U.S. v. Boumelhem

• Decision Date: 12 August 2003
• Docket Number: No. 02-1426.,02-1426.
• Citation: 339 F.3d 414
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ali Boumelhem, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

339 F.3d 414

UNITED STATES of America, Plaintiff-Appellee, v. Ali Boumelhem, Defendant-Appellant.

No. 02-1426.

United States Court of Appeals, Sixth Circuit.

Argued: June 18, 2003.

Decided and Filed: August 12, 2003. Pursuant to Sixth Circuit Rule 206

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Pierre H. Bergeron (argued and briefed), SQUIRE, SANDERS & DEMPSEY, Cincinnati, Ohio, for Appellant.

Robert Cares (argued and briefed), UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

Before: NORRIS, DAUGHTREY, and ROGERS, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

Ali Boumelhem was convicted of five violations of, and one count of conspiracy to violate, 18 U.S.C. § 922(g), which (subject to jurisdictional limitations) prohibits the possession or shipment of firearms or ammunition by a person who has previously been convicted of a crime punishable by imprisonment for over one year. Boumelhem was at the same time convicted of one count of conspiracy to violate 18 U.S.C. § 922(e), which prohibits the delivery of firearms and ammunition to a common carrier for shipment in foreign commerce without written notice to the carrier in violation of 18 U.S.C. § 922(e). Boumelhem appeals his convictions and sentence, asserting that (1) the Fourth Amendment was violated by the government's search of the cargo container in which many of the prohibited articles were found, (2) the previous crime upon which his § 922(g) convictions were based was not a "a crime punishable by imprisonment for a term exceeding one year," and (3) the district court improperly applied a four-point sentencing enhancement for possessing firearms "in connection with another felony offense" under USSG § 2K2.1(b)(5). While we conclude that the search was reasonable and that Boumelhem's prior conviction was a proper predicate offense under § 922(g), the district court erred by enhancing Boumelhem's sentence under USSG § 2K2.1(b)(5). We therefore affirm Boumelhem's convictions but vacate his sentence and remand to the district court for re-sentencing.

FACTS

In late October of 2001 a joint task force, formed to combat terrorism, began to investigate whether Ali Boumelhem ("Boumelhem") and his brother, Fouad Boumelhem ("Fouad"), were attempting to ship weapons to Lebanon. The Federal Bureau of Investigation (FBI), the United States Customs Service (Customs), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the United States Immigration and Naturalization Service (now the Bureau of Citizenship and Immigration Services), and the United States Commerce Department participated in this particular investigation, but the task force also included the United States Secret Service and the Michigan State Police. The investigation focused on a forty-foot-long shipping container that Vantage International delivered to Trumbell Auto Repair, a business owned by Fouad, in late October 2001.

Vantage International is an international freight forwarding business operated by Mustafa Khalifa. Both Fouad and Boumelhem discussed arrangements to ship automobile engines, transmissions and related parts with Khalifa, but Khalifa was never informed that firearms and ammunition were going to be shipped to Lebanon. Based upon the information he was provided, Khalifa filled out the necessary paperwork, including a bill of lading, which listed the contents of the container as "40 engines, used, and other salvage auto parts," and a shipper export declaration, which detailed the contents as "engines and transmissions." The bill of lading listed Boumelhem as the consignee of the shipment.

After the container was delivered, Fouad and Boumelhem, with the help of others, loaded the container, during which time the FBI kept both the container and Boumelhem under surveillance. On November 6, 2000, a truck transported the loaded container to a railroad yard in the Detroit area. The container was scheduled to be transported from the yard to Montreal, Canada, and from there shipped to Lebanon. Once the container reached the railroad yard, Customs agents had the container taken to a nearby Customs facility, where it was searched. Although Customs agents initiated the search, other law enforcement agents, including FBI agents, participated in the search.

The search revealed a number of items not disclosed by the bill of lading or the shipper's export declaration. Customs agents discovered, hidden in a car door, (1) twelve boxes of nine millimeter ammunition, (2) three boxes of 7.65 millimeter ammunition, (3) a Remington twelve-gauge shotgun, (4) an upper receiver for an M-16 or AR-15 assault rifle, (5) hand grips for the barrel of an AR-15, (6) flash suppressors, (7) a butt stock assembly for an M-16 or AR-15, (8) and some speed loaders. Custom agents also discovered another twelve-gauge shotgun, along with a two-way radio, in a shopping bag that had been wrapped in a shirt. Based upon this evidence, Boumelhem was later arrested.

At trial, the government presented testimony from Alan Stark, a firearms dealer. Stark testified that Boumelhem purchased four twelve-gauge shotguns during a period beginning in 1996 and ending in 1998.

In a fourth superseding indictment, Boumelhem was charged with (1) one count of possessing firearms and ammunition in violation of 18 U.S.C. § 922(g), (2) four counts of possessing a firearm in violation of § 922(g), (3) one count of conspiracy to ship firearms and ammunition in foreign commerce in violation of § 922(g), and (4) one count of conspiracy to deliver firearms and ammunition to a common carrier for shipment in foreign commerce without written notice to the carrier in violation of 18 U.S.C. § 922(e). An individual violates § 922(g) only if the individual has previously been convicted for "a crime punishable by imprisonment for a term exceeding one year." To meet this requirement, the government relied on Boumelhem's 1993 conviction of one count of grand theft in California; the Los Angeles Municipal Court had sentenced Boumelhem to felony probation, with the condition that he spend six days in the county jail. After trial, a jury convicted Boumelhem on all seven federal counts. At Boumelhem's sentencing hearing, the government sought, and was granted, a four-point enhancement under USSG § 2K2.1(b)(5), for possessing firearms "in connection with another felony offense." Boumelhem was then sentenced to incarceration for forty-four months. Boumelhem now appeals his conviction and sentence.

ANALYSIS

I. The Search of the Shipping Container Did Not Violate the Fourth Amendment.

Boumelhem contends that the search of the shipping container violated his rights under the Fourth Amendment. Boumelhem makes two arguments in support of his Fourth Amendment contention. First, he argues that — in contrast to border searches of imports — border searches involving the export of cargo, other than currency, should be subject to a probable cause or reasonable suspicion standard. Boumelhem also maintains that even if Customs possesses the ability to conduct export searches without reasonable suspicion, the search of the container violated the Fourth Amendment because Customs undertook the search at the direction of the FBI. The FBI, Boumelhem argues, should not be allowed to circumvent the requirements of the Fourth Amendment by employing Customs to search a container that is the target of an FBI investigation. We reject both arguments and conclude that the search was reasonable.

A. Standard of Review

"`On suppression issues, [an appellate court] review[s] a district court's findings of fact for clear error, but ... review[s] all conclusions of law de novo.'" United States v. Haynes, 301 F.3d 669, 676 (6th Cir.2002) (quoting United States v. Crowder, 62 F.3d 782, 785 (6th Cir.1995)). In reviewing such a decision, the court must consider the evidence in the light most favorable to the government. Id.

B. The Warrantless Exit Search was Authorized by Statute and Permitted by the Fourth Amendment.

Boumelhem argues that the search of the cargo container was not justified because the government failed to obtain a warrant. The Supreme Court has held, however, that warrants are not required for border searches of materials or persons. United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977). Boumelhem argues that the Supreme Court's border search cases do not apply to searches of articles leaving the country. He also argues in the alternative that the government agents who conducted the search were not authorized by statute to conduct the search. We conclude that the exit border search was both authorized by statute and constitutional. Following the lead of United States v. Ramsey, 431 U.S. at 606, 97 S.Ct. 1972, we address first whether the border search was authorized by federal statute and then analyze the search under traditional Fourth Amendment principles.

1. The Customs Agents Were Statutorily Authorized to Conduct the Export Search.

Contrary to Boumelhem's arguments, here the Government agents had statutory authority to conduct the search of the cargo container.¹ Section 1581 of Title 19 of the United States Code, in pertinent part, reads:

Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States ... without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.

19 U.S.C. § 1581(a). This statute has been interpreted as granting general authorization for border searches. See United States v. Molina-Tarazon, 279 F.3d 709, 712 n. 4 (9th Cir.2002) ("The border search exception is codified at 19 U.S.C. § 1581(a)...."); United States v. 1903 Obscene Magazines, 907 F.2d 1338, 1341 (2d Cir.1990) (citing § 1581 for the...