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United States v. Flores

United States Court of Appeals, Ninth Circuit

August 30, 2013

United States of America, Plaintiff-Appellee,
v.
Yoahjan Lara Flores, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Alfredo Rubio Lara, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Arturo Lara, Defendant-Appellant.

Argued and Submitted March 7, 2013—Pasadena, California

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding D.C. Nos. 3:10-cr-04083-WQH-1, 3:10-cr-04083-WQH-3, 3:10-cr-04083-WQH-2

Ricardo M. Gonzalez, San Diego, California, for Defendant-Appellant Alfredo Lara.

Barbara M. Donovan, Donovan & Donovan, San Diego, California, for Defendant-Appellant Arturo Lara.

Frederick Carroll (argued), San Diego, California, for Defendant-Appellant Yoahjan Flores.

Douglas Keehn (argued), Assistant United States Attorney, San Diego, California, for Plaintiff-Appellee United States of America.

Before: Richard A. Paez and Paul J. Watford, Circuit Judges, and Leslie E. Kobayashi, District Judge. [*]

SUMMARY[**]

Criminal Law

Vacating sentences and remanding for resentencing for conspiracy to possess an unregistered firearm, the panel held that the definition of a missile under 26 U.S.C. § 5845(f) and U.S.S.G. § 2K2.1(b)(3)(A) is a self-propelled device designed to deliver an explosive.

The panel concluded that because the 40-mm cartridges in this case do not qualify as missiles, the district court erred in enhancing the defendants' offense levels pursuant to § 2K2.1(b)(3)(A).

OPINION

PAEZ, Circuit Judge:

In these consolidated cases, the defendants appeal their sentences following their pleas of guilty to conspiracy to possess an unregistered firearm in violation of 18 U.S.C. § 371 and 26 U.S.C. § 5861(d). They raise a novel question: What is the definition of a missile under U.S.S.G. § 2K2.1(b)(3)(A) and 26 U.S.C. § 5845(f)? We adopt the common meaning of the word missile, in the context of modern weaponry, and hold that the definition of a missile, under the sentencing guidelines, is a self-propelled device designed to deliver an explosive.[1] Because the 40-mm cartridges in this case do not qualify as missiles, the district court erred ...


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