U.S. v. Carper, No. 10-10517 (10-14-11) (Noonan with M. Smith and Fogel, D.J.).

On a clear night, you can see forever with PVS-14 night sight equipment. That was the problem for the Marine who, to make some extra money, sold a night sight device to a Polish resident, another to a Chinese resident, and three others knowing they were being shipped to China. He pled guilty straight up to the four-count Indictment charging violations of 18 U.S.C. 554, 371, and 22 U.S.C. 2778, making criminal the unlicensed export of items on the U.S. munitions list. On appeal, he argued that the court should have used the offense level 14 and not 26 under USSG 2M5.2, because 14 applies to non-fully automatic small arms, not exceeding ten. The problem, reasons the 9th in affirming the sentence, is that the night sight devices are not firearms. The adjustment would not apply. As to the issue of departing on policy grounds, well, that was not raised, and under plain error review, the sentence of 36 months was reasonable.