                              UNPUBLISHED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Affirmed by unpublished per curiam decision.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Unpublished opinions are not binding precedent in this circuit.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).



                                        4
                                         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.



                                            7
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).



                                         9
               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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