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Fifth Circuit: Defendant Lacked Culpability in Attempting to Export Ammunition by Merely Purchasing It

The U.S. Court of Appeals for the Fifth Circuit held that a district court clearly erred in assigning a defendant a three-level enhancement for attempting to export ammunition when he had purchased the ammunition but was yet to take further steps toward its export.

Rodolfo Rodriguez-Leos was on a non-immigrant visa to the U.S. from Mexico when he purchased a case of ammunition from an Academy Sports store in McAllen, Texas, an illegal act based on his visa status. Federal agents followed him until he stashed the shells in a bush in a residential neighborhood. They arrested him shortly afterward in nearby Hidalgo, Texas, while he was shopping at an auto parts store.

Rodriguez admitted to purchasing the ammunition for “El Chivo,” who would pay him $50 to buy ammunition and later deliver it to an “unknown male” at a Whataburger in Hidalgo. He stashed the ammunition in McAllen, so it would not be in his possession until El Chivo called him “a day or two later.”

Rodriguez pleaded guilty to unlawful possession of ammunition, a base level of 14 as per the U.S. Sentencing Guidelines under § 2K2.1. He was enhanced to level 26 through a cross-reference to § 2X1.1 because the crime was committed in connection to the exportation of ammunition without a valid export license under § 2M5.2.

However, under § 2X1.1(b)(1), a defendant qualifies for a three-level reduction if he attempted, but did not complete the offense, “unless the defendant completed all the acts the defendant believed necessary for successful completion of the substantive offense or the circumstances demonstrate that the defendant was about to complete all such acts but for apprehension or interruption by some similar event beyond the defendant’s control.”

The PSR failed to account for this reduction, so Rodriguez objected to the omission. The district court denied his objection and sentenced him to 50 months’ imprisonment, within the 46- to 57-month range. Rodriguez then appealed.

Though Rodriguez didn’t mention § 2X1.1(b)(1) in his objection, he used language substantially similar to that provision in his objection, preserving his issue for clear error review on appeal. United States v. Ocana, 204 F.3d 585 (5th Cir. 2000).

To prevail, Rodriguez had to prove the district court’s finding “implausible in light of the record as a whole.” United States v. Griffith, 552 F.3d 607 (5th Cir. 2008).

The Court reviewed whether his conduct (or lack thereof) qualified him for the three-level reduction based on four, non-exhaustive factors set forth in United States v. Waskom, 179 F.3d 303 (5th Cir. 1999), which courts consider in applying 2X1.1(b)(1): “(1) focus on the substantive offense and the defendant’s conduct in relation to that specific offense; (2) no reduction is required for a conspirator who has made substantial progress in his criminal endeavor simply because a significant step remains before commission of the substantive offense becomes inevitable; (3) a defendant is entitled to the reduction unless the circumstances demonstrate that the balance of the significant acts completed and these remaining tops towards completion of the substantive offense, considering the quality, not just the quantity, of the completed and remaining acts; and (4) consider the temporal frame of the scheme and the amount of time the defendant would have needed to finish his plan, had he not been interrupted because as the completion of the offense becomes more imminent, the reduction will become less appropriate.”

Similar to the defendant in United States v. Soto, 819 F.3d 213 (5th Cir. 2016), all Rodriguez did to advance the export was buy the ammunition. Unlike Soto, who was granted the three-level reduction on review by the Court of Appeals, Rodriguez did not even have the ammunition in his possession when he was arrested. Further, it was unclear when he would take the steps to complete the export. Thus, the Court concluded the district court clearly erred in denying Rodriguez a three-level reduction under § 2X1.1(b)(1).

Accordingly, the Court vacated his sentence and remanded for resentencing. See: United States v. Rodriguez-Leos, 953 F.3d 320 (5th Cir. 2020). 

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United States v. Rodriguez-Leos



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