Victor Bernal and Eduardo Berges were convicted of various crimes in connection with an attempt to export two endаngered primates — an orangutan and a gorilla — from the United States to Mexico in violation of the Lacey Act Amendments of 1981 and the Endangered Species Act of 1973. 1 The applicable sentencing range under the Sentencing Guidelines was twenty-four to thirty months for Bernal and fifteen to twenty-one months for Berges. 2 *467 The probation officer noted in the presen-tence report that а downward departure from the guidelines range might be warranted in Bernal’s case under U.S.S.G. § 5K2.11 because Bernal had intended to expоrt the gorilla for purposes of breeding and exhibition, and thus his conduct did not “cause or threaten the harm or evil sought to be prevented by the law” under which he was convicted. The probation officer did not consider a similar downward departure for Bergеs. Following a lengthy sentencing hearing, the district court decided to apply U.S.S.G. § 5K2.11 to both defendants, and gave them sentences of оnly seventy days (which they had already served). 3 The United States now appeals the sentences imposed on both defendants. 4
We review a district court’s decision to depart downward from the sentencing guidelines for an abuse of discretion.
See Koon v. United States,
— U.S. -,
The purpose of the Lacey Act is to protect “those species of fish and wildlife whose continued existence is presently threatened” by “gradually drying up the international market for endangered species,” thus “reducing the poaching of any such species in the country where it is found.”
See
S.Rep. No. 91-526, 91st Cong., 1st Sess.,
reprinted in
1969 U.S.C.C.A.N. 1413, 1415-16. Likewise, one of the purposes of the Endangerеd Species Act is to enforce international agreements designed “to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction.” 16 U.S.C. § 1531(a)(4);
see also Tennessee Valley Auth. v. Hill,
The district court found that there was no evidence that Bеrnal intended to harm the primates involved in this case. Rather, the evidence showed that Bernal, the director of a Mexican state Commission of Parks and Resources and of Foreign Fauna, was a conservationist, that he loved animals, and that he intended to use the gorilla for breeding purposes to help perpetuate the species. The district court also found that Berges knew that Bernal intended to use the gorilla for breeding and exhibition purposes. The court concluded that the conduct оf both Bernal and Berges did not “cause or threaten the harm or evil sought to be prevented by the law proscribing the offense at issue.” U.S.S.G. § 5K2.11. Because the court concluded that the Sentencing Commission did not consider the special factors involved in this case under the applicable sentencing guideline, it decided that a downward departure was justified. 6 The district court did *468 not abuse its discretion in making this decision.
AFFIRMED.
Notes
. Bernal and Berges were сonvicted of (1) conspiring to violate the Lacey Act Amendments of 1981, 16 U.S.C. §§ 3371-3378, and the Endangered Species Act of 1973, 16 U.S.C. §§ 1531— 1544 (in violation of 18 U.S.C. § 371); (2) engaging in an intended sale, purchase, and transport of wildlife sold in violation of the Endangered Species Act of 1973, 16 U.S.C. § 1538(a)(1)(F) (in violation of 16 U.S.C. § 3372(a)(1) and (a)(4)); (3) attempting to export wildlife that they knew had been sold in violation of the Endangered Species Act of 1973, 16 U.S.C. § 1538(a)(1)(F) (in violation of 16 U.S.C. § 3372(a)(1) and (a)(4)); (4) knowingly engaging in the trade of wildlife specimens contrary to the provisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES”) without first obtaining a valid export permit and re-export certificаte as required by CITES and 50 C.F.R. § 23.12(b)(1) (in violation of 16 U.S.C. § 1538(c)(1) and (g)); and (5) attempting to export endangered species of wildlife from the United States (in violation of 16 U.S.C. §§ 1538(a)(1)(A) and (g)).
. All counts were grouped together for purposes of offense level computation. See U.S.S.G. § 3D1.2(d).
Bernal’s basе offense level was 6 under the guideline applicable to offenses involving fish, wildlife, and plants. U.S.S.G. § 2Q2.1(a). (The base offense level for a conspiracy count is the same as that for the substantive offense. See U.S.S.G. § 2X1.1.) His base level was increased by 2 levels because the offense “was committed for pecuniary gain or otherwise involved a commercial purpose,” § 2Q2.1(b)(1)(A); increased by 6 lеvels because the purchase price of the wildlife exceeded $70,000, § 2Q2.1(b)(3)(A); § 2F1.1(b)(1)(G); and increased by 3 levels to reflect Bernal's role as an organizer of the operation, § 3Bl.l(a), (b). His total offense level was 17 (imprisonment for 24 to 30 months).
The probation officer applied the same calculation in the case of Berges, with the exception of the 3-level increase fоr a leadership role. His *467 total offense level was 14 (imprisonment for 15 to 21 months).
. Bernal was also sentenced to three years of supervised release on three counts and one year of supervised release on two other counts, and was finеd $40,000. Berges was likewise sentenced to supervised release, but was not fined.
. Appellees have cross-appealed on two grounds. First, they claim that the Lacey Act is not applicable in this case because the term "wildlife,” as used in the Act, does not apply to animals bred in captivity. Second, they claim that the district court erred in denying their motion for acquittal with respect to the Lacey Act counts because there was no evidence introduced at trial to prove that they knew the animals had previously been sold in violation of the law. These claims are wholly meritless, and we therefore reject the cross-appeal.
. To determine whether a circumstance was adequately taken into consideration, the court may "сonsider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." 18 U.S.C. § 3553(b).
. Since the special factor in this case is an "encouraged factor,”
see
U.S.S.G. § 5K2.11, the district court was authorized to depart if the appli
*468
cable guideline did not take it into account.
See
Koon, - U.S. at -,