FOR THE FIFTH CIRCUIT

 

No. 92-4356

Summary Calendar

 

United States of America,

Plaintiff-Appellee,

versus

Ronald Peters and Thomas Pullen,

Defendants-Appellants.

 

Appeal from the United States District Court

for the Western District of Louisiana

 

(November 11, 1992)

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Ronald Peters and Thomas Pullen appeal their sentences after

each pleaded guilty to one charge of conspiring to illegally export

helicopters in violation of the Arms Export Control Act, 18 U.S.C.

§ 371; 22 U.S.C. § 2778. Both defendants challenge the district

court's interpretation and application of U.S.S.G. § 2M5.2, and the

addition of offense points for managerial involvement under

§ 3B1.1(c). Pullen complains of the refusal to depart downward

from the guideline sentence range in his case. We affirm.

In January 1990, a confidential informant contacted the U.S.

Customs Service regarding a suspicious sale of helicopters. Peters

had solicited the informant to purchase seven Agusta Bell Model 204
 

1The helicopters involved here were once owned by the Dutch

military.

2

helicopters from a California company. 

Helicopters which are specifically designed, modified, or

equipped for military purposes are included on the United States

Munitions List, 22 C.F.R. § 121.1, Category VIII(a), and may not be

exported without a license. 22 U.S.C. § 2778. The Model 204

helicopter is equipped with "hard points" to which weapons systems

may be attached, allowing easy adaptation to military purposes.1

There is no dispute that export of the Model 204 without a license

is prohibited.

Peters and Pullen told the informant that the helicopters were

to be purchased and taken to Canada, where they would be resold to

an unnamed foreign country unfriendly to the United States.

Defendants never attempted to obtain an export license. Peters

represented to the informant that he was the broker among the

parties involved, and Pullen purported to be the foreign buyer's

representative. Trying to obtain financing for the helicopter

purchase, they convened a number of meetings and telephone

conversations which included the informant between January and

June, 1990. At least one person other than the defendants and the

informant attended one of the meetings. Due to financial

difficulties the conspiracy terminated in the summer of 1990.

When Peters was notified that he was the target of a federal

investigation, he immediately began to cooperate. The government

credited his substantial cooperation for disclosing Pullen's
3

identity and convincing Pullen to plead guilty. As a result the

government moved for a downward departure from the Sentencing

Guidelines for Peters under § 5K1.1. Pullen, on the other hand,

told a probation officer that he believed he had done nothing wrong

since the conspiracy had not achieved its objective. He also

expressed bitterness toward the informant.

Both defendants pleaded guilty to a conspiracy charge. The

Pre-Sentencing Report for both defendants established a final

offense level of nineteen. The base offense level for conspiring

to violate the munitions export laws was assessed at twenty-two.

This level was reduced by three for failure to complete the

substantive offense, § 2X1.1(b)(2), and two for acceptance of

responsibility. § 3E1.1(a). Two points were added to each

defendant for playing a managerial role in the offense.

§ 3B1.1(c). Since both Peters and Pullen had a criminal history

category I, the resulting sentence range for both was thirty to

thirty-seven months, plus two to three years supervised release and

fines. 

The district court accepted the government's § 5K1.1 motion

regarding Peters and departed downward from the guidelines by

sentencing him to twelve months confinement plus thirty-six months

supervised release and the guideline minimum fine. The court

rejected Pullen's suggestion that past military service and

commendations justified a downward departure for him. Pullen was

sentenced to the guideline minimum confinement of thirty months,
4

plus thirty-six months supervised release and the guideline minimum

fine.

Both Peters and Pullen challenge the base offense level

applied in their sentencing. They contend that under the Guideline

provisions in force in the spring of 1990, the proper base offense

level should be fourteen, not twenty-two. At that time the

applicable section provided for a base offense level of "(1) 22, if

sophisticated weaponry was involved; or (2) 14." § 2M5.2. The

court found that the Model 204 helicopters were sophisticated

weaponry. The defendants dispute the factual and legal bases of

this finding.

The term sophisticated weaponry was not defined in the

Guidelines, but its meaning was addressed by this court in United

States v. Nissen, 928 F.2d 690 (5th Cir. 1991). We held that the

1990 amendment to § 2M5.2 may be considered in determining whether

items should be considered sophisticated weaponry under the preamendment provision. Id. at 695. That amendment provided that the

base offense level should be twenty-two, or fourteen if the offense

involved only ten or fewer non-fully-automatic small arms. § 2M5.2

(as amended Nov. 1, 1990). In light of that clarification of

§ 2M5.2's intended meaning, we decided that "the lower base offense

level [of pre-1990 § 2M5.2] is reserved for truly minor exports of

military equipment." Nissen, 928 F.2d at 695.

The district court's factual determination that seven Model

204 helicopters are sophisticated weaponry is reviewed for clear

error. See id. Peters and Pullen argue that these helicopters
5

were not sophisticated weaponry because they were civilian aircraft

only potentially usable for military purposes. Unlike most

civilian aircraft, these helicopters were made with reinforced

structures permitting the attachment of military hardware. The

United States Munitions List controls aircraft "specifically

designed, modified, or equipped for military purposes." 22 C.F.R.

§ 121.1, Category VIII(a). The Model 204 fits that description.

We are not persuaded that the district court's finding was clearly

erroneous.

In making its determination, the district court referred to

the clarification of § 2M5.2 by the 1990 amendment. Peters and

Pullen argue that using the amendment to interpret the earlier

provision amounted to an ex post facto application of the

amendment. The Supreme Court has held that a criminal law is ex

post facto if it is retrospective and disadvantages an offender by

altering matters of substance. Miller v. Florida, 482 U.S. 423,

430, 107 S. Ct. 2446, 2451 (1987). Defendants rely on United

States v. Suarez, 911 F.2d 1016 (5th Cir. 1990), which held that an

amendment to § 1B1.3 could not be retroactively applied because it

substantially changed that provision. Id. at 1022. Two important

distinctions exist between this case and Suarez. First, the

question in Suarez was under which set of terms--pre-amendment or

post-amendment--the defendant could be sentenced. Here, the

district court sentenced both defendants under the terms of preamendment § 2M5.2 by determining whether or not sophisticated
 

2Had the defendants been improperly "sentenced under" postamendment § 2M5.2, no question of sophisticated weaponry would

have arisen. The amendment did away with this element.

 

3The district court may rely upon information in the PSR

which has some minimum indicium of reliability. United States v.

6

weaponry was involved.2 Reference to the amendment was only made

in order to clarify the meaning of the pre-amendment section.

More importantly, we have already held that the 1990 amendment

to § 2M5.2 did not effect a substantive change to the provision.

We view this amendment as making no substantive changes

to either the guideline itself or to its commentary.

Since it was intended only to clarify this guideline's

application, we may consider the amended language, even

though it was not effective at the time of sentencing for

the offense in question.

Nissen, 928 at 694-95. The district court permissibly followed the

lead of this court in looking to the non-substantive amendment to

interpret the governing provision. No unconstitutional ex post

facto application of a substantive change increasing the

defendants' sentence occurred.

Defendants also complain of the offense level increase for

acting as "an organizer, leader, manager, or supervisor" in the

offense. § 3B1.1(c). Among the considerations suggested by

§ 3B1.1(c)'s commentary are planning, organizing, recruitment of

accomplices, and the scope of the illegal activity. § 3B1.1,

comment. (n.3). Peters and Pullen argue that their scheme was a

two-man conspiracy with neither one exercising a leadership or

managerial role over the other. The pre-sentencing report

indicates that their scheme was more far-reaching and complicated

than their characterization admits.3 Defendants recruited the
Vela, 927 F.2d 197, 201 (5th Cir.), cert. denied, 112 S. Ct. 214

(1991).

7

informant's involvement and met with an undercover Customs agent.

At least one other person attended a meeting as well. Peters

represented himself as a broker in the transaction. Pullen

identified himself as the representative of an unnamed foreign

buyer. Defendants have failed to show that the district court

clearly erred in finding that they were organizers of this criminal

activity within the meaning of § 3B1.1(c).

Finally, Pullen complains of the district court's failure to

grant a downward departure for his sentence. A claim that the

court improperly failed to reduce a sentence will succeed only if

the court's failure to depart violated the law. United States v.

Mitchell, 964 F.2d 454, 462 (5th Cir. 1992). The district court

departed for Peters after a § 5K1.1 motion and sentenced him to

twelve months. Pullen argues that he should have been given a

similar sentence because (1) his sentence should be comparable to

Peters' sentence; (2) the government made the oral equivalent of a

§ 5K1.1 motion at sentencing; and (3) his military service and

commendations warranted a downward departure. We disagree with

each of these contentions.

The fact that another party received a lesser sentence for the

same offense does not make a sentence within the guideline range

improper. See United States v. Puma, 937 F.2d 151, 156 (5th Cir.

1991), cert. denied, 112 S. Ct. 1165 (1992). The district court

was justified in giving Peters and Pullen different sentences
8

because the government acknowledged that Peters' cooperation was

substantial. Courts give substantial weight to the government's

evaluation of a defendant's assistance. § 5K1.1, comment. (n.3).

Peters promptly and completely disclosed his involvement to

investigators, and convinced Pullen to plead guilty. Pullen has

failed to point to similar assistance to the government.

We do not agree that the prosecutor's statement at sentencing

amounted to an oral § 5K1.1 motion. He said:

[B]ased on his cooperation with the government and the

fact of our mistake in representation to him prior to

[sentencing regarding the correct guideline calculation],

as well as his distinguished military career, and the

fact that he has no prior criminal record, we would ask

that that will mitigate in terms of sentence.

The statement does not establish that Pullen had provided

"substantial assistance" as § 5K1.1 requires. Rather than

requesting a downward departure from the guideline range, it

apparently does no more than suggest leniency within that range. 

We find no violation of law in the district court's failure to

depart on this basis.

We are not persuaded that Pullen's military service and

receipt of two purple hearts and a distinguished flying cross

compel a departure from the sentencing guidelines. The primary

focus of the sentencing guidelines is on the crime committed rather

than on the individual offender. See United States v. Reyes-Ruiz,

868 F.2d 698, 700 (5th Cir. 1989), overruled on other grounds by

United States v. Bachinsky, 934 F.2d 1349 (5th Cir. 1991) (per

curiam) (en banc). The Guidelines discourage departing on the

basis of a variety of individual characteristics including previous
 

4See United States v. McCaleb, 908 F.2d 176, 179 (7th Cir.

1990)(holding that military service could justify departure);

United States v. Neil, 903 F.2d 564, 566 (8th Cir. 1990)(accord). 

In neither McCaleb nor Neil, however, was a departure based on

military service found warranted. 

 

5Our confidence in this conclusion is bolstered by the fact,

which we note but do not rely upon, that the Sentencing

Commission amended the Guidelines to add military service to the

list of ordinarily irrelevant considerations. § 5H1.11 (as

amended Nov. 1, 1991).

9

employment record and community ties. §§ 5H1.5, 5H1.6. An

individual's service to the community does not justify a departure

from the Guidelines. United States v. O'Brien, 950 F.2d 969, 971

(5th Cir. 1991), cert. denied, 61 U.S.L.W. 3233 (U.S. Oct. 5,

1992). Without deciding, as some circuits have,4 whether or not

military service could ever justify a departure, we conclude that

the facts of this case do not present such extraordinary

circumstances as to require departure on the basis of this

individual characteristic.5 The district court committed no

violation of law in declining to depart downward from the guideline

sentence range in Pullen's case.

AFFIRMED.