- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Procedure
- Date Filed: 10-14-2011
- Case #: 10-10517
- Judge(s)/Court Below: Circuit Judge J. Noonan for the Court; Circuit Judge M. Smith, Jr., District Judge J. Fogel
- Full Text Opinion
Carper was charged with four counts of unlawfully exporting PVS-14 Gen 3 night vision devices (“PVS-14 devices”) without a license. While enlisted in the United States Marine Corps, Carper sold a total of five PVS-14 devices to foreign nationals in Poland and China. Carper pled guilty to all four counts. Although there had been no plea agreement, the district court agreed to a sentence lighter than the Sentencing Guidelines range on account of his military service and the fact that recidivism was unlikely. He was ultimately sentenced to three years imprisonment and three years supervised release along with monetary fines. On appeal, Carper claimed that the district court had misinterpreted the Sentencing Guidelines when calculating his sentence. The Court found that, because the PVS-14 devices do not meet the definition of firearms as set out in the U.S. Sentencing Guidelines Manual § 2M5.2 (“Manual”), his sentence did not qualify for the base offense level of fourteen. Rather, the district court correctly used the base offense level of twenty-six to calculate Carper’s sentence. The Court also held that the district court had not abused its discretion by not departing from the Sentence Guidelines on policy grounds. District courts may depart from the Sentencing Guidelines if it disagrees with them for reasons of policy, but they are under no obligation to do so. The district court did not indicate a disagreement with the Manual and did end up granting a downward variance for what ended up being a substantively reasonable sentence. AFFIRMED.