United States v. Harris, No. 12-4521 (4th Cir. 2013)
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Defendant pleaded guilty to two counts of possession of firearms by a felon and was sentenced to 105 months' imprisonment. At issue on appeal was the district court's application of U.S.S.G. 2K2.1(b)(4)(B), which provided for a four-level enhancement if a firearm "had an altered or obliterated serial number." Defendant contended that the serial number at issue was legible even though the district court was unable to read the serial number correctly at the sentencing hearing. Therefore, defendant contended that U.S.S.G. 2K2.1(b)(4)(B) did not apply because no material change was made to the serial number. The court concluded, however, that when a serial number was made less legible, it was altered but not obliterated. Therefore, while the possession of a firearm with a serial number that was no longer legible and conspicuous was covered by 18 U.S.C. 922(k) and U.S.S.G. 2K2.1(b)(4)(B), a serial number that was less legible or less conspicuous, but not legible, was also covered by section 922(k) and U.S.S.G. 2K2.1(b)(4)(B). Accordingly, the court affirmed the judgment of the district court.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4521 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIMOTHY JOELETTE HARRIS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:11-cr-00376-BO-1) Argued: May 16, 2013 Decided: June 26, 2013 Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges. Affirmed by published opinion. Judge Niemeyer wrote opinion, in which Judge Gregory and Judge Shedd joined. the ARGUED: James Edward Todd, Jr., OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. NIEMEYER, Circuit Judge: After Timothy Harris pleaded guilty to two counts of possession of firearms by a felon, in violation of 18 U.S.C. § 922(g), the district imprisonment. under the U.S.S.G. In computing Sentencing § court sentenced the applicable Guidelines, 2K2.1(b)(4)(B), him the which to months sentencing district provides 105 court for a range applied four-level enhancement if a firearm had an altered or obliterated serial number. of the The district court found that the serial number on one firearms scratched, possessed rendering it by less Harris had legible, been but gouged and arguably not illegible. Harris contends that, even though the district judge was unable to read the serial number correctly at the sentencing hearing, the police report indicated that the serial number was nonetheless legible. With this factual record, he contends that § 2K2.1(b)(4)(B) does not apply because no material change was made to the serial number. We conclude restrictively illegible to in be that Harris suggesting altered. reads that As we a § 2K2.1(b)(4)(B) serial explain number herein, must a too be serial number that is made less legible is made different and therefore is altered for purposes of the enhancement. affirm. 2 Accordingly, we I After using a gun to threaten a woman during the course of an argument in Raleigh, North Carolina, police officers arrested Harris and recovered a .25 caliber handgun from him. The police report described the condition of the gun: It appears that the serial number on the gun was altered and the fact that there are numerous deep gouges and scratches across the width of the alpha numerics it appears that this was done with some sort of tool. However, the numbers are still legible. Based on this incident and another, Harris was indicted for and pleaded presentence guilty report to illegal recommended a firearms four-level possession. enhancement The under U.S.S.G. § 2K2.1(b)(4)(B) for possession of a firearm that had an altered or obliterated serial number. presentence report s recommendation, Harris objected to the contending that because the serial number of the firearm was legible, the firearm was traceable, and therefore the enhancement does not apply. At Harris the sentencing objection considering the and police hearing, applied report, the district the the court overruled enhancement. After court conducted its own examination of the handgun in the courtroom with the parties present and made the following factual findings: [T]he gun was placed on the bench in front of [me] about 18 inches away and . . . I was not able to read the correct serial number. I read and looked carefully and the serial number that I wrote down from my observation was U032076. And, in fact, the actual 3 serial number that was determined through more careful and more scientific examination was U022078. And it appears on the real evidence, on the gun itself, that there are gouges in the metal and scraping along the line of the serial number, but not similar marks on other places on the metal barrel, neither around the serial number, nor on the other side of the barrel. So that the reasonable inference is that the gouging and scraping around the serial number was intended to affect the ability to literally read the serial number not an accidental thing. There isn t any evidence that the defendant did this, but there is evidence that the serial number was obliterated. And so, I ll include the four level enhancement. After applying the enhancement in its calculation of the recommended sentencing range, the court sentenced Harris to 105 months imprisonment, which fell within the Sentencing Guidelines range. This appeal followed. II This appeal presents the single question of whether the serial number on Harris handgun, which was marked with gouges and scratches legible, was § 2K2.1(b)(4)(B) that the altered, district within (providing for court the a found made meaning of four-level it less U.S.S.G. sentencing enhancement for the possession of a firearm when a firearm has an altered or obliterated serial number ). Harris contends that a serial number is not altered, even though gouged and scratched, if it remains legible. 4 He argues that altered requires that the serial number be materially changed so that Because the Harris handgun it police was is not report discernible stated legible, he that to the argues the unaided serial that the eye. number on enhancement should not have been applied. The government, relying on the district court s finding that it could not accurately read the handgun s serial number when the handgun was placed on the bench before it, contends that at least one of the numbers had been obliterated so that the serial number was at least altered. It argues that the gouges and scratches were both purposeful and deep enough that the firearm s serial number was rendered more difficult to ascertain accurately than it would have been absent the scratch[es]. While other courts of appeals have variously addressed what is required to render a serial number altered, we have no published opinion that does so. The Gun Control Act of 1968 makes it a crime to possess or receive any firearm which has had the importer s or manufacturer s serial number removed, obliterated, or altered. 18 U.S.C. § 922(k). Although Harris was not charged with a violation of § 922(k), enhanced by application his of recommended a sentencing mimicking range provision in was the Sentencing Guidelines, that provided for a four-level sentencing 5 enhancement for possession of a gun with the serial number that had been altered or obliterated. U.S.S.G. § 2K2.1(b)(4)(B). The Gun Control Act requires importers and manufacturers to identify each firearm imported or manufactured with a serial number engraved or cast on the receiver or frame of the weapon, in such manner prescribe. as the Attorney or shall by regulations 18 U.S.C. § 923(i); see also National Firearms Act of 1968, 26 U.S.C. § 5842(a). importer General manufacturer conspicuously placing Regulations require that the legibly the receiver of the firearm. identify serial number each on firearm the frame by or 27 C.F.R. § 478.92(a)(1) (emphasis added) (implementing the Gun Control Act); see also 27 C.F.R. § 479.102(a) (implementing the National Firearms Act). And the regulations ensure legibility and conspicuousness by prescribing the minimum size and depth of the serial number. See id. (requiring serial numbers to be in print no smaller than onesixteenth of an inch and in depth no less than .003 inch). depth also ensures permanence. Firearms and Explosives has The The Bureau of Alcohol, Tobacco, explained that requiring serial numbers on firearms serves the important governmental interests of enabling the tracking of inventory and record-keeping by licensees; tracing specific firearms used in crimes; identifying firearms that have been lost or stolen; and assisting in the prosecution of firearm offenses. 6 See ATF Ruling 2009-5. To these ends, 18 U.S.C. § 922(k) and U.S.S.G. § 2K2.1(b)(4)(B) serve the government s interest in preserving the legibility and permanence of possession of serial a numbers firearm on with a firearms serial by punishing number that has the been altered or obliterated. Focusing on the term altered, Harris argues rationally that a serial number is altered when it is rendered illegible such that it cannot be traced, one of purposes for requiring serial numbers. the most important See ATF Ruling 2009-5; see also, e.g., United States v. Carter, 421 F.3d 909, 914 (9th Cir. 2005) ( [Section] 2K2.1(b)(4) intends to discourag[e] the use of untraceable weaponry (quoting United States v. Seesing, 234 F.3d 456, 460 (9th Cir. 2000))); United States v. Jones, 643 F.3d 257, 259 (8th § 2K2.1(b)(4)(B) s firearms in the Cir. purpose black to 2011) stem market ). ( We the must flow While of Harris respect untraceable argument is undoubtedly correct as far as it goes, it still leaves open the question whether obliterated, illegible but altered, also is which includes less a legible is serial than it less demanding than that is not without the number would be gouges and scratches. Legibility is one of the most essential characteristics of a serial number, as is reflected in the serial-number regulations, which require that serial numbers be of a specified 7 size and depth. reflect placed the on In imposing these requirements, the regulations government s firearms that interest have a in minimum having serial level of numbers legibility. Thus, possession of a firearm that is less legible than that level frustrates the purpose of serial numbers and therefore is targeted by § 922(k) and § 2K2.1(b)(4)(B). These observations are confirmed by the provisions use of the words altered and obliterated and the generally accepted meanings of those words. different in changing some into To alter is to cause to become particular something characteristic else. . . Webster s . without Third New International Dictionary 63 (1993); see also The Random House Dictionary of the English Language 60 (2d ed. 1987) (defining alter as to style, course, make or different the like; in some particular, modify ); as size, Merriam-Webster s Collegiate Dictionary 35 (11th ed. 2007) (defining alter as to make different without changing into something else ). of the definitions altered when Obliterate, undecipherable International in it of alter is made contrast, or is recognizes different defined imperceptible. Dictionary 1557. that as something in making Webster's Accordingly, Each when some is way. something Third a New serial number is made less legible, it is altered but not obliterated. 8 Thus, while the possession of a firearm with a serial number that is no longer legible and conspicuous falls in the heartland of § 922(k) and U.S.S.G. § 2K2.1(b)(4)(B), a serial number that illegible, is less also is legible covered § 2K2.1(b)(4)(B). rendered less This legible or less by conspicuous, 922(k) interpretation by gouges and and U.S.S.G. that § but serial a scratches is not number altered prevents the word obliterated from becoming superfluous. This is the conclusion that has been reached by a majority of the courts of appeals. See, e.g., Carter, 421 F.3d at 910 (holding that for the purposes of Guideline § 2K2.1(b)(4), a firearm s serial number is altered or obliterated when it is materially changed in a way that makes accurate information less accessible (emphasis added)); Jones, 643 F.3d at 259 ( A partially filed off or scratched away serial number, which is not visible to the naked eye, falls well within the statutory scheme ); United States v. Justice, 679 F.3d 1251, 1254 (10th Cir. 2012) ( What matters is what is perceptible, not what can be discerned by sophisticated scientific techniques ). United States v. Perez, 585 F.3d 880, 885 (5th But see Cir. 2009) (applying § 2K2.1(b)(4) where serial number had been scratched but remained readable, because the serial number on [defendant s] firearm looked like someone tried to file [it] off ). 9 In this case, the district court, which was the factfinder for purposes of applying § 2K2.1(b)(4)(B), found that the .25 caliber handgun possessed by Harris had gouges and scratches across the serial serial number carefully. markings number correctly, Moreover, on that the it handgun, precluded even as found it it from reading attempted that there were that indicating to the no found that these gouges and scratches made so further gouges scratches across the serial number were intentional. thus do the and The court the serial number less legible than it would have been without the gouges and scratches. With these findings, we conclude that the district court did not err in applying the § 2K2.1(b)(4)(B) enhancement because the evidence supports the conclusion that the serial number had been altered by making it less legible and therefore different. Harris challenges this conclusion, arguing, in essence, that the police report indicated that the numbers [were] still legible and therefore were not made different. however, is unpersuasive for two reasons. This argument, First, there is no evidence in the record as to how the Raleigh police read the serial number on Harris handgun. They could have examined the number at a closer distance and under more intense light than was the case when the district judge examined it, or they could 10 have examined it aided by a magnifying glass or a microscope. Under any hypothesis, however, the fact that they were able to read the correct serial number does not controvert the district court s finding that the serial number was rendered less legible by the gouges and scratches. Indeed, even the police recognized that the number was not pristine: It appears that the serial number on the gun was altered and the fact that there are numerous deep gouges and scratches across the width of the alpha numerics it appears that this was done with some sort of tool. Harris argument also fails to account for the fact that the district court, not the Raleigh police, was the factfinder and that we defer to the court s fact findings unless they are clearly erroneous. Here, we conclude that the district court s findings are not clearly erroneous because the court examined the handgun, as any factfinder would, and found that the serial number had been gouged and scraped and that it was unable to read the correct serial number when carefully examining it. Finally, Harris challenges the district court s factfinding process, arguing that the district court, by viewing the handgun at a distance component . standard. . of . 18 into inches, what interject[ed] should be a a simple, subjective objective But examining the evidence is just what factfinders do, and the process used by the district court in this case was not an unreasonable way to determine 11 the legibility of the serial number on Harris handgun. The court attempted to read the serial number from a distance at which the court would have been able to read a serial number without gouges and scratches, as indicated by its ability to read several digits correctly and its inability to read correctly two of the digits. For the reasons given, we affirm the judgment of the district court. AFFIRMED 12
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