In this case federal prosecutors in San Diego got a little too creative in seeking a longer prison sentence by claiming that 40-mm cartridges were “missiles.” The 9th U.S. Circuit Court of Appeals last week rejected that idea, defining a missile as a “self-propelled device designed to deliver an explosive.”
It is perhaps understandable that the government was hoping for longer prison terms for three men who pled guilty to illegal possession of an unregistered firearm. They wanted to buy a grenade launcher in 2010 and ended up negotiating with an undercover agent for Alcohol, Tobacco and Firearms.
Along with the purchase of the Colt M203 grenade launcher, they bought three 40-mm cartridges designed as armor-piercing rounds that could go through two inches of steel.
The prosecutors argued the grenade launcher was a device for use launching missiles and sought a significant increase in prison time.
Yoahjan Lara Flores, and Arturo and Alfredo Lara were sentenced to the maximum of five years in prison for the purchase.
The 9th Circuit had to decide if a 40-mm armor-piercing cartridge was a “missile.” It isn’t.
The National Firearms Act provides no definition of missile so Judge Richard Paez said “We conclude that the definition of missile in the statute should be the modern military definition rather than the overbroad generic definition.”
The modern military definitions of missile focuses on two characteristics: self-propulsion and guidance system. The 40-mm cartridges don’t fit that definition. Joining Paez were Judges Paul Watford and Leslie Kobayashi, a visiting judge from Hawaii.
Paez ordered the trio back for resentencing. But that does not get them out of danger.
Paez said if the judge finds the danger of 44-mm armor-piercing cartridges merits a higher sentence, the judge may give it.
Case: U.S. v. Flores, No. 11-50536