United States v. Yoahjan Flores

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-50536

Plaintiff-Appellee,

D.C. No.

v. 3:10-cr-04083-

WQH-1

YOAHJAN LARA FLORES,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 11-50539

Plaintiff-Appellee,

D.C. No.

v. 3:10-cr-04083-

WQH-3

ALFREDO RUBIO LARA,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 11-50555

Plaintiff-Appellee,

D.C. No.

v. 3:10-cr-04083-

WQH-2

ARTURO LARA,

Defendant-Appellant. OPINION

2 UNITED STATES V. FLORES

Appeal from the United States District Court

for the Southern District of California

William Q. Hayes, District Judge, Presiding

Argued and Submitted

March 7, 2013—Pasadena, California

Filed August 30, 2013

Before: Richard A. Paez and Paul J. Watford, Circuit

Judges, and Leslie E. Kobayashi, District Judge.*

Opinion by Judge Paez

SUMMARY**

Criminal Law

Vacating sentences and remanding for resentencing for

conspiracy to possess an unregistered firearm, the panel held

that the definition of a missile under 26 U.S.C. § 5845(f) and

U.S.S.G. § 2K2.1(b)(3)(A) is a self-propelled device designed

to deliver an explosive.

The panel concluded that because the 40-mm cartridges

in this case do not qualify as missiles, the district court erred

*

The Honorable Leslie E. Kobayashi, District Judge for the U.S. District

Court for the District of Hawaii, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. FLORES 3

in enhancing the defendants’ offense levels pursuant to

§ 2K2.1(b)(3)(A).

COUNSEL

Ricardo M. Gonzalez, San Diego, California, for Defendant-

Appellant Alfredo Lara.

Barbara M. Donovan, Donovan & Donovan, San Diego,

California, for Defendant-Appellant Arturo Lara.

Frederick Carroll (argued), San Diego, California, for

Defendant-Appellant Yoahjan Flores.

Douglas Keehn (argued), Assistant United States Attorney,

San Diego, California, for Plaintiff-Appellee United States of

America.

OPINION

PAEZ, Circuit Judge:

In these consolidated cases, the defendants appeal their

sentences following their pleas of guilty to conspiracy to

possess an unregistered firearm in violation of 18 U.S.C.

§ 371 and 26 U.S.C. § 5861(d). They raise a novel question:

What is the definition of a missile under U.S.S.G.

§ 2K2.1(b)(3)(A) and 26 U.S.C. § 5845(f)? We adopt the

common meaning of the word missile, in the context of

modern weaponry, and hold that the definition of a missile,

under the sentencing guidelines, is a self-propelled device

4 UNITED STATES V. FLORES

designed to deliver an explosive.1 Because the 40-mm

cartridges in this case do not qualify as missiles, the district

court erred in concluding otherwise and in enhancing the

defendants’ base offense level by fifteen levels. We therefore

vacate the defendants’ sentences and remand for

resentencing.

BACKGROUND

Defendants Arturo Lara, Alfredo Lara, and Yoahjan Lara

Flores, after entering into a plea agreement with the

government, pled guilty to conspiracy to possess an

unregistered firearm in violation of 18 U.S.C. § 371 and

26 U.S.C. § 5861(d). The charges were based on the

following events.

On September 2, 2010, the defendants entered The Gun

Shop in El Centro seeking to purchase a grenade launcher.

The store owner provided them with the card of an individual

who he said might be able to help them. The card was that of

a Bureau of Alcohol, Tobacco, and Firearms (ATF) agent,

which was given to The Gun Shop after the agent received a

tip that individuals might visit the store inquiring about illegal

weapons. After a series of negotiations by phone and in

person with undercover ATF agents, the defendants agreed to

meet the agents and purchase a Colt M203 grenade launcher

and three 40-mm gold-tipped high explosive dual purpose

cartridges (ammunition for the launcher). Flores and Arturo

Lara met the agents in a parking lot on September 29, 2010

1

The complete definition of a missile under U.S.S.G. § 2K2.1(b)(3)(A)

and 26 U.S.C. § 5845(f) may also include a guidance system requirement.

Because we can resolve these cases without addressing this issue, we

leave it for another day.

UNITED STATES V. FLORES 5

and exchanged one Colt M203 grenade launcher and three

inert 40-mm cartridges for $1,900. The defendants were

arrested and indicted.

Before the court sentenced the defendants, the

government filed a motion for a fifteen-level upward

adjustment for all three defendants, pursuant to U.S.S.G.

§ 2K2.1(b)(3)(A), which provides for a fifteen-level

enhancement if the offense involved a missile, rocket, or

device for launching either of those projectiles. Specifically,

the government argued that the M203 grenade launcher

defendants purchased is a “device for use in launching a . . .

missile” because the 40-mm cartridges it launches are

missiles. Therefore, although the enhancement was applied

based on the launcher, the dispositive question is whether the

cartridges are missiles. If they are, the M203 launcher is a

device for launching missiles. If they are not, the M203 is not

a device for launching missiles. The plea agreements

specifically allowed the defendants to appeal the district

court’s ruling regarding the applicability of § 2K2.1(b)(3)(A).

The facts regarding the characteristics of the M203

grenade launcher and 40-mm cartridges are undisputed. The

M203 grenade launcher is capable of launching many

different types of cartridges with different purposes. There

are smoke rounds, ground marker rounds, illumination

rounds, and gas riot control rounds. The cartridges in this

case, which the government claims are missiles, are 40-mm

high explosive dual purpose (HEDP) cartridges. They are

designed to contain between 1.2 and 1.5 ounces of military

grade explosive. These cartridges are described by the army

ammunition data sheets as rounds “designed to penetrate at

least two inches of steel armor at 0 angle of obliquity and

inflict personnel casualties in the target area.” The cartridges

6 UNITED STATES V. FLORES

are armed by the force of the propulsion when they are

launched out of the M203; they “must maintain 37,000

revolutions before it’s armed at about 18 meters.” At that

point, they explode upon impact. This makes the cartridges

slightly different than hand grenades, which explode a certain

number of seconds after they are activated regardless of the

force at which they are thrown.

According to the Army Field Manual, the maximum

range of the M203 launcher is 400 meters, although the

maximum effective range is between 150 and 350 meters

depending upon the type of target. Thus, it has a greater

range than hand-tossed grenades, which typically can only be

thrown between thirty-five and forty meters. A government

expert testified that the M203 was designed to help bridge the

gap between the range of hand grenades and the long-distance

range of 60-mm mortars.

Most importantly for purposes of this opinion, the

cartridges are “fixed round[s] of ammunition,” which means

that the propulsion power of the cartridge is entirely

expended when the launcher is fired. The cartridge case stays

behind, similar to other types of small arms ammunition like

ordinary bullets. In other words, the cartridges are not self-

propelled. They also do not contain any type of internal

guidance system.

The district court heard the testimony of qualified

government and defense experts on the characteristics of

missiles, the Colt M203 grenade launcher, and its

accompanying cartridges. The court granted the

government’s motion to apply the fifteen-level upward

adjustment and sentenced each defendant to the statutory

UNITED STATES V. FLORES 7

maximum sentence of sixty months imprisonment. The

defendants timely appealed.

STANDARD OF REVIEW

A district court’s legal interpretation of the guidelines is

reviewed de novo. United States v. Guerrero, 333 F.3d 1078,

1080 (9th Cir. 2003). Factual findings are reviewed for clear

error. United States v. Riley, 335 F.3d 919, 925 (9th Cir.

2003). The facts regarding the characteristics of the weapons

involved are undisputed. Therefore, the only questions on

appeal are what is the definition of a missile under

§ 2K2.1(b)(3)(A) and whether the 40-mm cartridges meet that

definition. Those are questions of law that we review de

novo.

ANALYSIS

Under § 2K2.1(b)(3)(A) of the Sentencing Guidelines, a

fifteen-level enhancement applies if the offense involved “a

destructive device that is a portable rocket, a missile, or a

device for use in launching a portable rocket or a missile.” If

the offense involves any other “destructive device,” a two-

level enhancement applies. U.S.S.G. § 2K2.1(b)(3)(B). Both

parties agree that the 40-mm cartridges and M203 launcher

qualify as “destructive devices” under § 2K2.1(b)(3) but

disagree as to whether the cartridges qualify as “missiles,”

and thus whether the M203 launcher qualifies as a “device for

use in launching a . . . missile.”

Application note seven to § 2K2.1 makes clear that the

term “destructive device” in § 2K2.1(b)(3) refers to a

“destructive device” as defined in the National Firearms Act.

8 UNITED STATES V. FLORES

U.S.S.G. § 2K2.1 cmt. n.7. The National Firearms Act

defines a “destructive device” as:

(1) any explosive, incendiary, or poison gas

(A) bomb, (B) grenade, (C) rocket having a

propellent charge of more than four ounces,

(D) missile having an explosive or incendiary

charge of more than one-quarter ounce, (E)

mine, or (F) similar device; (2) any type of

weapon by whatever name known which will,

or which may be readily converted to, expel a

projectile by the action of an explosive or

other propellant, the barrel or barrels of which

have a bore of more than one-half inch in

diameter, except a shotgun or shotgun shell

which the Secretary finds is generally

recognized as particularly suitable for sporting

purposes; and (3) any combination of parts

either designed or intended for use in

converting any device into a destructive

device as defined in subparagraphs (1) and (2)

and from which a destructive device may be

readily assembled.

26 U.S.C. § 5845(f). The foregoing definition of destructive

device in the statute teaches us that in order to be a

“destructive device that is a . . . missile” under § 2K2.1(b)(3),

the device, in addition to having the qualities of a missile,

must also have more than one-quarter ounce of explosive or

incendiary charge. § 5845(f) (defining a destructive device

as, inter alia, a “missile having an explosive or incendiary

charge of more than one-quarter ounce”). This fact, with

respect to the cartridges, is also undisputed. But

unfortunately, the statute provides no definition of “missile.”

UNITED STATES V. FLORES 9

We thus turn to the traditional rules of statutory

interpretation.2 “The interpretation of a statutory provision

must begin with the plain meaning of its language.” In re

Bonner Mall Partnership, 2 F.3d 899, 908 (9th Cir. 1993).

Therefore, unless defined, words in a statute “will be

interpreted as taking their ordinary, contemporary, common

meaning.” Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir.

2012). In determining the “plain meaning” of a word, we

may consult dictionary definitions, which we trust to capture

the common contemporary understandings of the word. See

Transwestern Pipeline Co., LLC v. 17.19 Acres of Prop.

Located in Maricopa Cnty., 627 F.3d 1268, 1270 (9th Cir.

2010).

Dictionaries generally provide two separate definitions of

missile: one broad and generic definition including all things

thrown as weapons and one definition that aligns with our

modern usage of the term missile to describe a sophisticated

piece of weaponry. See, e.g., United States v. Helmy,

951 F.2d 988, 994 (9th Cir. 1991) (concluding that “missiles

fall within any common sense definition of ‘sophisticated

weaponry’”). For example, the Oxford Dictionary defines a

missile as: (1) “an object which is forcibly propelled at a

target, either by hand or from a mechanical weapon,” or (2)

“a weapon that is self-propelled or directed by remote control,

carrying conventional or nuclear explosive.” Missile, Oxford

Dictionaries Pro, http://english.oxforddictionaries.com/

definition/missile (last visited July 29, 2013).

2

We apply the traditional rules of statutory construction when

interpreting the sentencing guidelines. United States v. Gonzalez,

262 F.3d 867, 869 (9th Cir. 2001).

10 UNITED STATES V. FLORES

The generic definition of “an object propelled . . . as a

weapon at a target” could include any object—a pencil, a

stone, or a coin—so long as it is thrown as a weapon. This

definition of missile is clearly inappropriate in the context of

the National Firearms Act’s classification of “destructive

devices.” See Paul Revere Ins. Group v. United States,

500 F.3d 957, 962 (9th Cir. 2007) (“It is . . . a fundamental

canon that the words of a statute must be read in their context

and with a view to their place in the overall statutory

scheme.” (internal quotation marks omitted)). The category

of “destructive device” under the National Firearms Act “was

intended to cover the military-type weapons—mines,

grenades, bombs, and large-caliber weapons, such as

bazookas, mortars, and anti-tank guns.” United States v.

Posnjak, 457 F.2d 1110, 1115 (2d Cir. 1972). The term

missile appears in the statute alongside other modern military

weapons such as bombs, grenades, rockets, and mines.

26 U.S.C. § 5845(f). Applying the well-established doctrine

of noscitur a sociis—the principle that “a word is known by

the company it keeps”—we conclude that the definition of

missile in the statute should be the modern military definition

rather than the overbroad generic definition. Gustafson v.

Alloyd Co., Inc, 513 U.S. 561, 575 (1995) (“This rule we rely

upon to avoid ascribing to one word a meaning so broad that

it is inconsistent with its accompanying words, thus giving

unintended breadth to the Acts of Congress.” (internal

quotation marks omitted)).

Modern military definitions of a missile focus on two

characteristics: self-propulsion and a guidance system. As

discussed above, the Oxford Dictionary defines a missile as

“a weapon that is self-propelled or directed by remote control,

carrying conventional or nuclear explosive.” Missile, Oxford

Dictionaries Pro, supra. Similarly, the Oxford English

UNITED STATES V. FLORES 11

Dictionary defines a missile as “a long-distance weapon that

is self-propelled, and directed either by remote control or

automatically, during part or all of its course.” Missile,

Oxford English Dictionary, http://www.oed.com/view/

Entry/119992?redirectedFrom=missile#eid (last visited July

29, 2013).3

International law definitions of the term “missile” are

similar to those discussed above. The United Nations 2002

Report on “The Issue of Missiles in All Its Aspects” defines

a missile as “an unmanned, self-propelled, self-contained,

unrecallable, guided or unguided vehicle designed to deliver

a weapon or other payload.” U.N. Secretary-General,

The issue of missiles in all its aspects, ¶ 19, U.N. Doc.

A/57/229 (July 23, 2002). Harvard University’s

Humanitarian Policy and Conflict Research Program’s

“Manual on International Law Applicable to Air and Missile

Warfare” defines a missile as a “self-propelled unmanned

weapon[]—launched from aircraft, warships or land-based

launchers—that [is] either guided or ballistic.” Program on

Humanitarian Policy and Conflict Research at Harvard

3

Both the Merriam-Webster and the American Heritage dictionaries also

focus on self-propulsion and/or guidance. They both define missile, in the

modern military usage, as either a “guided missile” or a “ballistic missile.”

Missile, Merriam-Webster, http://www.merriam-webster.com/

dictionary/missile (last visited July 29, 2013); Missile, The American

Her itage Dictionary, http://www.ahdictionary.com/word/

search.html?q=missile (last visited July 29, 2013). A guided missile is

defined as a “self-propelled missile that can be guided while it is in flight”

and a ballistic missile is defined as a “projectile that assumes a free-falling

trajectory after an internally guided, self-powered ascent.” Guided

Missile, The American Heritage Dictionary, http://www.ahdictionary.com/

word/ search.html?q=guided+missile (last visited July 29, 2013); Ballistic

Missile, The American Heritage Dictionary, http://www.ahdictionary.com/

word/search.html?q =ballistic+missile (last visited July 29, 2013).

12 UNITED STATES V. FLORES

University, Manual on International Law Applicable to Air

and Missile Warfare, 5–6 (2009), available at

http://ihlresearch.org/amw/HPCRManual.pdf. In sum, every

modern military definition of missile we have encountered

includes a self-propulsion requirement. Many definitions

also suggest that missiles have guidance systems. We

therefore hold that the definition of a missile, under U.S.S.G.

§ 2K2.1(b)(3)(A) and 26 U.S.C. § 5845(f), is a self-propelled

device designed to deliver an explosive. We leave the

question of whether the definition of a missile under U.S.S.G.

§ 2K2.1(b)(3)(A) and 26 U.S.C. § 5845(f) should also include

a guidance requirement for another day.

The definition of a missile as a self-propelled device is

supported by the reason given for the amendment to

§ 2K2.1(b), which created the fifteen-level enhancement for

missiles and rockets, in Appendix C to the guidelines. See

United States v. Laney, 189 F.3d 954, 959 (9th Cir. 1999)

(“Ultimately, the goal [of interpreting the Guidelines] is to

ascertain the intent of the drafters.” (internal quotation marks

omitted)). The “Reason for Amendment” cites man-portable

air defense systems (MANPADS) as a prime example of a

weapon covered by § 2K2.1(b)(3)(A). U.S.S.G. App. C,

Amend. 669 (“This amendment increases that enhancement

to 15 levels if the destructive device was a man-portable air

defense system (MANPADS), portable rocket, missile, or

device used for launching a portable rocket or missile.”).

MANPADS are shoulder-fired surface-to-air missiles (also

known as SAMs), which are undisputedly self-propelled

devices with various types of guidance systems. The types of

weapons the Commission intended to include in the

amendment should be read in light of this example. See id.

(referring to “MANPADS and similar weapons” and

UNITED STATES V. FLORES 13

“MANPADS or similar destructive device[s]” as the devices

covered by the amendment).

The record also supports our conclusion that the 40-mm

cartridges are not “missiles” as we have defined the term.

The record clearly indicates, and the parties do not dispute,

that the cartridges are not self-propelled. Rather, the ignition

of the propellant forces the munition from the launcher and

the projectile travels under its own inertia.

Both the government, in seeking the enhancement, and

the district court, in applying it, were undoubtedly motivated

by the extreme dangerousness of these weapons, which are

“designed to penetrate at least two inches of steel armor,” can

travel up to 400 meters, and contain 1.2 and 1.5 ounces of

military grade explosive. But the guidelines specifically

address how district court judges should approach such a

situation. Application note seven to § 2K2.1 states:

In a case in which the cumulative result of the

increased base offense level and the

enhancement under subsection (b)(3) does not

adequately capture the seriousness of the

offense because of the type of destructive

device involved, the risk to the public welfare,

or the risk of death or serious bodily injury

that the destructive device created, an upward

departure may be warranted.

Therefore, if the district court determines that the danger of

the 40-mm cartridges involved in this case merits a higher

sentence than one within the guidelines range with only a

two-level enhancement under § 2K2.1(b)(3)(B), the district

court may depart or vary upward.

14 UNITED STATES V. FLORES

CONCLUSION

In sum, we hold that the definition of a missile under

26 U.S.C. § 5845(f) and U.S.S.G. § 2K2.1(b)(3)(A) is a self-

propelled device designed to deliver an explosive. Therefore,

the district court erred in applying the enhancement to the

defendants’ sentences because the 40-mm cartridges in this

case are not self-propelled weapons. We vacate the

defendants’ sentences and remand for resentencing. See

United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.

2006) (holding that a material error in calculating the

sentencing range, even though the Guidelines are only

advisory, is grounds for resentencing).

VACATED and REMANDED for resentencing.