United States of America v. Ali Boumelhem

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0281P (6th Cir.)
File Name: 03a0281p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALI BOUMELHEM,
Defendant-Appellant.
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No. 02-1426
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-81013—George C. Steeh, District Judge.
Argued: June 18, 2003
Decided and Filed: August 12, 2003
Before: NORRIS, DAUGHTREY, and ROGERS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Pierre H. Bergeron, SQUIRE, SANDERS &
DEMPSEY, Cincinnati, Ohio, for Appellant. Robert Cares,
UNITED STATES ATTORNEY, Detroit, Michigan, for
Appellee. ON BRIEF: Pierre H. Bergeron, SQUIRE,
SANDERS & DEMPSEY, Cincinnati, Ohio, for Appellant.
2 United States v. Boumelhem No. 02-1426
Robert Cares, UNITED STATES ATTORNEY, Detroit,
Michigan, for Appellee.
_________________
OPINION
_________________
ROGERS, Circuit Judge. Ali Boumelhem was convicted
of five violations of, and one count of conspiracy to violate,
18 U.S.C. § 922(g), which (subject to jurisdictional
limitations) prohibits the possession or shipment of firearms
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
count of conspiracy to violate 18 U.S.C. § 922(e), which
prohibits the delivery of firearms and ammunition to a
common carrier for shipment in foreign commerce without
written notice to the carrier in violation of 18 U.S.C. § 922(e).
Boumelhem appeals his convictions and sentence, asserting
that (1) the Fourth Amendment was violated by the
government’s search of the cargo container in which many of
the prohibited articles were found, (2) the previous crime
upon which his § 922(g) convictions were based was not a “a
crime punishable by imprisonment for a term exceeding one
year,” and (3) the district court improperly applied a four-
point sentencing enhancement for possessing firearms “in
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
erred by enhancing Boumelhem’s sentence under USSG
§ 2K2.1(b)(5). We therefore affirm Boumelhem’s
convictions but vacate his sentence and remand to the district
court for re-sentencing.

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No. 02-1426 United States v. Boumelhem 3
FACTS
In late October of 2001 a joint task force, formed to combat
terrorism, began to investigate whether Ali Boumelhem
(“Boumelhem”) and his brother, Fouad Boumelhem
(“Fouad”), were attempting to ship weapons to Lebanon. The
Federal Bureau of Investigation (FBI), the United States
Customs Service (Customs), the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF), the United States
Immigration and Naturalization Service (now the Bureau of
Citizenship and Immigration Services), and the United States
Commerce Department participated in this particular
investigation, but the task force also included the United
States Secret Service and the Michigan State Police. The
investigation focused on a forty-foot-long shipping container
that Vantage International delivered to Trumbell Auto Repair,
a business owned by Fouad, in late October 2001.
Vantage International is an international freight forwarding
business operated by Mustafa Khalifa. Both Fouad and
Boumelhem discussed arrangements to ship automobile
engines, transmissions and related parts with Khalifa, but
Khalifa was never informed that firearms and ammunition
were going to be shipped to Lebanon. Based upon the
information he was provided, Khalifa filled out the necessary
paperwork, including a bill of lading, which listed the
contents of the container as “40 engines, used, and other
salvage auto parts,” and a shipper export declaration, which
detailed the contents as “engines and transmissions.” The bill
of lading listed Boumelhem as the consignee of the shipment.
After the container was delivered, Fouad and Boumelhem,
with the help of others, loaded the container, during which
time the FBI kept both the container and Boumelhem under
surveillance. On November 6, 2000, a truck transported the
loaded container to a railroad yard in the Detroit area. The
container was scheduled to be transported from the yard to
Montreal, Canada, and from there shipped to Lebanon. Once
the container reached the railroad yard, Customs agents had
4 United States v. Boumelhem No. 02-1426
the container taken to a nearby Customs facility, where it was
searched. Although Customs agents initiated the search, other
law enforcement agents, including FBI agents, participated in
the search.
The search revealed a number of items not disclosed by the
bill of lading or the shipper’s export declaration. Customs
agents discovered, hidden in a car door, (1) twelve boxes of
nine millimeter ammunition, (2) three boxes of 7.65
millimeter ammunition, (3) a Remington twelve-gauge
shotgun, (4) an upper receiver for an M-16 or AR-15 assault
rifle, (5) hand grips for the barrel of an AR-15, (6) flash
suppressors, (7) a butt stock assembly for an M-16 or AR-15,
(8) and some speed loaders. Custom agents also discovered
another twelve-gauge shotgun , along with a two-way radio,
in a shopping bag that had been wrapped in a shirt. Based
upon this evidence, Boumelhem was later arrested.
At trial, the government presented testimony from Alan
Stark, a firearms dealer. Stark testified that Boumelhem
purchased four twelve-gauge shotguns during a period
beginning in 1996 and ending in 1998.
In a fourth superseding indictment, Boumelhem was
charged with (1) one count of possessing firearms and
ammunition in violation of 18 U.S.C. § 922(g), (2) four
counts of possessing a firearm in violation of § 922(g),
(3) one count of conspiracy to ship firearms and ammunition
in foreign commerce in violation of § 922(g), and (4) one
count of conspiracy to deliver firearms and ammunition to a
common carrier for shipment in foreign commerce without
written notice to the carrier in violation of 18 U.S.C. § 922(e).
An individual violates § 922(g) only if the individual has
previously been convicted for “a crime punishable by
imprisonment for a term exceeding one year.” To meet this
requirement, the government relied on Boumelhem’s 1993
conviction of one count of grand theft in California; the Los
Angeles Municipal Court had sentenced Boumelhem to
felony probation, with the condition that he spend six days in

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No. 02-1426 United States v. Boumelhem 5
the county jail. After trial, a jury convicted Boumelhem on
all seven federal counts. At Boumelhem’s sentencing
hearing, the government sought, and was granted, a four-point
enhancement under USSG § 2K2.1(b)(5), for possessing
firearms “in connection with another felony offense.”
Boumelhem was then sentenced to incarceration for forty-four
months. Boumelhem now appeals his conviction and
sentence.
ANALYSIS
I. The Search of the Shipping Container Did Not Violate the
Fourth Amendment.
Boumelhem contends that the search of the shipping
container violated his rights under the Fourth Amendment.
Boumelhem makes two arguments in support of his Fourth
Amendment contention. First, he argues that—in contrast to
border searches of imports—border searches involving the
export of cargo, other than currency, should be subject to a
probable cause or reasonable suspicion standard. Boumelhem
also maintains that even if Customs possesses the ability to
conduct export searches without reasonable suspicion, the
search of the container violated the Fourth Amendment
because Customs undertook the search at the direction of the
FBI. The FBI, Boumelhem argues, should not be allowed to
circumvent the requirements of the Fourth Amendment by
employing Customs to search a container that is the target of
an FBI investigation. We reject both arguments and conclude
that the search was reasonable.
6 United States v. Boumelhem No. 02-1426
A. Standard of Review
“‘On suppression issues, [an appellate court] review[s] a
district court's findings of fact for clear error, but . . .
review[s] all conclusions of law de novo.’” United States v.
Haynes, 301 F.3d 669, 676 (6th Cir. 2002) (quoting United
States v. Crowder, 62 F.3d 782, 785 (6th Cir.1995)). In
reviewing such a decision, the court must consider the
evidence in the light most favorable to the government. Id.
B. The Warrantless Exit Search was Authorized by
Statute and Permitted by the Fourth Amendment.
Boumelhem argues that the search of the cargo container
was not justified because the government failed to obtain a
warrant. The Supreme Court has held, however, that warrants
are not required for border searches of materials or persons.
United States v. Ramsey, 431 U.S. 606, 619 (1977).
Boumelhem argues that the Supreme Court’s border search
cases do not apply to searches of articles leaving the country.
He also argues in the alternative that the government agents
who conducted the search were not authorized by statute to
conduct the search. We conclude that the exit border search
was both authorized by statute and constitutional. Following
the lead of United States v. Ramsey, 431 U.S. at 606, we
address first whether the border search was authorized by
federal statute and then analyze the search under traditional
Fourth Amendment principles.
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

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No. 02-1426 United States v. Boumelhem 7
1Boumelhem argues that border searches that are not authorized
by statute are per se unreasonable and thus b arred by the Fourth
Amendment. Because we find that the search here was authorized by
statute, we need not determine whether a border search is unconstitutional
when unauthorized by statute. Comp are U nited States v. Williams, 617
F.2d 1063, 1074 (5th Cir. 1980) (en banc) (indicating that where the
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
without statutory authorization may not be a constitutional violation). W e
also need not determine whether evidence obtained in violation of an
authorizing statute must be excluded even if there has been no violation
of the Fourth Amendment. See Gonzalez, 875 F.2d at 877-78, 878 n.1.
cargo container.1 Section 1581 of Title 19 of the United
States Code, in pertinent part, reads:
Any officer of the customs may at any time go on board
of any vessel or vehicle at any place in the United States
. . . without as well as within his district, and examine
the manifest and other documents and papers and
examine, inspect, and search the vessel or vehicle and
every part thereof and any person, trunk, package, or
cargo on board, and to this end may hail and stop such
vessel or vehicle, and use all necessary force to compel
compliance.
19 U.S.C. § 1581(a). This statute has been interpreted as
granting general authorization for border searches. See
United States v. Molina-Tarazon, 279 F.3d 709, 712 n.4 (9th
Cir. 2002) (“The border search exception is codified at 19
U.S.C. § 1581(a). . . .”); United States v. 1903 Obscene
Magazines, 907 F.2d 1338, 1341 (2d Cir. 1990) (citing §1581
for the proposition that Customs “has plenary power to
safeguard the United States borders, which includes the power
to inspect any person or thing that presents itself at a border
seeking entrance”); United States v. Glasser, 750 F.2d 1197,
1204 (3d Cir. 1984) (finding that §1581 is the “general border
search statute” and that it “authorizes the search of vessels or
vehicles without cause”); United States v. Ajlouny, 629 F.2d
8 United States v. Boumelhem No. 02-1426
2The statute defines vehicle as “every description of carriage or
other contrivance used, or capable of being used, as a means of
transportation on land, but does not include aircraft.” 19 U.S.C. § 1401(b)
(emp hasis ad ded ).
830, 836 n.7 (2d Cir. 1980) (citing § 1581 for the proposition
that “customs officials have statutory authority to conduct
inspections at a point of embarkation of cargo being shipped
abroad”); United States v. Whitmire, 595 F.2d 1303, 1308
(5th Cir. 1979) (noting that “[r]ead literally, that statute grants
extremely broad authority” to Customs officials). Given the
statute’s broad definition of “vehicle”2 and the authorization
to search “any place” in the United States, we conclude that
the statute authorizes the search of a cargo container in a
railroad yard, the situation here. Having concluded that the
search was authorized by statute, we must next consider
whether the search was proper under traditional Fourth
Amendment principles.
2. The Border Search Exception Applies to Persons
and Articles Leaving the Country, and Not Only to
Those Entering the Country.
Boumelhem also argues that the Supreme Court decisions
that deal with the border search exception to the Fourth
Amendment “do not by their own logic apply to exit
searches.” Boumelhem adds that, although other circuits have
concluded that warrantless exit searches are constitutionally
permissible, such searches have generally been limited to
situations involving the smuggling of currency. Boumelhem
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
exception applies to the search of the outgoing cargo
container here.
A search without a warrant is “per se unreasonable under
the Fourth Amendment subject only to a few specifically
established and well-delineated exceptions.” Katz v. United

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No. 02-1426 United States v. Boumelhem 9
3Boumelhem does not challenge the district court’s finding that
the search of the container took place at the functional equivalent o f the
border. Nor does Boumelhem argue that the sea rch was a physically
intrusive, “non-ro utine” search, which wo uld req uire reasonable
suspicion. See United States v. Montoya de Hernandez, 473 U.S . 531,
540-41, 540 n.3, 541 n.4 (1985 ); United States v. Molina-Tarazon, 279
F.3d 709, 712-13 (9th Cir. 2002) (app lying non-routine search analysis to
inspection of a vehicle due to the particular intrusiveness of the search).
4In addition to the Fourth Circuit, the Second, United States v.
Ajlouny, 629 F.2d 830 , 834 (2d Cir. 19 80), the Third, Un ited States v.
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
States v. Udofot, 711 F.2d 83 1, 839-40 (8th Cir.), the Ninth, United States
v. Stanley, 545 F.2d 661, 667 (9th Cir. 197 6), and the E leventh Circuits,
United States v. Hernandez-Salazar, 813 F.2d 11 26, 1138 (11th Cir.
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.
States, 389 U.S. 347, 357 (1967); see also United States v.
Jenkins, 92 F.3d 430, 436 (6th Cir. 1996). The border search
exception generally provides that routine searches of the
persons and effects of entrants are not subject to any
requirement of reasonable suspicion, probable cause, or
warrant. See Ramsey, 431 U.S. at 616-619; Almeida-Sanchez
v. United States, 413 U.S. 266, 272-273(1973); Carroll v.
United States, 267 U.S. 132, 154, (1925). Such searches may
be conducted at an international border checkpoint or its
functional equivalent. See Almeida-Sanchez, 413 U.S. at
272-73.3 Further, every circuit that has considered the
question has concluded, at least with regard to the
circumstances before it, that the border search exception
applies to “exit searches” as well as searches of incoming
persons and materials. See, e.g., United States v. Oriakhi, 57
F.3d 1290, 1296 (4th Cir. 1995) (noting, in following other
circuits, that “every other circuit addressing the issue has held
that the exception applies regardless of whether the person or
items searched are entering or exiting the United States”).4
Moreover, a Supreme Court chambers opinion written by
10 United States v. Boumelhem No. 02-1426
Chief Justice Rehnquist, as well as dicta in a Supreme Court
majority opinion, also support the applicability of the border
search exception to persons or articles leaving the country.
Julian v. United States, 463 U.S. 1308 (Rehnquist, Circuit
Justice 1983); Cal. Bankers Ass'n v. Shultz, 416 U.S. 21, 63
(1974).
Boumelhem notes that many of the cases from other
circuits have only dealt with exit searches in the context of
currency smuggling, and contends that the special national
interest in protecting currency is not implicated by the search
here. In support of this argument, Boumelhem cites cases
from the Eleventh and Fifth Circuits that have expressly
declined to consider the “exit” border exception outside the
context of currency smuggling. See United States v. Berisha,
925 F.2d 791, 795 n.8 (5th Cir. 1991) ( “We express no
opinion, however, on the fourth amendment implications of
routine, suspicionless searches for exportation of articles
other than monetary instruments.”); United States v.
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
may . . . authorize . . . warrantless searches of persons and
property departing the United States on the basis of
reasonable suspicion that a currency reporting violation is
occurring.”). But see United States v. Oriakhi, 57 F.3d 1290,
1297 (4th Cir. 1995) (“[W]e join the several other circuit
courts which have held that the Ramsey border search
exception extends to all routine searches at the nation’s
borders.”); United States v. Ezeiruaku, 936 F.2d 136, 143 (3d
Cir. 1991) (“[T]he traditional rationale for the border search
exception applies as well in the outgoing border search
context.”); United States v. Duncan, 693 F.2d 971, 977 (9th
Cir. 1982) (“Since this was a search at a ‘border’, of a person
leaving the country, there is no need for probable cause,
warrants or even suspicion”).

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No. 02-1426 United States v. Boumelhem 11
5In addition to relying on the sovereign's right to protection of
its borders, the Supreme Court noted that the first customs statute, which
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,
enacted by the legislative body that two months later would propose 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.
The use of the “sovereign pro tection” rationale in connection
with exit searches has been criticized by some for failing to acknowledge
that the Ramsey decision was based, in part, on the historical pedigree of
warrantless entry searches. See, e.g., Oriakhi, 57 F.3d at 1304 (Phillips,
J., concurring) (“Absent any evidence of 18th century precedent for
suspicionless warrantless exit searches, it simply is not true, as the
majo rity asserts, that the ‘principles articulated in’ Ramsey justify
application of the border search exception to exit searches.”(citation
omitted)). However, there does seem to be a small body of 18th century
precedent for warrantless exit searches.
The Third Congress, on May 22, 1794, passed “An Act
prohibiting for a limited time the Exportation of Arms and Ammunition,
and enco uraging the Importation of the Same.” Act of May 22, 1794,
c.33, 1 Stat. 369. The act prohibited the export of many types of firearms
for one year. Id. Further, the act provided that it was
the duty of the custom-house officers, and of all
persons employed in the collection o f the revenue, to
attend to the execution of this law, and all forfeitures
and penalties incurred under it, shall be sued for,
prosecuted, adjudged and distributed in like manner as
is provided in the act, entitled “An act to provide more
effectually for the collection of the duties imposed by
In Ramsey, the Supreme Court detailed the rationale that
undergirds the border search exception to the Fourth
Amendment, noting that border searches, “pursuant to the
power of the sovereign to protect itself by stopping and
examining persons and property crossing into this country,
are reasonable simply by virtue of the fact that they occur at
the border.” Ramsey, 431 U.S. at 616.5 In extending the
12 United States v. Boumelhem No. 02-1426
law on go ods, wares and merchandise impo rted into the
United States, and on the tonnage of ships and vessels.”
Id. § 4. The act to which this section refers, the Act of August 4, 1790,
c.35, 1 Stat. 145, replaced the Act of July 31, 1789 , the statute which the
Ramsey court found historically significant. Id. § 74. In addition, the Act
of August 4, 17 90, which was also enacted by the First Congress,
contained a warrantless-search provision that was identical to the
warrantless-search provision from the Act of July 31, 1789, the provision
upon which the Ramsey court focused in its historical analysis. Com pare
Act of July 31, 17 89, c.5, 1 Stat. 29 § 24, with Act of August 4, 1790,
c.35, 1 Stat. 145 § 48.
Thus, it seems that the Third C ongress thought it reasonable that
the prohibition on exports, and presumably the searches necessary
thereunder, would be executed in the same manner as the earlier laws
regarding imports, which had allowed for warrantless searches. Granted,
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
enacted only two months before the Fourth Amendment was proposed.
Nor does the Act of May 22, 17 94 clearly provide for wa rrantless exit
searches, as the Act of July 31, 1789 did. Nevertheless, the statute, by
linking the execution and prosecution of the prohibition on exports to the
enforcement structure created b y import laws, does appear to provide
some historical support for the acceptanc e of warrantless exit searches
almost contemp oraneously with the proposal of the Fourth Amendme nt.
border search exception to exports, the Fourth Circuit has
concluded that the “power of the sovereign to protect itself”
also applies in the context of exit searches. See, e.g., Oriakhi,
57 F.3d at 1296-97. In addition , other circuits, in keeping
with the notion that “[t]he permissibility of a particular law
enforcement practice is judged by balancing its intrusion on
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
approach when analyzing the application of the border search
exception to articles or persons leaving the country, see e.g.,
United States v. Stanley, 545 F.2d 661, 667 (9th Cir. 1976).
We conclude that each of the above rationales supports the
application of the Ramsey border search exception to the

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No. 02-1426 United States v. Boumelhem 13
6The lessened expectation of privacy attendant to the export of
materials is aptly demonstrated here, as Fouad testified that he an d his
brother, Boumelhem, have, in recent years, annually shipped a container
of car parts to Lebanon, and that every year the government of Lebanon
has searched the container.
search of the outgoing cargo container here. While most cases
that have dealt with this issue previously have involved the
protection of the sovereign’s interests in its currency, e.g.
Oriakhi, 57 F.3d at 1297, the United States’s interest in
preventing the export of weapons to other countries also
implicates the sovereign’s interest in protecting itself. See id.
at 1297 (“From the sovereign’s power to protect itself is
derived its power to . . . prohibit the export of its currency,
national treasures, and other assets. . . . As important [as the
sovereign’s interest in excluding undesirable outside
influences] is the sovereign’s interest in regulating foreign
commerce.”). Further, this interest also weighs heavily when
balanced against the individual’s Fourth Amendment interest
in being free from the search at issue. The government’s
control and regulation of the export of weapons implicates
significant government interests in the realms of national
security and relations with other nations. On the other side of
the scales, “travellers (or exporters) undoubtedly have a lesser
expectation of privacy when they (or their goods) leave the
country if for no other reason than the departure from the
United States is almost invariably followed by an entry into
another country which will likely conduct its own border
search.” Oriakhi, 57 F.3d at 1302 (Phillips, J., concurring)
(citation omitted).6 Thus, the warrantless search of the cargo
container was permitted under the Ramsey border search
exception.
C. The Search Was Not “Tainted” by the Participation or
Direction of the FBI.
The search in this case was, moreover, not tainted by the
participation or direction of the FBI. Boumelhem contends
that the search was unconstitutional because the FBI used
14 United States v. Boumelhem No. 02-1426
7This argum ent assumes tha t statutory authority is required for
an agenc y to comply with the Fourth Amendment. We need not decide
this but again make the assumptio n for purpo ses of argume nt. See supra
note 1.
Customs as a means of circumventing the warrant
requirement that would apply if the FBI were acting on its
own and therefore lacked the statutory authority that Customs
has to conduct warrantless border searches.7
The contention lacks merit because, while Customs was
acting in conjunction with the FBI, the record demonstrates
that Customs was pursuing its own law enforcement
objectives. In doing so, Customs was acting as a separate law
enforcement agency subject to the Fourth Amendment
restrictions that apply to Custom’s authorized jurisdiction,
which jurisdiction was implicated when the container arrived
at the railroad yard for shipment to another country. In
addition, it would serve no underlying interest of the Fourth
Amendment to permit one arm of the government to search
for no reason, while forbidding another arm of the
government from searching under suspicious circumstances.
As the Supreme Court has explained in similar circumstances:
Respondents, however, contend in the alternative that
because the Customs officers were accompanied by a
Louisiana State Policeman, and were following an
informant’s tip that . . . they may not rely on the statute
authorizing boarding for inspection of the vessel’s
documentation. This line of reasoning was rejected in a
similar situation in Scott v. United States, 436 U.S. 128,
135-139 (1978), and we again reject it. Acceptance of
respondent’s argument would lead to the incongruous
result criticized by Judge Campbell in his opinion in
United States v. Arra, 630 F.2d 836, 846 (CA 1 1980):
“We would see little logic in sanctioning such
examinations of ordinary, unsuspect vessels but
forbidding them in the case of suspected smugglers.”

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No. 02-1426 United States v. Boumelhem 15
8The Ninth Circuit in United States v. Harrington arguably
limited the rationale of Soto -Soto. United States v. Harrington, 681 F.2d
612, 615 (9th Cir. 198 2) (“[A] Court should no t automatically suppress
evidence seized by an o fficer who for som e technical reason should not
have conducted the search. There must be an excep tional reason,
typically the protection of a constitutional right, to invoke the
exclusionary rule.” (citations omitted)).
United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3
(1983). A contrary view, moreover, would ignore the
reasonable law enforcement practice that has arisen to address
situations in which criminal enterprises span the jurisdictions
of numerous law enforcement agencies. In short, Customs
may properly exercise its statutory authority at the behest of
the FBI.
In arguing that the search was unconstitutional due to the
FBI’s circumvention of the warrant requirement, Boumelhem
relies upon a Ninth Circuit case that, assuming it was
correctly decided,8 clearly is distinguishable. In United States
v. Soto-Soto, 598 F.2d 545 (9th Cir. 1979), an FBI agent,
acting alone, stopped and searched a truck that was entering
the United States from Mexico. Id. at 546. The Ninth Circuit
concluded that the FBI agent did not have reasonable
suspicion to stop the vehicle, and that the stop, therefore,
violated the Fourth Amendment. Id. at 547. In rejecting the
Government’s assertion that the search was justified by the
border exception, the court noted that the FBI agent, unlike
Customs agents or border patrol agents, was not authorized by
Congress to conduct border searches. Id. at 548-50. The
court also noted that the FBI agent was not cooperating with
Customs officials. Id. at 550. The court concluded that the
search was, therefore, not an authorized border search under
19 U.S.C. § 482. Soto-Soto, 598 F.2d at 550; see also United
States v. Fogelman, 586 F.2d 337, 344 (5th Cir.
1978)(suggesting, in dictum, that the Fogelman court might
have found a violation of the Fourth Amendment had “pretext
or bad faith on the part[] of local officers in having the
16 United States v. Boumelhem No. 02-1426
9Customs enforces a number of laws for other arms of the
Executive Branch, including laws that deal with the “[i]mportations and
exportations of arms, ammunition, . . . and other m unitions of war [that]
are . . . administered by the . . . Department of State,” 19 C.F.R. § 161.2,
such as the Arms Export Control Act, see 22 C.F.R. § 127.4.
Customs agents participate as a ‘portable search warrant’”
been demonstrated).
Unlike in Soto-Soto, here the district court concluded that
the FBI had been cooperating with Customs as a part of a
joint task force. The record also reflects that Customs agents
initially caused the container to be taken to a Customs facility
and that a number of Customs agents, approximately twenty,
participated in the search. Customs agents were the ones who
discovered every piece of evidence, and the evidence was
logged by Customs agents. Thus, the record amply supports
the district court’s determination that Customs actively
cooperated in the search. In addition, Customs had its own
interest in the suspected export of weapons as a possible
violation of laws that it is charged with enforcing, and was
acting in good faith in pursuing this interest. See generally
The Arms Export Control Act, 22 U.S.C. § 2751-§ 2799aa.9
Boumelhem also relies by analogy on cases in which
Fourth Amendment protections have been held to apply to
searches conducted by private individuals who were directed
by law enforcement agencies. Boumelhem correctly notes
that when a private individual, who is not subject to the
restrictions imposed by the Fourth Amendment, acts at the
direction of law enforcement agents, the “private” search
must comport with the Fourth Amendment. See, e.g., United
States v. Lambert, 771 F.2d 83, 89 (6th Cir. 1985). In such an
instance, the private individual acts like an agent of the law
enforcement agency, and is, therefore, subjected to the same
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

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No. 02-1426 United States v. Boumelhem 17
individual’s] actions their actions for purposes of the Fourth
and Fourteenth Amendments. . . .”). These cases are entirely
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
undermine the purposes of the Fourth Amendment. In
contrast, permitting one government agency to search, where
an individual has every reason to expect that another agency
may search the same place, has little if any adverse effect on
the policies underlying the Fourth Amendment.
The cooperation between the FBI and Customs in this case
did not render the warrantless search of the cargo container
unconstitutional.
II. Boumelhem Was a “Felon” as Required Under 18
U.S.C. § 922(g).
A. Standard of Review
Next, Boumelhem asserts that the district court erroneously
concluded that he was a “felon,” for the purposes of 18 U.S.C.
§ 922(g), resulting in his wrongful conviction on six of the
seven crimes with which he was charged. This is a legal
question involving the interpretation of California statutes,
and, as such we review the question de novo. United States
v. Morgan, 216 F.3d 557, 561-62 (6th Cir. 2000).
B. Boumelhem Had Been Convicted of “A Crime
Punishable by Imprisonment for a Term Exceeding
One Year” at the Time of the Conduct at Issue.
Here, six of the seven counts upon which Boumelhem was
convicted required the Government to demonstrate that
Boumelhem had been convicted of “a crime punishable by
imprisonment for a term exceeding one year.” 18 U.S.C.
§ 922(g)(1). Section 921(20)(B) further qualifies this term:
18 United States v. Boumelhem No. 02-1426
The term “a crime punishable by imprisonment for a
term exceeding one year” does not include
. . .
(B) any State offense classified by the laws of the State
as a misdemeanor and punishable by a term of
imprisonment of two years or less. What constitutes a
conviction of such a crime shall be determined in
accordance with the law of the jurisdiction in which the
proceedings were held.
18 U.S.C. § 921(20).
Here, Boumelhem pleaded nolo contendere to grand theft
of personal property exceeding $400, a violation of California
Penal Statute § 487. This form of grand theft is punishable
either by imprisonment in a county jail not exceeding one
year or by imprisonment in the state prison for a term of up to
three years. Cal. Penal Code § 489; id. §18; see California v.
Powell, 166 Cal. App. 3d Supp. 12, 16 (1985). Offenses of
this type are referred to as “wobbler” offenses in the
California courts, meaning that the sentence imposed
determines the classification under state law as either a
misdemeanor or felony. See Cal. Penal Code § 17; Powell,
166 Cal. App. 3d Supp. at 16. This distinction is relevant
here because, if Boumelhem’s conviction were classified as
a misdemeanor under California law, it would be punishable
only by imprisonment not exceeding one year. See Cal. Penal
Code § 17; id. § 489. The offense would, therefore, satisfy
both elements of the § 921(20)(B) exception.
California Penal Code § 17(b) treats the classification of
“wobbler” offenses, and provides, in pertinent part:
(b) When a crime is punishable, in the discretion of the
court, by imprisonment in the state prison or by fine or
imprisonment in the county jail, it is a misdemeanor for
all purposes under the following circumstances:

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No. 02-1426 United States v. Boumelhem 19
10Boumelhem states that a judgment is not necessarily required,
relying upon Patrick v. Glee, 82 Cal. App. 4th 99 (200 0), in which a
California appellate court, for the purposes of the California Three Strikes
law, concluded that when the sentencing court “ordered appellant to serve
one year in the county jail and directed that probation be terminated upon
completion of the jail term, it automatically rendered the crime a
misdemeanor pursuant to [§ 17(b)(1)].” Id. at 105-06. The Glee court
reached this conclusion by distinguishing cases in which imposition of
judgment had b een suspended , the defendant was ordered to serve jail
time as a co ndition of pro batio n, and some portion of the probationary
period remained after the defendant's release from the county jail. Id. at
103-05. In so distinguishing these cases, many of which were cited by the
Governm ent in the present case, the Glee court noted because the
defendant’s probation and the jail sentence had ended at the same time,
“the record supports the inference that the sentencing court did not intend
to retain jurisdiction over appellant with the possibility of later imposing
(1) After a judgment imposing a punishment other
than imprisonment in the state prison.
. . .
(3) When the court grants probation to a defendant
without imposition of sentence and at the time of
granting probation, or on application of the
defendant or probation officer thereafter, the court
declares the offense to be a misdemeanor.
Cal. Penal Code § 17. Thus, under § 17(b), the offense is
regarded as a felony until a judgment is entered, except where
the court declares otherwise. People v. Soto, 166 Cal. App.
3d 770, 774-75 (1985).
After Boumelhem pleaded nolo contendere, proceedings
were suspended and Boumelhem received felony probation,
with the condition that he spend six days in the county jail.
Under California law, where the sentencing court grants
probation and proceedings are suspended, no judgment is
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
20 United States v. Boumelhem No. 02-1426
a prison sentence.” Id. at 103, 105. Thus, in essence, the Glee court
concluded that because the sentencing court did not intend to retain
jurisdiction over the defendant, and sentenc ed the defendant to a county
jail sentence, the court's sentence was the equivalent of entering a
judgment for a one-year co unty jail term, which would be a misdemeanor
under § 17 (b)(1 ). See id. at 105-06. In the present case, however, the
judgment was suspended and the probationary period extended beyond
the conditional county-jail sentence, demo nstrating the that co urt did
intend to retain jurisdiction over Boum elhem . Thus, this instance appears
to fall within the class of cases that Glee distinguishes and outside the
scop e of Glee itself.
11Below, Boum elhem argued that the California sentencing
court, by declaring Boumelhem’s offense a misdemeanor after
Boumelhem had been charged, retroactively de emed B oum elhem ’s
offense a misdemeanor “for all purpo ses,” thus precluding the use of the
charge as a predicate felony conviction. He has not made this argument
on appeal and we therefore decline to treat the issue.
that would form the basis of his federal conviction, the
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
he took the actions that would lead to his federal convictions.
See United States v. Morgan, 216 F.3d 557, 565-66 (6th Cir.
2000) (“It is the status of the defendant on the date he
possessed the firearm as alleged in the indictment that
controls whether or not he has violated the statute, not his
later status after his civil rights have been restored.”).11 We
therefore conclude that the district court properly found that
Boumelhem had been convicted for a crime punishable by
imprisonment for a term exceeding one year.
III. The District Court Erred by Enhancing Boumelhem’s
Sentence Under USSG § 2K2.1(b)(5).
The district court assessed a four-point enhancement
against Boumelhem under USSG § 2K2.1(b)(5) based on his
possession of a firearm in connection with another felony

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No. 02-1426 United States v. Boumelhem 21
12On appeal, Boumelhem interprets the district court to have
relied upon the co nspiracy to violate 922(g), but a careful reading of the
sentencing hearing transcript leads us to conclude that the district court
relied, at least primarily, upon the conspiracy to violate 922(e) as the other
felony offense.
13Guideline commentary is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a plainly
erroneous reading of, that guideline. Stinson v. United States, 508 U.S.
36, 38 (199 3).
offense—the conspiracy to deliver to any common carrier for
shipment a firearm or ammunition without written notice to
the carrier that such firearm or ammunition is being shipped,
a violation of 18 U.S.C. § 922(e).12 The relevant Sentencing
Guideline, in pertinent part, reads “If the defendant used or
possessed any firearm or ammunition in connection with
another felony offense; or possessed or transferred any
firearm or ammunition with knowledge, intent, or reason to
believe that it would be used or possessed in connection with
another felony offense, increase by 4 levels.” USSG
§ 2K2.1(b)(5) (2001) (emphasis added). Application note 18
to § 2K2.1(b)(5), in part, states:
As used in subsection[] (b)(5) . . . “another felony
offense” . . . refer[s] to offenses other than explosives or
firearms possession or trafficking offenses. However,
where the defendant used or possessed a firearm or
explosive to facilitate another firearms or explosives
offense (e.g., the defendant used or possessed a firearm
to protect the delivery of an unlawful shipment of
explosives), an upward departure under §5K2.6
(Weapons and Dangerous Instrumentalities) may be
warranted.
Id. cmt. n. 18 (emphasis added).13 Boumelhem objects to the
enhancement of his sentence, arguing that the conspiracy to
ship or transport firearms and ammunition in foreign
22 United States v. Boumelhem No. 02-1426
14In such a situation the application note counsels that an
upward departure from the sentence for the trafficking offense, not the
possession offense, may be appropriate under USSG § 5K 2.6. See USSG
§ 2K2.1(b)(5) cmt. n. 18.
commerce is a “firearms trafficking offense” as that phase is
used in the application note. We agree.
As used in the application note, “firearms” is a noun used
as an adjective to modify “trafficking offenses.” See United
States v. English, 329 F.3d 615, 617 (8th Cir. 2003).
“Traffic,” as the root of “trafficking,” has been defined in
Webster’s Third International Dictionary as “to engage in
commercial activity” or “to engage in illegal or disreputable
business or activity.” Webster’s Third International
Dictionary 2423 (2002); see also Webster’s II New College
Dictionary 1168 (2001) (“Illegal or improper commercial
activity”). Conspiring to deliver firearms or ammunition for
shipment to a common carrier in a manner that would violate
18 U.S.C. § 922(e) would clearly implicate an offense for
firearms-related “commercial activity.” There is no
indication in the record that this is a situation, like that
suggested in the application note, where firearms were
possessed to facilitate the transport of other firearms, and
even in that situation, the guidelines do not provide for
enhancement under § 2K2.1(b)(5).14 The district court
therefore erred in enhancing Boumelhem’s sentence under
USSG § 2K2.1(b)(5) based upon Boumelhem’s conviction for
conspiring to violate 18 U.S.C. § 922(e).
Rather than responding to Boumelhem’s argument, the
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
not also constitute a “firearms trafficking offense” as
contemplated by the application note. Regardless, we need
not address the issue. While we may affirm a district court’s

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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.

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