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United States v. Emenike Nwankwoala, 4th Cir. (2012)
United States v. Emenike Nwankwoala, 4th Cir. (2012)
No. 11-4042
On appeal from the United States District Court for the District
of Maryland, at Greenbelt. Peter J. Messitte, District Judge.
(8:10-cr-00179-PJM-1)
Argued:
Decided:
PER CURIAM:
Emenike
offenses arising
Charles
out
of
ammunition to Nigeria.
Nwankwoala
his
unlawful
that
guilty
export
of
to
three
firearms
and
to 37 months imprisonment.
contending
pled
it
is
and
substantively
I.
The
approximately
States
facts
ten
probation
are
not
years,
in
dispute.
Nwankwoala,
officer,
unlawfully
who
Over
was
exported
then
period
a
of
United
firearms
and
violation
of
22
U.S.C.
2278(b)
and
(c)
(Count
I);
carrier
without
written
notice,
in
violation
of
18
U.S.C.
(AECA),
which,
inter
alia,
prohibits
individuals
from
license.
Nwankwoalas
export
The
of
factual
six
basis
handguns
for
and
Count
1,180
was
rounds
of
of
the
The
Guidelines
applicable
for
version
violations
of
of
2M5.2
the
sets
The
AECA
the
is
base
he
had
exported
six
handguns,
thus
satisfying
the
He contended
The
opinions
that
had
held
the
export
of
ammunition
The
pursuant
to
28
U.S.C.
3742(a).
1291
and
18
U.S.C.
II.
We
review
Nwankwoalas
sentence
under
a deferential
whether
the
district
committed
significant
If no
He offers several
not
district
count
courts
in
that
assessment.
understanding
of
5
He
2M5.2
also
is
claims
the
fundamentally
level
as
contained
the
on
unlawful
the
export
Munitions
of
List,
more
sophisticated
such
as
military
(Appellants Opening
Sentencing
Commission
abdicated
its
characteristic
exceed
ten.
(Emphasis
added.)
Section
2M5.2
is
the
List, and
exporting
it
without
license
violates
the
AECA.
firearms
ammunition. 3
he
exported;
it
also
involved
1,180
rounds
of
irrelevant
under
the
plain
language
of
2M5.2].
See
United States v. Reyes, 270 F.3d 1158, 1171 (7th Cir. 2001)
(rejecting a similar argument under a prior version of 2M5.2).
As such, the district court properly used the base offense level
of
26
when
calculating
Nwankwoalas
recommended
Guidelines
range.
Unsurprisingly,
this
straightforward
application
of
520 F.3d 187, 190 (2d Cir. 2008) (per curiam) (Because the
language of [ 2M5.2] is clear, our inquiry ends.
3
We find that
ammunition,
no
matter
how
small
the
quantity.);
2M5.2(a)
Guideline
(2011
ed.).
provision
should
Neither
be
party
used
in
contends
the
Nwankwoalas
amendment
contains
clarifying
component
that
indicates
([I]f
edition
court
applies
an
earlier
of
the
Guidelines
that
substantive
position.
such
amendments
changes.).
The
are
There
amendment
is
is
clarifying
no
merit
substantive,
rather
than
to
Nwankwoalas
not
clarifying.
the
export
of
both)
to
subdivision
(2)s
scope
calculated
Nwankwoalas
the
assertion
unreasonable.
Guidelines
that
his
range,
sentence
we
is
now
turn
to
substantively
discretion
in
concluding
that
the
sentence
it
chose
See United
noted,
Nwankwoalas
substantive
reasonableness
argument
is
offense
level
of
26
in
calculating
his
recommended
The
We
typically
afford
within-Guidelines
sentences
a
presumption of reasonableness.
Relying on language from
Kimbrough v. United States, 552 U.S. 85 (2007), Nwankwoala
asserts a presumption of reasonableness should not apply to his
sentence because the Sentencing Commissions two-tier approach
in 2M5.2 does not exemplify the Commissions exercise of its
characteristic institutional role by tak[ing] account of
empirical data and national experience. See id. at 109. We
need not decide this question because the record makes clear
that Nwankwoalas sentence is substantively reasonable, even
without the presumption of reasonableness.
10
Accordingly,
III.
For the foregoing reasons, we affirm the judgment of
the district court.
AFFIRMED
11