United States v. Boumelhem

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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Boumelhem No. 02-1426 ELECTRONIC CITATION: 2003 FED App. 0281P (6th Cir.) File Name: 03a0281p.06 Robert Cares, UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________ UNITED STATES OF AMERICA , X ROGERS, Circuit Judge. Ali Boumelhem was convicted of five violations of, and one count of conspiracy to violate, Plaintiff-Appellee, - 18 U.S.C. § 922(g), which (subject to jurisdictional - - No. 02-1426 limitations) prohibits the possession or shipment of firearms v. - or ammunition by a person who has previously been > convicted of a crime punishable by imprisonment for over one , year. Boumelhem was at the same time convicted of one ALI BOUMELHEM , - Defendant-Appellant. - count of conspiracy to violate 18 U.S.C. § 922(e), which prohibits the delivery of firearms and ammunition to a N common carrier for shipment in foreign commerce without Appeal from the United States District Court written notice to the carrier in violation of 18 U.S.C. § 922(e). for the Eastern District of Michigan at Detroit. Boumelhem appeals his convictions and sentence, asserting No. 00-81013—George C. Steeh, District Judge. that (1) the Fourth Amendment was violated by the government’s search of the cargo container in which many of Argued: June 18, 2003 the prohibited articles were found, (2) the previous crime upon which his § 922(g) convictions were based was not a “a Decided and Filed: August 12, 2003 crime punishable by imprisonment for a term exceeding one year,” and (3) the district court improperly applied a four- Before: NORRIS, DAUGHTREY, and ROGERS, Circuit point sentencing enhancement for possessing firearms “in Judges. connection with another felony offense” under USSG § 2K2.1(b)(5). While we conclude that the search was _________________ reasonable and that Boumelhem’s prior conviction was a proper predicate offense under § 922(g), the district court COUNSEL erred by enhancing Boumelhem’s sentence under USSG § 2K2.1(b)(5). We therefore affirm Boumelhem’s ARGUED: Pierre H. Bergeron, SQUIRE, SANDERS & convictions but vacate his sentence and remand to the district DEMPSEY, Cincinnati, Ohio, for Appellant. Robert Cares, court for re-sentencing. UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: Pierre H. Bergeron, SQUIRE, SANDERS & DEMPSEY, Cincinnati, Ohio, for Appellant. 1 No. 02-1426 United States v. Boumelhem 3 4 United States v. Boumelhem No. 02-1426 FACTS the container taken to a nearby Customs facility, where it was searched. Although Customs agents initiated the search, other In late October of 2001 a joint task force, formed to combat law enforcement agents, including FBI agents, participated in terrorism, began to investigate whether Ali Boumelhem the search. (“Boumelhem”) and his brother, Fouad Boumelhem (“Fouad”), were attempting to ship weapons to Lebanon. The The search revealed a number of items not disclosed by the Federal Bureau of Investigation (FBI), the United States bill of lading or the shipper’s export declaration. Customs Customs Service (Customs), the Bureau of Alcohol, Tobacco, agents discovered, hidden in a car door, (1) twelve boxes of Firearms and Explosives (ATF), the United States nine millimeter ammunition, (2) three boxes of 7.65 Immigration and Naturalization Service (now the Bureau of millimeter ammunition, (3) a Remington twelve-gauge Citizenship and Immigration Services), and the United States shotgun, (4) an upper receiver for an M-16 or AR-15 assault Commerce Department participated in this particular rifle, (5) hand grips for the barrel of an AR-15, (6) flash investigation, but the task force also included the United suppressors, (7) a butt stock assembly for an M-16 or AR-15, States Secret Service and the Michigan State Police. The (8) and some speed loaders. Custom agents also discovered investigation focused on a forty-foot-long shipping container another twelve-gauge shotgun , along with a two-way radio, that Vantage International delivered to Trumbell Auto Repair, in a shopping bag that had been wrapped in a shirt. Based a business owned by Fouad, in late October 2001. upon this evidence, Boumelhem was later arrested. Vantage International is an international freight forwarding At trial, the government presented testimony from Alan business operated by Mustafa Khalifa. Both Fouad and Stark, a firearms dealer. Stark testified that Boumelhem Boumelhem discussed arrangements to ship automobile purchased four twelve-gauge shotguns during a period engines, transmissions and related parts with Khalifa, but beginning in 1996 and ending in 1998. Khalifa was never informed that firearms and ammunition were going to be shipped to Lebanon. Based upon the In a fourth superseding indictment, Boumelhem was information he was provided, Khalifa filled out the necessary charged with (1) one count of possessing firearms and paperwork, including a bill of lading, which listed the ammunition in violation of 18 U.S.C. § 922(g), (2) four contents of the container as “40 engines, used, and other counts of possessing a firearm in violation of § 922(g), salvage auto parts,” and a shipper export declaration, which (3) one count of conspiracy to ship firearms and ammunition detailed the contents as “engines and transmissions.” The bill in foreign commerce in violation of § 922(g), and (4) one of lading listed Boumelhem as the consignee of the shipment. count of conspiracy to deliver firearms and ammunition to a common carrier for shipment in foreign commerce without After the container was delivered, Fouad and Boumelhem, written notice to the carrier in violation of 18 U.S.C. § 922(e). with the help of others, loaded the container, during which An individual violates § 922(g) only if the individual has time the FBI kept both the container and Boumelhem under previously been convicted for “a crime punishable by surveillance. On November 6, 2000, a truck transported the imprisonment for a term exceeding one year.” To meet this loaded container to a railroad yard in the Detroit area. The requirement, the government relied on Boumelhem’s 1993 container was scheduled to be transported from the yard to conviction of one count of grand theft in California; the Los Montreal, Canada, and from there shipped to Lebanon. Once Angeles Municipal Court had sentenced Boumelhem to the container reached the railroad yard, Customs agents had felony probation, with the condition that he spend six days in No. 02-1426 United States v. Boumelhem 5 6 United States v. Boumelhem No. 02-1426 the county jail. After trial, a jury convicted Boumelhem on A. Standard of Review all seven federal counts. At Boumelhem’s sentencing hearing, the government sought, and was granted, a four-point “‘On suppression issues, [an appellate court] review[s] a enhancement under USSG § 2K2.1(b)(5), for possessing district court's findings of fact for clear error, but . . . firearms “in connection with another felony offense.” review[s] all conclusions of law de novo.’” United States v. Boumelhem was then sentenced to incarceration for forty-four Haynes, 301 F.3d 669, 676 (6th Cir. 2002) (quoting United months. Boumelhem now appeals his conviction and States v. Crowder, 62 F.3d 782, 785 (6th Cir.1995)). In sentence. reviewing such a decision, the court must consider the evidence in the light most favorable to the government. Id. ANALYSIS B. The Warrantless Exit Search was Authorized by I. The Search of the Shipping Container Did Not Violate the Statute and Permitted by the Fourth Amendment. Fourth Amendment. Boumelhem argues that the search of the cargo container Boumelhem contends that the search of the shipping was not justified because the government failed to obtain a container violated his rights under the Fourth Amendment. warrant. The Supreme Court has held, however, that warrants Boumelhem makes two arguments in support of his Fourth are not required for border searches of materials or persons. Amendment contention. First, he argues that—in contrast to United States v. Ramsey, 431 U.S. 606, 619 (1977). border searches of imports—border searches involving the Boumelhem argues that the Supreme Court’s border search export of cargo, other than currency, should be subject to a cases do not apply to searches of articles leaving the country. probable cause or reasonable suspicion standard. Boumelhem He also argues in the alternative that the government agents also maintains that even if Customs possesses the ability to who conducted the search were not authorized by statute to conduct export searches without reasonable suspicion, the conduct the search. We conclude that the exit border search search of the container violated the Fourth Amendment was both authorized by statute and constitutional. Following because Customs undertook the search at the direction of the the lead of United States v. Ramsey, 431 U.S. at 606, we FBI. The FBI, Boumelhem argues, should not be allowed to address first whether the border search was authorized by circumvent the requirements of the Fourth Amendment by federal statute and then analyze the search under traditional employing Customs to search a container that is the target of Fourth Amendment principles. an FBI investigation. We reject both arguments and conclude that the search was reasonable. 1. The Customs Agents Were Statutorily Authorized to Conduct the Export Search. Contrary to Boumelhem’s arguments, here the Government agents had statutory authority to conduct the search of the No. 02-1426 United States v. Boumelhem 7 8 United States v. Boumelhem No. 02-1426 cargo container.1 Section 1581 of Title 19 of the United 830, 836 n.7 (2d Cir. 1980) (citing § 1581 for the proposition States Code, in pertinent part, reads: that “customs officials have statutory authority to conduct inspections at a point of embarkation of cargo being shipped Any officer of the customs may at any time go on board abroad”); United States v. Whitmire, 595 F.2d 1303, 1308 of any vessel or vehicle at any place in the United States (5th Cir. 1979) (noting that “[r]ead literally, that statute grants . . . without as well as within his district, and examine extremely broad authority” to Customs officials). Given the the manifest and other documents and papers and statute’s broad definition of “vehicle”2 and the authorization examine, inspect, and search the vessel or vehicle and to search “any place” in the United States, we conclude that every part thereof and any person, trunk, package, or the statute authorizes the search of a cargo container in a cargo on board, and to this end may hail and stop such railroad yard, the situation here. Having concluded that the vessel or vehicle, and use all necessary force to compel search was authorized by statute, we must next consider compliance. whether the search was proper under traditional Fourth Amendment principles. 19 U.S.C. § 1581(a). This statute has been interpreted as granting general authorization for border searches. See 2. The Border Search Exception Applies to Persons United States v. Molina-Tarazon, 279 F.3d 709, 712 n.4 (9th and Articles Leaving the Country, and Not Only to Cir. 2002) (“The border search exception is codified at 19 Those Entering the Country. U.S.C. § 1581(a). . . .”); United States v. 1903 Obscene Magazines, 907 F.2d 1338, 1341 (2d Cir. 1990) (citing §1581 Boumelhem also argues that the Supreme Court decisions for the proposition that Customs “has plenary power to that deal with the border search exception to the Fourth safeguard the United States borders, which includes the power Amendment “do not by their own logic apply to exit to inspect any person or thing that presents itself at a border searches.” Boumelhem adds that, although other circuits have seeking entrance”); United States v. Glasser, 750 F.2d 1197, concluded that warrantless exit searches are constitutionally 1204 (3d Cir. 1984) (finding that §1581 is the “general border permissible, such searches have generally been limited to search statute” and that it “authorizes the search of vessels or situations involving the smuggling of currency. Boumelhem vehicles without cause”); United States v. Ajlouny, 629 F.2d weaves these two threads together to argue that the border search exception should not apply to the present situation. Notwithstanding Boumelhem’s arguments, the border search 1 Boumelhem argues that border searches that are not authorized exception applies to the search of the outgoing cargo by statute are per se unreasonable and thus b arred by the Fourth container here. Amendment. Because we find that the search here was authorized by statute, we need not determine whether a border se arch is unconstitutional A search without a warrant is “per se unreasonable under when unauthorized by statute. Comp are U nited States v. Williams, 617 the Fourth Amendment subject only to a few specifically F.2d 1063, 1074 (5th Cir. 1980) (en banc) (indicating that where the established and well-delineated exceptions.” Katz v. United government can point to no statuto ry or ind ependent executive authority, a court must co nclude that a search is unconstitutional), with United States v. Gonzalez, 875 F.2d 875, 877 (D.C. Cir. 1989) (suggesting that a search 2 without statutory authorization may not be a constitutional violation). W e The statute defines vehicle as “every description of carriage or also need not determine whether evidence obtained in violation of an other contrivance use d, or capable of being used, as a means of authorizing statute must be excluded even if there has been no violation transportation on land, but does not include aircraft.” 19 U.S.C. § 1401(b) of the Fourth Amendment. See Gonzalez, 875 F.2d at 877-78, 878 n.1. (emp hasis ad ded ). No. 02-1426 United States v. Boumelhem 9 10 United States v. Boumelhem No. 02-1426 States, 389 U.S. 347, 357 (1967); see also United States v. Chief Justice Rehnquist, as well as dicta in a Supreme Court Jenkins, 92 F.3d 430, 436 (6th Cir. 1996). The border search majority opinion, also support the applicability of the border exception generally provides that routine searches of the search exception to persons or articles leaving the country. persons and effects of entrants are not subject to any Julian v. United States, 463 U.S. 1308 (Rehnquist, Circuit requirement of reasonable suspicion, probable cause, or Justice 1983); Cal. Bankers Ass'n v. Shultz, 416 U.S. 21, 63 warrant. See Ramsey, 431 U.S. at 616-619; Almeida-Sanchez (1974). v. United States, 413 U.S. 266, 272-273(1973); Carroll v. United States, 267 U.S. 132, 154, (1925). Such searches may Boumelhem notes that many of the cases from other be conducted at an international border checkpoint or its circuits have only dealt with exit searches in the context of functional equivalent. See Almeida-Sanchez, 413 U.S. at currency smuggling, and contends that the special national 272-73.3 Further, every circuit that has considered the interest in protecting currency is not implicated by the search question has concluded, at least with regard to the here. In support of this argument, Boumelhem cites cases circumstances before it, that the border search exception from the Eleventh and Fifth Circuits that have expressly applies to “exit searches” as well as searches of incoming declined to consider the “exit” border exception outside the persons and materials. See, e.g., United States v. Oriakhi, 57 context of currency smuggling. See United States v. Berisha, F.3d 1290, 1296 (4th Cir. 1995) (noting, in following other 925 F.2d 791, 795 n.8 (5th Cir. 1991) ( “We express no circuits, that “every other circuit addressing the issue has held opinion, however, on the fourth amendment implications of that the exception applies regardless of whether the person or routine, suspicionless searches for exportation of articles items searched are entering or exiting the United States”).4 other than monetary instruments.”); United States v. Moreover, a Supreme Court chambers opinion written by Hernandez-Salazar, 813 F.2d 1126, 1138 (11th Cir. 1987) (“Although we need not decide here whether the ‘border exception’ applies equally in all respects to incoming and outgoing searches at the border, we conclude that Congress 3 Boumelhem does not challenge the district court’s finding that may . . . authorize . . . warrantless searches of persons and the search of the container took place at the functional equivalent o f the property departing the United States on the basis of border. Nor does Boum elhem argue that the sea rch wa s a physically reasonable suspicion that a currency reporting violation is intrusive, “non-ro utine” search, which wo uld req uire rea sonable suspicion. See United States v. Montoya de Hernandez, 473 U.S . 531, occurring.”). But see United States v. Oriakhi, 57 F.3d 1290, 540-41, 540 n.3, 541 n.4 (1985 ); United States v. Molina-Tarazon, 279 1297 (4th Cir. 1995) (“[W]e join the several other circuit F.3d 709, 712-13 (9th Cir. 2002) (app lying non-routine search analysis to courts which have held that the Ramsey border search inspection of a vehicle due to the particular intrusiveness of the search). exception extends to all routine searches at the nation’s 4 borders.”); United States v. Ezeiruaku, 936 F.2d 136, 143 (3d In addition to the Fourth Circuit, the Second, United States v. Cir. 1991) (“[T]he traditional rationale for the border search Ajlouny, 629 F.2d 830 , 834 (2d Cir. 19 80), the Third, Un ited States v. exception applies as well in the outgoing border search Ezeiruaku, 936 F.2d 136, 143 (3d Cir. 1991) , the Fifth, United States v. Berisha, 925 F.2d 791, 795 & n.8 (5th Cir. 199 1), the E ighth, United context.”); United States v. Duncan, 693 F.2d 971, 977 (9th States v. Udofot, 711 F.2d 83 1, 839-40 (8th Cir.), the Ninth, United States Cir. 1982) (“Since this was a search at a ‘border’, of a person v. Stanley, 545 F.2d 661, 667 (9th Cir. 197 6), and the E leventh Circuits, leaving the country, there is no need for probable cause, United States v. Hernandez-Salazar, 813 F.2d 11 26, 1138 (11th Cir. warrants or even suspicion”). 1987), have concluded that the border search exception applies to persons or articles leaving the country, at least with regard to the circumstances before them. No. 02-1426 United States v. Boumelhem 11 12 United States v. Boumelhem No. 02-1426 In Ramsey, the Supreme Court detailed the rationale that border search exception to exports, the Fourth Circuit has undergirds the border search exception to the Fourth concluded that the “power of the sovereign to protect itself” Amendment, noting that border searches, “pursuant to the also applies in the context of exit searches. See, e.g., Oriakhi, power of the sovereign to protect itself by stopping and 57 F.3d at 1296-97. In addition , other circuits, in keeping examining persons and property crossing into this country, with the notion that “[t]he permissibility of a particular law are reasonable simply by virtue of the fact that they occur at enforcement practice is judged by balancing its intrusion on the border.” Ramsey, 431 U.S. at 616.5 In extending the the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests,” Montoya de Hernandez, 473 U.S. at 537, have employed a balancing 5 approach when analyzing the application of the border search In addition to relying on the sovereign's right to protection of exception to articles or persons leaving the country, see e.g., its borders, the Supreme Court noted that the first customs statute, which United States v. Stanley, 545 F.2d 661, 667 (9th Cir. 1976). was enacted by the First Congress, authorized warrantless searches of ships and vessels. Ramsey, 431 U.S. at 616-17 (quo ting Act of July 31, 1789, c.5, 1 Stat. 29 § 24). The Court found that this authorization, We conclude that each of the above rationales supports the enacted by the legislative body that two months later would propose the application of the Ramsey border search exception to the Fourth Amendm ent, demonstrated the reasonab leness of such searches, noting that the Fourth Amendm ent should be construed in light of what was deemed reasonable at the time o f the Am endment's enactme nt. Id. at 616-17, 619 n.14. law on go ods, wares a nd mercha ndise impo rted into the United States, and on the tonnage of ships and vessels.” The use of the “sovereign pro tection” rationale in connection with exit searches has been criticized by some for failing to acknowledge Id. § 4. The act to which this section refers, the Act of August 4, 1790, that the Ramsey decision was based, in part, on the historical pedigree of c.35, 1 Stat. 145, replaced the Act of July 31, 1789 , the statute which the warrantless entry searches. See, e.g., Oriakhi, 57 F.3d at 1304 (Phillips, Ramsey court found historically significant. Id. § 74. In addition, the Act J., concurring) (“Absent any evidence of 18th century precedent for of August 4, 17 90, which was also enacted by the First Congress, suspicionless warrantless exit searche s, it simply is no t true, as the contained a warrantless-search provision that was identical to the majo rity asserts, that the ‘principles articulated in’ Ram sey justify warrantless-search provision from the Act of July 31, 1789, the provision application of the border search exception to exit searches.”(citation upon which the Ramsey court focused in its historical analysis. Com pare omitted)). However, there does seem to be a small body of 18th century Act of July 31, 17 89, c.5, 1 Stat. 29 § 24, with Act of August 4, 1790, precedent for warrantless exit searches. c.35, 1 Stat. 1 45 § 48. The Third Congress, on May 22, 1794, passed “An Act Thus, it seems that the Third C ongress thought it reasonable that prohibiting for a limited time the Exportation of Arms and Ammunition, the prohibition on exports, and presumably the searches necessary and enco uraging the Importation of the Same.” Act of May 22, 1794, thereunder, would be executed in the same manner as the earlier laws c.33, 1 Stat. 369. The act prohibited the export of many types of firearms regarding imports, which had allowed for warrantless searches. Granted, for one year. Id. Further, the act provid ed that it was the historical pedigree of the Act of May 22, 1794, c.33, 1 Stat. 369, cannot rival that of the Act of July 31, 17 89, c.5, 1 Stat. 29, which was the duty of the custom-house officers, and of all enacted only two months before the Fourth Amendment was proposed. persons emp loyed in the collection o f the revenue, to Nor doe s the Act of May 22, 17 94 clearly provide for wa rrantless exit attend to the execution of this law, and all forfeitures searches, as the Act of July 31, 1789 did. Nevertheless, the statute, by and penalties incurred under it, shall be sued for, linking the execution and prosecution of the prohibition on exports to the prosecuted, adjudged and distributed in like manner as enforcement structure created b y import laws, do es appear to provide is provided in the act, entitled “An act to provide more some historical support for the acceptanc e of warrantless exit searches effectually for the collection of the duties imposed by almost contemp oraneously with the proposal of the Fourth Amendme nt. No. 02-1426 United States v. Boumelhem 13 14 United States v. Boumelhem No. 02-1426 search of the outgoing cargo container here. While most cases Customs as a means of circumventing the warrant that have dealt with this issue previously have involved the requirement that would apply if the FBI were acting on its protection of the sovereign’s interests in its currency, e.g. own and therefore lacked the statutory authority that Customs Oriakhi, 57 F.3d at 1297, the United States’s interest in has to conduct warrantless border searches.7 preventing the export of weapons to other countries also implicates the sovereign’s interest in protecting itself. See id. The contention lacks merit because, while Customs was at 1297 (“From the sovereign’s power to protect itself is acting in conjunction with the FBI, the record demonstrates derived its power to . . . prohibit the export of its currency, that Customs was pursuing its own law enforcement national treasures, and other assets. . . . As important [as the objectives. In doing so, Customs was acting as a separate law sovereign’s interest in excluding undesirable outside enforcement agency subject to the Fourth Amendment influences] is the sovereign’s interest in regulating foreign restrictions that apply to Custom’s authorized jurisdiction, commerce.”). Further, this interest also weighs heavily when which jurisdiction was implicated when the container arrived balanced against the individual’s Fourth Amendment interest at the railroad yard for shipment to another country. In in being free from the search at issue. The government’s addition, it would serve no underlying interest of the Fourth control and regulation of the export of weapons implicates Amendment to permit one arm of the government to search significant government interests in the realms of national for no reason, while forbidding another arm of the security and relations with other nations. On the other side of government from searching under suspicious circumstances. the scales, “travellers (or exporters) undoubtedly have a lesser As the Supreme Court has explained in similar circumstances: expectation of privacy when they (or their goods) leave the country if for no other reason than the departure from the Respondents, however, contend in the alternative that United States is almost invariably followed by an entry into because the Customs officers were accompanied by a another country which will likely conduct its own border Louisiana State Policeman, and were following an search.” Oriakhi, 57 F.3d at 1302 (Phillips, J., concurring) informant’s tip that . . . they may not rely on the statute (citation omitted).6 Thus, the warrantless search of the cargo authorizing boarding for inspection of the vessel’s container was permitted under the Ramsey border search documentation. This line of reasoning was rejected in a exception. similar situation in Scott v. United States, 436 U.S. 128, 135-139 (1978), and we again reject it. Acceptance of C. The Search Was Not “Tainted” by the Participation or respondent’s argument would lead to the incongruous Direction of the FBI. result criticized by Judge Campbell in his opinion in United States v. Arra, 630 F.2d 836, 846 (CA 1 1980): The search in this case was, moreover, not tainted by the “We would see little logic in sanctioning such participation or direction of the FBI. Boumelhem contends examinations of ordinary, unsuspect vessels but that the search was unconstitutional because the FBI used forbidding them in the case of suspected smugglers.” 6 The lessened expectation of privacy attendant to the export of 7 materials is aptly demon strated here, as Fouad testified that he an d his This argum ent assumes tha t statutory authority is required for brother, Boumelhem, have, in recent years, annually shipped a container an agenc y to comply with the Fourth Amendment. We need not decide of car parts to Lebanon, and that every year the government of Lebanon this but again make the assumptio n for purpo ses of argume nt. See supra has searched the container. note 1. No. 02-1426 United States v. Boumelhem 15 16 United States v. Boumelhem No. 02-1426 United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 Customs agents participate as a ‘portable search warrant’” (1983). A contrary view, moreover, would ignore the been demonstrated). reasonable law enforcement practice that has arisen to address situations in which criminal enterprises span the jurisdictions Unlike in Soto-Soto, here the district court concluded that of numerous law enforcement agencies. In short, Customs the FBI had been cooperating with Customs as a part of a may properly exercise its statutory authority at the behest of joint task force. The record also reflects that Customs agents the FBI. initially caused the container to be taken to a Customs facility and that a number of Customs agents, approximately twenty, In arguing that the search was unconstitutional due to the participated in the search. Customs agents were the ones who FBI’s circumvention of the warrant requirement, Boumelhem discovered every piece of evidence, and the evidence was relies upon a Ninth Circuit case that, assuming it was logged by Customs agents. Thus, the record amply supports correctly decided,8 clearly is distinguishable. In United States the district court’s determination that Customs actively v. Soto-Soto, 598 F.2d 545 (9th Cir. 1979), an FBI agent, cooperated in the search. In addition, Customs had its own acting alone, stopped and searched a truck that was entering interest in the suspected export of weapons as a possible the United States from Mexico. Id. at 546. The Ninth Circuit violation of laws that it is charged with enforcing, and was concluded that the FBI agent did not have reasonable acting in good faith in pursuing this interest. See generally suspicion to stop the vehicle, and that the stop, therefore, The Arms Export Control Act, 22 U.S.C. § 2751-§ 2799aa.9 violated the Fourth Amendment. Id. at 547. In rejecting the Government’s assertion that the search was justified by the Boumelhem also relies by analogy on cases in which border exception, the court noted that the FBI agent, unlike Fourth Amendment protections have been held to apply to Customs agents or border patrol agents, was not authorized by searches conducted by private individuals who were directed Congress to conduct border searches. Id. at 548-50. The by law enforcement agencies. Boumelhem correctly notes court also noted that the FBI agent was not cooperating with that when a private individual, who is not subject to the Customs officials. Id. at 550. The court concluded that the restrictions imposed by the Fourth Amendment, acts at the search was, therefore, not an authorized border search under direction of law enforcement agents, the “private” search 19 U.S.C. § 482. Soto-Soto, 598 F.2d at 550; see also United must comport with the Fourth Amendment. See, e.g., United States v. Fogelman, 586 F.2d 337, 344 (5th Cir. States v. Lambert, 771 F.2d 83, 89 (6th Cir. 1985). In such an 1978)(suggesting, in dictum, that the Fogelman court might instance, the private individual acts like an agent of the law have found a violation of the Fourth Amendment had “pretext enforcement agency, and is, therefore, subjected to the same or bad faith on the part[] of local officers in having the restrictions as the law enforcement agency. See Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971) (“The question presented here is whether the conduct of the police officers at the Coolidge house was such as to make [the private 8 The Ninth Circuit in United States v. Harrington arguably limited the rationale of Soto -Soto. United States v. Harrington, 681 F.2d 9 612, 615 (9th Cir. 198 2) (“[A] C ourt should no t automatically suppress Customs enforces a number of laws for other arms of the evidence seized by an o fficer who for som e techn ical reason should not Executive Branch, including laws that deal with the “[i]mportations and have conducted the search. There must be an excep tional reason, exportations of arms, ammunition, . . . and other m unitions of war [that] typically the protection of a constitutional right, to invoke the are . . . administered by the . . . Department of State,” 19 C.F.R. § 161.2, exclusionary rule.” (citations omitted)). such as the Arms Expo rt Control Act, see 22 C.F.R. § 127.4. No. 02-1426 United States v. Boumelhem 17 18 United States v. Boumelhem No. 02-1426 individual’s] actions their actions for purposes of the Fourth The term “a crime punishable by imprisonment for a and Fourteenth Amendments. . . .”). These cases are entirely term exceeding one year” does not include inapposite. The Fourth Amendment does not apply at all to individuals, and permitting the government to circumvent the ... limits of the Fourth Amendment by directing individuals to conduct searches that the government cannot, would totally (B) any State offense classified by the laws of the State undermine the purposes of the Fourth Amendment. In as a misdemeanor and punishable by a term of contrast, permitting one government agency to search, where imprisonment of two years or less. What constitutes a an individual has every reason to expect that another agency conviction of such a crime shall be determined in may search the same place, has little if any adverse effect on accordance with the law of the jurisdiction in which the the policies underlying the Fourth Amendment. proceedings were held. The cooperation between the FBI and Customs in this case 18 U.S.C. § 921(20). did not render the warrantless search of the cargo container unconstitutional. Here, Boumelhem pleaded nolo contendere to grand theft of personal property exceeding $400, a violation of California II. Boumelhem Was a “Felon” as Required Under 18 Penal Statute § 487. This form of grand theft is punishable U.S.C. § 922(g). either by imprisonment in a county jail not exceeding one year or by imprisonment in the state prison for a term of up to A. Standard of Review three years. Cal. Penal Code § 489; id. §18; see California v. Powell, 166 Cal. App. 3d Supp. 12, 16 (1985). Offenses of Next, Boumelhem asserts that the district court erroneously this type are referred to as “wobbler” offenses in the concluded that he was a “felon,” for the purposes of 18 U.S.C. California courts, meaning that the sentence imposed § 922(g), resulting in his wrongful conviction on six of the determines the classification under state law as either a seven crimes with which he was charged. This is a legal misdemeanor or felony. See Cal. Penal Code § 17; Powell, question involving the interpretation of California statutes, 166 Cal. App. 3d Supp. at 16. This distinction is relevant and, as such we review the question de novo. United States here because, if Boumelhem’s conviction were classified as v. Morgan, 216 F.3d 557, 561-62 (6th Cir. 2000). a misdemeanor under California law, it would be punishable only by imprisonment not exceeding one year. See Cal. Penal B. Boumelhem Had Been Convicted of “A Crime Code § 17; id. § 489. The offense would, therefore, satisfy Punishable by Imprisonment for a Term Exceeding both elements of the § 921(20)(B) exception. One Year” at the Time of the Conduct at Issue. California Penal Code § 17(b) treats the classification of Here, six of the seven counts upon which Boumelhem was “wobbler” offenses, and provides, in pertinent part: convicted required the Government to demonstrate that Boumelhem had been convicted of “a crime punishable by (b) When a crime is punishable, in the discretion of the imprisonment for a term exceeding one year.” 18 U.S.C. court, by imprisonment in the state prison or by fine or § 922(g)(1). Section 921(20)(B) further qualifies this term: imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: No. 02-1426 United States v. Boumelhem 19 20 United States v. Boumelhem No. 02-1426 (1) After a judgment imposing a punishment other that would form the basis of his federal conviction, the than imprisonment in the state prison. sentencing court had not declared Boumelhem’s earlier state conviction to be a misdemeanor. Thus, neither § 17(b)(1), ... which requires a judgment, nor § 17(b)(3), which requires a classification by the court, applied to Boumelhem at the time (3) When the court grants probation to a defendant he took the actions that would lead to his federal convictions. without imposition of sentence and at the time of See United States v. Morgan, 216 F.3d 557, 565-66 (6th Cir. granting probation, or on application of the 2000) (“It is the status of the defendant on the date he defendant or probation officer thereafter, the court possessed the firearm as alleged in the indictment that declares the offense to be a misdemeanor. controls whether or not he has violated the statute, not his later status after his civil rights have been restored.”).11 We Cal. Penal Code § 17. Thus, under § 17(b), the offense is therefore conclude that the district court properly found that regarded as a felony until a judgment is entered, except where Boumelhem had been convicted for a crime punishable by the court declares otherwise. People v. Soto, 166 Cal. App. imprisonment for a term exceeding one year. 3d 770, 774-75 (1985). III. The District Court Erred by Enhancing Boumelhem’s After Boumelhem pleaded nolo contendere, proceedings Sentence Under USSG § 2K2.1(b)(5). were suspended and Boumelhem received felony probation, with the condition that he spend six days in the county jail. The district court assessed a four-point enhancement Under California law, where the sentencing court grants against Boumelhem under USSG § 2K2.1(b)(5) based on his probation and proceedings are suspended, no judgment is possession of a firearm in connection with another felony rendered. United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992) (citing People v. Arguello, 59 Cal.2d 475, 476 (1963)).10 Further, at the time Boumelhem took the actions a prison sentence.” Id. at 103, 105. Thus, in essence, the Glee court concluded that because the sentencing court did not intend to retain 10 jurisdiction over the defendant, and sentenc ed the defendant to a county Boumelhem states that a judgment is not necessarily required, relying upon Patrick v. Glee, 82 Cal. App. 4th 99 (200 0), in which a jail sentence, the cou rt's sentence was the equivalent of entering a California appellate court, for the purposes of the California Three Strikes judgment for a one-year co unty jail term, which would be a misdemeanor law, concluded that when the sentencing court “ordered appellant to serve under § 17 (b)(1 ). See id. at 105-06. In the present case, however, the one year in the county jail and directed that probation be terminated upon judgment was suspended and the probationary period extended beyond completion of the jail term, it automatically rendered the crime a the conditional county-jail sentence, demo nstrating the that co urt did misdemeanor pursuant to [§ 17(b)(1)].” Id. at 105-06. The Glee court intend to retain jurisdiction ov er Boum elhem . Thus, this instance appears reached this conclusion by distinguishing cases in which imposition of to fall within the class of cases that Glee distinguishes and outside the judgment had b een suspended , the defendant was o rdered to serve jail scop e of Glee itself. time as a co ndition of pro batio n, and some portion of the probationary 11 period remained after the defendant's release from the county jail. Id. at Below, Boum elhem argued that the California sentencing 103-05. In so distinguishing these cases, many of which were cited by the court, by declaring Boumelhem’s offense a misdemeanor after Governm ent in the present case, the Glee court noted because the Boumelhem had been charged, retroactively de emed B oum elhem ’s defendant’s probation and the jail sentence had ended at the same time, offense a misdemeanor “for all purpo ses,” thus precluding the use of the “the record supports the inference that the sentencing court did not intend charge as a predicate felony conviction. He has not made this argument to retain jurisdiction over appellant with the possibility of later imposing on appeal and we therefore decline to treat the issue. No. 02-1426 United States v. Boumelhem 21 22 United States v. Boumelhem No. 02-1426 offense—the conspiracy to deliver to any common carrier for commerce is a “firearms trafficking offense” as that phase is shipment a firearm or ammunition without written notice to used in the application note. We agree. the carrier that such firearm or ammunition is being shipped, a violation of 18 U.S.C. § 922(e).12 The relevant Sentencing As used in the application note, “firearms” is a noun used Guideline, in pertinent part, reads “If the defendant used or as an adjective to modify “trafficking offenses.” See United possessed any firearm or ammunition in connection with States v. English, 329 F.3d 615, 617 (8th Cir. 2003). another felony offense; or possessed or transferred any “Traffic,” as the root of “trafficking,” has been defined in firearm or ammunition with knowledge, intent, or reason to Webster’s Third International Dictionary as “to engage in believe that it would be used or possessed in connection with commercial activity” or “to engage in illegal or disreputable another felony offense, increase by 4 levels.” USSG business or activity.” Webster’s Third International § 2K2.1(b)(5) (2001) (emphasis added). Application note 18 Dictionary 2423 (2002); see also Webster’s II New College to § 2K2.1(b)(5), in part, states: Dictionary 1168 (2001) (“Illegal or improper commercial activity”). Conspiring to deliver firearms or ammunition for As used in subsection[] (b)(5) . . . “another felony shipment to a common carrier in a manner that would violate offense” . . . refer[s] to offenses other than explosives or 18 U.S.C. § 922(e) would clearly implicate an offense for firearms possession or trafficking offenses. However, firearms-related “commercial activity.” There is no where the defendant used or possessed a firearm or indication in the record that this is a situation, like that explosive to facilitate another firearms or explosives suggested in the application note, where firearms were offense (e.g., the defendant used or possessed a firearm possessed to facilitate the transport of other firearms, and to protect the delivery of an unlawful shipment of even in that situation, the guidelines do not provide for explosives), an upward departure under §5K2.6 enhancement under § 2K2.1(b)(5).14 The district court (Weapons and Dangerous Instrumentalities) may be therefore erred in enhancing Boumelhem’s sentence under warranted. USSG § 2K2.1(b)(5) based upon Boumelhem’s conviction for conspiring to violate 18 U.S.C. § 922(e). Id. cmt. n. 18 (emphasis added).13 Boumelhem objects to the enhancement of his sentence, arguing that the conspiracy to Rather than responding to Boumelhem’s argument, the ship or transport firearms and ammunition in foreign Government argues that the district court could have concluded that Boumelhem possessed firearms in connection with violations under the Arms Export Control Act. First, we question whether a violation of the Arms Export Act would 12 not also constitute a “firearms trafficking offense” as On appeal, Boumelhem interprets the district court to have relied upon the co nspiracy to violate 922(g), but a careful reading of the contemplated by the application note. Regardless, we need sentencing hearing transcript leads us to conclude that the district court not address the issue. While we may affirm a district court’s relied, at least primarily, upon the conspiracy to violate 922(e) as the other felony offense. 13 14 Guideline commentary is authoritative unless it violates the In such a situation the application note counsels that an Constitution or a federal statute, or is inconsistent with, or a plainly upward departure from the sentence for the trafficking offense, not the erroneous reading of, that guideline. Stinson v. United States, 508 U.S. possession offense, may be appropriate under USSG § 5K 2.6. See USSG 36, 38 (199 3). § 2K2.1(b)(5) cmt. n. 18. No. 02-1426 United States v. Boumelhem 23 judgment for reasons other than those stated by the lower court, Apple v. Glen, 183 F.3d 477, 479-80 (6th Cir. 1999), we may also choose to disregard an appellee’s alternative argument in support of a lower court’s decision. Hunter v. United States, 160 F.3d 1109, 1114 (6th Cir. 1998) (declining to address an appellee’s argument that had not been presented below because the argument was fact-intensive and the record was undeveloped). Below, the Government did not claim that Boumelhem violated the Arms Export Control Act and consequently the record is not developed with regard to a possible Arms Export Control Act violation. Accordingly, “we conclude that the government forfeited its right to rely on [a violation of the Arms Export Control Act] by failing to raise the issue in the district court.” Id. CONCLUSION For the foregoing reasons, we affirm Boumelhem’s convictions, but vacate his sentence and remand to the district court for resentencing consistent with this opinion.