### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 40344

UNITED STATES OF AMERICA,

Plaintiff

- Appellee

v.
ARTURO GONZALEZ, also known as Jay,

Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas

Before JONES, SMITH, and COSTA, Circuit Judges

. GREGG COSTA, Circuit Judge: Perhaps no firearm has attained the level of notoriety enjoyed by the AK

47

. Developed in the Soviet Union by Mikhail Kalashnikov (thus the “AK” name, which stands for “ А втомат К алашникова ” or “Automatic Kal a s hnikov” ), it was first used in the late 1940s by the Red Army and soon thereafter by the armies of Soviet satellites

. In the six decades since, i ts low
cost , ease of use, and reliability have made the gun a staple in conflicts across the globe. Mexico has proven no exception, as the AK

- 47 has become popular among the drug cartels that operate on both sides of the border. Its Mexican nickname

— “cuerno de chivo,” or “goat’s horn”

— comes from the gun’s unique Case: 14-40344 Document: 00513090112 Page: 1 Date Filed: 06/23/2015No. 14

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2 appearance when attached t o its curved magazine. See generally C.J. C HIVERS , T HE G UN (2010) (chronicling the history of the AK

- 47)

.

That magazine rests at the center of the dispute in this case. W e must decide whether a magazine is a “ component ” of the AK

- 47 for purposes of laws prohibiting the unlicensed export of firearms and certain related items. The problem of limited ammunition capacity has plagued rifles since their invention centuries ago. The earliest rifles fired a single shot, leaving the user vulnerable during reloading. N umerous inventions have sought to eliminate this problem. But from repeating rifles to clips , 1 none has prove d as effective as the magazine. See generally David B. Kopel, The History of Firearm Magazines and Magazine Prohibitions , 78 A LBANY L. R EV

. 849 (2015). Magazines come in a variety of shapes, capacities , and types , but detachable “box” magazines have become the modern standard. A detachable box magazine stores cartridges in a column and attaches to the firearm . As the firearm cycles, a spring compression mechanism moves the cartridges up and loads the top cartridge into the breech. At a basic level , the detachable box magazine serves the same purpose as its predecessors : it makes it

1 “ M agazines” and “clips” are often referred to interchangeably. Yet they serve different functions. A magazine generally attaches to a firearm and holds ammunition that will be fed into the chamber when the firearm is used. A clip is one step removed

— it ha s no feeding spring, instead hold ing ammunition together as a unit , typically so that the ammunition can be conveniently stored or inserted into a magazine

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3 unnecessary to clum sily load a cartridge into the chamber every time the rifle is fired. But the unique and simple design also creates a more portable, reliable, high

- capacity device that greatly enhances the capabilities of the firearm

. The first AK

- 47 s used a detachable box magazine, 2 and that is the type of magazine at issue in this case. Arturo Gonzalez’s sale of hundreds of these AK

- 47 magazines out of his army surplus stores in Laredo resulted in a jury convicting him of three counts of unlawful exp orting. Viewed in the light most favorable to that verdict , the evidence showed that Gonzalez met with known affiliates of Mexican drug cartels and sold them AK

- 47 magazines knowing the magazines were being taken across the border to Mexico. Among other sales , Gonzalez sold hundreds of magazines at his store four blocks from the border to a man known as “El Gordo,” who paid $30,000 in cash with no receipt and “no questions asked.” ROA 915. Gonzalez and his employees put the magazines in to boxes, taped
t hem shut, and arranged for their pickup by drug cartel affiliates. During one such transaction , an employee overheard El Gordo tell Gonzalez that he “w as going to take them to Mexico. ” ROA 311. After federal agents started to investigate Gonzalez, they recorded a conversation between Gonzalez and El Gordo in which Gonzalez expressed fear about government surveillance

. Multiple witnesses, including an undercover agent , offered additional testimony that Gonzalez knew the magazines were headed to Mexico. T he State Department had not issued Gonzalez a license to export firearm components.

2 See Enemy Threat Weapons B2A2177 , U.S. M ARINE C ORPS at 5 (No Date), available at http://www.usmcofficer.com/wp

- content/uploads/2014/02/Enemy

- Threat

- Weapons.pdf

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4 The sole argument Gonzalez raises on appeal with respect to the guilty verdict s is that empty AK

- 47 magazines are not a prohibited item under the export laws. The smuggli ng statute under which he was convic ted broadly prohibits exporting an item “contrary to any law or regulation of the United States.” 18 U.S.C. § 554. The underlying law cited in Gonzalez’s indictment is the Arms Control Export Act , which criminalizes th e unlicensed export of items “designated by the President” as “defense articles.” 22 U.S.C. § 2 7 78(b)(2), (c). The President’s designations of defense articles

— promulgated as International Traffic in Arms Regulations ( ITAR ) by the State Department’s Direc torate of Defense Trade Controls

— are contained in the United States Munitions List. 22 C.F.R. § 121.1. The Munitions List defines defense articles to include designated firearms and their “components, parts, accessories, and attachments.” Id. at Categor y I(a), (b), (h). Gonzalez argues that empty AK

- 47 magazines do not qualify as firearm components because the Munitions List does not mention assault rifle magazines in the definition of “component .” It is true that the Munitions List does not specifically refer to magazines. But that is because the Munitions List is a list of categories, not specific products. For example, the Munitions List does not specifically list an AK

- 47 or even more generally an “assault rifle” as covered articles, but no one would doubt that an AK

- 47 falls within the “firearms” category and requires a license to export

. The question i s thus whether empty AK

- 47 magazines fit within the regulatory definition of “component.” S ee United States v. Nissen , 928 F.2d 690, 693

– 94 (5th Cir. 1991) ( “Any definition that could reasonably be given to the term ‘sophisticated weaponry’ would include the Phantom F

– 4 fighter aircraft” ). Because Gonzalez raise d this issue in a pretrial motion to dismiss the indictment, we review de novo. See United States v. Kay , 513 F.3d 432, 441 (5th Cir. 2007) Case: 14-40344 Document: 00513090112 Page: 4 Date Filed: 06/23/2015No. 14

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5 (“This court reviews de novo the .

. . denial of a motion to dismiss an indictment.”). A two

- step analysis under the regulatory scheme provide s a straightforward answer. The relevant State Department definitions state : (a) An end

- item is a system, equipment, or an assembled article ready for its intended use. Only ammunition .

. . is required to place it in an operating state. (b) A component is an item that is useful only when used in conjunction with an end

- item. 22 C.F.R. § 120.45 (emphasis added). The relevant “end

- item” here is the AK

47. See id. ; see also 15 C.F.R. § 772.1 (“Examples of end items include .

. . firearms.”). And an AK

- 47 magazine is “useful” only when used in conjunction with that end

- item: it s sole purpose is to load cartridges into the breech so that they can be fired, increasing the firea rm ’s ammunition capacity and rate of fire. I ndeed, the “A” in AK

- 47 e xplains why the magazine is only useful for that purpose; it “automatically” loads cartridges into the chamber with only one pull of the trigger. As such, an AK

- 47 magazine plainly meets the State Department’s definition of c omponent. This comports with the common meaning of “component,” which is “a part or element of a larger whole, especially a part of a machine or vehicle.” O XFORD D ICTIONARY OF E NGLISH 357 (3d ed. 2010). As for Gonzalez’s emphasis on the m agazines being unloaded , ITAR’s definition of “end

- item” forecloses that argument by stating that “only ammunition . . . is required to place it in operating state.” 22 C.F.R. § 120.45(a). The Munitions List thus covers articles that are not loaded at the time of export. That makes e minent sense. If only loaded articles were prohibited,

e xporters could simply send magazines and cartridges in separate containers, Case: 14-40344 Document: 00513090112 Page: 5 Date Filed: 06/23/2015No. 14

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6 and the recipients could combine them once the shipments arrived in the importing country. The cases Gonzalez cites do not counsel otherwise. Our unpublished decision in United States v. Flores recognized only that our court had “no clear authority” (that is, no precedential decision) addressi ng whether the Munitions List encompasses magazines

. See 439 F. App’x 337, 339 (5th Cir. 2011)

. That lack of binding authority is often dispositive in the plain

- error context in which that case was reviewed. See United States v. Olano , 507 U.S. 725, 734 (1993) ( holding that “clear” or “obvious” error is a requirement for reversal on plain error review)

. Flores did not state that the Munitions List itself was unclear on whether magazines are “components.” T he First Circuit’s decision in United States v. Zhen Zhou Wu , which Gonzalez cited for the first time at oral argument, is also u nhelpful to him

. 711 F.3d 1 (1st Cir. 2013)

. That case involved the export of phase shifters, 3 and an instruction that the jury had to “accept without question the State Department’s .

. . determination s that the phase shifters were controlled by the Munitions List” 4 even though that agency determination came after the defendant’s export

. Id. at 17

– 1 9 (finding the jury instruction problematic because it relied on a State Department designation that “had [not] been made

3 Phase shifters “ change the phase of one of the two waves so that the waves exactly line up with one another (or, vice versa, so that waves that were previously “in phase” no longer line up with one another). ” Zhen Zhou Wu , 711 F.3d at 11 n.2. They have a variety of m ilitary applications

. 4 In Zhen Zhou Wu , t he Government alleged that phase shifters fell in to Category XI(c) of the Munitions List, which includes “components, parts, accessories, attachments and associated equipment specifically designed or modified for t he equipment in [Categories XI(a) and XI(b)] .” Categories XI(a) and XI(b) cover a variety of complex electronic equipment configured for military application

. See 22 C.F.R. § 121.1, Category XI(a), XI(b); Zhen Zhou Wu , 711 F.3d at 13

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7 at the time that the defendants engaged in the charged conduct”)

. In this case ,
no jury instruction required that the jury follow the State Department determination , and the State Department ha d consistently answered in the affirmative when asked prior to Gonzalez’s sales if the Munitio ns List covers magazines. 5 I d. at 19 (suggesting that the conviction would have stood if “the prosecution [did] persuade the jury .

. . that the phase shifters really did fall within the Munitions List restrictions as those restrictions stood at the time of the defendants’ exports” ). Moreover, to the extent that Wu views the Munitions List issue as an element of the offense for the jury to decide, 6 Gonzalez never took that position either in the district c ourt or in his appellate brief. Instead, he frame d the issue as a legal determination by seeking to dismiss the indictment

. See Kay , 513 F.3d at 441 (applying de novo review to the district court’s denial of a motion to dismiss the indictment) . Gonzalez has thus forfeited the argument that the jury sho uld have decide d whether the

5 The responses to these inquiries are called “Commodity Jurisdiction Final Determinations,” and backgr ound on that procedure is available at https://www.pmddtc.state.gov/documents/ddtc_getting_started.pdf. A search of those fin al determinations for “magazine ” shows that the agency considered the Munitions List to cover magazines as early as 2011

. S ee U.S . Dep't of State, Commodity Jurisdiction Final Determinations, http://pmddtc.state.gov/commodity_jurisdiction/determinationAll.html (last visited June 12, 2015). Gonzalez exported or attempted to export the AK

- 47 magazines in late 2012

. 6 The First Circuit limit ed its holding, stating that “our holding means that in at least some cases involving Category XI(c) of the Munitions List , the question of whether a particular part fell within Category XI(c) of the Munitions List at the time of the alleged export will be a question for the jury.” 711 F.3d at 20 (emphasis added)

. It also distinguished cases from other circuits “involving government designations that juries were required to accept,” on the ground that “crucially, in both cases the g overnment designations at issue were made before the defendants’ allegedly unlawful conduct occurred. ” Id . at 19 (emphasis in original) ( citing United States v. Hammoud , 381 F.3d 316, 331 (4th Cir. 2004) ; United States v. Spawr Optical Research, Inc. , 864 F.2d 1467, 1468

– 69 (9th Cir. 1988 ) ). Thus, even if Gonzalez had preserved this issue , Wu

— to the extent we would agree with it

— does not decide whether the Munitions List issue wa s a jury question in this case

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8 Munitions List covers the magazines that he exported , and we need not decide whether that is a question for a court or jury. T he district court therefore properly concluded that t he Munitions List encompasses AK

- 47 magazin es whether or not they are loaded with cartridges when shipped. We uphold the convictions

. That leaves Gonzalez’s challenge to his sentence. The district court sentenced him to 63 months in prison, which was within the Guidelines range. That range used a b ase offense level of 26, which is the default level for unlaw f ul exportation of firearms. See U.S.S.G. § 2M5.2 (a)(1) . Gonzalez contends that the offense level should have been lowered to 14 because “ 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 r ounds did not exceed 500, or (C) both.” U.S.S.G. § 2M5.2 (a)(2) . Gonzalez argue s that the magazines , if prohibited items at all, were small arms for sentencing purposes. The problem for Gonzalez is that the district found that the lower offense level did not apply both b ecause (1) empty magazines are not “small arms” and (2) the offense involved more than 500 rounds of ammunition. The alternative ammunition ruling was based on a relevant conduct finding that Gonzalez’s export scheme also involved selling thousands of 7.62 x 39mm rounds to the same cartel affiliates that purchase d the magazines. Gonza lez does not challenge the factual finding concerning the ammunition on appeal. That dooms his sentencing argument given that t he ammunition finding alone prevents application of the lower offense level. The judgment is AFFIRMED. Case: 14-40344 Document: 00513090112 Page: 8 Date Filed: 06/23/2015