US v. Emenike Nwankwoala

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:10-cr-00179-PJM-1. Copies to all parties and the district court/agency. [998839699].. [11-4042]

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Document: 40

Date Filed: 04/25/2012

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4042

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EMENIKE CHARLES NWANKWOALA,
Defendant-Appellant.

On appeal from the United States District Court for the District
of Maryland, at Greenbelt. Peter J. Messitte, District Judge.
(8:10-cr-00179-PJM-1)

Argued:

March 21, 2012

Decided:

April 25, 2012

Before MOTZ, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam decision.

ARGUED: Brett J. Cook, BRENNAN, SULLIVAN & MCKENNA, LLP,
Greenbelt, Maryland, for Appellant.
Christen Anne Sproule,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee.
ON BRIEF: John M. McKenna, BRENNAN, SULLIVAN &
MCKENNA, LLP, Greenbelt, Maryland, for Appellant.
Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Emenike
offenses arising

Charles
out

of

ammunition to Nigeria.

Nwankwoala
his

unlawful

that

guilty

export

of

to

three

firearms

and

The district court sentenced Nwankwoala

to 37 months’ imprisonment.
contending

pled

it

is

Nwankwoala appeals his sentence,
procedurally

and

substantively

unreasonable because the district court used an improper base
offense level when calculating his recommended Guidelines range.
Finding no error, we affirm.

I.
The
approximately
States

facts
ten

probation

are

not

years,

in

dispute.

Nwankwoala,

officer,

unlawfully

ammunition from Maryland to Nigeria.

who

Over
was

exported

a

then

period
a

of

United

firearms

and

Nwankwoala was charged

with, and pled guilty to, exportation of arms without a license,
in

violation

of

22

U.S.C.

§

2278(b)

and

(c)

(“Count

I”);

exportation of controlled goods without a license, in violation
of 50 U.S.C. §§ 1702, 1705(c), and 50 U.S.C. App. § 2410(a)
(“Count II”); and willful delivery of a firearm to a common

2

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carrier

without

Date Filed: 04/25/2012

written

notice,

in

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violation

of

18

U.S.C.

§

922(e) (“Count III”). 1
Noting that Nwankwoala and the Government disagreed as
to the base offense level for Count I, Nwankwoala’s written plea
agreement reserved his right to appeal any sentence exceeding a
United States Sentencing Guidelines (“U.S.S.G.”) range resulting
from an adjusted base offense level of 13.
Count I alleged a violation of the Arms Export Control
Act

(“AECA”),

which,

inter

alia,

prohibits

individuals

from

exporting items listed on the State Department’s Munitions List
without

a

license.

Nwankwoala’s

export

The
of

factual

six

basis

handguns

for

and

Count

1,180

I

was

rounds

of

ammunition, both of which are listed on the Munitions List.
provision
§ 2M5.2.

of

the

The

Guidelines

applicable

for

version

violations
of

§

of

2M5.2

the
sets

The

AECA
the

is

base

offense level for violations of the AECA at:
(1) 26, except as provided in subdivision
(2) below;
(2) 14, if the offense involved only nonfully automatic small arms (rifles,
handguns,
or
shotguns),
and
the
number of weapons did not exceed ten.
U.S.S.G. § 2M5.2(a) (2009 ed.) (emphasis added).
1

Nwankwoala does not challenge any of his convictions, nor
does he challenge his sentence as to Counts II and III.
The
opinion thus focuses on the facts relating to Nwankwoala’s
sentence for Count I.

3

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At his sentencing hearing, Nwankwoala maintained that
his offense qualified for subdivision (2)’s lower offense level
because

he

had

exported

six

handguns,

thus

satisfying

provision’s numeric and firearm-type requirements.

the

He contended

the export of ammunition should not be used to classify his
offense under the higher offense level in subdivision (1).

The

district court considered, but rejected, Nwankwoala’s argument
relying both on the plain language of § 2M5.2 and several outof-circuit

opinions

that

had

held

the

export

of

ammunition

categorizes the offense under the higher offense level stated in
subdivision (1).
Accordingly, the district court set Nwankwoala’s base
offense level at 26.

After application of a net five-level

downward departure, Nwankwoala’s adjusted offense level of 21,
when combined with a criminal history category of I, yielded an
advisory Guidelines range of 37-45 months’ imprisonment.

The

district court then heard and considered the parties’ arguments
as to what an appropriate sentence would be under the 18 U.S.C.
§ 3553(a) factors, and sentenced Nwankwoala to the low end of
the Guidelines range: 37 months’ imprisonment.
Nwankwoala noted a timely appeal, and this Court has
jurisdiction

pursuant

to

28

U.S.C.

3742(a).

4

§

1291

and

18

U.S.C.

§

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II.
We

review

Nwankwoala’s

abuse of discretion standard.

sentence

under

a deferential

See Gall v. United States, 552

U.S. 38, 51 (2007)(Appellate courts must review the procedural
and “substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.”).
first

“whether

the

district

We are required to consider
court

committed

a

significant

procedural error in imposing the sentence under § 3553.

If no

procedural error was committed, [we] can only vacate a sentence
if it was substantively unreasonable in light of all relevant
facts.” United States v. Heath, 559 F.3d 263, 266 (4th Cir.
2009) (citing United States v. Curry, 523 F.3d 436, 439 (4th
Cir. 2008)).

Improperly calculating the Guidelines range is a

significant procedural error.

Gall, 552 U.S. at 51.

Although Nwankwoala challenges both the procedural and
substantive reasonableness of his sentence, his arguments as to
each rely on his belief that the district court erred in using a
base offense level of 26 rather than 14.
arguments to support that assertion.

He offers several

He contends, for example,

that the plain language of § 2M5.2 supports his position because
his sole firearm export was of less than ten non-fully automatic
small arms (as set forth in subdivision (2)), and the ammunition
should

not

district

count

court’s

in

that

assessment.

understanding

of
5

§

He
2M5.2

also
is

claims

the

fundamentally

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unfair and leads to an “absurd outcome[]” because the export of
a single round of ammunition would qualify for the same, higher,
offense
weaponry

level

as

contained

the
on

unlawful
the

export

Munitions

of

more

sophisticated

List,

such

as

tanks, helicopters[,] and vessels of war.”
Br. 11, 12.)

“military

(Appellant’s Opening

As such, he asserts the Sentencing Commission

either inadvertently failed to include ammunition in the list of
subdivision (2) less serious offenses under the AECA, or that
the

Sentencing

Commission

abdicated

institutional role” by not doing so.

its

“characteristic

Nwankwoala also points to

the 2011 amendment of § 2M5.2, which he contends contained both
substantive and clarifying components, including a clarification
that ammunition was always meant to be included in the list of
exports that qualify for subdivision (2)’s lesser offense level. 2
For all of these reasons, Nwankwoala contends the district court
should have used a base offense level of 14.
We disagree.

Nwankwoala’s interpretation of § 2M5.2

is inconsistent with the obvious plain language of the Guideline
provision.

The lesser offense level in subdivision (2) applies

“if the offense involved only non-fully automatic small arms

2

Nwankwoala does not suggest that the 2011 amendment
applies retroactively, but rather that it stands for the
principle that the Sentencing Commission recognizes the export
of ammunition as a less serious violation of the AECA.

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(rifles, handguns, or shotguns), and the number of weapons did
not

exceed

ten.”

(Emphasis

added.)

Section

2M5.2

is

the

applicable Guidelines provision for violations of the AECA, and
Application Note 1 to § 2M5.2 references the export of articles
contained on the Munitions List.

Ammunition is on the Munitions

List, and

a

exporting

it

without

license

violates

the

AECA.

Therefore, Nwankwoala’s AECA offense did not involve “only” the
six

firearms

ammunition. 3

he

exported;

it

also

involved

1,180

rounds

of

Nwankwoala’s “self-serving” opinion regarding “the

‘seriousness’ of his crime is of absolutely no import because it
is

irrelevant

under

the

plain

language

of

[§

2M5.2].”

See

United States v. Reyes, 270 F.3d 1158, 1171 (7th Cir. 2001)
(rejecting a similar argument under a prior version of § 2M5.2).
As such, the district court properly used the base offense level
of

26

when

calculating

Nwankwoala’s

recommended

Guidelines

range.
Unsurprisingly,

this

straightforward

application

of

the Guidelines’ plain language has been adopted by every Circuit
Court of Appeals to consider the issue.

United States v. Sero,

520 F.3d 187, 190 (2d Cir. 2008) (per curiam) (“Because the
language of [§ 2M5.2] is clear, our inquiry ends.
3

We find that

Despite arguing for a different result, Nwankwoala has
never challenged that his offense involved both firearms and
ammunition.

7

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the guideline does not permit finding an exception for [exports]
including

ammunition,

no

matter

how

small

the

quantity.”);

United States v. Muthana, 60 F.3d 1217, 1223-24 (7th Cir. 1995)
(holding the higher, subdivision (1) offense level applies to
violations of the AECA involving ammunition even if the offense
involves only ammunition); see also United States v. Carper, 659
F.3d 923, 925 (9th Cir. 2011) (strictly applying subdivision (2)
and holding it did not apply to the unlawful export of night
sighting equipment); United States v. Galvan-Revuelta, 958 F.2d
66, 68-69 (5th Cir. 1992) (holding § 2M5.2 applies to offenses
involving unlawful export of ammunition under the AECA, but not
discussing which subdivision applies).
We also note that the 2011 amendment to § 2M5.2 does
not alter any of our analysis.

Under the amended provision, the

base offense level is:
(1) 26, except as provided in subdivision
(2) below;
(2) 14, if the offense involved only (A)
non-fully
automatic
small
arms
(rifles, handguns, or shotguns), and
the number of weapons did not exceed
two, (B) ammunition for non-fully
automatic small arms, and the number
of rounds did not exceed 500, or (C)
both.
U.S.S.G.
amended

§

2M5.2(a)

Guideline

(2011

ed.).

provision

sentencing, nor should it.

should

Neither
be

party

used

in

contends

the

Nwankwoala’s

Instead, Nwankwoala contends the

8

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amendment

Date Filed: 04/25/2012

contains

a

clarifying

Page: 9 of 11

component

that

indicates

ammunition was always intended to be part of the lesser offense
level set forth in subdivision (2).

See U.S.S.G. § 1B1.11(b)(2)

(“[I]f

edition

a

court

applies

an

earlier

of

the

Guidelines

manual, the court shall consider subsequent amendments, to the
extent

that

substantive
position.

such

amendments

changes.”).
The

are

There

amendment

is

is

clarifying
no

merit

substantive,

rather

than

to

Nwankwoala’s

not

clarifying.

Nothing in reducing the number of non-fully automatic small arms
or adding the export of less than 500 rounds of ammunition (or
including

the

export

of

both)

to

subdivision

(2)’s

scope

supports Nwankwoala’s assertion that it constituted a sweeping
clarification that the export of any amount of ammunition is a
less serious offense that qualifies for the lesser offense level
in the earlier version of § 2M5.2. 4

4

And, indeed, the amendment cuts against Nwankwoala’s
argument that his offense should not be considered serious
enough to fall under subdivision (1)’s scope.
Nwankwoala’s
offense would not be eligible for the lesser offense level even
under the 2011 amendments because it involved six non-fully
automatic small arms (more than two) and 1,180 rounds of
ammunition (more than 500). Moreover, in amending § 2M5.2, the
Sentencing Commission specifically “determined that, as with
export offenses involving more than two [non-fully automatic
small] firearms, export offenses involving more than 500 rounds
of ammunition are more serious and more likely to involve
trafficking,” and thus deserving of the higher, subdivision (1),
offense level.
See U.S.S.G. app. C, Amendment 753, at 404
(2011) (Commentary to § 2M5.2).

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For these reasons, the district court did not err in
using a base offense level of 26.
accurately

calculated

Nwankwoala’s

the

assertion

unreasonable.

Because the district court

Guidelines

that

his

range,

sentence

we
is

now

turn

to

substantively

“Substantive reasonableness examines the totality

of the circumstances to see whether the sentencing court abused
its

discretion

in

concluding

that

the

sentence

satisfied the standards set forth in § 3553(a).”

it

chose

See United

States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). 5
As

noted,

Nwankwoala’s

substantive

reasonableness

argument

is

limited to his assertion that it was somehow unfair to use the
base

offense

level

of

26

in

calculating

his

recommended

Guideline range, and that error led to an artificially inflated
Guidelines range on which the district court based its § 3553(a)
analysis.

Because his procedural reasonableness argument lacks

merit, so does his substantive reasonableness argument.

The

record makes clear that the district court’s sentencing decision
5

We
typically
afford
within-Guidelines
sentences
a
presumption of reasonableness.
Relying on language from
Kimbrough v. United States, 552 U.S. 85 (2007), Nwankwoala
asserts a presumption of reasonableness should not apply to his
sentence because the Sentencing Commission’s two-tier approach
in § 2M5.2 does “not exemplify the Commission’s exercise of its
characteristic institutional role” by “tak[ing] account of
‘empirical data and national experience.’” See id. at 109. We
need not decide this question because the record makes clear
that Nwankwoala’s sentence is substantively reasonable, even
without the presumption of reasonableness.

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reflected a thorough, individualized assessment of Nwankwoala’s
circumstances, in light of the § 3553(a) factors.

Accordingly,

his sentence is substantively reasonable.

III.
For the foregoing reasons, we affirm the judgment of
the district court.

AFFIRMED

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