Monday, March 24, 2008

Out of Ammunition

United States v. Sero, No. 05-6967-cr (2d Cir. March 19, 2008) (per curiam)

Defendant Sero, who pled guilty to illegally exporting weapons to the Philippines, challenged his sentence. In doing so, he gave the court its first opportunity to consider U.S.S.G. § 2M5.2 and its “bump-down.” This particular Guideline ordinarily calls for a base offense level of 26, but this is reduced to 14 if the offense involved “only non-fully automatic small arms” and “the number of weapons did not exceed ten.” He argued that he was entitled to the lower level because his conduct was “minor,” although it included ammunition, which is not mentioned in the bump-down. He lost under the plain language of the guideline. “We find that the guideline does not permit finding an exception for including ammunition, no matter how small the quantity.” He was also disentitled to the bump-down because his shipment consisted of components that “were capable of servicing more than ten fully or non-fully automatic weapons.”


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