U.S. v. Peters ( 1992 )

FOR THE FIFTH CIRCUIT
No. 92-4356
Summary Calendar
United States of America,
Plaintiff-Appellee,
versus
Ronald Peters and Thomas Pullen,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Louisiana
(November 11, 1992)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Ronald Peters and Thomas Pullen appeal their sentences after
each pleaded guilty to one charge of conspiring to illegally export
helicopters in violation of the Arms Export Control Act, 18 U.S.C.
§ 371; 22 U.S.C. § 2778. Both defendants challenge the district
court's interpretation and application of U.S.S.G. § 2M5.2, and the
addition of offense points for managerial involvement under
§ 3B1.1(c). Pullen complains of the refusal to depart downward
from the guideline sentence range in his case. We affirm.
In January 1990, a confidential informant contacted the U.S.
Customs Service regarding a suspicious sale of helicopters. Peters
had solicited the informant to purchase seven Agusta Bell Model 204
helicopters from a California company.
Helicopters which are specifically designed, modified, or
equipped for military purposes are included on the United States
Munitions List, 22 C.F.R. § 121.1, Category VIII(a), and may not be
exported without a license. 22 U.S.C. § 2778. The Model 204
helicopter is equipped with "hard points" to which weapons systems
may be attached, allowing easy adaptation to military purposes.1
There is no dispute that export of the Model 204 without a license
is prohibited.
Peters and Pullen told the informant that the helicopters were
to be purchased and taken to Canada, where they would be resold to
an unnamed foreign country unfriendly to the United States.
Defendants never attempted to obtain an export license. Peters
represented to the informant that he was the broker among the
parties involved, and Pullen purported to be the foreign buyer's
representative. Trying to obtain financing for the helicopter
purchase, they convened a number of meetings and telephone
conversations which included the informant between January and
June, 1990. At least one person other than the defendants and the
informant attended one of the meetings. Due to financial
difficulties the conspiracy terminated in the summer of 1990.
When Peters was notified that he was the target of a federal
investigation, he immediately began to cooperate. The government
credited his substantial cooperation for disclosing Pullen's
1
The helicopters involved here were once owned by the Dutch
military.
2
identity and convincing Pullen to plead guilty. As a result the
government moved for a downward departure from the Sentencing
Guidelines for Peters under § 5K1.1. Pullen, on the other hand,
told a probation officer that he believed he had done nothing wrong
since the conspiracy had not achieved its objective. He also
expressed bitterness toward the informant.
Both defendants pleaded guilty to a conspiracy charge. The
Pre-Sentencing Report for both defendants established a final
offense level of nineteen. The base offense level for conspiring
to violate the munitions export laws was assessed at twenty-two.
This level was reduced by three for failure to complete the
substantive offense, § 2X1.1(b)(2), and two for acceptance of
responsibility. § 3E1.1(a). Two points were added to each
defendant for playing a managerial role in the offense.
§ 3B1.1(c). Since both Peters and Pullen had a criminal history
category I, the resulting sentence range for both was thirty to
thirty-seven months, plus two to three years supervised release and
fines.
The district court accepted the government's § 5K1.1 motion
regarding Peters and departed downward from the guidelines by
sentencing him to twelve months confinement plus thirty-six months
supervised release and the guideline minimum fine. The court
rejected Pullen's suggestion that past military service and
commendations justified a downward departure for him. Pullen was
sentenced to the guideline minimum confinement of thirty months,
3
plus thirty-six months supervised release and the guideline minimum
fine.
Both Peters and Pullen challenge the base offense level
applied in their sentencing. They contend that under the Guideline
provisions in force in the spring of 1990, the proper base offense
level should be fourteen, not twenty-two. At that time the
applicable section provided for a base offense level of "(1) 22, if
sophisticated weaponry was involved; or (2) 14." § 2M5.2. The
court found that the Model 204 helicopters were sophisticated
weaponry. The defendants dispute the factual and legal bases of
this finding.
The term sophisticated weaponry was not defined in the
Guidelines, but its meaning was addressed by this court in United
States v. Nissen, 928 F.2d 690 (5th Cir. 1991). We held that the
1990 amendment to § 2M5.2 may be considered in determining whether
items should be considered sophisticated weaponry under the pre-
amendment provision. Id. at 695. That amendment provided that the
base offense level should be twenty-two, or fourteen if the offense
involved only ten or fewer non-fully-automatic small arms. § 2M5.2
(as amended Nov. 1, 1990). In light of that clarification of
§ 2M5.2's intended meaning, we decided that "the lower base offense
level [of pre-1990 § 2M5.2] is reserved for truly minor exports of
military equipment." Nissen, 928 F.2d at 695.
The district court's factual determination that seven Model
204 helicopters are sophisticated weaponry is reviewed for clear
error. See id. Peters and Pullen argue that these helicopters
4
were not sophisticated weaponry because they were civilian aircraft
only potentially usable for military purposes. Unlike most
civilian aircraft, these helicopters were made with reinforced
structures permitting the attachment of military hardware. The
United States Munitions List controls aircraft "specifically
designed, modified, or equipped for military purposes." 22 C.F.R.
§ 121.1, Category VIII(a). The Model 204 fits that description.
We are not persuaded that the district court's finding was clearly
erroneous.
In making its determination, the district court referred to
the clarification of § 2M5.2 by the 1990 amendment. Peters and
Pullen argue that using the amendment to interpret the earlier
provision amounted to an ex post facto application of the
amendment. The Supreme Court has held that a criminal law is ex
post facto if it is retrospective and disadvantages an offender by
altering matters of substance. Miller v. Florida, 482 U.S. 423,
430, 107 S. Ct. 2446, 2451 (1987). Defendants rely on United
States v. Suarez, 911 F.2d 1016 (5th Cir. 1990), which held that an
amendment to § 1B1.3 could not be retroactively applied because it
substantially changed that provision. Id. at 1022. Two important
distinctions exist between this case and Suarez. First, the
question in Suarez was under which set of terms--pre-amendment or
post-amendment--the defendant could be sentenced. Here, the
district court sentenced both defendants under the terms of pre-
amendment § 2M5.2 by determining whether or not sophisticated
5
weaponry was involved.2 Reference to the amendment was only made
in order to clarify the meaning of the pre-amendment section.
More importantly, we have already held that the 1990 amendment
to § 2M5.2 did not effect a substantive change to the provision.
We view this amendment as making no substantive changes
to either the guideline itself or to its commentary.
Since it was intended only to clarify this guideline's
application, we may consider the amended language, even
though it was not effective at the time of sentencing for
the offense in question.
Nissen, 928 at 694-95. The district court permissibly followed the
lead of this court in looking to the non-substantive amendment to
interpret the governing provision. No unconstitutional ex post
facto application of a substantive change increasing the
defendants' sentence occurred.
Defendants also complain of the offense level increase for
acting as "an organizer, leader, manager, or supervisor" in the
offense. § 3B1.1(c). Among the considerations suggested by
§ 3B1.1(c)'s commentary are planning, organizing, recruitment of
accomplices, and the scope of the illegal activity. § 3B1.1,
comment. (n.3). Peters and Pullen argue that their scheme was a
two-man conspiracy with neither one exercising a leadership or
managerial role over the other. The pre-sentencing report
indicates that their scheme was more far-reaching and complicated
than their characterization admits.3 Defendants recruited the
2
Had the defendants been improperly "sentenced under" post-
amendment § 2M5.2, no question of sophisticated weaponry would
have arisen. The amendment did away with this element.
3
The district court may rely upon information in the PSR
which has some minimum indicium of reliability. United States v.
6
informant's involvement and met with an undercover Customs agent.
At least one other person attended a meeting as well. Peters
represented himself as a broker in the transaction. Pullen
identified himself as the representative of an unnamed foreign
buyer. Defendants have failed to show that the district court
clearly erred in finding that they were organizers of this criminal
activity within the meaning of § 3B1.1(c).
Finally, Pullen complains of the district court's failure to
grant a downward departure for his sentence. A claim that the
court improperly failed to reduce a sentence will succeed only if
the court's failure to depart violated the law. United States v.
Mitchell, 964 F.2d 454, 462 (5th Cir. 1992). The district court
departed for Peters after a § 5K1.1 motion and sentenced him to
twelve months. Pullen argues that he should have been given a
similar sentence because (1) his sentence should be comparable to
Peters' sentence; (2) the government made the oral equivalent of a
§ 5K1.1 motion at sentencing; and (3) his military service and
commendations warranted a downward departure. We disagree with
each of these contentions.
The fact that another party received a lesser sentence for the
same offense does not make a sentence within the guideline range
improper. See United States v. Puma, 937 F.2d 151, 156 (5th Cir.
1991), cert. denied, 112 S. Ct. 1165 (1992). The district court
was justified in giving Peters and Pullen different sentences
Vela, 927 F.2d 197, 201 (5th Cir.), cert. denied, 112 S. Ct. 214(1991).
7
because the government acknowledged that Peters' cooperation was
substantial. Courts give substantial weight to the government's
evaluation of a defendant's assistance. § 5K1.1, comment. (n.3).
Peters promptly and completely disclosed his involvement to
investigators, and convinced Pullen to plead guilty. Pullen has
failed to point to similar assistance to the government.
We do not agree that the prosecutor's statement at sentencing
amounted to an oral § 5K1.1 motion. He said:
[B]ased on his cooperation with the government and the
fact of our mistake in representation to him prior to
[sentencing regarding the correct guideline calculation],
as well as his distinguished military career, and the
fact that he has no prior criminal record, we would ask
that that will mitigate in terms of sentence.
The statement does not establish that Pullen had provided
"substantial assistance" as § 5K1.1 requires. Rather than
requesting a downward departure from the guideline range, it
apparently does no more than suggest leniency within that range.
We find no violation of law in the district court's failure to
depart on this basis.
We are not persuaded that Pullen's military service and
receipt of two purple hearts and a distinguished flying cross
compel a departure from the sentencing guidelines. The primary
focus of the sentencing guidelines is on the crime committed rather
than on the individual offender. See United States v. Reyes-Ruiz,
868 F.2d 698, 700 (5th Cir. 1989), overruled on other grounds by
United States v. Bachinsky, 934 F.2d 1349 (5th Cir. 1991) (per
curiam) (en banc). The Guidelines discourage departing on the
basis of a variety of individual characteristics including previous
8
employment record and community ties. §§ 5H1.5, 5H1.6. An
individual's service to the community does not justify a departure
from the Guidelines. United States v. O'Brien, 950 F.2d 969, 971
(5th Cir. 1991), cert. denied, 61 U.S.L.W. 3233 (U.S. Oct. 5,
1992). Without deciding, as some circuits have,4 whether or not
military service could ever justify a departure, we conclude that
the facts of this case do not present such extraordinary
circumstances as to require departure on the basis of this
individual characteristic.5 The district court committed no
violation of law in declining to depart downward from the guideline
sentence range in Pullen's case.
AFFIRMED.
4
See United States v. McCaleb, 908 F.2d 176, 179 (7th Cir.
1990)(holding that military service could justify departure);
United States v. Neil, 903 F.2d 564, 566 (8th Cir. 1990)(accord).
In neither McCaleb nor Neil, however, was a departure based on
military service found warranted.
5
Our confidence in this conclusion is bolstered by the fact,
which we note but do not rely upon, that the Sentencing
Commission amended the Guidelines to add military service to the
list of ordinarily irrelevant considerations. § 5H1.11 (as
amended Nov. 1, 1991).
9