U.S. v. Rojas, 93-5127
| Citation | 47 F.3d 1078 |
| Decision Date | 16 March 1995 |
| Docket Number | No. 93-5127,93-5127 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Ivan Leon ROJAS, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Julia A. Paylor, Asst. U.S. Atty., Kendall Coffey, U.S. Atty., Harriett R. Galvin, Linda Collins Hertz, Asst. U.S. Attys., Miami, FL, for appellant.
Gerardo Andres Remy, Jr., Miami, FL, for appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before HATCHETT and ANDERSON, Circuit Judges, and FAY, Senior Circuit Judge.
The government brings this appeal challenging Ivan Leon Rojas's sentence. We hold that the district court misapplied the United States Sentencing Guidelines in granting Rojas a downward departure; thus, we remand for resentencing.
On January 26, 1993, Ivan Leon Rojas departed from Florida aboard a Bahamian registered vessel. Three days later, members of the United States Coast Guard boarded the vessel while it was anchored approximately 200 miles southeast of Miami and 50 miles north of Cuba. A search of the boat revealed ammunition, explosives, machine guns, and automatic rifles equipped with grenade launchers.
After being arrested, Rojas admitted that the weapons were loaded onto the boat in Marathon, Florida, and that he was attempting to smuggle them into Cuba in order to aid the resistance efforts against the Castro regime. Rojas also stated that an "organization" had helped him coordinate the mission, but refused to identify the organization.
A federal grand jury in the Southern District of Florida returned an indictment against Rojas charging him with one count of knowing possession of unregistered firearms, in violation of 26 U.S.C. Sec. 5861(d). On July 6, 1993, Rojas pleaded guilty to the one count in the indictment.
On September 10, 1993, the district court held a sentencing hearing. Applying the Sentencing Guidelines to Rojas's case, the United States Probation Office calculated a term of imprisonment of 24 to 30 months based on a total offense level of 17 and a criminal history category of I. Rojas did not contest this calculation, but instead asked the district court for a downward departure based on the lesser harms provision of the Sentencing Guidelines, U.S.S.G. Sec. 5K2.11. Rojas argued that section 5861(d) is meant to protect Americans from unregistered firearms on American soil, but that Coast Guard personnel arrested him in Bahamian waters while transporting weapons out of the United States. Furthermore, Rojas contended that in transporting the weapons, he sought to avoid a greater harm, the total destruction of a country and the annihilation of its citizens. Rojas also asked the district court to consider the fact that, historically, juries in the The district court granted Rojas's request for a downward departure pursuant to U.S.S.G. Sec. 5K2.11. Accordingly, it sentenced Rojas to two years probation. The government appeals.
Southern District of Florida have acquitted defendants charged with similar offenses.
The government contends that the district court erred in granting a downward departure under U.S.S.G. Sec. 5K2.11 because section 5861(d) seeks to prevent the harms associated with Rojas's conduct. The government further argues that a defendant's subjective views of foreign policy may not serve as a basis for a sentence reduction.
Rojas responds that the district court correctly granted him a downward departure under the lesser harms provision of the Sentencing Guidelines because section 5861(d) is not intended to reach the peculiar facts of this case; likewise, he argues that he transported the weapons in order to avoid a perceived greater harm.
The issue is whether a defendant convicted of possessing unregistered firearms is entitled to a downward departure under the Sentencing Guidelines because he was attempting to transport the firearms to a resistance movement in a foreign country.
We have jurisdiction over the government's appeal pursuant to 18 U.S.C. Sec. 3742(b). See United States v. Godfrey, 22 F.3d 1048, 1053 (11th Cir.1994) (). In Sentencing Guidelines cases, we review the district court's findings of fact for clear error and its application of law to those facts de novo. See United States v. Salemi, 26 F.3d 1084, 1086 (11th Cir.1994) (). On this appeal, we need only review the legal questions concerning the district court's application of the Sentencing Guidelines; thus, the de novo standard applies throughout our analysis. See Godfrey, 22 F.3d at 1053.
The focus of this appeal has been on the second prong of U.S.S.G. Sec. 5K2.11, which permits downward departures in instances where "conduct may not cause or threaten the harm or evil sought to be prevented by the law proscribing the offense at issue." Accordingly, we must resolve the legal question of whether section 5861(d) seeks to prevent the harms caused as a result of Rojas's conduct. 1 The appropriate starting point for this determination is the statute's legislative history.
Section 5861(d) is part of the "National Firearms Act (Act), 26 U.S.C. Secs. 5801-5872, [which] imposes strict registration requirements on statutorily defined 'firearms.' " Staples v. United States, --- U.S. ----, ----, 114 S.Ct. 1793, 1795, 128 L.Ed.2d 608 (1994).
In 1934, when Congress originally enacted the statute, it limited the coverage of the 1934 Act to a relatively narrow category of weapons such as submachineguns and sawed-off shotguns--weapons characteristically used by professional gangsters like Al Capone, Pretty Boy Floyd, and their henchmen. At the time, the Act would have had little application to the guns used by hunters or guns kept at home as protection against unwelcome intruders. Congress therefore could reasonably presume that a person found in possession of an unregistered machinegun or sawed-off shotgun intended to use it for criminal purposes. The statute as a whole, and particularly the decision to criminalize mere possession, reflected a legislative judgment that the likelihood of innocent possession of such an unregistered weapon was remote, and far less significant than the interest in depriving gangsters of their use.
Staples, --- U.S. at ----, 114 S.Ct. at 1808 (Stevens, J., dissenting). In passing the Act, "Congress felt that such control was necessary to curb the growing frequency of crimes of violence in which people were killed or injured by the use of such dangerous weapons." H.R.Rep. No. 1714, 82d Cong.2d Sess., reprinted in 1952 U.S.C.C.A.N. 1454; see also United States v. White Buffalo, 10 F.3d 575, 576-77 (8th Cir.1993) ().
"Congress subsequently amended the statute twice, once in 1968 and again in 1986." Staples, --- U.S. at ----, 114 S.Ct. at 1813 (Stevens, J., dissenting). Congress enacted the 1968 amendments as part of Title II of the Gun Control Act of 1968. "Title II contains no statement of congressional purpose and expresses no intention to allow any possession without registration." United States v. Lam, 20 F.3d 999, 1001 (9th Cir.1994) (emphasis added). Title I of the Gun Control Act, however, does contain a statement of purpose and some relevant legislative history. 2 In particular, Congress continued to emphasize the "senseless slaughter" which dangerous firearms cause. H.R.Rep. No. 1577, 90th Cong.2d Sess., reprinted in 1968 U.S.C.C.A.N. 4410, 4413. Congress also noted that it did not intend to place any undue restrictions on hunting, sport shooting, gun collecting, and protecting the home. See Pub.L. No. 90-618, Sec. 101, 82 Stat. 1213, reprinted in 1968 U.S.C.C.A.N. 1397, 1397; H.R.Rep. No. 1577, 90th Cong.2d Sess., reprinted in 1968 U.S.C.C.A.N. 4410, 4413-15.
After considering this history and Congress's deep-rooted concern with the loss of human life, we conclude that section 5861(d) was intended to reach the harms connected with Rojas's conduct; therefore, he is not entitled to a downward departure under the second prong of U.S.S.G. Sec. 5K2.11. In explaining when a downward departure would be appropriate, the Sentencing Guidelines use the example of "a war veteran [who] possesse[s] a machine gun or grenade as a trophy." U.S.S.G. Sec. 5K2.11. This example fits into one of the categories of conduct that Congress has historically been wary of unduly restricting--gun collection. 3 Similarly, the Eighth Circuit recently held that a defendant, who was convicted of a violation of section 5861(d), was entitled to a downward departure under U.S.S.G. Sec. 5K2.11 because he used the unregistered gun to shoot animals that preyed on his chickens and often hid in crawl spaces underneath the shacks next to his house. White Buffalo, 10 F.3d at 576. Again, that defendant's conduct arguably fell under three of the categories--hunting, sport shooting, and protecting the home. Rojas's conduct, on the other hand, does not fall into any one of these traditional categories; therefore, he is not entitled to a departure. See Lam, 20 F.3d at 1004-05 (); see also United States v. Warner, 43 F.3d 1335, 1338 (10th Cir.1994) ().
Congress specifically sought to prevent the harms that could potentially result from Rojas's conduct. In enacting the 1968 legislation, Congress highlighted the role of dangerous weapons in...
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