The defendant was involved in a conspiracy to illegally export 5.56 caliber rifles to Mexico along with his brother and two other co-accused.
During that time, one of the co-accused introduced an undercover agent acting as a weapons smuggler to the brothers who had negotiated and completed the purchase of a rifle. The agent continued negotiating directly with the brothers, resulting in the purchase of two more 5.56 caliber rifles. The serial numbers on those rifles had been obliterated.
The defendant and his brother engaged in yet another sale at the time of their arrest on March 19, 2015.
The defendant pleaded guilty to conspiracy to export a defense article without obtaining a license or written authorization and possession of a firearm with a removed, obliterated, or altered serial number; he was sentenced to a total of 135 months of imprisonment. He appealed his sentence, arguing that the district court clearly erred by refusing to grant him a mitigating role adjustment.
The Court of Appeal stated that the defendant's notion that he was a minor or minimal participant because he was “merely a negotiator,” “middleman,” and “facilitator” in the criminal activity was unavailing. The appellant was actively involved in finding suppliers for the illicit firearms and in the actual or attempted negotiations, delivery, and sale of eight firearms to undercover agents over a four-month period. As part of those negotiations, he communicated directly with undercover agents through five in-person meetings, telephone conversations, and text messages, and he was present for the sale and transfer of three firearms and the attempted sale of five firearms that preceded his arrest in this case.
The Court further held that the defendant had the burden of proving that he was “substantially less culpable than the average participant in the criminal activity.”, and that the district court's implicit conclusion that he failed to meet this burden was plausible in light of the record as a whole. Accordingly, the district court did not clearly err by denying the appellant's request for a mitigating role adjustment.
Section 38 of the Arms Export Control Act (22 U.S.C. § 2778 (2012))
intentionally and knowingly conspiring and agreeing with other persons to knowingly and willfully export, and cause to be exported, from the United States to Mexico, defense articles designated on the United States Munitions List, namely, 5.56 caliber rifles, without the required U.S. Department of State licenses.
Title 18, United States Code, Sections 922(k), 924(a)(1)(B) and 2.
possession of a firearm with a removed, obliterated, or altered serial number
The defendant was in possession of two 5.56 caliber rifles, with the serial number altered
Title 18, United States Code, Sections 922(g)(5)(A) and 924(a)(2) and 2
Being an alien in possession of a firearm
The defendant was in possession of two 5.56 caliber rifles
United States Court of Appeals, Fifth Circuit
This cases showcases the discussion that can occur surrounding the involvement and the degree of criminal liability of facilitators in cases of firearms trafficking offences.