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1Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 92-4716
Summary Calendar
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
HILTON LANGLEY,
Defendant-Appellant.
___________________________________
92-4789
Summary Calendar
___________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOHN L. BROUSSARD,
Defendant-Appellant.
______________________________________________________
Appeals from the United States District Court
for the Western District of Louisiana
(CR-91-60025-02)
______________________________________________________
(February 17, 1993)
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:1

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Pursuant to that Rule, the Court has determined that this opinion
should not be published.
2
Appellants appeal their sentences following their guilty plea
to one count of conspiracy to export defense articles on the United
States munitions list without export licenses. We find no error
and affirm.
Appellants pled guilty pursuant to plea agreements to one
count of conspiracy to export defense articles on the United States
munitions list without export licenses. These pleas followed a
sting operation in which Broussard and Langley agreed to sell third
generation night vision goggles for export to North Korea.
Appellants transferred one set of the night vision goggles and
agreed to furnish a large shipment in exchange for $500,000.
Broussard raises two issues worthy of discussion. He argues
first that the court erred in assigning a base offense level of 22.
Under the current and applicable version of § 2M5.2, a defendant is
assigned a base offense level of 22 unless the offense involved
only ten or fewer non-fully automatic small arms. See United
States v. Peters, 978 F.2d 166, 169 (5th Cir. 1992). The prior
version of U.S.S.G. § 2M5.2 provided for a base offense level of 22
if a defendant was convicted of dealing in "sophisticated
weaponry." We have held that the old and new versions of § 2M5.2
are substantively the same. United States v. Nissan, 928 F.2d 690,
694 (5th Cir. 1991). The lower base offense level of 14 "is
reserved for truly minor exports of military equipment." Id.
(quoting United States v. Nissan, 928 F.2d 690, 695 (5th Cir.

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1991). The determination that the export of night vision goggles
requires application of the higher level is a finding of fact that
we review under the clearly erroneous standard. The district court
found that the planned sale of $500,000 worth of night vision
goggles is not a "truly minor export[]." This finding is not
clearly erroneous.
Broussard argues next that he was entitled to a downward
departure because the base offense level "assumes that the offense
conduct was harmful or had the potential to be harmful to a
security or foreign policy interest of the United States."
U.S.S.G. § 2M5.2, Application Note 1. Broussard contends that the
Customs Agents with whom he was dealing had no intention of
exporting these night vision goggles to any foreign power that
would harm the United States. "A claim that the court improperly
failed to reduce a sentence will succeed only if the court's
failure to depart violated the law." Peters, 978 F.2d at 170.
Broussard's arguments have no merit. Application Note 1 to
U.S.S.G. § 2M5.2 provides that "[i]n the unusual case where the
offense conduct posed no such risk [to a security or foreign policy
interest of the United States], a downward departure may be
warranted." Night vision goggles facilitate nighttime military
operations. They are listed on the United States Munitions List,
and export of the goggles is tightly controlled. Broussard and
Langley were arranging to sell the goggles to North Korea, which
was hostile to the United States at that time. At one point,
Langley explained to a government agent that shipment of the

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goggles was delayed because the government had requisitioned the
equipment for the Persian Gulf War. Based on these facts, the
district court's refusal to grant a downward departure is not a
violation of the law.
Langley's arguments are also meritless. Langley received a
downward departure pursuant to a § 5K1.1 motion filed by the
government. He argues that the district court should have departed
further downward because there was no risk to a security or foreign
policy interest of the United States, only one pair of goggles was
sold, the goggles were legally obtained from a domestic supplier,
and Langley was not present when Broussard sold the goggles to the
undercover agent.
As described above, the district court's finding that the
goggles triggered the higher offense level because the sale had the
potential to harm a U.S. security or foreign policy interest is not
a violation of the law.
Whether or not the goggles were legally obtained is irrelevant
considering that they were included on the United States Munitions
List, had military applications, and were to be sold to a terrorist
country without an export license. Likewise, the fact that only
one pair of goggles was exchanged is immaterial considering that
the scope of the transaction was $500,000 and Langley did not
object to this finding in the PSR. Langley's contention that he
was not present at the hotel when the agent received the goggles is
irrelevant considering he pled guilty to conspiracy. Even if it
were true, it is a new claim at odds with the uncontested version

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of events in the PSR. We decline to consider this argument for the
first time on appeal.
Finally, this Court will not review the district court's
refusal to depart from the guidelines unless the refusal was in
violation of the law. United States v. Mitchell, 964 F.2d 454, 462
(5th Cir. 1992). In this case, the district court refused to
depart downward beyond its departure based on the § 5K1.1 motion,
not because it was under a mistaken impression it could not legally
do so, but because it believed a further departure was
inappropriate. See Mitchell, 964 F.2d at 462.
AFFIRMED.

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