* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-51392

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ROBERT THOMAS CALDWELL

Defendant-Appellant

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 3:07-CR-249-3

Before DAVIS, CLEMENT, and ELROD, Circuit Judges.

DAVIS, Circuit Judge:*

Defendant-Appellant Robert Thomas Caldwell appeals from the district

court’s denial of his motion for judgment of acquittal, following his conviction on

one count of attempting to export and aiding and abetting the attempted export

of defense articles in violation of certain export control regulations. In addition,

he appeals from his sentence of 20 months’ imprisonment. Because we find that

the evidence was sufficient to convict and that the sentence imposed was not

unreasonable, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

October 9, 2008

Charles R. Fulbruge III

Clerk
No. 07-51392

2

I. BACKGROUND

This case centers around the attempted unlicensed export of certain

single-use batteries, designed for use in HAWK missile systems, in violation of

the Arms Export Control Act (AECA), 22 U.S.C. § 2778(b)(2) and (c), and the

associated International Traffic in Arms Regulations (ITAR), 22 C.F.R.

§§ 120.1–120.32. It is undisputed that the batteries in question are covered by

the United States Munitions List (USML), 22 C.F.R. §§ 121.1–121.16, as

“defense articles.” The export of USML defense articles must be licensed

pursuant to 22 C.F.R. §§ 123.1–123.17, and failure to do so constitutes a

violation of 22 U.S.C. § 2778 and 22 C.F.R. §§ 127.1–127.12. Collectively, we

refer to the relevant AECA and ITAR provisions as the “export control

regulations.”

This case arose from a sting operation designed and carried out by the

United States Bureau of Immigration and Customs Enforcement (ICE), in which

it established a fake company, Mercury Global, in El Paso, Texas. Chris Tappin,

a British businessman, contacted Mercury Global in December of 2005 through

a representative in the United States, seeking the unlicensed export of a

USML-listed camera and USML-listed HAWK missile batteries, all in violation

of the export control regulations. He agreed to pay $5,000 apiece—$2,000 above

retail price—for 50 batteries. During these negotiations, Tappin and the

undercover agents discussed the specifics of the plot, including the use of double

(i.e., false) invoices.

The undercover agents stopped the first attempted shipment by arresting

one of Tappin’s representatives in the United States. The agents informed

Tappin that the shipment had encountered problems at customs in New York,

necessitating a change of plans for any future shipment. Mercury Global then

contacted Southeast Overseas, another shipping company, regarding possible

participation, but Southeast declined to join in when it learned of the licensing
No. 07-51392

3

issues. At that point, Tappin informed Mercury Global that it would be

contacted by Caldwell, an Oregon fertilizer importer, who would purchase the

batteries on Tappin’s behalf and ship the batteries to Tappin in the United

Kingdom via Murphy Shipping Company located in Houston, Texas.

Here the stories told by Caldwell and the government diverge. Caldwell

asserts thatthe undercover agents at Mercury Global never clearly discussed the

licensing requirements and illegal plot with him, as they had with Tappin’s

representative, Tappin himself, and Southeast Overseas. Instead, Caldwell

claims, the government agents only referred to the licensing requirements in

boilerplate language on a pro forma invoice and otherwise never explicitly

discussed the illegal nature of what they were doing. Caldwell claims the

government agents assumed Tappin would tell him about the illegality of

shipping without a license, but Tappin never did. In short, Caldwell asserts that

he never really knew about the export control regulations.

The government, however, points to excerpts from various conversations

between Caldwell and undercover agents at Mercury Global, faxes sent by

Caldwell, and the pro forma invoice mentioned above. On December 20, 2006,

an undercover agent asked Caldwell, “[Y]ou do know about the licensing issues

involved with this, correct? Did he explain that to you?” Caldwell replied, “You

know, that’s something I am not quite . . . familiarized with . . . .” The agent

then said that “the biggest issue is the . . . licensing issues” and discussed

structuring the transaction as a domestic sale with subsequent export, provided

“you have a company and . . . you’ve done this in the past where . . . you can . .

. [m]ove things out . . . without it being scrutinized.” Caldwell responded, “Well,

. . . I’m not . . . totally hip on all the . . . issues at hand, but . . . we’ve done things

in the past and it’s just . . . easier to have . . . agents and . . . domestic purchases

and domestic exports . . . for some of our projects.”
No. 07-51392

4

Caldwellthen faxed Tappin some questions regarding “other parameters,”

stating, “Such issues could not freely discuss [sic] on the phone.” The

government presented evidence that, during Caldwell’s subsequent phone

conversation with Tappin, he wrote down the words “batteries,” “trucks,” and

“military.” During a December 28, 2006, conversation, an undercover agent

referenced “the sensitivity of the items,” while Caldwell stated that “I want to

protect you and your enterprise . . . from anything.” In the same conversation,

Caldwell later stated, “Yeah, I mean all the paperwork. . . . I understand totally.

I understand.” The two made plans to meet in January of 2007 in San Antonio.

On January 3, 2007, the undercover agent contacted Caldwell regarding

a pro forma invoice that the agent was faxing over. Caldwell was instructed to

maintain double invoices, keeping the “actual one” (i.e., the one with the

USML-listed HAWK missile batteries and true purchase price) for his records

but a false invoice with a “devalued description” “[s]o that it won’t raise any red

flags” in a possible inspection. On January 4, Caldwell received a pro forma

invoice listing five “GAP-4328” “inert zinc/silver oxide reserve batteries” and

containing the following notice:

Export of the commodities described herein is strictly prohibited

without a valid export license issued by the U.S. State Department,

Office of Defense Trade Controls, prescribed in the International

Traffic in Arms Regulations (ITAR), Title 22, Code of Federal

Regulations, Parts 120-130.

This is the same notice Caldwell attacks on appeal. The government showed

that Caldwell faxed the pro forma invoice to Tappin with an asterisk next to it

and a note directing him to “please see detail below.”

On January 8, Caldwell sent a purchase order to Mercury Global for five

batteries, listing Caldwell as the purchaser and directing Mercury Globalto ship

the product to Murphy Shipping in Houston, Texas. This false invoice did not
No. 07-51392

5

name the USML-listed batteries but instead listed the batteries as “Tideland

Gap inert non-spillable reserve batteries.”

Caldwell met with the undercover agent in San Antonio on January 25,

2007, and they discussed the plan. Caldwell stated, “I still have a bit of

trepidation about some of the possible liabilities . . . .” The agent asked, “With

these items . . . my biggest concern is . . . now you’re not going to file for an

export license on these, correct?” Caldwell replied, “I hadn’t planned on it.”

Caldwell later mused, “I just don’t feel like I’m completely comfortable with all

of the different features of this thing but . . . I mean it sounds like it’s . . . can be

done pretty easily and . . .[w]ithout . . . , you know, raising too many flags. And

you know, I don’t . . . the thought of, you know, something that is potentially

illegal isn’t cool. But I don’t see it being, I mean . . . .”

The government showed that, later at the same meeting, Caldwell

explained his plans to circumvent the export control regulations by disguising

the USML-listed batteries as non-USML-listed batteries manufactured by

Tideland Signal Corporation, and shipping them overseas to Tappin through

Murphy Shipping. Caldwell then gave the agent a $5,000 check and directed the

agent to send the batteries to Murphy Shipping in Houston, at which point

Murphy would forward the batteries to the United Kingdom. Before the meeting

ended, Caldwell was arrested. In his possession were various documents

relating to the transaction, including the pro forma invoice, faxes, and false

purchase orders for Tideland batteries.

On February 7, 2007, Caldwell was charged with one count of conspiracy

to violate the export control regulations, and one count of attempting to export

and aiding and abetting the same. At trial, a Murphy Shipping representative

testified that both Tappin and Caldwell made shipping arrangements for

“Tideland batteries,” never mentioning Mercury Global and never supplying the

pro forma invoice with the true description of the batteries. Further testimony
No. 07-51392

6

established that the batteries at issue were USML-listed, and Tideland did not

manufacture or sell that type of battery. Caldwell testified and admitted that

Tappin told him of the batteries’ military application; he also admitted to seeing

the “export warning” on the pro forma invoice. At the close of evidence, the

district court denied Caldwell’s motion for judgment of acquittal. The jury

acquitted Caldwell on the conspiracy count and convicted him on the count of

attempting export and aiding and abetting the same.

Prior to sentencing,the Probation Department’s presentence report(PSR)

calculated Caldwell’s criminal history category at I, with a base offense level of

24, based on an original offense level of 26 with a two-level reduction for his

minor role in the offense. The Probation Department declined to amend the PSR

in response to Caldwell’s objection to the description of the offense conduct and

argument that he should receive a four-level reduction for his minimal role. At

sentencing, the district court sustained Caldwell’s objection concerning the

mitigating role adjustment, lowering the relevant offense level to 22 and

calculating the resulting advisory Guidelines range at 37 to 46 months, which

Caldwell admitted was properly calculated.

Caldwell also requested an aberrant behavior departure pursuant to U.S.

SENTENCING GUIDELINES MANUAL § 5K2.20 and sought a significant departure

from the Guidelines range in that he sought probation only. The court declined

to sentence Caldwell to probation only, stating that “even if I were to consider

a sentence outside the guideline range, . . . going to probation would probably

be—that’s too much of a departure. There’s no doubt that it would come back if

the Government appealed it.” However, the court did find that Caldwell was

entitled to the aberrant behavior departure under § 5K2.20, sentencing him to

20 months’ imprisonment, followed by two years of supervised release and 150

hours of community service, as well as imposing a $100 special assessment.
No. 07-51392

7

Caldwell’s appeal focuses on three claims of error concerning the district

court’s denial of his motion for judgment of acquittal, all centering on the

sufficiency of the evidence, and one claim of error regarding the reasonableness

of his sentence.

II. SUFFICIENCY OF THE EVIDENCE CLAIMS

Caldwell’s first three claims of error assert that the district court erred by

not granting his motion for judgment of acquittal because there was insufficient

evidence to show: that he acted with specific intent to violate a known duty, that

he willfully attempted export without a license, or that he aided and abetted the

unlicensed export. These claims center on only two arguments: (1) that the

government presented insufficient evidence that Caldwell possessed the specific

intent to violate a known legal duty, and (2) that the government presented

insufficient evidence that Caldwell actually attempted to export the batteries in

question, because he was arrested before the batteries reached the point of

export.

When an insufficiency-of-the-evidence claim of error is properly

preserved through a motion for judgment of acquittal at trial, it is

reviewed de novo. [United States v. Ragsdale, 426 F.3d 765, 770

(5th Cir. 2005)]. Under that standard, “‘[w]e will affirm . . . if a

reasonable trier of fact could conclude . . . the elements of the

offense were established beyond a reasonable doubt, viewing the

evidence in the light most favorable to the verdict and drawing all

reasonable inferences from the evidence to supportthe verdict’”. Id.

at 770-71 (quoting United States v. Floyd, 343 F.3d 363, 370 (5th

Cir. 2003)).

* * *

To preserve de novo review, . . . a defendant must specify at trial

the particular basis on which acquittal is sought so that the

Government and district court are provided notice.

United States v. McDowell, 498F.3d 308, 312 (5th Cir. 2007). Here, Caldwell did

raise the three specific bases for his insufficient evidence claims at the district
No. 07-51392

8

court. Thus, Caldwell is entitled to de novo review of his motion for judgment

of acquittal.

A. Applicable Law

The count of the indictment on which Caldwell was convicted alleged that

he “attempted to export and aided and abetted the attempted export from the

United States of defense articles . . . in violation of Title 22, United States Code,

Section 2778(b)(2) and 2778(c), and Title 22, United States Code of Federal

Regulations, Sections 121.1, 121.4, 123.1[,] 127.1(a), 127.1(c) and 127.3; Title 18,

United States Code, Section 2.”

Section 2278(b)(2) provides, in relevant part, that “no defense articles or

defense services designated by the President under subsection (a)(1) of this

section may be exported or imported without a license for such export or import,

issued in accordance with this chapter and regulations issued under this

chapter. . . .” 22 U.S.C. § 2778(b)(2). Defense articles are itemized in the USML.

22 C.F.R. § 121.1–121.16. The criminal penalties for violating § 2778(b)(2) are

found in § 2778(c), which provides: “Any person who willfully violates any

provision of this section or section 2779 of this title, or any rule or regulation

issued under either section, . . . shall upon conviction be fined for each violation

not more than $1,000,000 or imprisoned not more than ten years, or both.” 22

U.S.C. § 2778(c).

The general requirements for conviction under these sections are well

established and are not disputed by the parties here.

To sustain a conviction under 22 U.S.C. § 2778, the government

must prove beyond a reasonable doubt that the defendant willfully

exported or attempted to export defense articles that are on the

United States Munitions List without a license. Hence, the statute

requires the government to prove that the defendant acted with

specific intent to violate a known legal duty.
No. 07-51392

9

United States v. Covarrubias, 94 F.3d 172, 175 (5th Cir. 1996) (citations

omitted). “The government may use both direct and circumstantial proof, and

the jury may infer willful violation of a known legal obligation from facts and

circumstances surrounding the case.” United States v. Dien Duc Huynh, 246

F.3d 734, 743 (5th Cir. 2001) (internal quotations and citations omitted).

Caldwell’s indictment raises issues relating to both aiding and abetting as

well as attempt. Aiding and abetting liability comes from 18 U.S.C. § 2, which

provides, in relevant part: “(a) Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or procures its commission,

is punishable as a principal.”

A conviction for aiding and abetting under 18 U.S.C. § 2(a) requires

the government to establish that the defendant wilfully associated

himself in some way with the criminal venture and wilfully

participated in it as he would in something he wished to bring

about. United States v. Fischel, 686 F.2d 1082, 1087 (5th Cir. 1982).

“Association means thatthe defendant shared in the criminal intent

of the principal. Participation means that the defendant engaged in

some affirmative conduct designed to aid the venture.” United

States v. Colwell, 764 F.2d 1070, 1072 (5th Cir. 1985). See United

States v. Westbo, 746 F.2d 1022, 1025 (5th Cir. 1984).

United States v. Ortiz-Loya, 777 F.2d 973, 980 (5th Cir. 1985).

Finally,

[t]he crime of attempt requires the Government to prove that the

defendant (1) intended to commit the underlying offense, and (2)

took a ‘substantial step,’ beyond mere preparation, toward

committing that crime. Liability for attempt attaches if the

defendant’s actions have proceeded to the point where, if not

interrupted, [they] would culminate in the commission of the

underlying crime.

United States v. Polk, 118 F.3d 286, 291 (5th Cir. 1997).
No. 07-51392

10

B. Specific Intent

Here, Caldwell asserts that the evidence was insufficient with respect to

his specific intent to violate a known legal duty—and thus to join in the criminal

intent of the principal, Tappin—because the government failed to supply proof

that Caldwell was instructed or informed by anyone that exporting the batteries

without a license would violate the law. Caldwell argues that the government’s

entire case centers on insufficient boilerplate language in an export warning on

a pro forma invoice provided to him by an undercover agent. Significantly,

Caldwell testified at trial to seeing that export warning, and although he now

mentions the asterisk he placed on the fax, he does not state that he faxed the

pro forma invoice to Tappin with a note directing Tappin to “please see detail

below.”

In attacking the sufficiency of the export warning, Caldwell principally

relies on United States v. Adames, 683 F. Supp. 255 (S.D. Fla. 1988), aff’d, 878

F.2d 1374 (11th Cir. 1989), in which the district court granted the defendant’s

Rule 29 motion for judgment of acquittal following her jury conviction on three

counts of violating 22 U.S.C. § 2778—one conspiracy count and two aiding and

abetting counts. FED. R. CRIM. P. 29. Because the defendant had neither been

told of the licensing requirements nor “was an expert or knowledgeable about

licensing and arms shipping requirements,” Adames, 683 F. Supp. at 257, the

government’s proof of specific intent to violate a known legal duty hinged on

written notice—specifically, an export notice stamped on a sales receipt for

firearms, which read in full:

EXPORT NOTICE

Certain Products may not be exported from the U.S.A. without

specific approval from the Dept. of Commerce (Part 370. Export

Administration Regulations) and/or Dept. of State (Title 22, Parts

121-128. (ITAR)). It is the BUYER’S responsibility, not the

SELLER’S, to obtain such licensing unless agreed otherwise.
No. 07-51392

11

Id. at 256–57.

The government contended that this warning at least put the defendant

on inquiry notice of the licensing requirement. Id. at 257. The district court

disagreed, relying on the only other case it could find involving written notice,

United States v. Swarovski, 592 F.2d 131 (2d Cir. 1979). The Swarovski notice

read in full: 

ABOVE ITEMS ARE OF U.S.A. ORIGIN AND MANUFACTURE.

ABOVE PHOTOGRAPHIC EQUIPMENT IS UNDER UNITED

STATES DEPARTMENT OF STATE MUNITIONS LIST

CATEGORY NUMBER XIII(a), AND AS SUCH MUST BE EXPORT

LICENSED BY THE U.S. DEPARTMENT OF STATE PRIOR TO

EXPORT FROM THE UNITED STATES.

Id. at 133.

The district court found “major differences” between the Adames warning

and theSwarovski warning:the Adames warning “fails to specify the equipment,

regulation and requirements needed to export the article. In short, it does not

provide the purchaser with knowledge that it was unlawful to export the

handguns outside the United States without State Department approval.”

Adames, 683 F. Supp. at 258. The district court in Adames concluded that the

export warning “does not convey sufficient knowledge to meet the specific intent

requirement,” and the government otherwise had not presented sufficient proof

of specific intent; accordingly, the court granted the defendant’s motion for

judgment of acquittal. Id. The Eleventh Circuit affirmed, without citing or

otherwise discussing Swarovski, finding:

The evidence demonstrates, at most, that Adames was negligent in

not investigating the legal prerequisites to the exportation of

firearms. . . . Though it reasonably could be inferred from Adames’

suspicious conduct that she was aware of the generally unlawful

nature of her actions, that state of mind is insufficient to sustain a

finding of guilt under a statute requiring specific intent.

Adames, 878 F.2d at 1377.
No. 07-51392

12

Here, Caldwell argues that the export warning on the pro forma invoice

is closer to the Adames warning than to the Swarovski warning. We disagree.

The export warning in this case was located on a pro forma invoice itemizing

only USML-listed batteries. Although the pro forma warning itself does not

explicitly refer to the batteries (as the Swarovski warning did with the reference

to “photographic equipment”), the warning here plainly applies to “the

commodities described herein,” and the invoice listed only the batteries in

question. This warning is unlike the Adames warning, which referred only to

“certain products” and did nottie the warning to the specific products on the sale

receipt in any way. Although the pro forma warning does not list the specific

USML category covering the items in question (as did the Swarovski warning),

the warning here does specifically refer to the need for a “valid export license

issued by the U.S. State Department, Office of Defense Trade Controls.” This

is more specific than the Adames warning’s “specific approval from the Dept. of

Commerce . . . and/or Dept. of State”language. Adames, 683 F. Supp. at 256–57.

Ultimately, the export warning in this case is closer to the Swarovski

warning in that it is specific with respect to the items covered and the State

Department export licensing requirement. Although the warning in this case

does not specify the precise USML provision that covers the defense articles at

issue, the warning clearly covers the contents of the invoice and sets out the

regulatory basis for the requirements.

Of course, Adames focuses solely on the written notice because there was

no other evidence to prove specific intentin that case. Here, the written warning

is certainly a major part of the government’s proof, but the government

presented ample other evidence in support of specific intent, such as transcripts

of conversations between Caldwell and undercover agents, and faxes exchanged

between Caldwell and Tappin. It is the totality of the evidence that controls.
No. 07-51392

13

Caldwell points to alleged holes in the government’s evidence: that the

undercover agents did not explicitly tell Caldwell aboutthe batteries and did not

know what Tappin had told him; that the undercover agents were not as explicit

in their dealings with Caldwell as they had been with Tappin, Tappin’s former

U.S. representative, and Overseas Shipping; and that an undercover agent

testified that Caldwell was not going to be told that the items would actually be

exported without an export license. What Caldwell does not address is the

substantial record evidence of his knowledge of the licensing requirement and

the ultimate destination of the batteries.

Under the applicable standard of review, we must affirm the district

court’s denial ofthe motion for judgment of acquittal if“‘a reasonable trier of fact

could conclude . . . the elements of the offense were established beyond a

reasonable doubt,’” McDowell, 498 F.3d at 312 (quoting United States v.

Ragsdale, 426F.3d 765, 770–71) (emphasis added). Caldwell’s conviction did not

depend on the export warning alone, although that warning alone is arguably

sufficient, and Caldwell testified to seeing it.

The government presented ample evidence at trial that Caldwell both

knew of the export control regulations’ licensing requirements and chose to

circumvent them. Caldwell’s own communications to undercover agents

revealed that he intended to use double invoices, misleading packaging, and

omissions in his communications with Murphy Shipping to export the batteries

to the United Kingdom without first obtaining the required export license. The

test is not whether the jury could have chosen Caldwell’s account of the

circumstances, but whether their choice to convict was supported by sufficient

evidence, “viewing the evidence in the light most favorable to the verdict and

drawing all reasonable inferences from the evidence to support the verdict.” Id.

Under that standard, we find that there is sufficient evidence for a reasonable
No. 07-51392

14

jury to find that Caldwell possessed the specific intent to violate a known legal

duty—the licensing requirements of the export control regulations.

C. Attempt

Caldwell also argues that there was insufficient evidence to show he

attempted to actually export the batteries. This argument is based on the fact

that the shipment was arranged in two parts, the first to Murphy Shipping in

Houston, the second from Murphy Shipping to the United Kingdom. Caldwell

claims that because he was arrested before the batteries had begun the second

part of the trip, he was arrested before the export licenses were required and

before he gave Murphy Shipping any deceptive instructions regarding shipment

out of the United States.

Again, Caldwell fails to adequately address the substance of the evidence

on which the jury could rely. Caldwell concedes that he took steps to ship the

batteries and stated his intent not to obtain export licenses, although he claims

his statement was made only in reference to the shipment to Houston. The

government, however, presented a great deal of evidence of Caldwell’s plans to

disguise the batteries by means of false documentation and packaging, as well

as evidence that once the batteries were en route to Murphy Shipping in

Houston, Texas, he would need to do nothing else for the batteries to be exported

from the United States to the United Kingdom.

Actual export is not required for a violation of 22 U.S.C. § 2778. See

United States v. Castro-Trevino, 464 F.3d 536, 542 (5th Cir. 2006) (“Indeed, we

have on at least two occasions affirmed convictions of violating section 2778 by

attempted exportation of defense articles on the United States Munitions List

without a license.”(emphasis in original)) (citing Covarrubias, 94 F.3d 172;

Ortiz-Loya, 777 F.2d at 978, 980). In Covarrubias, the defendant was arrested

on the United States side of the border with Mexico and was convicted under §
No. 07-51392

15

2778 for attempting to violate the export control regulations. 94 F.3d at 172–73.

The Fifth Circuit affirmed the defendant’s conviction based on the “ample

evidence” supporting the jury’s verdict, e.g., concealing weapons in the gas tank

of his truck and admitting that he had no intention of declaring the concealed

weapons to authorities in either country because he knew the transport was

illegal. Id. at 175. Ortiz-Loya involved similar facts—concealed weapons and

an arrest on the United States side of the Mexican border—and the same result.

777 F.2d at 980.

These cases under 22 U.S.C. § 2778 conform with the general standards

for attempt, which require only an intent to commit the underlying offense and

a “substantial step” beyond preparation. Polk, 118 F.3d at 291 (citing United

States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974)). “Liability for attempt

attaches if the defendant’s actions have proceeded to the point where, if not

interrupted, would culminate in the commission of the underlying crime.” Id.;

see also Ortiz-Loya, 777 F.2d at 980 (“It is not necessary to reach a point of

irrevocable commitment in order to be convicted of attempted exportation in

violation of 22 U.S.C. § 2778.”) (citing Samora v. United States, 406 F.2d 1095,

1096 (5th Cir. 1969)). 

We have already found that the evidence supports the jury’s implicit

finding of specific intent, leaving only the “substantial step.” The government

presented evidence and testimony at trial that the plan for Murphy Shipping to

forward the batteries to the United Kingdom was already set, that the division

between the domestic leg of the shipment and the export leg was not the clear

point of division Caldwell asserts, and that Caldwell had reiterated his plans to

circumvent the licensing requirements immediately before paying for the

batteries and directing the undercover agent to send them to Murphy Shipping.

Based on the evidence presented, the jury could conclude, beyond a reasonable

doubt, that Caldwell attempted to violate the export control regulations.
No. 07-51392

16

III. SENTENCING CLAIM

For his final claim of error, Caldwell asserts that the district court erred

by applying an incorrect presumption when sentencing him. In Gall, the

Supreme Court explained the standard of review for sentencing as follows:

Regardless of whether the sentence imposed is inside or outside the

Guidelines range, the appellate court must review the sentence

under an abuse-of-discretion standard. It must first ensure that the

district court committed no significant procedural error, such as

failing to calculate (or improperly calculating)the Guidelines range,

treating the Guidelines as mandatory, failing to consider the [18

U.S.C.] § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence—including an explanation for any deviation from the

Guidelines range. Assuming that the district court’s sentencing

decision is procedurally sound, the appellate court should then

consider the substantive reasonableness of the sentence imposed

under an abuse-of-discretion standard. When conducting this

review, the court will, of course, take into account the totality of the

circumstances, including the extent of any variance from the

Guidelines range. If the sentence is within the Guidelines range,

the appellate court may, but is not required to, apply a presumption

of reasonableness. But if the sentence is outside the Guidelines

range, the court may not apply a presumption of unreasonableness.

It may consider the extent of the deviation, but must give due

deference to the district court’s decision that the § 3553(a) factors,

on a whole, justify the extent of the variance.

Gall v. United States, 128 S. Ct. 586, 597 (2007) (citation omitted). Because

Caldwell concedes that the district court’s sentence is procedurally sound, we

review only the substantive reasonableness of the sentence under the abuse of

discretion standard.

Caldwell’s appeal focuses on the fact that, prior to Gall, “certain of [the

Fifth Circuit’s] opinions have arguably supported the view, rejected in Gall,that

we may, at least in certain instances, require district courts to find

extraordinary circumstances before they impose sentences outside of the

guidelines range.” United States v. Rodriguez-Rodriguez, 530 F.3d 381, 388 (5th
No. 07-51392

17

Cir. 2008) (citing United States v. Williams, 517 F.3d 801, 811 (5th Cir. 2008)).

Caldwell argues that the district court relied on this earlier standard, which

resulted in a longer sentence.

In this case,the properly calculated Guidelines range was 37 to 46 months

of incarceration, after the district court sustained one of Caldwell’s objections to

the PSR and lowered the base offense level by two levels, to 22. The district

court also granted Caldwell’s request for an aberrant behavior departure

pursuant to U.S. SENTENCING GUIDELINES MANUAL § 5K2.20, but declined to

impose a probation-only sentence, stating that probation would be “too much of

a departure” and likely overturned on appeal. However, the district court then

imposed a sentence well below the Guidelines range, sentencing Caldwell to 20

months of incarceration.

Caldwell did not object to the final imposition of sentence at the district

court. The posture of this case is thus similar to this court’s recent decision in

Rodriguez-Rodriguez, in which the defendant argued a similar point on appeal

based on this Circuit’s post-Booker, pre-Gall case law. In Rodriguez-Rodriguez,

we explained:

Even if we assume arguendo that Gall has now rendered certain

prior aspects of our post-Booker jurisprudence not only erroneous

but also plainly so, there is absolutely nothing to indicate that any

such state of affairs influenced the sentence imposed in this case,

and certainly affirmance ofthe instant sentence would not seriously

adversely affect the fairness, integrity or public reputation of

judicial proceedings. Neither the district court, nor the PSR, nor

counsel for the government, nor defense counsel, ever stated or took

the position below that any sentence less than 57 months [at the

bottom of the Guidelines range] would be presumed to be legally

erroneous or that such a sentence could only be imposed if the case

presented extraordinary circumstances, not considered, or

inadequately considered, by the guidelines. . . . 

* * *
No. 07-51392

18

Appellant is not entitled to resentencing under the argument, not

raised below, that his sentencing was under a regime of this court’s

post-Booker jurisprudence that amounted to “essentially a

restatement of the sentencing regime struck down in Booker.”

The district court committed no procedural error under Gall. We

accordingly review the sentence under an abuse-of-discretion

standard for substantive reasonableness.

530 F.3d at 388–89 (footnotes omitted).

Here, the district court made a reference to being reversed if it imposed a

sentence of probation only and prefaced that remark with the clause “even if I

were to consider a sentence outside the guideline range.” Superficially, this

suggests the district courtfelt constrained in sentencing Caldwell. However, the

district court actually made a significant downward departure from the

Guidelines range, unlike the court in Rodriguez-Rodriguez. This tempers any

strictinterpretation ofthe district court’s lead-in clause, since the court not only

“consider[ed] a sentence outside the guideline range” but actually imposed such

a sentence. Clearly, the district court was not, in fact, constrained by the

advisory Guidelines range. 

Also, no one at sentencing referred to “extraordinary circumstances” or

made other statements suggesting that this Circuit’s pre-Gall standards were

the guiding principles under consideration. Importantly, even after Gall,

sentences outside of the Guidelines range are reviewed for reasonableness, and

“appellate courts may therefore take the degree of variance into account and

consider the extent of a deviation from the Guidelines” in making that

determination. Gall, 128 S. Ct. at 595. Thus, the district court’s statement does

not reveal any conflict with Gall.

It is also important to note that Caldwell filed a memorandum at the

district court seeking only a reasonable sentence below the advisory Guidelines

range, because “[a] prison sentence below the guideline range is a significant
No. 07-51392

19

sentence for this type of crime, and is sufficientto provide just punishment while

promoting respect for the law.” At no point in his memo did Caldwell explicitly

seek a sentence of probation, only a lesser period of incarceration than the

Guidelines range. (He did, however, argue for a sentence of probation at

sentencing in open court.) Thus, he is now arguing that a sentence he sought

and did not object to at the district court—a lesser sentence than the advisory

Guidelines range—is unreasonable.

Caldwell concedes that the imposition of his sentence is procedurally

sound, and the record bears that out. We further find that the below-Guidelines

sentence imposed in this case is not unreasonable, particularly in light of

Caldwell’s failure to raise his particular objection at the district court.

CONCLUSION

For the reasons stated above,the district court’s judgment is AFFIRMED.