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U.S. v. Garcia-Guerrero, No. 09-50614 (2-18-11) (Holland, Sr. D.J., D. Alaska with Pregerson and Clifton). Importation can be a taxing crime. The defendant was caught bringing 10 gallons of hypophosphorous acid across the border. This is a precursor ingredient for meth. The defendant said he thought it was battery acid, but knew that it was illegal. The defendant plead to an Information charging him with failure to declare imported merchandise to customs agents in violation of 18 U.S.C. 545. At sentencing, the guideline was 2T3.1(a)(3), with a base offense level of four (4) because of the low value. Wait, said the government, a cross reference in 2T3.1 referring to higher guidelines for tax losses should apply. The cross reference would lead to 2D1.11, which governs distribution of precursor chemicals. The court agreed, and gave a 46-month sentence. Gulp! The 9th, however, vacated and remanded. It held that the court erred in applying the cross reference. The defendant plead guilty to failure to declare; there was no plea to the knowledge that the acid was for drugs. The Guideline for the offense concerns revenue, and any cross reference should have been for tax value, not drugs. Section 2D1.11 was not intended for 545.

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