United States v. St. Hilaire ( 2020 )

19-640
United States v. St. Hilaire
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2019
No. 19-640
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT ST. HILAIRE,
Defendant-Appellant.
ARGUED: FEBRUARY 7, 2020
DECIDED: MAY 21, 2020
Before: JACOBS, CALABRESI, CHIN, Circuit Judges.
Robert St. Hilaire appeals from the judgment of the United States District
Court for the Eastern District of New York (Glasser, J.) following his guilty plea
to possessing a firearm as a previously convicted felon, in violation of
18 U.S.C. § 922(g). St. Hilaire challenges a four-level sentencing enhancement for
possessing a firearm with “an altered or obliterated serial number,” imposed
pursuant to U.S.S.G. § 2K2.1(b)(4)(B). We consider for the first time the meaning
of that phrase and hold that a serial number is “altered” whenever any character
1
on any iteration of a gun’s serial number is illegible to the naked eye. Although
the district court necessarily proceeded under precedents from other circuits that
articulate a somewhat different standard, the court found as fact that at least one
iteration of the serial number was illegible to the naked eye, a finding that is not
clearly erroneous. Accordingly, we AFFIRM.
____________________
MATTHEW B. LARSEN, Federal Defenders of New
York, New York, NY, for Defendant-Appellant Robert
St. Hilaire.
JONATHAN E. ALGOR, Assistant United States
Attorney (Samuel P. Nitze, Assistant United States
Attorney, on the brief), for Richard P. Donoghue,
United States Attorney for the Eastern District of New
York, Brooklyn, NY, for Appellee United States of
America.
Jacobs, Circuit Judge:
After Robert St. Hilaire pleaded guilty to being a felon in possession of a
firearm, the United States District Court for the Eastern District of New York
(Glasser, J.) applied a four-level sentencing enhancement pursuant to
U.S.S.G. § 2K2.1(b)(4)(B) for possessing a firearm that “had an altered or
obliterated serial number” (the “Enhancement”). Since this Court had not yet
considered what it means for a serial number on a gun to be altered or
2
obliterated, the district court relied on out-of-circuit case law. St. Hilaire argues
that the Enhancement does not apply because, of the three serial numbers on his
gun, one was clearly legible, thus dispelling ambiguity as to the iterations that
were more scored and legible only in part.
Consistent with our sister circuits, we hold that the Enhancement applies if
a single iteration of a serial number has been altered or obliterated,
notwithstanding whether another may be legible. Moreover, we hold that
“altered” means illegible to the naked eye. Under the circumstances, it was not
error for the district court to apply the Enhancement.
BACKGROUND
The few relevant facts are straightforward. St. Hilaire was arrested by the
New York City Police Department on November 24, 2017, on suspicion of
attempting to leave the scene of a car accident. A protective frisk turned up a
loaded Taurus 9mm semiautomatic pistol. The police report prepared later that
night described the gun as “SERIAL# TJN86665 WITH PARTIALLY DEFACED
SERIAL#.” (App. at 12.) Using that number, the police made a Lost/Stolen
Firearm Inquiry, which yielded “No Hits.” (App. at 22.)
3
In general terms, a serial number is an identifier composed of a unique
sequence of characters, mainly numbers or letters. Guns are usually
manufactured with matching iterations of one serial number on different
components, such as the frame and the slide. St. Hilaire’s gun bears a serial
number in three places. One is slightly scratched but clearly legible; one is
scratched but still shows most of the characters clearly; the third is so heavily
scratched that some numbers are not obvious. The correspondences are
sufficient that it would be uncanny for the numbers to baffle anyone who looks
closely, makes deductions, and starts with the assumption that the serial
numbers are likely the same. (App. at 24-27.)
Since St. Hilaire had been convicted of two state felonies, he was charged
with one count of possessing a firearm as a previously convicted felon, in
violation of 18 U.S.C. § 922(g); and he pleaded guilty. The PSR calculated his
advisory range under the United States Sentencing Guidelines (the “Guidelines”)
to be 84-105 months’ imprisonment based on a total offense level of 25 and a
criminal history category IV.
At the sentencing hearing (and in advance of it), St. Hilaire objected to the
inclusion in that calculation of a four-level enhancement for possessing a firearm
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that “had an altered or obliterated serial number.” See U.S.S.G. § 2K2.1(b)(4)(B).
He argued that one iteration of the serial number on his gun was clear and that
the characters on the others could be easily inferred. Since this Court had not
construed the phrase “an altered or obliterated serial number,” the district court
looked to out-of-circuit case law and applied the Enhancement, finding that “that
serial number is not accessible to the eye, I couldn't tell what the numbers of the
serial number on that gun were by looking at it.” (App. at 43.) St. Hilaire was
sentenced below the Guidelines range to 60 months’ imprisonment (followed by
three years’ supervised release).
DISCUSSION
“We review the sentencing court's interpretation of the Sentencing
Guidelines de novo, but review its related findings of fact only for clear error.”
United States v. Potes-Castillo, 638 F.3d 106, 108 (2d Cir. 2011). This distinction
matters because the district court both interpreted the Enhancement and made a
factual finding about the serial numbers.
We conclude that a serial number can be altered or obliterated
notwithstanding that another iteration on the gun is legible (Point I). As to the
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meaning of “altered or obliterated,” no question is raised in this case as to
obliteration, which matters only for the light that it sheds on the meaning of
alteration. As to alteration, we conclude that the test is whether the serial
number can be read with the naked eye (Point II).
I
The Guidelines prescribe a four-level enhancement “[i]f any firearm . . .
had an altered or obliterated serial number.” U.S.S.G. § 2K2.1(b)(4)(B). The
Enhancement serves to “to discourag[e] the use of untraceable weaponry.”
United States v. Serrano-Mercado, 784 F.3d 838, 850 (1st Cir. 2015) (alteration in
original) (internal quotation marks omitted) (quoting United States v. Carter, 421
F.3d 909, 914 (9th Cir. 2005)). St. Hilaire emphasizes that the serial number on his
gun was “clear in one place and merely less so in others,” and argues that just
one legible iteration renders the Enhancement inapplicable. (Appellant’s Br. at
5.) We disagree.
The Enhancement applies if a single iteration of a gun’s serial number has
been altered or obliterated notwithstanding that another is perfectly legible. The
wording references “an” altered or obliterated serial number; it “does not require
that all of the gun's serial numbers be so affected.” Serrano-Mercado, 784 F.3d at
6
850. Since the component parts are interchangeable, 1 matching serial numbers
assure reliable identification of the firearm as a whole, and a single altered or
obliterated serial number renders it more difficult to trace.
Accordingly, the five Courts of Appeals that have considered the question
hold that the Enhancement applies if any single iteration of a gun’s serial number
has been altered or obliterated. (The cases are in the margin.2) St. Hilaire argues
that none of those cases say “a gun’s serial number is ‘altered’ if it appears
clearly in one place and merely less so in others”; that the issue in all those cases
was “the inability to tell if serial numbers on different parts of the gun matched”;
that the most legible iteration on his gun cures any ambiguity; and that his gun is
thus easily traceable. (Reply Br. at 7.) However, the district judge here made a
1Firearms were among the first devices to be mass produced, after Samuel Colt
pioneered the use of interchangeable parts. See Richard C. Rattenbury, Samuel
Colt, Encyclopedia Britannica (Online ed. 2020).
2See United States v. Sands, 948 F.3d 709, 713 (6th Cir. 2020) (“If a weapon has
multiple serial numbers, only one of them needs to be altered or obliterated for
the enhancement to apply.”); United States v. Jones, 927 F.3d 895, 897 (5th Cir.
2019); (“We join the First, Eighth, and Eleventh Circuits in holding that the
applicable guideline requires only that one serial number be altered or
obliterated, even if others are clearly legible.”); United States v. Thigpen, 848 F.3d
841, 845-46 (8th Cir. 2017) (same); United States v. Warren, 820 F.3d 406, 408 (11th
Cir. 2016) (same); United States v. Serrano-Mercado, 784 F.3d 838, 850 (1st Cir.
2015) (same).
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finding as to one of the serial numbers that he “couldn't tell what the numbers of
the serial number on that gun were by looking at it.” (App. at 43.) It follows that
the judge could not conclude that all the iterations matched.
Moreover, none of those cases hold (or suggest) that judges may not
impose the Enhancement if a comparison of multiple serial numbers, some of
them obscured or illegible, supports an inference that the numbers once
matched. There are several good reasons why a court is not required to rely on
inference to find that the numbers match. The purpose of the Enhancement is to
“discourage the use of untraceable weaponry.” Carter, 421 F.3d at 915. That goal
“is advanced not only by punishing those who possess untraceable firearms, but
also by punishing those who possess firearms that are more difficult, though not
impossible, to trace.” Id. at 914. “[T]he policy behind the enhancement--
deterrence and assisting law enforcement--is served even if law enforcement can
ultimately identify the serial number and trace the firearm.” United States v.
Fuller-Ragland, 931 F.3d 456, 467 (6th Cir. 2019). Moreover, the scoring of serial
numbers can obscure alteration made by the addition of strokes to change, e.g., a
“J” to a “U” or a “1” to a “7”, or by the addition of a character, either in a number
that otherwise appears legible or one that is partially obscured. In short, a gun
8
with an indecipherable serial number on a single interchangeable part is just a
swap or two away from being untraceable.
Accordingly, we hold that courts need to separately evaluate each iteration
of a gun’s serial number, and that the Enhancement applies if just one has been
altered or obliterated.
II
The Guidelines do not define the term “altered or obliterated”; so we
consider “the ordinary meaning of the words.” United States v. SKW Metals &
Alloys, Inc., 195 F.3d 83, 90 (2d Cir. 1999). We agree with our sister circuits that
“altered is less demanding than obliterated.” Sands, 948 F.3d at 714 (cleaned up)
(quoting United States v. Harris, 720 F.3d 499, 503 (4th Cir. 2013)); see also
Carter, 421 F.3d at 912 (“Irrespective of how ‘obliterated’ is construed, ‘altered’
surely requires a lesser degree of defacement.”). Taking the dictionary
definitions together in the context of a serial number, to obliterate is to efface
entirely a character or a whole serial number, so that none of it is left. We
therefore agree with the parties and the district court that there is no obliteration
of the serial numbers on St. Hilaire’s gun. 3 In each of the three serial numbers,
3The district court made no explicit finding as to obliteration, but its analysis
focused on the meaning of “altered” and case law defining that term. Likewise,
9
including the two with severe scoring, one can easily count the number of
characters, and make out some or most of them. 4
More difficult is the question whether any of the serial numbers here were
“altered.” Taking the dictionary definitions together in the context of serial
numbers, “alteration” is to make different. Ways to alter a serial number are
manifold. One kind of alteration, not at issue here, is the technique (used to
falsify checks) of adding strokes that turn a “1” to a “4” or “7”; or a “3”, “6”, or
“9” to an “8”. The tampering here was done by scratching, which leaves one
number legible, and two less so.
We follow the Sixth Circuit, which defines “altered” to mean illegible. See
United States v. Sands, 948 F.3d 709, 715, 719 (6th Cir. 2020). In that case, the
district court had applied the Enhancement notwithstanding its “factual finding
the Government made no explicit concession, but implied as much by focusing
on the definition of “altered” and the application of its proposed definition to the
facts. (See Appellee’s Br. at 8 (“The district court correctly applied a four-level
Guidelines enhancement pursuant to U.S.S.G. § 2K2.1(b)(4)(B) based on St.
Hilaire’s possession of a firearm with an altered serial number.”).)
4We need not decide whether a totally effaced but scientifically recoverable
serial number qualifies as “obliterated.” See Carter, 421 F.3d at 912 (explaining
that dictionary definitions of “obliterate” “reasonably could embrace a
requirement that a serial number be obliterated not just beyond the unaided eye,
but also beyond scientific recognition”).
10
that the serial number was still readable,” reasoning that the defacement made it
“much more difficult to read.” Id. at 718 (internal quotation marks omitted).
The Sixth Circuit vacated the sentence, explaining that the district court’s
analysis was “at odds with . . . the plain meaning of the word ‘altered’” insofar as
it “applied the enhancement after finding that the serial number remained visible
to the naked eye.” Id. at 718-19. Under this “naked eye test,” “a serial number
that has been defaced but is still visible to the naked eye is not ‘altered or
obliterated.’” Id. at 711, 717.
This “naked eye test” best comports with the ordinary meaning of
“altered”; it is readily applied in the field and in the courtroom; it facilitates
identification of a particular weapon; it makes more efficient the larger project of
removing stolen guns from circulation; it operates against mutilation that
impedes identification as well as mutilation that frustrates it; and it discourages
the use of untraceable weapons without penalizing accidental damage or half-
hearted efforts. “If a serial number is scratched, but still discernible to the reader
without aid, . . . [t]he number remains the same, even to the casual observer.” Id.
at 715.
11
Some circuits have ruled that a serial number can be “altered”
notwithstanding that it remains legible. See United States v. Millender, 791 F.
App’x 782, 783 (11th Cir. 2019) (affirming application of the Enhancement to a
“severely scratched but legible” serial number and ruling that “the district court
properly declined to adopt an interpretation of ‘altered’ that would require
illegibility”); United States v. Perez, 585 F.3d 880, 884 (5th Cir. 2009) (affirming
application of the Enhancement even though the “damage . . . did not render [the
serial number] unreadable”). The Government urges us to follow these cases.
(See Appellee’s Br. at 12 (“[A] serial number that has been made less legible has
been ‘altered’ . . . even if it remains legible.”).) We decline the invitation.
Other circuits have arguably implied that a legible serial number can still
be “altered,” albeit in cases involving illegible serial numbers (and therefore
cases that did not present the question). See United States v. Harris, 720 F.3d
499, 503 (4th Cir. 2013) (“[A] serial number that is less legible or less
conspicuous, but not illegible, is also covered by [the Enhancement].”); United
States v. Carter, 421 F.3d 909, 916 (9th Cir. 2005) (“[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)); see also United States v.
12
Adams, 305 F.3d 30, 34 (1st Cir. 2002) (“[A]ny alteration that works against
legibility is enough . . . .”).
But setting aside how those three cases characterized their rulings, they
can be understood as consistent with the naked eye test, at least implicitly or in
result. 5 See Sands, 948 F.3d at 715 (explaining that the naked eye test
“is consistent with nearly every other federal appellate decision on the issue”).
That is not surprising, given that readability is the intuitive test of alteration in
this context. Serial numbers with some illegible characters are “more difficult” to
trace (even if “not impossible”). Carter, 421 F.3d at 914. “Any person with basic
vision and reading ability would be able to tell immediately whether a serial
number is legible.” Sands, 948 F.3d at 717. It is useful and fair to “draw[] a clear
line that should lessen confusion and inconsistency in the guideline’s application,
5 The naked eye test would not affect the outcomes of these cases. The
Enhancement would still apply since the serial numbers in each of them were
illegible. In Harris, the district judge “was unable to read the correct serial
number when ‘carefully’ examining it.” 720 F.3d at 504. In Carter, the defendant
“concede[d] that the serial number on the firearm he possessed [was] ‘not
decipherable by the naked eye.’” 421 F.3d at 910. And in Adams, one digit in the
serial number was “damaged badly enough that it could be taken as a 3 or a 5.”
305 F.3d at 35.
13
while at the same time leaving the district courts with appropriate discretion to
conduct necessary factfinding at sentencing.” Id.
We are unpersuaded by courts that reject legibility as a standard on the
ground that it would render “obliterated” superfluous. 6 Those observations do
not take into account the many ways of tampering with a serial number, or the
ways the terms can overlap: a serial number can be altered by obliteration of one
or more characters; and the inability to read any appreciable part of a serial
number can amount to obliteration in effect. Finally, we acknowledge that an
artful change or addition to a serial number would of course read as legible to
the naked eye, though it would render the original number illegible and thus
altered. The facts of this case, in which the numbers were scored, do not present
that issue.
***
In this case, the district court applied the correct approach, assessing the
iteration of the serial number that was most badly scored. Having done so, the
6See Millender, 791 F. App’x at 783 (“[T]he district court properly declined to
adopt an interpretation of ‘altered’ that would require illegibility because that
interpretation would render ‘obliterated’ superfluous.”); Harris, 720 F.3d at 503
(“This interpretation that a serial number rendered less legible by gouges and
scratches is ‘altered’ prevents the word ‘obliterated’ from becoming
superfluous.”).
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court found as fact that it was illegible to the naked eye. That finding is not
clearly erroneous. Imposition of the Enhancement under U.S.S.G. § 2K2.1(b)(4)(B)
was not error. The judgment is AFFIRMED.
15