United States v. Louismar Francois , 661 F. App'x 587 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10243
Non-Argument Calendar
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D.C. Docket No. 9:15-cr-80152-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LOUISMAR FRANCOIS,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 9, 2016)
Before WILLIAM PRYOR, JORDAN, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Louismar Francois appeals his 36-month sentence, imposed after he pled
guilty to attempted exportation of a firearm, in violation of 18 U.S.C. § 554(a). On
appeal, Mr. Francois argues that the district court erred (1) in calculating his
offense level using U.S.S.G. § 2M5.2(a)(1) instead of § 2K2.1; (2) by failing to
consider the built-in departure provisions in § 2M5.2, application note 1; and (3) in
imposing a below-guideline sentence because it was substantively unreasonable
under 18 U.S.C. § 3553(a). After a thorough review of the record and briefs, we
affirm.
I
In June of 2015, the Bureau of Alcohol, Tobacco, Firearms and Explosives
began investigating Mr. Francois after a confidential informant shared information
that he was trafficking firearms from the United States to Haiti. Mr. Francois had
made arrangements with the informant to buy five 9mm handguns. An undercover
agent met with Mr. Francois to discuss shipping, and Mr. Francois explained that
he would package the guns with other items—such as TVs, VCRs, and clothing—
to conceal them from U.S. Customs. Mr. Francois told the undercover agent that he
buys guns for $300 in the United States and sells them for $600 in Haiti; he also
stated that he would need 10 more guns to ship the following month.
On August 12, 2015, Customs agents seized and examined cargo that Mr.
Francois was shipping to Haiti. They found four semi-automatic pistols hidden in
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the cargo. Agents arrested Mr. Francois the next day. He admitted to packing the
cargo, but denied knowing about the hidden guns. He later admitted his
involvement, accepted responsibility, and expressed regret.
In preparing the presentence investigation report, the probation officer
calculated a base offense level of 26 under U.S.S.G. § 2M5.2(a)(1). Mr. Francois
received a three-level reduction for accepting responsibility and a category I
criminal history assignment, resulting in a total offense level of 23 and an advisory
guideline range of 46 to 57 months in prison.
At sentencing, Mr. Francois objected to the application of § 2M5.2(a)(1),
arguing that the district court should apply § 2M5.2(a)(2), with a lower base
offense level of 14, because §2M5.2 (a)(1) covers military weapons, missiles, and
other explosives, and his case only involved handguns. The government responded
that § 2M5.2(a)(2) was not applicable because Mr. Francois’ shipment exceeded
two weapons. Mr. Francois also argued that rather than raising the base offense
level from 14 to 26 for having four firearms instead of two, the district court
should apply advisory guideline § 2K2.1 and impose a two-level increase for
having between three and seven firearms.
The district court overruled Mr. Francois’ objections to the base offense
level, stating that “the guidelines are advisory, but the Court… really needs to look
at the plain language and apply it.” The district court explained that it must look
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first at the offense of conviction, which in this case was exportation of firearms,
and then examine the Statutory Index of the Advisory Guidelines, which lists §
2M5.2 as the appropriate sentencing guideline for Mr. Francois’ offense. Although
the district court acknowledged there was a substantial difference between a base
offense level of 14 and 26, it concluded that 26 was the appropriate offense level.
Mr. Francois requested a downward variance under § 3553(a), arguing that
his advisory sentencing range was too high considering the facts of the case and his
lack of criminal history. He asked the court to analogize to § 2K2.1, which would
result in a sentence within the range of 24 to 30 months. He asserted that under §
2K2.1, he would have a base offense level of 14, a two-level increase for three-
seven firearms, a four-level trafficking increase, and a three-level acceptance of
responsibility reduction, resulting in an offense level of 17. Mr. Francois also
argued that § 2M5.2 was intended to address activities that endangered national
security or undermined United States foreign policy, and the facts of his case
showed neither evidence of a threat to national security nor an effort to undermine
foreign policy, so the court should take that in to consideration when computing
his sentence.
The district court evaluated the § 3553(a) factors and granted a downward
variance to 36 months, a 10-month reduction from the bottom of the range
calculated under § 2M5.2. The court stated: “[I]n this case, a sentence slightly
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below the advisory guideline range would be a sentence that is sufficient, but not
greater than necessary to achieve the goals that Congress has set forth.”
II
Legal interpretations of the advisory sentencing guidelines are reviewed de
novo. See United States v. Bailey, 123 F.3d 1381, 1403 (11th Cir. 1997). A district
court must determine which offense guideline covers the offense of conviction. See
United States v. Belfast, 611 F.3d 783, 824 (11th Cir. 2010); U.S.S.G. § 1B1.2(a).
The district court identifies the appropriate offense guideline using the Statutory
Index for the offense of conviction. See Belfast, 611 F.3d at 824; U.S.S.G. §
1B1.2(a). When a criminal statute has more than one corresponding guideline, the
district court applies the guideline most appropriate for the conduct for which the
defendant was actually convicted, and then determines the appropriate guideline
range. See Belfast, 611 F.3d at 824.
Mr. Francois first argues that the district court should have used § 2K2.1
instead of § 2M5.2. We disagree. The Sentencing Guideline Manual lists four
corresponding guidelines for a conviction under 18 U.S.C. § 554(a): §2B1.5, §
2M5.2, and § 2Q2.1. See U.S.S.G. App. A. One of these, § 2M5.2, applies to the
exportation of firearms, ammunition, or military equipment without a valid export
license.
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The district court did not err when it applied § 2M5.2. Mr. Francois pled
guilty to a violation of 18 U.S.C. § 554(a). The corresponding guideline in the
statutory index that best matched Mr. Francois’ conviction was § 2M5.2. In
contrast, § 2K2.1 is not listed in the statutory index for a violation of § 554.
Accordingly, we affirm the district court’s ruling as to this issue.
III
We lack jurisdiction to review a district court’s refusal to grant a
discretionary downward departure unless the district court incorrectly believed that
it did not have the statutory authority to depart. See United States v. Norris, 452
F.3d 1275, 1282–83 (11th Cir. 2006). Barring an indication in the record to the
contrary, we assume that the district court understood it has the authority to apply a
downward departure. See United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir.
2006).
Application note 1 of § 2M5.2 explains that the base offense level assumes
that the conduct was or had the potential to be harmful to a United States security
or foreign policy interest and notes that a downward departure may be applicable
in the “unusual case” where no such harm or potential harm was present. See
U.S.S.G. § 2M5.2, comment. (n.1). Mr. Francois argues the district court erred in
failing to consider a departure under this application note.
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We lack jurisdiction to consider the merits of whether a downward departure
would have been appropriate under application note 1 to § 2M5.2 because there is
no indication in the record that the district court believed it lacked the authority to
grant one. Rather, the record suggests that no such departure was awarded because
Mr. Francois never requested one. He only requested a downward variance,
through an analogy to § 2K2.1, which the district court granted.
IV
We review the reasonableness of a sentence under an abuse of discretion
standard. See Gall v. United States, 552 U.S. 38, 41 (2007). We review a
sentence’s substantive reasonableness by examining the totality of the
circumstances, which includes an inquiry into whether the § 3553(a) factors
support the sentence. See United States v. Gonzales, 550 F.3d 1319, 1324 (11th
Cir. 2008). The weight given to any specific § 3553(a) factor is left to the
discretion of the district court. Id. A court can abuse its discretion when it (1) fails
to consider relevant factors that were due significant weight, (2) gives an improper
or irrelevant factor significant weight, or (3) commits a clear error of judgment in
considering the proper factors. See United States v. Irey, 612 F.3d 1160, 1189
(11th Cir. 2010) (en banc). The party challenging the sentence bears the burden of
demonstrating that the sentence is substantively unreasonable. See United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). A sentence well below the statutory
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maximum is an indication of reasonableness. See United States v. Rosales-Bruno,
789 F.3d 1249, 1256–57 (11th Cir. 2015).
The district court must impose a sentence sufficient, but not greater than
necessary, to comply with the purposes listed in § 3553(a). In imposing a
particular sentence the district court must consider the nature and circumstances of
the offense, the history and characteristics of the defendant, and the need to reflect
the seriousness of the offense, promote respect for the law, provide just
punishment for the offense, deter criminal conduct, and protect the public from the
defendant’s future criminal conduct. See § 3553(a)(1)–(2). The court must also
consider the kinds of sentences available, the applicable guideline range, the
relevant policy statements of the Sentencing Commission, the need to avoid
unwarranted sentencing disparities, and the need to provide restitution to the
victim. See § 3553(a)(3)–(7).
Mr. Francois fails to demonstrate that the district court’s sentence is
unreasonable under § 3553(a) and the totality of the circumstances. Although Mr.
Francois’ offense involved “only” four handguns, his conversation with the
undercover agent indicated that he was familiar with gun smuggling and that he
intended to smuggle guns in the future. In Mr. Francois’ case, the district court felt
that deterrence was necessary. Mr. Francois’ sentence was a variance of 10
months below the advisory guideline range and well below the statutory maximum
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of 120 months. Although Mr. Francois argues that the court did not give enough
weight to § 3553(a)(4) or (6), we do not find any abuse of discretion. See
Gonzales, 550 F.3d at 1324. Accordingly, we affirm the district court’s sentencing
order and find Mr. Francois’ sentence reasonable.
V.
Mr. Francois’ sentence is affirmed.
AFFIRMED.
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