Tuesday, September 03, 2013

US v. Flores, No. 11-50536 (8-30-13) (Paez with Watford and Kobayashi, D.J.).

What is a missile? To be precise, under the guidelines, do 40 mm cartridges qualify for a +15 enhancement under 2K2.1 and 26 USC 5854(f) as being missiles because they launch from a grenade launcher. The 9th ponders this novel issue, and holds that a missle must be a self-propelled device designed to deliver an explosive. These cartridges were ammo, and were not missiles. Guideline definitions were examined, statutory rules of interpretation were parsed, international definitions were consulted, and they all come to the conclusion that a missile has to be self-propelled, which these cartridges, propelled by a grenade launcher were not. Missiles may also have guidance systems, but that is a definitional issue, or target, for another day. The 9th notes that the cartridges fired from a launcher may be quite dangerous, and so an upward variance may be considered. The sentence was vacated and remanded for resentencing.


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