u.s. Department of Justice
National Security Division
Washington, D.C. 20530
Assistant Attorney General
September 9, 2011
By Hand Delivery
The Honorable Patti B. Saris, Chair
United States Sentencing Commission
One Columbus Circle, N.R
Suite 2-500, South Lobby
Washington, D.C. 20002-8002
Subject: Mandatory Minimum Sentences for Export Control and Embargo Offenses
Dear Judge Saris:
In the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010,
Public Law 111-195, § 107(b), Congress directed the U.S. Sentencing Commission to
consider and report to Congress on the potential application of mandatory minimum
sentences to export control and embargo offenses, specifically to "report on the impact and
advisability of imposing a mandatory minimum sentence for violations of' the Arms Export
Control Act, 22 U.S.C. §§ 2778-2780, the Trading with the Enemy Act, 50 U.S.C. app. § 1 et
seq., and the United Nations Participation Act of 1945,22 U.S.C. § 287c(a). I write to
recommend that the Commission endorse a measured and narrowly applicable mandatory
minimum sentence in this area.
Introduction and Background
I believe mandatory minimum sentences are appropriate and necessary in this context
to protect national security and to carry out Congress' intent in establishing these national
. security offenses. Mandatory minimum sentences for export control and embargo violations
comport with Congress' decision to impose mandatory minimum sentences in other contexts
and ensure proportionality and fairness with other criminal sentences imposed by federal
courts. Despite prior efforts·by the Congress and the Sentencing Commission to ensure that
the sentences imposed for export control and embargo offenses are proportionate and
consistent with the need to protect national security, sentertcingjudges commonly and with
growing frequency depart downward to sentences that are significantly below the prescribed
Sentencing Guideline range. Mandatory minimums would be an effective means of
countering this troubling trend.
Export controls on: armaments, war materials, and technologies with military
application, as well as embargoes on exports to certain countries of concern, have long been
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The Honorable Patti B. Saris
recognized as an effective means of protecting national security, preserving international .
order, and sanctioning rogue States and State sponsors of international terrorism. See, M.,.,
United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) (reinstating a criminal
indictment against defendants who had violated an arms embargo; and outlining the long
history of such national security controls). Particularly with regard to the current sanctions
on Iran, sanctions imposed upon specially designated terrorists and proliferators of weapons
of mass destruction, and arms embargoes upOI\ such nations as China, Burma, North Korea,
and Syria, the Executive Branch and Congress repeatedly have noted that effective export
controls and embargoes are essential to preserve and further our national security.! The
federal courts also have recognized that such sanctions and export controls are properly
considered to be matters of national importance for our security and the security of our allies.
For instance, as noted by the Court of Appeals for the Fifth Circuit in considering a
sentencing issue in this context, "[e]very court to consider the issue has held that ...
sanctions against state sponsors' ofterrorism are 'national security controls. '" United States
v. Elashyi, 554 F.3d 480, 508 (5 th Cir. 2008), cert. denied, 130 S.Ct. 363 (2009).
The Applicable Sentencing Guidelines
Export control and embargo offenses, with few exceptions, are prosecuted under the
Arms Export Control Act (22 U.S.C. § 2778), the International Emergency Economic Powers
Act (50 U.S.C. § 1705), and the criminal smuggling statute at 18 U.S.C. § 554. Under the
U.S. Sentencing Guidelines, Sections 2M5.1, 2M5.2, and 2M5.3 set the Base Offense Levels
for those offenses. For national security offenses involving the illegal export of munitions,
war materials or related technology, or illegal transactions with Iran or specially designated
WMD proliferators or terrorists, the Sentencing Guidelines set the Base Offense Level at 26,
. which results in a Guideline range sentence of 63 to 78 months imprisonment for an offender
falling within Criminal History Category I.
In 2001, the Sentencing Commission increased the Base Offense Level from 22 to 26
under U.S.S.G. §§ 2M5.1 and 2M5.2 in response to legislation directing the Sentencing
Commission to evaluate whether the Guidelines should provide for increased penalties for
Comprehensive Iran Sanctions, Accountability, and Divestment Act of2010, Pub. L.
111-195, §§ 2 and 3 (finding sanctions as "necessary to protect the essential security interests
. of the United States" and that "international diplomatic efforts to address Iran's illicit nuclear
efforts and support for international terrorism are more likely to be effective if strong
additional sanctions are imposed on the Government of Iran"); Hillary Rodham Clinton and
Timothy Geithner, "Joint Statement on Iran Sanctions," U.S. Department of State Media
Note (June 23,2011) ("the United States amplified our sanctions against Iran's leadership
through a comprehensive initiative aimed at Iran's dangerous behavior - its continued
proliferation activities, its human rights abuses, and its destabilizing activities in the
region."); U.S. Rep. Ileana Ros-Lehtinen, "Opening Statement at Export Control Reform
Hearing," (May 12, 2011), available at
http://www .internationalrelations.house.gov/press_display .asp?id= 1820 ("the main goal of
export controls is to keep certain states or non-state actors from developing or acquiring
military capabilities that could threaten important U.S. security interests.").
1 See
The Honorable Patti B. Saris
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these offenses. See 50 U.S.C. § 2332; Public Law 104-201, § 1423. The Sentencing
Commission explained that the resulting increase "serves to make the penalty structure for
those offenses proportional to other national security guidelines in Chapter Two, Part M."
U.S.S.G. Manual Appendix C, Amendment 633 (Reason for Amendment). Thus, both
Congress and the Sentencing Commission have taken actions indicating that, because export
control and embargo offenses are a serious national security concern, they should result in
significant sentences of imprisonment, at least absent strong mitigating circumstances. 2 We
believe that the current Guideline range, which sets the Base Offense Level at 26 for most of
these national security offenses, is appropriate and adequate.
Downward Departures as the Norm and the Resulting Inequity
Despite the 2001 increase in the Base Offense Level for these offenses, an increasing
number of U.S. District Court Judges regularly sentence offenders below the recommended
Guideline range. 3 Significant downward departures are becoming more and more frequent in
such cases, particularly in prosecutions involving violations of sanctions imposed against
designated State sponsors of international terrorism. 4 Even after a jury finds a defendant
In addition to several technical amendments to U.S.S.G. §§ 2MS.l, 2M5.2, and 2MS.3, the
Commission this year substantively revised U.S.S.G. § 2MS.2 to narrow the number of
defendants who, following conviction for the illegal export of a small number of non. automatic firearms or a small amount of small arms ammunition, are eligible for a Base
Offense Level 14 rather than the standard Base Offense Level 26. Under the current version
. of Section 2MS.2, a defendant convicted under the Arms Export Control Act or for
smuggling under 18 U.S.c. § SS4 falls within Base Offense Level 14 if the illegal export
involved 10 or fewer non-fully automatic small arms. Pursuant to the pending amendment to
be effective November 1, 2011, the provision allowing for Offense Level 14 rather than 26
for small arms smugglers in Section 2MS.2 has been limited to those cases involving only
one or two non-fully automatic firearms or SOO or fewer rounds of small arms ammunition.
See April 28, 2011 U.S. Sentencing Commission's Amendments to the Sentencing
Guidelines, at 71-72.
3 See,~, United States v. Xu, No. 08-CR-00240 (D. N.J.) (sentencing defendant who plead
guilty to exporting night vision technology to China to 22 months imprisonment); United
States v. Qing Li, No. 07-CR-2915 (S.D. Cal.) (defendant sentenced to 12 months and one
day in custody for conspiracy to smuggle from the United States to the People's Republic of
China military-grade accelerometers with potential applications in "smart" bombs and
missile development and in calibrating the g-forces of nuclear and chemical explosions).
4 See, ,e.g., United States v. Banki, No. 1:IO-CR-0008 (S.D.N.Y.) (sentence of30 months
imprisonment following conviction at trial on five felony charges including IEEPA offenses
arising from transactions with Iran); United States v. al-Hanooti, No. 2:08-CR-20083 (E.D.
MI.) (sentence of 12 months and one day for IEEPA violation arising from willful violation
of Iraqi sanctions with the Saddam Hussein-led government); United States v. Mousavi, No.
2:07.:.CR-00S13 (C.D. Cal.) (sentence of33 months after trial for a defendant convicted of
willfully violating IEEP A in dealing with Iran, as well as committing other tax offenses);
United States v. Sevilla, 2006 WL 3486872 (N.D. Ill.) (sentence of probation and brief home
detention arising from Iranian sanctions conviction); United States v. Sayed Rohani
2
The Honorable Patti B. Saris
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guilty beyond a reasonable doubt of willfully smuggling sensitive U.S. technologies to rogue
regimes, the government has struggled to obtain sentences within the recommended
Guideline range. 5
In their sentencing pleadings, defendants across the country have highlighted this
trend in charts and memoranda listing the growing number of substantial downward
departures by trial judges from the applicable Guideline range. Attached at Appendix 1 are
several such defense filings from recent prosecutions in Florida, Illinois, .and elsewhere.
Initial review of the sentencing data reflects that downward departures are very common for
a defendant found guilty of willfully violating the Arms Export Control Act or the
International Emergency Economic Powers Act in connection with the illegal export of
munitions or dual use items or illegally undertaking transactions with a sanctioned nation or
individual. Attached at Appendix 2 is a table describing recent sentencing practice in this
. arena according to the length of sentence imposed. 6 As the table reflects, between 2007 and
2010, sentences well below the Guideline range were common in cases involving illegal
exports in violation of the AECA and IEEPA. To be sure, some of these below-range
sentences were sponsored by the government, but many were not. Except for circumstances
warranting departure such as those listed at U.S.S.G. § 5K for cases involving, e.g.,
substantial assistance or coercion, I do not believe many of these sentences were appropriate
for criminal defendants who willfully violate the law prohibiting the provision of armaments,
war materials, and other good and services to, e.g., Iran, a nation which has been found and
designated to be a supporter of international terrorism on the basis of, among other things, its
support for acts of murder, torture, and hostage taking of American citizens and the citizens
of our allies.
Defendants commonly portray export control and embargo crimes as "regulatory
offenses," thereby seeking to discount the national security importance of these matters. 7
This is particularly true in cases involving dual-use items and sanctions prosecutions in
which the utility ofthe item to a foreign military, proliferation network, or terrorist
organization may not be self-evident. In contrast to "white collar" export control defendants
who illegally transfer armaments or military technology to China or Iran or engage in
prohibited "business" dealings, significant departures from the Guidelines are not as common
Eftekhari, SA-06-CR-516 (W.D. Tex.) (sentence of 12 months imprisonment following
departure to offense level 10).
5 See,~, United States v. Vaghari, No. 08-CR-000693 (E.D. Pa.) (sentencing defendant to
33 months imprisonment following his convictions at trial of four felonies including one
conspiracy and two substantive IEEP A counts for his role in exporting computers, laboratory
equipment, and a centrifuge to Iran).
6 We have attached at Appendix 3 the Department of Justice's Summary of Recent Export
Control and Embargo Prosecutions which highlights the growing inconsistencies in criminal
sentences in this context.
7 See, ~ United States v. Reyes, 270 F.3d 1158, 1171 (7th Cir. 2001) (noting the
defendant's arguments as to "the seriousness of his crimes" which were in violation of the
Iranian sanctions).
The Honorable Patti B. Saris
Page 5
for defendants convicted of export control crimes related to cross-border gun transactions. 8
Determinations about the national security or foreign policy implications of particular
transfers, however, are best left to the executive .and legislative branches rather than
individual defendants or the judiciary. Similarly, defendants who assert that their crimes are
victimless ignore both injury to the efficacy of the sanctions regimes and potential grave
harm to the United States and its citizens in the future if sensitive technologies are employed
against the American people. In short, defendants who attempt to minimize the seriousness
of their conduct, and the courts which grant downward departures based upon the perceived
lack of impact upon our national security or foreign policy interests by an individual
defendant, are substituting their own judgment for the judgment of the President and
Congress regarding the serious risks to our national security posed by export control
violations and the means adopted to safeguard against those risks.
In addition, a fundamental inequity arises when a sentencing court grants a significant
downward departure without significant justification and disregards the applicable Guideline
range in an export control case. For example, a 21 year-old drug trafficker carrying a firearm
. faces a mandatory minimum sentence of five years. In contrast, a person operating in the
United States who knowingly and willfully provides technology to China that advancesits
military and intelligence capabilities is subject to no such mandatory minimum sentence and
is instead very likely to receive a sentence below the recommended Guideline range of 63 to
78 months for first-time offenders. 9 We believe the threat posed or potential damage done to
oUr communities as well as our foreign allies by the illegal export of sensitive technology to
countries like China and Iran is commensurate with the threat posed by an individual armed
drug-trafficker, but the resulting sentences in such cases are not likely to reflect this threat or
damage. Such fundamental unfairness and inequity in a sentencing system over time breeds
disrespect for our criminal justice system and thereby defeats the deterrent and rehabilitative
goals of sentencing. In summary, we believe that mandatory minimum terms of
imprisonment for export control violations are needed to end the skewed sentencing
distribution which has made downward departures a likely statistical outcome in many
national security export control and embargo cases.
A Limited and Measured Proposal for Mandatory Minimum Sentences
Certain export control and embargo violations are particularly damaging to national
security in light of the nature of the items that are unlawfully exported and/or the nature of
the end user of the items, such as those offenses involving the provision of war armaments or
8 See, e.g., United States v. Yildiz, No.1 :08-CR-00480 (N.D. Ill. 2009) (imposing a 90
month prison sentence for one count of violating the AECA by exporting weapons to
Canada); United States v. Salazar-Tovar, No. 7:10-CR-01331 (S.D. Texas 2011) (giving a 46
month prison sentence to a defendant whp pled guilty to one count of violating the AECA by
exporting ammunition to Mexico).
9 See United States v. Roth, No. 08-CR-069 (E.D. of Tennessee) (sentence of four years and
below the Guideline range for a defendant convicted at trial of more than ten counts arising
from his willful export to China of specialized plasma technology and related services
developed under a U.S. Air Force contract concerning the application of such technology to
military Unmanned Aerial Vehicles or UAVs).
The Honorable Patti B. Saris
Page 6
other goods and services to (1) State sponsors ofintemational terrorism, (2) foreign nations
subject to an arms embargo, (3) designated foreign terrorists or proliferators of Weapons of
Mass Destruction, (4) a chemical, biological, or nuclear weapons program, or (5) a missile
program. IO In such circumstances, a limited mandatory minimum sentence is a fair and
measured response to the threat posed to national security by the defendant's criminal
conduct and is consistent with mandatory minimums Congress has imposed in other contexts
for other serious federal felonies.Cf. 18 U.S.c. § 924(c). The Commission may wish to
consider recommending a mandatory minimum sentence of five years for select violations of
the export control and embargo statutes to ensure equity and uniformity in this context. A
five year sentence would be slightly below the current Guideline range for first-time
offenders convicted of such offenses.
For example, the Commission may consider recommending to Congress a mandatory
minimum teJ1ll of imprisonment of five years for those defendants convicted of willfully
providing armaments, war materials and other goods and services to State sponsors of
international terrorism or specially designated foreign terrorists and proliferators of weapons
of mass destruction. Likewise, the Commission may consider recommending a mandatory
minimum term of five years imprisonment, which would be below the currently established
Guideline range for first-time offenders, for defendants convicted of willfully and illegally
exporting goods and services in connection with a chemical, biological, or nuclear weapons
program or a missile program. Finally, the Commission may also consider recommending to
Congress a mandatory minimum term of five years imprisonment for those defendants
convicted of willfully and urIlawfully furnishing armaments or military technology to nations
subject to an arms embargo by the United States.
It is also important to note who would not be affected by the proposed mandatory
minimum sentences. All convictions in this arena require "willful" conduct -- i.e. a knowing
violation ofthe law. See, ~,Bryan v. United States, 524 U.S. 184 (1998); United States v.
Roth, 628 F.3d 827 (6 th Cir. 2011); United States v. Mousavi, 604 F.3d 1084 (9 th Cir. 2010).
A person who negligently or in good faith runs afoul of the Arms Export Control Act or
sanctions issued under the International Emergency Economic Powers Act is not subject to
criminal conviction. Thus, this proposal would only apply to those persons who knowingly
and willfully violate national security criminal statutes seeking personal enrichment or to
benefit prohibited end users overseas. I I
10 See, e.g., United States v. Bujduveanu, No. 08-CR-206I2-PAS, (S.D. Fla. JurI. 11,2009)
(defendant conspired to export illegally military and dual-use aircraft parts to Iran, including
~arts used for military fighter jets and attack helicopters used by the Iranian military).
I Both the AECA and IEEP A require a showing beyond a reasonable doubt that the
defendant acted "willfully." See Arms Export Control Act, 22 U.S.C.§ 2778(c) ("Any
person who willfully violates any provision ofthis section or section 2779 of this title, or any
rule or regulation issued urIder either section, ... shall upon conviction be fined ... or
imprisoned ... "); International Emergency Economic Powers Act, 50 U.S.c. § 1705 (c) ("A
person who willfully commits, willfully attempts to commit, or willfully conspires to
commit, or aids or abets in the commission of, an unlawful act described in subsection (a) of
this section shall ... be fined ... or ... imprisoned ... ").
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The Honorable Patti B. Saris
In conclusion, mandatory minimum sentences for export control and embargo
violations would better reflect the national consensus on the importance of these national
security offenses and better ensure that the punishment fits the crime for those who willfully
violate these laws. We urge the Commission to recommend that Congress impose such
sentences when it submits its report on this topic later this year.
Please do not hesitate to contact me if you have questions concerning the issues
discussed in this letter or if we can otherwise be of assistance as the Commission deliberates
on this issue.
Sincerely,
Lisa O. Monaco
Assistant Attorney General
for National Security
cc: Jonathan Wroblewski