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 AK47. Developed in the Soviet Union by Mikhail Kalashnikov (thus the “AK” 

name, which stands for “Автомат Калашникова” or “Automatic 

Kalashnikov”), 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, its 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 

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appearance when attached to its curved magazine. See generally C.J. CHIVERS,

THE GUN (2010) (chronicling the history of the AK-47).

That magazine rests at the center of the dispute in this case. We 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. Numerous inventions have sought to 

eliminate this problem. But from repeating rifles to clips,1 none has proved as 

effective as the magazine. See generally David B. Kopel, The History of 

Firearm Magazines and Magazine Prohibitions, 78 ALBANY L. REV. 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 “Magazines” 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 has no 

feeding spring, instead holding ammunition together as a unit, typically so that the 

ammunition can be conveniently stored or inserted into a magazine.

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unnecessary to clumsily 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-47s 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 exporting. 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 into boxes, taped 

them shut, and arranged for their pickup by drug cartel affiliates. During one 

such transaction, an employee overheard El Gordo tell Gonzalez that he “was 

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. The 

State Department had not issued Gonzalez a license to export firearm 

components.

 

2 See Enemy Threat Weapons B2A2177, U.S. MARINE CORPS at 5 (No Date), available 

at http://www.usmcofficer.com/wp-content/uploads/2014/02/Enemy-Threat-Weapons.pdf.

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The sole argument Gonzalez raises on appeal with respect to the guilty 

verdicts is that empty AK-47 magazines are not a prohibited item under the 

export laws. The smuggling statute under which he was convicted 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 the unlicensed export of 

items “designated by the President” as “defense articles.” 22 U.S.C. 

§ 2778(b)(2), (c). The President’s designations of defense articles—

promulgated as International Traffic in Arms Regulations (ITAR) by the State 

Department’s Directorate 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 Category 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 is thus 

whether empty AK-47 magazines fit within the regulatory definition of 

“component.” See 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 raised 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) 

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(“This court reviews de novo the . . . denial of a motion to dismiss an 

indictment.”).

A two-step analysis under the regulatory scheme provides 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 AK47. 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: its sole purpose is to load cartridges into the breech so that 

they can be fired, increasing the firearm’s ammunition capacity and rate of 

fire. Indeed, the “A” in AK-47 explains 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 component. 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.” OXFORD DICTIONARY OF ENGLISH

357 (3d ed. 2010).

As for Gonzalez’s emphasis on the magazines 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 eminent sense. If only loaded articles were prohibited, 

exporters could simply send magazines and cartridges in separate containers, 

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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) addressing 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.”

The First Circuit’s decision in United States v. Zhen Zhou Wu, which 

Gonzalez cited for the first time at oral argument, is also unhelpful 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 . . . determinations that the phase shifters were controlled by the 

Munitions List”4 even though that agency determination came after the 

defendant’s export. Id. at 17–19 (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 military applications. 4 In Zhen Zhou Wu, the Government alleged that phase shifters fell into Category 

XI(c) of the Munitions List, which includes “components, parts, accessories, attachments and 

associated equipment specifically designed or modified for the 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 13–14 & n.5.

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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 had consistently answered in the 

affirmative when asked prior to Gonzalez’s sales if the Munitions List covers 

magazines.5 Id. 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 court or in his appellate 

brief. Instead, he framed 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 should have decided whether the 

 

5 The responses to these inquiries are called “Commodity Jurisdiction Final 

Determinations,” and background on that procedure is available at 

https://www.pmddtc.state.gov/documents/ddtc_getting_started.pdf. A search of those final 

determinations for “magazine” shows that the agency considered the Munitions List to cover 

magazines as early as 2011. See 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 limited 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 government 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 was a jury question in this case.

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Munitions List covers the magazines that he exported, and we need not decide 

whether that is a question for a court or jury.

The district court therefore properly concluded that the Munitions List 

encompasses AK-47 magazines 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 base offense level of 26, which is the default level for 

unlawful 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 rounds did not exceed 500, 

or (C) both.” U.S.S.G. § 2M5.2(a)(2). Gonzalez argues 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 because (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 purchased the magazines. Gonzalez does not 

challenge the factual finding concerning the ammunition on appeal. That 

dooms his sentencing argument given that the ammunition finding alone 

prevents application of the lower offense level.

The judgment is AFFIRMED.

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