     Case: 14-40344   Document: 00513090792        Page: 1   Date Filed: 06/24/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-40344                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                            June 23, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

ARTURO GONZALEZ, also known as Jay,

             Defendant - Appellant




                 Appeal from the United States District Court
                      for the Southern District of Texas


Before JONES, SMITH, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Perhaps no firearm has attained the level of notoriety enjoyed by the AK-
47. Developed in the Soviet Union by Mikhail Kalashnikov (thus the “AK”
name,    which   stands    for      “Автомат   Калашникова”       or      “Automatic
Kalashnikov”), it was first used in the late 1940s by the Red Army and soon
thereafter by the armies of Soviet satellites. In the six decades since, its low
cost, ease of use, and reliability have made the gun a staple in conflicts across
the globe. Mexico has proven no exception, as the AK-47 has become popular
among the drug cartels that operate on both sides of the border. Its Mexican
nickname—“cuerno de chivo,” or “goat’s horn”—comes from the gun’s unique
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appearance when attached to its curved magazine. See generally C.J. CHIVERS,
THE GUN (2010) (chronicling the history of the AK-47).




       That magazine rests at the center of the dispute in this case. We must
decide whether a magazine is a “component” of the AK-47 for purposes of laws
prohibiting the unlicensed export of firearms and certain related items.
      The problem of limited ammunition capacity has plagued rifles since
their invention centuries ago. The earliest rifles fired a single shot, leaving the
user vulnerable during reloading.           Numerous inventions have sought to
eliminate this problem. But from repeating rifles to clips, 1 none has proved as
effective as the magazine.        See generally David B. Kopel, The History of
Firearm Magazines and Magazine Prohibitions, 78 ALBANY L. REV. 849 (2015).
       Magazines come in a variety of shapes, capacities, and types, but
detachable “box” magazines have become the modern standard. A detachable
box magazine stores cartridges in a column and attaches to the firearm. As
the firearm cycles, a spring compression mechanism moves the cartridges up
and loads the top cartridge into the breech. At a basic level, the detachable
box magazine serves the same purpose as its predecessors: it makes it


      1   “Magazines” and “clips” are often referred to interchangeably. Yet they serve
different functions. A magazine generally attaches to a firearm and holds ammunition that
will be fed into the chamber when the firearm is used. A clip is one step removed—it has no
feeding spring, instead holding ammunition together as a unit, typically so that the
ammunition can be conveniently stored or inserted into a magazine.
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unnecessary to clumsily load a cartridge into the chamber every time the rifle
is fired. But the unique and simple design also creates a more portable,
reliable, high-capacity device that greatly enhances the capabilities of the
firearm. The first AK-47s used a detachable box magazine, 2 and that is the
type of magazine at issue in this case.
      Arturo Gonzalez’s sale of hundreds of these AK-47 magazines out of his
army surplus stores in Laredo resulted in a jury convicting him of three counts
of unlawful exporting. Viewed in the light most favorable to that verdict, the
evidence showed that Gonzalez met with known affiliates of Mexican drug
cartels and sold them AK-47 magazines knowing the magazines were being
taken across the border to Mexico. Among other sales, Gonzalez sold hundreds
of magazines at his store four blocks from the border to a man known as “El
Gordo,” who paid $30,000 in cash with no receipt and “no questions asked.”
ROA 915. Gonzalez and his employees put the magazines into boxes, taped
them shut, and arranged for their pickup by drug cartel affiliates. During one
such transaction, an employee overheard El Gordo tell Gonzalez that he “was
going to take them to Mexico.” ROA 311. After federal agents started to
investigate Gonzalez, they recorded a conversation between Gonzalez and El
Gordo in which Gonzalez expressed fear about government surveillance.
Multiple witnesses, including an undercover agent, offered additional
testimony that Gonzalez knew the magazines were headed to Mexico. The
State Department had not issued Gonzalez a license to export firearm
components.




      2   See Enemy Threat Weapons B2A2177, U.S. MARINE CORPS at 5 (No Date), available
at http://www.usmcofficer.com/wp-content/uploads/2014/02/Enemy-Threat-Weapons.pdf.
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      The sole argument Gonzalez raises on appeal with respect to the guilty
verdicts is that empty AK-47 magazines are not a prohibited item under the
export laws. The smuggling statute under which he was convicted broadly
prohibits exporting an item “contrary to any law or regulation of the United
States.” 18 U.S.C. § 554. The underlying law cited in Gonzalez’s indictment
is the Arms Control Export Act, which criminalizes the unlicensed export of
items “designated by the President” as “defense articles.” 22 U.S.C.
§ 2778(b)(2), (c).     The President’s designations of defense articles—
promulgated as International Traffic in Arms Regulations (ITAR) by the State
Department’s Directorate of Defense Trade Controls—are contained in the
United States Munitions List. 22 C.F.R. § 121.1. The Munitions List defines
defense articles to include designated firearms and their “components, parts,
accessories, and attachments.” Id. at Category I(a), (b), (h).
      Gonzalez argues that empty AK-47 magazines do not qualify as firearm
components because the Munitions List does not mention assault rifle
magazines in the definition of “component.” It is true that the Munitions List
does not specifically refer to magazines. But that is because the Munitions List
is a list of categories, not specific products. For example, the Munitions List
does not specifically list an AK-47 or even more generally an “assault rifle” as
covered articles, but no one would doubt that an AK-47 falls within the
“firearms” category and requires a license to export. The question is thus
whether empty AK-47 magazines fit within the regulatory definition of
“component.” See United States v. Nissen, 928 F.2d 690, 693–94 (5th Cir. 1991)
(“Any definition that could reasonably be given to the term ‘sophisticated
weaponry’ would include the Phantom F–4 fighter aircraft”).              Because
Gonzalez raised this issue in a pretrial motion to dismiss the indictment, we
review de novo. See United States v. Kay, 513 F.3d 432, 441 (5th Cir. 2007)
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(“This court reviews de novo the . . . denial of a motion to dismiss an
indictment.”).
      A two-step analysis under the regulatory scheme provides a
straightforward answer. The relevant State Department definitions state:
      (a)   An end-item is a system, equipment, or an assembled article
            ready for its intended use. Only ammunition . . . is required
            to place it in an operating state.
      (b)   A component is an item that is useful only when used in
            conjunction with an end-item.
22 C.F.R. § 120.45 (emphasis added). The relevant “end-item” here is the AK-
47. See id.; see also 15 C.F.R. § 772.1 (“Examples of end items include . . .
firearms.”). And an AK-47 magazine is “useful” only when used in conjunction
with that end-item: its sole purpose is to load cartridges into the breech so that
they can be fired, increasing the firearm’s ammunition capacity and rate of
fire. Indeed, the “A” in AK-47 explains why the magazine is only useful for
that purpose; it “automatically” loads cartridges into the chamber with only
one pull of the trigger. As such, an AK-47 magazine plainly meets the State
Department’s definition of component.         This comports with the common
meaning of “component,” which is “a part or element of a larger whole,
especially a part of a machine or vehicle.” OXFORD DICTIONARY OF ENGLISH
357 (3d ed. 2010).
      As for Gonzalez’s emphasis on the magazines being unloaded, ITAR’s
definition of “end-item” forecloses that argument by stating that “only
ammunition . . . is required to place it in operating state.” 22 C.F.R. § 120.45(a).
The Munitions List thus covers articles that are not loaded at the time of
export. That makes eminent sense. If only loaded articles were prohibited,
exporters could simply send magazines and cartridges in separate containers,


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and the recipients could combine them once the shipments arrived in the
importing country.
       The cases Gonzalez cites do not counsel otherwise. Our unpublished
decision in United States v. Flores recognized only that our court had “no clear
authority” (that is, no precedential decision) addressing whether the Munitions
List encompasses magazines. See 439 F. App’x 337, 339 (5th Cir. 2011). That
lack of binding authority is often dispositive in the plain-error context in which
that case was reviewed. See United States v. Olano, 507 U.S. 725, 734 (1993)
(holding that “clear” or “obvious” error is a requirement for reversal on plain
error review). Flores did not state that the Munitions List itself was unclear
on whether magazines are “components.”
       The First Circuit’s decision in United States v. Zhen Zhou Wu, which
Gonzalez cited for the first time at oral argument, is also unhelpful to him. 711
F.3d 1 (1st Cir. 2013). That case involved the export of phase shifters, 3 and an
instruction that the jury had to “accept without question the State
Department’s . . . determinations that the phase shifters were controlled by the
Munitions List” 4 even though that agency determination came after the
defendant’s export. Id. at 17–19 (finding the jury instruction problematic
because it relied on a State Department designation that “had [not] been made



       3  Phase shifters “change the phase of one of the two waves so that the waves exactly
line up with one another (or, vice versa, so that waves that were previously “in phase” no
longer line up with one another).” Zhen Zhou Wu, 711 F.3d at 11 n.2. They have a variety
of military applications.
        4 In Zhen Zhou Wu, the Government alleged that phase shifters fell into Category

XI(c) of the Munitions List, which includes “components, parts, accessories, attachments and
associated equipment specifically designed or modified for the equipment in [Categories XI(a)
and XI(b)].” Categories XI(a) and XI(b) cover a variety of complex electronic equipment
configured for military application. See 22 C.F.R. § 121.1, Category XI(a), XI(b); Zhen Zhou
Wu, 711 F.3d at 13–14 & n.5.

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at the time that the defendants engaged in the charged conduct”). In this case,
no jury instruction required that the jury follow the State Department
determination, and the State Department had consistently answered in the
affirmative when asked prior to Gonzalez’s sales if the Munitions List covers
magazines. 5 Id. at 19 (suggesting that the conviction would have stood if “the
prosecution [did] persuade the jury . . . that the phase shifters really did fall
within the Munitions List restrictions as those restrictions stood at the time of
the defendants’ exports”).           Moreover, to the extent that Wu views the
Munitions List issue as an element of the offense for the jury to decide, 6
Gonzalez never took that position either in the district court or in his appellate
brief. Instead, he framed the issue as a legal determination by seeking to
dismiss the indictment. See Kay, 513 F.3d at 441 (applying de novo review to
the district court’s denial of a motion to dismiss the indictment). Gonzalez has
thus forfeited the argument that the jury should have decided whether the




       5   The responses to these inquiries are called “Commodity Jurisdiction Final
Determinations,”      and      background      on     that     procedure    is  available      at
https://www.pmddtc.state.gov/documents/ddtc_getting_started.pdf. A search of those final
determinations for “magazine” shows that the agency considered the Munitions List to cover
magazines as early as 2011. See U.S. Dep't of State, Commodity Jurisdiction Final
Determinations, http://pmddtc.state.gov/commodity_jurisdiction/determinationAll.html (last
visited June 12, 2015). Gonzalez exported or attempted to export the AK-47 magazines in
late 2012.
        6 The First Circuit limited its holding, stating that “our holding means that in at least

some cases involving Category XI(c) of the Munitions List, the question of whether a particular
part fell within Category XI(c) of the Munitions List at the time of the alleged export will be
a question for the jury.” 711 F.3d at 20 (emphasis added). It also distinguished cases from
other circuits “involving government designations that juries were required to accept,” on the
ground that “crucially, in both cases the government designations at issue were made before
the defendants’ allegedly unlawful conduct occurred.” Id. at 19 (emphasis in original) (citing
United States v. Hammoud, 381 F.3d 316, 331 (4th Cir. 2004); United States v. Spawr Optical
Research, Inc., 864 F.2d 1467, 1468–69 (9th Cir. 1988)). Thus, even if Gonzalez had preserved
this issue, Wu—to the extent we would agree with it—does not decide whether the Munitions
List issue was a jury question in this case.
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Munitions List covers the magazines that he exported, and we need not decide
whether that is a question for a court or jury.
      The district court therefore properly concluded that the Munitions List
encompasses AK-47 magazines whether or not they are loaded with cartridges
when shipped. We uphold the convictions.
      That leaves Gonzalez’s challenge to his sentence. The district court
sentenced him to 63 months in prison, which was within the Guidelines range.
That range used a base offense level of 26, which is the default level for
unlawful exportation of firearms.     See U.S.S.G. § 2M5.2(a)(1).         Gonzalez
contends that the offense level should have been lowered to 14 because “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)(2). Gonzalez argues that the magazines, if
prohibited items at all, were small arms for sentencing purposes.
      The problem for Gonzalez is that the district found that the lower offense
level did not apply both because (1) empty magazines are not “small arms” and
(2) the offense involved more than 500 rounds of ammunition. The alternative
ammunition ruling was based on a relevant conduct finding that Gonzalez’s
export scheme also involved selling thousands of 7.62 x 39mm rounds to the
same cartel affiliates that purchased the magazines.           Gonzalez does not
challenge the factual finding concerning the ammunition on appeal. That
dooms his sentencing argument given that the ammunition finding alone
prevents application of the lower offense level.
      The judgment is AFFIRMED.




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