.S.C. § 2778(b)(1)(A)1. The appellant pleaded
guilty.
II
At sentencing on May 28, 1991, the appellant objected to the
recommendation in the presentencing report that United States
Sentencing Commission Guidelines Manual, § 2M5.2 (1991)
(hereinafter U.S.S.G. § 2M5.2) is the offense guideline most
applicable to his offense conduct. That guideline establishes a
base offense level of 22 and applies to offenses involving the
exportation of arms, munitions, or military equipment or services
without an export license. The appellant argued that the most
applicable offense guideline is U.S.S.G. § 2K2.1 (November 1,
1990), which establishes a base offense level of six and applies to
offenses involving unlawful receipt, possession, or transportation
1 "As prescribed in regulations issued under this section, every person . . . who engages in the business of manufacturing, exporting, or importing any defense articles . . . designated by the President under subsection (a)(1) of this section shall register . . . and shall pay a registration fee . . .." 22 U.S.C. § 2278.
-2- 2 of firearms or ammunition. The district court overruled the
objection. The appellant now challenges that ruling.
III
A
On appeal, Galvan-Revuelta argues that the district court
erred in applying U.S.S.G. § 2M5.2 and reiterates his argument that
the sentencing commission intended that section to apply only to
situations "involving serious military or space hardware," not
firearms ammunition. For this conclusion, the appellant relies on
the following language contained in an application note to that
section: "The items subject to control constitute the United
States Munitions List, which is set out in 22 C.F.R. Part 121.1.
Included in this list are such things as military aircraft,
helicopters, artillery, shells, missiles, rockets, bombs, vessels
of war, explosives, military and space electronics, and certain
firearms." U.S.S.G. § 2M5.2, application note 1. The appellant
points out the absence of any mention of ammunition in that section
and notes that U.S.S.G. § 2K2.1 (November 1, 1990), on the other
hand, expressly addresses offenses involving the transportation of
ammunition.
B
The appellant's contention is a challenge to the court's
application of the sentencing guidelines and, as such, is reviewed
de novo. See U.S. v. Otero, 868 F.2d 1412, 1414 (5th Cir. 1989).
Having reviewed the charge against Galvan-Revuelta, the sentencing
-3- 3 guideline applied by the district court, the guideline urged by the
appellant and the record in this case, we conclude that the
appellant's contention is untenable for two reasons.
First, the language of U.S.S.G. § 2M5.2 unmistakably reveals
that the Commission intended for it to apply to the export of
ammunition. The application note states: "Under 22 U.S.C. § 2778,
the President is authorized . . . to control exports of defense
articles . . .. The items subject to control constitute the United
States Munitions List, which is set out in 22 C.F.R. Part 121.1."
U.S.S.G. § 2M5.2, application note 1 [emphasis ours].2 No
reasonable reading of the application note yields the conclusion
that the scope of that section is limited to sentencing for
unlicensed export of only the enumerated items rather than all of
the items contained on the Munitions List. Furthermore, the
application note does specifically mention "certain firearms,"
which are defined in the Munitions List to include, inter alia,
revolvers, pistols, and rifles up to .50 caliber.3 These items no
2 The United States Munitions List, 22 C.F.R. Part 121.1, specifically lists: CATEGORY III--AMMUNITION (a) Ammunition for the arms in Category I . . . of this section. [Nonautomatic, semi-automatic, and fully automatic firearms to caliber .50]. Id. Part 121.9 specifies that "Category I includes revolvers, pistols, rifles, carbines, [etc.] to caliber .50." Id. The ammunition discovered in the vehicle driven by Galvan-Revuelta was rifle or pistol (i.e., "firearms") ammunition of less than .50 caliber. It was, therefore, on the United States Munitions List and within the contemplated application of section 2M5.2. 3 See 22 C.F.R., Parts 121.1, 121.9.
-4- 4 more constitute "serious military or space hardware" than does the
ammunition that goes in them.
Second, the statutory index of the guidelines, U.S.S.G. App.
A, lists U.S.S.G. § 2M5.2 as the only offense guideline applicable
to convictions under 22 U.S.C. § 2778. Accordingly, the Sentencing
Commission intended for the courts to use that guideline unless the
particular offense conduct renders the conviction an "atypical
case" in light of the statute. U.S.S.G. App. A, intro. comment;
see U.S. v. Beard, 913 F.2d 193, 197-98 & n.2 (5th Cir. 1990).
The appellant's case is not atypical on the ground that it
involved only ammunition. As explained above, offenses involving
ammunition are not excepted from the scope of U.S.S.G. § 2M5.2.
Furthermore, to the extent that the appellant is arguing that his
offense conduct was atypically minor in the light of the national
security objectives of the statute, the argument still fails. The
Commission established the base offense level of U.S.S.G. § 2M5.2
with the assumption that, in the usual case, the offense conduct
will be "harmful or ha[ve] the potential to be harmful to a
security or foreign policy interest of the United States."
U.S.S.G. § 2M5.2, application note 1. However, the application
note further provides that "[i]n the unusual case where the offense
conduct pose[s] no such risk, a downward departure may be
warranted." Id. In the instant case, the district court found
that the appellant's offense conduct posed no national security
risk. In accordance with U.S.S.G. § 2M5.2, the district court
-5- 5 departed downward from the applicable guideline range of 33-41
months and imposed instead a prison term of 24 months.
In sum, the district court correctly determined that U.S.S.G.
§ 2M5.2, and not U.S.S.G. § 2K2.1, is the guideline most applicable
to the appellant's offense conduct. The sentence imposed by the
district court is
A F F I R M E D.
-6- 6