Earlier this month, Amirhossein Sairafi, one of three defendants charged in in the Central District of California for violation the International Emergency Economic Powers Act (IEEPA), the underlying statute of the Iranian trade embargo, was deported to Tehran after serving a 41 month sentence in a U.S. federal prison. Although pleading guilty to the charges against him, Mr. Sairafi, appealed his sentence to the Ninth Circuit. Typically, a defendant who pleads guilty to federal charges will be required by the plea agreement to waive all rights to appeal. However, Mr. Sairafi appealed pursuant to a constitutional violation arising from the alleged vagueness of the sentencing guideline used to determine his sentence.

The sentencing guideline in question is Section 2M5.1(a)(1) of the Federal Sentencing Guidelines. That section states that a base offense level of 26 should be applied if national security controls or controls relating to the proliferation of nuclear, biological, or chemical weapons or materials were evaded as part of the violation. A base offense level of 26 equates to a sentencing guideline range of 63-78 months, and is the most common base offense level used for violations of IEEPA and the Iranian Transactions and Sanctions Regulations. In his appeal to the Ninth Circuit Mr Sairafi claimed that the term “national security controls” is vague.

The Ninth Circuit disagreed that the use of the term “national security controls” is vague, finding that that the statutes make it clear that the President can declare that another country is an “unusual and extraordinary threat…to the national security.” And that the guideline does not fail to give a person of ordinary intelligence fair notice that it would apply in the conduct contemplated. As a result, the Ninth Circuit, also finding that Mr. Sairafi knew he was violating export restrictions, upheld the lower court’s sentence.

Numerous defendants over the years have sought to challenge the constitutionality of IEEPA and Iran sanctions criminal violations under the theory of vagueness. They have not been successful. Circuit courts have routinely found that neither IEEPA nor its corresponding regulations are vague. However, the 2nd Circuit did find in U.S. v. Banki, that a particular regulation, formerly found at 31 C.F.R. 560.516, was ambiguous and applied the Rule of Lenity in favor of the defendant. However, in that case the Second Circuit did not deem the regulation to be unconstitutionally vague. While the Supreme Court has still not ruled on this issue, practitioners defending clients facing IEEPA charges would be well advised to avoid expending resources on a defense or an appeal built around the vagueness of IEEPA, its corresponding regulations, or its corresponding sentencing guidelines.

The author of this blog is Erich Ferrari, an attorney specializing in OFAC matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrariassociatespc.com.