IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 91-8467

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SALVADOR GALVAN-REVUELTA,

a/k/a SALVADOR REVUELTA-GALVAN,

Defendant-Appellant.

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Appeal from the United States District Court for the

Western District of Texas

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(March 27, 1992)

Before JOLLY, DAVIS, and SMITH, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Sylvester Galvan-Revuelta pleaded guilty to unlicensed export

of munitions and was sentenced accordingly. He appeals his

sentence, arguing that the district court applied the wrong

sentencing guideline. For the reasons set forth below, we affirm.

I

On April 11, 1991, United States Customs Service agents

received information from a confidential informant that two

individuals had purchased a large quantity of ammunition at a

hardware store in El Paso, Texas, and were planning to smuggle it

into Mexico. The information included a description of the vehicle
 

1"As prescribed in regulations issued under this section,

every person . . . who engages in the business of manufacturing,

exporting, or importing any defense articles . . . designated by

the President under subsection (a)(1) of this section shall

register . . . and shall pay a registration fee . . .." 22 U.S.C.

§ 2278.

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being used by the two individuals. The Customs agents located the

vehicle and placed it under surveillance. When the appellant,

Sylvester Galvan-Revuelta, attempted to drive it across the border,

Customs agents stopped and searched the vehicle, finding 10,181

cartridges of various caliber firearms ammunition. The United

States charged the appellant with exporting defense articles in

violation of 22 U.S.C. § 2778(b)(1)(A)1. The appellant pleaded

guilty.

II 

At sentencing on May 28, 1991, the appellant objected to the

recommendation in the presentencing report that United States

Sentencing Commission Guidelines Manual, § 2M5.2 (1991)

(hereinafter U.S.S.G. § 2M5.2) is the offense guideline most

applicable to his offense conduct. That guideline establishes a

base offense level of 22 and applies to offenses involving the

exportation of arms, munitions, or military equipment or services

without an export license. The appellant argued that the most

applicable offense guideline is U.S.S.G. § 2K2.1 (November 1,

1990), which establishes a base offense level of six and applies to

offenses involving unlawful receipt, possession, or transportation
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of firearms or ammunition. The district court overruled the

objection. The appellant now challenges that ruling. 

III

A

On appeal, Galvan-Revuelta argues that the district court

erred in applying U.S.S.G. § 2M5.2 and reiterates his argument that

the sentencing commission intended that section to apply only to

situations "involving serious military or space hardware," not

firearms ammunition. For this conclusion, the appellant relies on

the following language contained in an application note to that

section: "The items subject to control constitute the United

States Munitions List, which is set out in 22 C.F.R. Part 121.1.

Included in this list are such things as military aircraft,

helicopters, artillery, shells, missiles, rockets, bombs, vessels

of war, explosives, military and space electronics, and certain

firearms." U.S.S.G. § 2M5.2, application note 1. The appellant

points out the absence of any mention of ammunition in that section

and notes that U.S.S.G. § 2K2.1 (November 1, 1990), on the other

hand, expressly addresses offenses involving the transportation of

ammunition.

B 

The appellant's contention is a challenge to the court's

application of the sentencing guidelines and, as such, is reviewed

de novo. See U.S. v. Otero, 868 F.2d 1412, 1414 (5th Cir. 1989).

Having reviewed the charge against Galvan-Revuelta, the sentencing
 

2The United States Munitions List, 22 C.F.R. Part 121.1,

specifically lists:

CATEGORY III--AMMUNITION

(a) Ammunition for the arms in Category I . . . of this

section. [Nonautomatic, semi-automatic, and fully

automatic firearms to caliber .50]. 

Id. Part 121.9 specifies that "Category I includes revolvers,

pistols, rifles, carbines, [etc.] to caliber .50." Id. The

ammunition discovered in the vehicle driven by Galvan-Revuelta was

rifle or pistol (i.e., "firearms") ammunition of less than .50

caliber. It was, therefore, on the United States Munitions List

and within the contemplated application of section 2M5.2.

 

3See 22 C.F.R., Parts 121.1, 121.9.

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guideline applied by the district court, the guideline urged by the

appellant and the record in this case, we conclude that the

appellant's contention is untenable for two reasons. 

First, the language of U.S.S.G. § 2M5.2 unmistakably reveals

that the Commission intended for it to apply to the export of

ammunition. The application note states: "Under 22 U.S.C. § 2778,

the President is authorized . . . to control exports of defense

articles . . .. The items subject to control constitute the United

States Munitions List, which is set out in 22 C.F.R. Part 121.1."

U.S.S.G. § 2M5.2, application note 1 [emphasis ours].2 No

reasonable reading of the application note yields the conclusion

that the scope of that section is limited to sentencing for

unlicensed export of only the enumerated items rather than all of

the items contained on the Munitions List. Furthermore, the

application note does specifically mention "certain firearms,"

which are defined in the Munitions List to include, inter alia,

revolvers, pistols, and rifles up to .50 caliber.3 These items no
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more constitute "serious military or space hardware" than does the

ammunition that goes in them. 

Second, the statutory index of the guidelines, U.S.S.G. App.

A, lists U.S.S.G. § 2M5.2 as the only offense guideline applicable

to convictions under 22 U.S.C. § 2778. Accordingly, the Sentencing

Commission intended for the courts to use that guideline unless the

particular offense conduct renders the conviction an "atypical

case" in light of the statute. U.S.S.G. App. A, intro. comment;

see U.S. v. Beard, 913 F.2d 193, 197-98 & n.2 (5th Cir. 1990). 

The appellant's case is not atypical on the ground that it

involved only ammunition. As explained above, offenses involving

ammunition are not excepted from the scope of U.S.S.G. § 2M5.2.

Furthermore, to the extent that the appellant is arguing that his

offense conduct was atypically minor in the light of the national

security objectives of the statute, the argument still fails. The

Commission established the base offense level of U.S.S.G. § 2M5.2

with the assumption that, in the usual case, the offense conduct

will be "harmful or ha[ve] the potential to be harmful to a

security or foreign policy interest of the United States."

U.S.S.G. § 2M5.2, application note 1. However, the application

note further provides that "[i]n the unusual case where the offense

conduct pose[s] no such risk, a downward departure may be

warranted." Id. In the instant case, the district court found

that the appellant's offense conduct posed no national security

risk. In accordance with U.S.S.G. § 2M5.2, the district court
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departed downward from the applicable guideline range of 33-41

months and imposed instead a prison term of 24 months. 

In sum, the district court correctly determined that U.S.S.G.

§ 2M5.2, and not U.S.S.G. § 2K2.1, is the guideline most applicable

to the appellant's offense conduct. The sentence imposed by the

district court is

A F F I R M E D.