United States v. Flores

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,” which does not include 40-mm cartridges.

In 2010, Yoahjan Lara Flores, Alfredo Lara, and Arturo Lara (collectively, “Defendants”) negotiated with undercover agents from the Bureau of Alcohol, Tobacco, and Firearms to purchase a Colt M203 grenade launcher and three 40-mm gold-tipped high explosive dual purpose cartridges for $1,900. After making the exchange in a parking lot, the Defendants were arrested. At sentencing, the district court granted the government’s motion for a fifteen-level enhancement based on the government’s contention that the offense involved a “missile” pursuant to applicable sentencing guidelines. The Defendants pled guilty to conspiracy to possess an unregistered firearm, but appealed the district court’s ruling on their enhanced sentences. Although the 40-mm cartridges contained the requisite volume of explosives under the statute, it was not clear whether the cartridges were truly “missiles” as intended in the National Firearms Act. After surveying several definitions of the word missile and the sentencing guidelines, the Ninth Circuit held that within the context of modern weaponry, the common definition of “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.” Because these 40-mm cartridges were not self-propelled devices, the district court erred in applying the sentencing enhancement. VACATED and REMANDED.