United States v. Emenike Nwankwoala , 478 F. App'x 781 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4042
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EMENIKE CHARLES NWANKWOALA,
Defendant-Appellant.
On appeal from the United States District Court for the District
of Maryland, at Greenbelt. Peter J. Messitte, District Judge.
(8:10-cr-00179-PJM-1)
Argued: March 21, 2012 Decided: April 25, 2012
Before MOTZ, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam decision.
ARGUED: Brett J. Cook, BRENNAN, SULLIVAN & MCKENNA, LLP,
Greenbelt, Maryland, for Appellant. Christen Anne Sproule,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee. ON BRIEF: John M. McKenna, BRENNAN, SULLIVAN &
MCKENNA, LLP, Greenbelt, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Emenike Charles Nwankwoala pled guilty to three
offenses arising out of his unlawful export of firearms and
ammunition to Nigeria. The district court sentenced Nwankwoala
to 37 months’ imprisonment. Nwankwoala appeals his sentence,
contending that it is procedurally and substantively
unreasonable because the district court used an improper base
offense level when calculating his recommended Guidelines range.
Finding no error, we affirm.
I.
The facts are not in dispute. Over a period of
approximately ten years, Nwankwoala, who was then a United
States probation officer, unlawfully exported firearms and
ammunition from Maryland to Nigeria. Nwankwoala was charged
with, and pled guilty to, exportation of arms without a license,
in violation of 22 U.S.C. § 2278(b) and (c) (“Count I”);
exportation of controlled goods without a license, in violation
of 50 U.S.C. §§ 1702, 1705(c), and 50 U.S.C. App. § 2410(a)
(“Count II”); and willful delivery of a firearm to a common
2
carrier without written notice, in violation of 18 U.S.C. §
922(e) (“Count III”). 1
Noting that Nwankwoala and the Government disagreed as
to the base offense level for Count I, Nwankwoala’s written plea
agreement reserved his right to appeal any sentence exceeding a
United States Sentencing Guidelines (“U.S.S.G.”) range resulting
from an adjusted base offense level of 13.
Count I alleged a violation of the Arms Export Control
Act (“AECA”), which, inter alia, prohibits individuals from
exporting items listed on the State Department’s Munitions List
without a license. The factual basis for Count I was
Nwankwoala’s export of six handguns and 1,180 rounds of
ammunition, both of which are listed on the Munitions List. The
provision of the Guidelines for violations of the AECA is
§ 2M5.2. The applicable version of § 2M5.2 sets the base
offense level for violations of the AECA at:
(1) 26, except as provided in subdivision
(2) below;
(2) 14, if the offense involved only non-
fully automatic small arms (rifles,
handguns, or shotguns), and the
number of weapons did not exceed ten.
U.S.S.G. § 2M5.2(a) (2009 ed.) (emphasis added).
1
Nwankwoala does not challenge any of his convictions, nor
does he challenge his sentence as to Counts II and III. The
opinion thus focuses on the facts relating to Nwankwoala’s
sentence for Count I.
3
At his sentencing hearing, Nwankwoala maintained that
his offense qualified for subdivision (2)’s lower offense level
because he had exported six handguns, thus satisfying the
provision’s numeric and firearm-type requirements. He contended
the export of ammunition should not be used to classify his
offense under the higher offense level in subdivision (1). The
district court considered, but rejected, Nwankwoala’s argument
relying both on the plain language of § 2M5.2 and several out-
of-circuit opinions that had held the export of ammunition
categorizes the offense under the higher offense level stated in
subdivision (1).
Accordingly, the district court set Nwankwoala’s base
offense level at 26. After application of a net five-level
downward departure, Nwankwoala’s adjusted offense level of 21,
when combined with a criminal history category of I, yielded an
advisory Guidelines range of 37-45 months’ imprisonment. The
district court then heard and considered the parties’ arguments
as to what an appropriate sentence would be under the 18 U.S.C.
§ 3553(a) factors, and sentenced Nwankwoala to the low end of
the Guidelines range: 37 months’ imprisonment.
Nwankwoala noted a timely appeal, and this Court has
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a).
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II.
We review Nwankwoala’s sentence under a deferential
abuse of discretion standard. See Gall v. United States, 552
U.S. 38, 51 (2007)(Appellate courts must review the procedural
and “substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.”). We are required to consider
first “whether the district court committed a significant
procedural error in imposing the sentence under § 3553. If no
procedural error was committed, [we] can only vacate a sentence
if it was substantively unreasonable in light of all relevant
facts.” United States v. Heath, 559 F.3d 263, 266 (4th Cir.
2009) (citing United States v. Curry, 523 F.3d 436, 439 (4th
Cir. 2008)). Improperly calculating the Guidelines range is a
significant procedural error. Gall, 552 U.S. at 51.
Although Nwankwoala challenges both the procedural and
substantive reasonableness of his sentence, his arguments as to
each rely on his belief that the district court erred in using a
base offense level of 26 rather than 14. He offers several
arguments to support that assertion. He contends, for example,
that the plain language of § 2M5.2 supports his position because
his sole firearm export was of less than ten non-fully automatic
small arms (as set forth in subdivision (2)), and the ammunition
should not count in that assessment. He also claims the
district court’s understanding of § 2M5.2 is fundamentally
5
unfair and leads to an “absurd outcome[]” because the export of
a single round of ammunition would qualify for the same, higher,
offense level as the unlawful export of more sophisticated
weaponry contained on the Munitions List, such as “military
tanks, helicopters[,] and vessels of war.” (Appellant’s Opening
Br. 11, 12.) As such, he asserts the Sentencing Commission
either inadvertently failed to include ammunition in the list of
subdivision (2) less serious offenses under the AECA, or that
the Sentencing Commission abdicated its “characteristic
institutional role” by not doing so. Nwankwoala also points to
the 2011 amendment of § 2M5.2, which he contends contained both
substantive and clarifying components, including a clarification
that ammunition was always meant to be included in the list of
exports that qualify for subdivision (2)’s lesser offense level. 2
For all of these reasons, Nwankwoala contends the district court
should have used a base offense level of 14.
We disagree. Nwankwoala’s interpretation of § 2M5.2
is inconsistent with the obvious plain language of the Guideline
provision. The lesser offense level in subdivision (2) applies
“if the offense involved only non-fully automatic small arms
2
Nwankwoala does not suggest that the 2011 amendment
applies retroactively, but rather that it stands for the
principle that the Sentencing Commission recognizes the export
of ammunition as a less serious violation of the AECA.
6
(rifles, handguns, or shotguns), and the number of weapons did
not exceed ten.” (Emphasis added.) Section 2M5.2 is the
applicable Guidelines provision for violations of the AECA, and
Application Note 1 to § 2M5.2 references the export of articles
contained on the Munitions List. Ammunition is on the Munitions
List, and exporting it without a license violates the AECA.
Therefore, Nwankwoala’s AECA offense did not involve “only” the
six firearms he exported; it also involved 1,180 rounds of
ammunition. 3 Nwankwoala’s “self-serving” opinion regarding “the
‘seriousness’ of his crime is of absolutely no import because it
is irrelevant under the plain language of [§ 2M5.2].” See
United States v. Reyes, 270 F.3d 1158, 1171 (7th Cir. 2001)
(rejecting a similar argument under a prior version of § 2M5.2).
As such, the district court properly used the base offense level
of 26 when calculating Nwankwoala’s recommended Guidelines
range.
Unsurprisingly, this straightforward application of
the Guidelines’ plain language has been adopted by every Circuit
Court of Appeals to consider the issue. United States v. Sero,
520 F.3d 187, 190 (2d Cir. 2008) (per curiam) (“Because the
language of [§ 2M5.2] is clear, our inquiry ends. We find that
3
Despite arguing for a different result, Nwankwoala has
never challenged that his offense involved both firearms and
ammunition.
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the guideline does not permit finding an exception for [exports]
including ammunition, no matter how small the quantity.”);
United States v. Muthana, 60 F.3d 1217, 1223-24 (7th Cir. 1995)
(holding the higher, subdivision (1) offense level applies to
violations of the AECA involving ammunition even if the offense
involves only ammunition); see also United States v. Carper, 659
F.3d 923, 925 (9th Cir. 2011) (strictly applying subdivision (2)
and holding it did not apply to the unlawful export of night
sighting equipment); United States v. Galvan-Revuelta, 958 F.2d
66, 68-69 (5th Cir. 1992) (holding § 2M5.2 applies to offenses
involving unlawful export of ammunition under the AECA, but not
discussing which subdivision applies).
We also note that the 2011 amendment to § 2M5.2 does
not alter any of our analysis. Under the amended provision, the
base offense level is:
(1) 26, except as provided in subdivision
(2) below;
(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
automatic small arms, and the number
of rounds did not exceed 500, or (C)
both.
U.S.S.G. § 2M5.2(a) (2011 ed.). Neither party contends the
amended Guideline provision should be used in Nwankwoala’s
sentencing, nor should it. Instead, Nwankwoala contends the
8
amendment contains a clarifying component that indicates
ammunition was always intended to be part of the lesser offense
level set forth in subdivision (2). See U.S.S.G. § 1B1.11(b)(2)
(“[I]f a court applies an earlier edition of the Guidelines
manual, the court shall consider subsequent amendments, to the
extent that such amendments are clarifying rather than
substantive changes.”). There is no merit to Nwankwoala’s
position. The amendment is substantive, not clarifying.
Nothing in reducing the number of non-fully automatic small arms
or adding the export of less than 500 rounds of ammunition (or
including the export of both) to subdivision (2)’s scope
supports Nwankwoala’s assertion that it constituted a sweeping
clarification that the export of any amount of ammunition is a
less serious offense that qualifies for the lesser offense level
in the earlier version of § 2M5.2. 4
4
And, indeed, the amendment cuts against Nwankwoala’s
argument that his offense should not be considered serious
enough to fall under subdivision (1)’s scope. Nwankwoala’s
offense would not be eligible for the lesser offense level even
under the 2011 amendments because it involved six non-fully
automatic small arms (more than two) and 1,180 rounds of
ammunition (more than 500). Moreover, in amending § 2M5.2, the
Sentencing Commission specifically “determined that, as with
export offenses involving more than two [non-fully automatic
small] firearms, export offenses involving more than 500 rounds
of ammunition are more serious and more likely to involve
trafficking,” and thus deserving of the higher, subdivision (1),
offense level. See U.S.S.G. app. C, Amendment 753, at 404
(2011) (Commentary to § 2M5.2).
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For these reasons, the district court did not err in
using a base offense level of 26. Because the district court
accurately calculated the Guidelines range, we now turn to
Nwankwoala’s assertion that his sentence is substantively
unreasonable. “Substantive reasonableness examines the totality
of the circumstances to see whether the sentencing court abused
its discretion in concluding that the sentence it chose
satisfied the standards set forth in § 3553(a).” See United
States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). 5
As noted, Nwankwoala’s substantive reasonableness argument is
limited to his assertion that it was somehow unfair to use the
base offense level of 26 in calculating his recommended
Guideline range, and that error led to an artificially inflated
Guidelines range on which the district court based its § 3553(a)
analysis. Because his procedural reasonableness argument lacks
merit, so does his substantive reasonableness argument. The
record makes clear that the district court’s sentencing decision
5
We typically afford within-Guidelines sentences a
presumption of reasonableness. Relying on language from
Kimbrough v. United States, 552 U.S. 85 (2007), Nwankwoala
asserts a presumption of reasonableness should not apply to his
sentence because the Sentencing Commission’s two-tier approach
in § 2M5.2 does “not exemplify the Commission’s exercise of its
characteristic institutional role” by “tak[ing] account of
‘empirical data and national experience.’” See id. at 109. We
need not decide this question because the record makes clear
that Nwankwoala’s sentence is substantively reasonable, even
without the presumption of reasonableness.
10
reflected a thorough, individualized assessment of Nwankwoala’s
circumstances, in light of the § 3553(a) factors. Accordingly,
his sentence is substantively reasonable.
III.
For the foregoing reasons, we affirm the judgment of
the district court.
AFFIRMED
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