United States v. Rodolfo Rodriguez-Leos (5th Cir. March 2020)

Sentencing Guidelines

The defendant was convicted of unlawful possession of ammunition by a person admitted to the U.S. on a nonimmigrant visa. Law enforcement had witnessed the defendant purchasing ammunition and leaving it in locations to be picked up and eventually smuggled into Mexico. At sentencing, the district court applied the enhancement under U.S.S.G. § 2K2.1(b)(6)(A) based on the defendant’s intent to transport the ammunition out of the U.S. Since the ammunition was possessed in connection with another offense, exporting the ammunition without a valid export license, § 2K2.1(c)(1) directed the court to cross reference to § 2X1.1 (Attempt, Solicitation, or Conspiracy).

The district court declined to apply the three-level reduction under § 2X1.1(b)(1), which applies when the offense constitutes a mere attempt, based on the PSR’s assertion that the defendant had “completed all the acts necessary and, but for the apprehension, was able to complete all the acts.”

On appeal, the Court reversed, holding that the district court had committed clear error. First, the Court held that the defendant’s written objection to the PSR was sufficient to preserve his claim on appeal, despite the defendant citing the incorrect subsection. The Court then held that the defendant had not “completed all the acts necessary given the lack of evidence that he knew the guns were being smuggled and the fact that he was apprehended “well before” he and his co-conspirators had completed the acts necessary for exporting the ammunition without a license.

Appeal from the Southern District of Texas

Opinion by Dennis, joined by Graves and Willett

Click here to read the opinion.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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