The Second Circuit issued an opinion on March 19 interpreting the sentencing guidelines applicable to violations of the Arms Export Control Act. That case, United States v. Sero, involved an appeal by a defendant that had entered a guilty plea to charges that he unlawfully exported gun parts and ammunition to the Philippines without a license. The District Court sentenced the defendant to 40 months followed by a three-year period of supervised release.

The defendant argued that the District Court erred when it interpreted the applicable sentencing guidelines and held that the lower sentence available under Sentencing Guidelines § 2M5.2 did not apply. A lower sentence is available under that guideline where “the offense involved only non-fully automatic small arms (rifles, handguns, or shotguns), and the number of weapons did not exceed ten.” Since the defendant’s exports included 2 boxes of .40 caliber Black Talon DP cartridges, the court held that the defendant was not eligible for the lower sentencing guideline. Interpreting that language literally, the Second Circuit held that the lower guideline is applicable only for exports that are restricted to small arms and do not include ammunition for those small arms.

The defendant also argued that a downward departure from the guidelines was warranted because he was selling the parts and ammunition to the alleged good guys. Section 2M5.2 permits a downward departure where the offending conduct posed no “security or foreign policy interest of the United States.”

The Second Circuit rejected this argument noting, first, that this downward departure is committed to the unreviewable discretion of the lower court unless the lower court mistakenly believed it had no authority to permit a downward departure. In this case, the Second Circuit noted, the lower court considered the security impact:

It explained that “it is not a good defense to say that the defendant sold to the right side or that he was not selling directly to the insurgents. There is no indication that he was.” Moreover, it found that a “citizen cannot pick and choose the firearm vendees that he will wish to deal with to the detriment of the policies of the State department” and that Sero had made no good faith attempt to receive an export license, suggesting that Sero knew that his gunrunning activity was potentially harmful.

The Court’s reasoning here is somewhat suspect. The language quoted by the Second Circuit suggests that the lower court was holding that all violations of the export laws necessarily pose a risk to security interests because the State Department says so. That comes perilously close to a holding by the lower court that it has no authority to make a downward departure by evaluating whether the conduct posed any risk to the security or foreign policy of the United States.