United States v. Rodrequist Warren , 820 F.3d 406 ( 2016 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-12519
Non-Argument Calendar
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D.C. Docket No. 5:14-cr-00027-CAR-CHW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODREQUIST WARREN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(April 21, 2016)
Before ED CARNES, Chief Judge, TJOFLAT, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Rodrequist Warren pleaded guilty to one count of illegally receiving a
firearm while under indictment for robbery by intimidation, in violation of 18
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U.S.C. §§ 922(n), 924(a)(1)(D). The district court accepted the plea and imposed a
sentence below the guideline range. On appeal, Warren’s only contention is that
the district court erred in applying a four-level enhancement under U.S.S.G.
§ 2K2.1(b)(4)(B) for his possession of a firearm that “had an altered or obliterated
serial number.”
At some point, the gun that Warren possessed had its serial number
imprinted at two locations: on its frame and on its slide. When Warren was
arrested the serial number on the gun’s frame was intact, while the serial number
on its slide had been altered or obliterated. The question, one of first impression in
our circuit, is whether § 2K2.1(b)(4)(B) applies when only one of two or more
serial numbers on a gun has been altered or obliterated.
We review de novo the interpretation of a sentencing guideline, United
States v. Barakat, 130 F.3d 1448, 1452 (11th Cir. 1997), and we use “traditional
rules of statutory construction to interpret a guideline,” United States v. Mandhai,
375 F.3d 1243, 1247 (11th Cir. 2004). Under those rules, “[a] guideline’s meaning
is derived first from its plain language and, absent ambiguity, no additional inquiry
is necessary.” Id. “We generally presume the inclusion or exclusion of language
in the [g]uidelines is intentional and purposeful.” United States v. Cruz, 713 F.3d
600, 607 (11th Cir. 2013).
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The guidelines require only that the firearm in question “had an altered or
obliterated serial number.” U.S.S.G. § 2K2.1(b)(4)(B) (emphasis added). As the
First Circuit has recently explained, that language “does not require that all of the
gun’s serial numbers be so affected.” United States v. Serrano-Mercado, 784 F.3d
838, 850 (1st Cir. 2015). We have said in other contexts that “[i]n common terms,
when ‘a’ or ‘an’ is followed by a restrictive clause or modifier, this typically
signals that the article is being used as a synonym for either ‘any’ or ‘one.’”
United States v. Alabama, 778 F.3d 926, 932 (11th Cir. 2015). For example, if a
speaker says, “Give me an apple,” most reasonable listeners would interpret that
as, “Give me any apple,” or, “Give me just one apple.” Read in that fashion, the
§ 2K2.1(b)(4)(B) enhancement applies either when any serial number on a gun has
been altered or obliterated or when just one serial number has been altered or
obliterated. Warren loses under either reading because one of the serial numbers
on his gun was altered or obliterated. The enhancement applies in this case.
Despite the clear result of that plain language reading, Warren argues that
we should read the enhancement in pari materia with 18 U.S.C. § 922(k), which
criminalizes possessing “any firearm which has had the importer’s or
manufacturer’s serial number” altered or obliterated. Although he was not
convicted under § 922(k), Warren argues that we should read the guidelines in
light of the statute because both cover the same subject matter. Under Warren’s
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favored reading, § 2K2.1(b)(4)(B) should apply only when the importer’s or
manufacturer’s serial number has been altered or obliterated, and not when some
other serial number has been altered or obliterated.
That argument fails because courts generally apply in pari materia only
when a legal text is ambiguous. See Ala. Educ. Ass’n v. State Superintendent of
Educ., 746 F.3d 1135, 1158 (11th Cir. 2014) (“Courts generally turn to an in pari
materia analysis to resolve a statutory ambiguity . . . .”) (quotation marks and
alterations omitted); Martin v. United States, 389 F.2d 895, 897 n.5 (5th Cir. 1968)
(stating that when the statute was “neither patently nor latently ambiguous . . .
there is no need to resort to in pari materia constructions”); Brown v. State, 848
So. 2d 361, 364 (Fla. 4th DCA 2003) (“[T]he ‘in pari materia’ canon of statutory
construction would be appropriate only if we found the statute ambiguous . . . .”);
State v. Nix, 469 S.E.2d 497, 499 (Ga. Ct. App. 1996) (explaining that “in pari
materia may not be resorted to where the language of the statute under
consideration is clear”) (quotation marks omitted). Because the text of
§ 2K2.1(b)(4)(B) is not ambiguous, we need not resort to an in pari materia
reading.
Finally, Warren argues that the serial number on the slide of his gun was not,
strictly speaking, a serial number at all because it was not required by federal
regulations. He describes a “serial number” as just “a number that is put on a
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product and that is used to identify it.” Here, a number was put on the slide of
Warren’s gun and that number was used to identify it. Under Warren’s own
definition, it qualifies as a serial number for purposes of the guideline
enhancement. The fact that the number was not required by federal regulations is
irrelevant.
AFFIRMED.
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