Tuesday, September 03, 2013

U.S. v. Flores (9th Cir. - Aug. 30, 2013)

What's a "missile"?  Clearly this is one.  So's this.

But what about this?

That's what the Ninth Circuit has to decide.  Because you get a 15-level adjustment under the guidelines if the unregistered firearm at issue is a "missile".  But that term's not defined.  The district court held that the 40 mm cartridges here were indeed missiles.

The Ninth Circuit reverses.

I agree with Judge Paez and the rest of the panel.  These things aren't missiles.  A broad, dictionary definition might well include 'em.  Since anything -- even a pencil -- can be called a "missile" if it's thrown.

But that's not what the guidelines mean.  Exactly right.

However, for me, this is one of those cases in which a picture really is worth a thousand words.  Actually, in this case, a little over 3000 words.  Which is the length of Judge Paez's opinion.  He writes a lot about what a missile is and isn't.  But he keeps calling the relevant item at issue a "40-mm gold-tipped high explosive dual purpose cartridge."  I'm sure that's its proper name, but I don't have a firm sense of what that means.  Even after I read several thousand words.

I did have the sense that it wasn't a "cartridge" like I'm used to.  Something that holds a bullet or something like that.  I had a vague sense that it was more like a mortar.  But Judge Paez never even uses that word, so I thought I must be wrong.  He just keeps describing something that looks like a mortar and does damage like a mortar.  So I thought it was sort of like a mortar.  Something that I agree is not a missile.

Only when I looked up the picture of the thing did I understand.  Oh.  Now I get it.  It's a grenade.  They may not call it a grenade.  But you fire it out of a handheld grenade launcher.  I watch movies.  I know what that is.  Yeah, I agree.  That's not a missile.  It's a grenade.

I also then understand the potential confusion.  Certain types of grenades might be missiles.  I'm thinking like an RPG.  Sell one of these, or one of these, and yeah, maybe you get 15 levels up.

But not the old 40 mm.  That's just a regular old grenade.  You still go to prison for a long time.  'Cause it's a vicious weapon that we don't want on your hands.  But the extra 15 levels is for something even more totally serious.  Not this thing.

So maybe include picture, Judge Paez.  Or at least describe the thing a little better for the uninformed.  With language we're used to.  Because once you use the right words, or help our eyeballs a bit, we're even more on board.  That stuff makes clear you're totally right.