United States v. Yoahjan Flores ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50536
Plaintiff-Appellee,
D.C. No.
v. 3:10-cr-04083-
WQH-1
YOAHJAN LARA FLORES,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 11-50539
Plaintiff-Appellee,
D.C. No.
v. 3:10-cr-04083-
WQH-3
ALFREDO RUBIO LARA,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 11-50555
Plaintiff-Appellee,
D.C. No.
v. 3:10-cr-04083-
WQH-2
ARTURO LARA,
Defendant-Appellant. OPINION
2 UNITED STATES V. FLORES
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted
March 7, 2013—Pasadena, California
Filed August 30, 2013
Before: Richard A. Paez and Paul J. Watford, Circuit
Judges, and Leslie E. Kobayashi, District Judge.*
Opinion by Judge Paez
SUMMARY**
Criminal Law
Vacating sentences and remanding for resentencing for
conspiracy to possess an unregistered firearm, the panel held
that the definition of a missile under 26 U.S.C. § 5845(f) and
U.S.S.G. § 2K2.1(b)(3)(A) is a self-propelled device designed
to deliver an explosive.
The panel concluded that because the 40-mm cartridges
in this case do not qualify as missiles, the district court erred
*
The Honorable Leslie E. Kobayashi, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. FLORES 3
in enhancing the defendants’ offense levels pursuant to
§ 2K2.1(b)(3)(A).
COUNSEL
Ricardo M. Gonzalez, San Diego, California, for Defendant-
Appellant Alfredo Lara.
Barbara M. Donovan, Donovan & Donovan, San Diego,
California, for Defendant-Appellant Arturo Lara.
Frederick Carroll (argued), San Diego, California, for
Defendant-Appellant Yoahjan Flores.
Douglas Keehn (argued), Assistant United States Attorney,
San Diego, California, for Plaintiff-Appellee United States of
America.
OPINION
PAEZ, Circuit Judge:
In these consolidated cases, the defendants appeal their
sentences following their pleas of guilty to conspiracy to
possess an unregistered firearm in violation of 18 U.S.C.
§ 371 and 26 U.S.C. § 5861(d). They raise a novel question:
What is the definition of a missile under U.S.S.G.
§ 2K2.1(b)(3)(A) and 26 U.S.C. § 5845(f)? We adopt the
common meaning of the word missile, in the context of
modern weaponry, and hold that the definition of a missile,
under the sentencing guidelines, is a self-propelled device
4 UNITED STATES V. FLORES
designed to deliver an explosive.1 Because the 40-mm
cartridges in this case do not qualify as missiles, the district
court erred in concluding otherwise and in enhancing the
defendants’ base offense level by fifteen levels. We therefore
vacate the defendants’ sentences and remand for
resentencing.
BACKGROUND
Defendants Arturo Lara, Alfredo Lara, and Yoahjan Lara
Flores, after entering into a plea agreement with the
government, pled guilty to conspiracy to possess an
unregistered firearm in violation of 18 U.S.C. § 371 and
26 U.S.C. § 5861(d). The charges were based on the
following events.
On September 2, 2010, the defendants entered The Gun
Shop in El Centro seeking to purchase a grenade launcher.
The store owner provided them with the card of an individual
who he said might be able to help them. The card was that of
a Bureau of Alcohol, Tobacco, and Firearms (ATF) agent,
which was given to The Gun Shop after the agent received a
tip that individuals might visit the store inquiring about illegal
weapons. After a series of negotiations by phone and in
person with undercover ATF agents, the defendants agreed to
meet the agents and purchase a Colt M203 grenade launcher
and three 40-mm gold-tipped high explosive dual purpose
cartridges (ammunition for the launcher). Flores and Arturo
Lara met the agents in a parking lot on September 29, 2010
1
The complete definition of a missile under U.S.S.G. § 2K2.1(b)(3)(A)
and 26 U.S.C. § 5845(f) may also include a guidance system requirement.
Because we can resolve these cases without addressing this issue, we
leave it for another day.
UNITED STATES V. FLORES 5
and exchanged one Colt M203 grenade launcher and three
inert 40-mm cartridges for $1,900. The defendants were
arrested and indicted.
Before the court sentenced the defendants, the
government filed a motion for a fifteen-level upward
adjustment for all three defendants, pursuant to U.S.S.G.
§ 2K2.1(b)(3)(A), which provides for a fifteen-level
enhancement if the offense involved a missile, rocket, or
device for launching either of those projectiles. Specifically,
the government argued that the M203 grenade launcher
defendants purchased is a “device for use in launching a . . .
missile” because the 40-mm cartridges it launches are
missiles. Therefore, although the enhancement was applied
based on the launcher, the dispositive question is whether the
cartridges are missiles. If they are, the M203 launcher is a
device for launching missiles. If they are not, the M203 is not
a device for launching missiles. The plea agreements
specifically allowed the defendants to appeal the district
court’s ruling regarding the applicability of § 2K2.1(b)(3)(A).
The facts regarding the characteristics of the M203
grenade launcher and 40-mm cartridges are undisputed. The
M203 grenade launcher is capable of launching many
different types of cartridges with different purposes. There
are smoke rounds, ground marker rounds, illumination
rounds, and gas riot control rounds. The cartridges in this
case, which the government claims are missiles, are 40-mm
high explosive dual purpose (HEDP) cartridges. They are
designed to contain between 1.2 and 1.5 ounces of military
grade explosive. These cartridges are described by the army
ammunition data sheets as rounds “designed to penetrate at
least two inches of steel armor at 0 angle of obliquity and
inflict personnel casualties in the target area.” The cartridges
6 UNITED STATES V. FLORES
are armed by the force of the propulsion when they are
launched out of the M203; they “must maintain 37,000
revolutions before it’s armed at about 18 meters.” At that
point, they explode upon impact. This makes the cartridges
slightly different than hand grenades, which explode a certain
number of seconds after they are activated regardless of the
force at which they are thrown.
According to the Army Field Manual, the maximum
range of the M203 launcher is 400 meters, although the
maximum effective range is between 150 and 350 meters
depending upon the type of target. Thus, it has a greater
range than hand-tossed grenades, which typically can only be
thrown between thirty-five and forty meters. A government
expert testified that the M203 was designed to help bridge the
gap between the range of hand grenades and the long-distance
range of 60-mm mortars.
Most importantly for purposes of this opinion, the
cartridges are “fixed round[s] of ammunition,” which means
that the propulsion power of the cartridge is entirely
expended when the launcher is fired. The cartridge case stays
behind, similar to other types of small arms ammunition like
ordinary bullets. In other words, the cartridges are not self-
propelled. They also do not contain any type of internal
guidance system.
The district court heard the testimony of qualified
government and defense experts on the characteristics of
missiles, the Colt M203 grenade launcher, and its
accompanying cartridges. The court granted the
government’s motion to apply the fifteen-level upward
adjustment and sentenced each defendant to the statutory
UNITED STATES V. FLORES 7
maximum sentence of sixty months imprisonment. The
defendants timely appealed.
STANDARD OF REVIEW
A district court’s legal interpretation of the guidelines is
reviewed de novo. United States v. Guerrero, 333 F.3d 1078,
1080 (9th Cir. 2003). Factual findings are reviewed for clear
error. United States v. Riley, 335 F.3d 919, 925 (9th Cir.
2003). The facts regarding the characteristics of the weapons
involved are undisputed. Therefore, the only questions on
appeal are what is the definition of a missile under
§ 2K2.1(b)(3)(A) and whether the 40-mm cartridges meet that
definition. Those are questions of law that we review de
novo.
ANALYSIS
Under § 2K2.1(b)(3)(A) of the Sentencing Guidelines, a
fifteen-level enhancement applies if the offense involved “a
destructive device that is a portable rocket, a missile, or a
device for use in launching a portable rocket or a missile.” If
the offense involves any other “destructive device,” a two-
level enhancement applies. U.S.S.G. § 2K2.1(b)(3)(B). Both
parties agree that the 40-mm cartridges and M203 launcher
qualify as “destructive devices” under § 2K2.1(b)(3) but
disagree as to whether the cartridges qualify as “missiles,”
and thus whether the M203 launcher qualifies as a “device for
use in launching a . . . missile.”
Application note seven to § 2K2.1 makes clear that the
term “destructive device” in § 2K2.1(b)(3) refers to a
“destructive device” as defined in the National Firearms Act.
8 UNITED STATES V. FLORES
U.S.S.G. § 2K2.1 cmt. n.7. The National Firearms Act
defines a “destructive device” as:
(1) any explosive, incendiary, or poison gas
(A) bomb, (B) grenade, (C) rocket having a
propellent charge of more than four ounces,
(D) missile having an explosive or incendiary
charge of more than one-quarter ounce, (E)
mine, or (F) similar device; (2) any type of
weapon by whatever name known which will,
or which may be readily converted to, expel a
projectile by the action of an explosive or
other propellant, the barrel or barrels of which
have a bore of more than one-half inch in
diameter, except a shotgun or shotgun shell
which the Secretary finds is generally
recognized as particularly suitable for sporting
purposes; and (3) any combination of parts
either designed or intended for use in
converting any device into a destructive
device as defined in subparagraphs (1) and (2)
and from which a destructive device may be
readily assembled.
26 U.S.C. § 5845(f). The foregoing definition of destructive
device in the statute teaches us that in order to be a
“destructive device that is a . . . missile” under § 2K2.1(b)(3),
the device, in addition to having the qualities of a missile,
must also have more than one-quarter ounce of explosive or
incendiary charge. § 5845(f) (defining a destructive device
as, inter alia, a “missile having an explosive or incendiary
charge of more than one-quarter ounce”). This fact, with
respect to the cartridges, is also undisputed. But
unfortunately, the statute provides no definition of “missile.”
UNITED STATES V. FLORES 9
We thus turn to the traditional rules of statutory
interpretation.2 “The interpretation of a statutory provision
must begin with the plain meaning of its language.” In re
Bonner Mall Partnership, 2 F.3d 899, 908 (9th Cir. 1993).
Therefore, unless defined, words in a statute “will be
interpreted as taking their ordinary, contemporary, common
meaning.” Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir.
2012). In determining the “plain meaning” of a word, we
may consult dictionary definitions, which we trust to capture
the common contemporary understandings of the word. See
Transwestern Pipeline Co., LLC v. 17.19 Acres of Prop.
Located in Maricopa Cnty., 627 F.3d 1268, 1270 (9th Cir.
2010).
Dictionaries generally provide two separate definitions of
missile: one broad and generic definition including all things
thrown as weapons and one definition that aligns with our
modern usage of the term missile to describe a sophisticated
piece of weaponry. See, e.g., United States v. Helmy,
951 F.2d 988, 994 (9th Cir. 1991) (concluding that “missiles
fall within any common sense definition of ‘sophisticated
weaponry’”). For example, the Oxford Dictionary defines a
missile as: (1) “an object which is forcibly propelled at a
target, either by hand or from a mechanical weapon,” or (2)
“a weapon that is self-propelled or directed by remote control,
carrying conventional or nuclear explosive.” Missile, Oxford
Dictionaries Pro, http://english.oxforddictionaries.com/
definition/missile (last visited July 29, 2013).
2
We apply the traditional rules of statutory construction when
interpreting the sentencing guidelines. United States v. Gonzalez,
262 F.3d 867, 869 (9th Cir. 2001).
10 UNITED STATES V. FLORES
The generic definition of “an object propelled . . . as a
weapon at a target” could include any object—a pencil, a
stone, or a coin—so long as it is thrown as a weapon. This
definition of missile is clearly inappropriate in the context of
the National Firearms Act’s classification of “destructive
devices.” See Paul Revere Ins. Group v. United States,
500 F.3d 957, 962 (9th Cir. 2007) (“It is . . . a fundamental
canon that the words of a statute must be read in their context
and with a view to their place in the overall statutory
scheme.” (internal quotation marks omitted)). The category
of “destructive device” under the National Firearms Act “was
intended to cover the military-type weapons—mines,
grenades, bombs, and large-caliber weapons, such as
bazookas, mortars, and anti-tank guns.” United States v.
Posnjak, 457 F.2d 1110, 1115 (2d Cir. 1972). The term
missile appears in the statute alongside other modern military
weapons such as bombs, grenades, rockets, and mines.
26 U.S.C. § 5845(f). Applying the well-established doctrine
of noscitur a sociis—the principle that “a word is known by
the company it keeps”—we conclude that the definition of
missile in the statute should be the modern military definition
rather than the overbroad generic definition. Gustafson v.
Alloyd Co., Inc, 513 U.S. 561, 575 (1995) (“This rule we rely
upon to avoid ascribing to one word a meaning so broad that
it is inconsistent with its accompanying words, thus giving
unintended breadth to the Acts of Congress.” (internal
quotation marks omitted)).
Modern military definitions of a missile focus on two
characteristics: self-propulsion and a guidance system. As
discussed above, the Oxford Dictionary defines a missile as
“a weapon that is self-propelled or directed by remote control,
carrying conventional or nuclear explosive.” Missile, Oxford
Dictionaries Pro, supra. Similarly, the Oxford English
UNITED STATES V. FLORES 11
Dictionary defines a missile as “a long-distance weapon that
is self-propelled, and directed either by remote control or
automatically, during part or all of its course.” Missile,
Oxford English Dictionary, http://www.oed.com/view/
Entry/119992?redirectedFrom=missile#eid (last visited July
29, 2013).3
International law definitions of the term “missile” are
similar to those discussed above. The United Nations 2002
Report on “The Issue of Missiles in All Its Aspects” defines
a missile as “an unmanned, self-propelled, self-contained,
unrecallable, guided or unguided vehicle designed to deliver
a weapon or other payload.” U.N. Secretary-General,
The issue of missiles in all its aspects, ¶ 19, U.N. Doc.
A/57/229 (July 23, 2002). Harvard University’s
Humanitarian Policy and Conflict Research Program’s
“Manual on International Law Applicable to Air and Missile
Warfare” defines a missile as a “self-propelled unmanned
weapon[]—launched from aircraft, warships or land-based
launchers—that [is] either guided or ballistic.” Program on
Humanitarian Policy and Conflict Research at Harvard
3
Both the Merriam-Webster and the American Heritage dictionaries also
focus on self-propulsion and/or guidance. They both define missile, in the
modern military usage, as either a “guided missile” or a “ballistic missile.”
Missile, Merriam-Webster, http://www.merriam-webster.com/
dictionary/missile (last visited July 29, 2013); Missile, The American
Her itage Dictionary, http://www.ahdictionary.com/word/
search.html?q=missile (last visited July 29, 2013). A guided missile is
defined as a “self-propelled missile that can be guided while it is in flight”
and a ballistic missile is defined as a “projectile that assumes a free-falling
trajectory after an internally guided, self-powered ascent.” Guided
Missile, The American Heritage Dictionary, http://www.ahdictionary.com/
word/ search.html?q=guided+missile (last visited July 29, 2013); Ballistic
Missile, The American Heritage Dictionary, http://www.ahdictionary.com/
word/search.html?q =ballistic+missile (last visited July 29, 2013).
12 UNITED STATES V. FLORES
University, Manual on International Law Applicable to Air
and Missile Warfare, 5–6 (2009), available at
http://ihlresearch.org/amw/HPCRManual.pdf. In sum, every
modern military definition of missile we have encountered
includes a self-propulsion requirement. Many definitions
also suggest that missiles have guidance systems. We
therefore hold that the definition of a missile, under U.S.S.G.
§ 2K2.1(b)(3)(A) and 26 U.S.C. § 5845(f), is a self-propelled
device designed to deliver an explosive. We leave the
question of whether the definition of a missile under U.S.S.G.
§ 2K2.1(b)(3)(A) and 26 U.S.C. § 5845(f) should also include
a guidance requirement for another day.
The definition of a missile as a self-propelled device is
supported by the reason given for the amendment to
§ 2K2.1(b), which created the fifteen-level enhancement for
missiles and rockets, in Appendix C to the guidelines. See
United States v. Laney, 189 F.3d 954, 959 (9th Cir. 1999)
(“Ultimately, the goal [of interpreting the Guidelines] is to
ascertain the intent of the drafters.” (internal quotation marks
omitted)). The “Reason for Amendment” cites man-portable
air defense systems (MANPADS) as a prime example of a
weapon covered by § 2K2.1(b)(3)(A). U.S.S.G. App. C,
Amend. 669 (“This amendment increases that enhancement
to 15 levels if the destructive device was a man-portable air
defense system (MANPADS), portable rocket, missile, or
device used for launching a portable rocket or missile.”).
MANPADS are shoulder-fired surface-to-air missiles (also
known as SAMs), which are undisputedly self-propelled
devices with various types of guidance systems. The types of
weapons the Commission intended to include in the
amendment should be read in light of this example. See id.
(referring to “MANPADS and similar weapons” and
UNITED STATES V. FLORES 13
“MANPADS or similar destructive device[s]” as the devices
covered by the amendment).
The record also supports our conclusion that the 40-mm
cartridges are not “missiles” as we have defined the term.
The record clearly indicates, and the parties do not dispute,
that the cartridges are not self-propelled. Rather, the ignition
of the propellant forces the munition from the launcher and
the projectile travels under its own inertia.
Both the government, in seeking the enhancement, and
the district court, in applying it, were undoubtedly motivated
by the extreme dangerousness of these weapons, which are
“designed to penetrate at least two inches of steel armor,” can
travel up to 400 meters, and contain 1.2 and 1.5 ounces of
military grade explosive. But the guidelines specifically
address how district court judges should approach such a
situation. Application note seven to § 2K2.1 states:
In a case in which the cumulative result of the
increased base offense level and the
enhancement under subsection (b)(3) does not
adequately capture the seriousness of the
offense because of the type of destructive
device involved, the risk to the public welfare,
or the risk of death or serious bodily injury
that the destructive device created, an upward
departure may be warranted.
Therefore, if the district court determines that the danger of
the 40-mm cartridges involved in this case merits a higher
sentence than one within the guidelines range with only a
two-level enhancement under § 2K2.1(b)(3)(B), the district
court may depart or vary upward.
14 UNITED STATES V. FLORES
CONCLUSION
In sum, we hold that the definition of a missile under
26 U.S.C. § 5845(f) and U.S.S.G. § 2K2.1(b)(3)(A) is a self-
propelled device designed to deliver an explosive. Therefore,
the district court erred in applying the enhancement to the
defendants’ sentences because the 40-mm cartridges in this
case are not self-propelled weapons. We vacate the
defendants’ sentences and remand for resentencing. See
United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.
2006) (holding that a material error in calculating the
sentencing range, even though the Guidelines are only
advisory, is grounds for resentencing).
VACATED and REMANDED for resentencing.