United States v. Timothy Harris , 720 F.3d 499 ( 2013 )

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 the
opinion, in which Judge Gregory and Judge Shedd joined.
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 court sentenced him to 105 months’
imprisonment. In computing the applicable sentencing range
under the Sentencing Guidelines, the district court applied
U.S.S.G. § 2K2.1(b)(4)(B), which provides for a four-level
enhancement if a firearm “had an altered or obliterated serial
number.” The district court found that the serial number on one
of the firearms possessed by Harris had been gouged and
scratched, rendering it less legible, but 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 that Harris reads § 2K2.1(b)(4)(B) too
restrictively in suggesting that a serial number must be
illegible to be “altered.” As we explain herein, a serial
number that is made less legible is made different and therefore
is altered for purposes of the enhancement. Accordingly, we
affirm.
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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 guilty to illegal firearms possession. The
presentence report recommended a four-level enhancement under
U.S.S.G. § 2K2.1(b)(4)(B) for possession of a firearm that had
an altered or obliterated serial number. Harris objected to the
presentence report’s recommendation, contending that “because
the serial number of the firearm was legible, the firearm was
traceable, and therefore the enhancement does not apply.”
At the sentencing hearing, the district court overruled
Harris’ objection and applied the enhancement. After
considering the police report, the 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
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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 that the district court found made it less
legible, was “altered,” within the meaning of U.S.S.G.
§ 2K2.1(b)(4)(B) (providing for a four-level 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. He argues
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that “altered” requires that the serial number be “materially
changed” so that it is not discernible to the unaided eye.
Because the police report stated that the serial number on
Harris’ handgun was legible, he argues that the 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), his recommended sentencing range was
enhanced by application of a mimicking provision in the
Sentencing Guidelines, that provided for a four-level sentencing
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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 as the Attorney General shall by regulations
prescribe.” 18 U.S.C. § 923(i); see also National Firearms Act
of 1968, 26 U.S.C. § 5842(a). Regulations require that the
importer or manufacturer “legibly identify each firearm” by
“conspicuously” placing the serial number on the frame or
receiver of the firearm. 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 one-
sixteenth of an inch and in depth no less than .003 inch). The
depth also ensures permanence. The Bureau of Alcohol, Tobacco,
Firearms and Explosives has 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. See ATF Ruling 2009-5. To
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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 serial numbers on firearms by punishing the
possession of a firearm with a serial number that has 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 the most important
purposes for requiring serial numbers. 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 Cir. 2011) (“We must respect
§ 2K2.1(b)(4)(B)’s purpose to stem the flow of untraceable
firearms in the black market”). While Harris’ argument is
undoubtedly correct as far as it goes, it still leaves open the
question whether “altered,” which is less demanding than
“obliterated,” also includes a serial number that is not
illegible but is less legible than it would be without the
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
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size and depth. In imposing these requirements, the regulations
reflect the government’s interest in having serial numbers
placed on firearms that have a minimum level of 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. To “alter” is “to cause to become
different in some particular characteristic . . . without
changing into something else.” Webster’s Third New
International Dictionary 63 (1993); see also The Random House
Dictionary of the English Language 60 (2d ed. 1987) (defining
“alter” as “to make different in some particular, as size,
style, course, or the like; modify”); Merriam-Webster’s
Collegiate Dictionary 35 (11th ed. 2007) (defining “alter” as
“to make different without changing into something else”). Each
of the definitions of “alter” recognizes that something is
“altered” when it is made “different” in some way.
“Obliterate,” in contrast, is defined as making something
“undecipherable or imperceptible.” Webster's Third New
International Dictionary 1557. Accordingly, when a serial
number is made less legible, it is altered but not obliterated.
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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 is less legible or less conspicuous, but not
illegible, is also covered by § 922(k) and U.S.S.G.
§ 2K2.1(b)(4)(B). This interpretation that a serial number
rendered less legible by gouges and scratches is “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”). But see
United States v. Perez, 585 F.3d 880, 885 (5th 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’”).
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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 number that precluded it from reading the
serial number correctly, even as it attempted to do so
“carefully.” Moreover, it found that there were no further
markings on the handgun, indicating that the gouges and
scratches across the serial number were intentional. The court
thus found that these gouges and scratches made 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. This argument,
however, is unpersuasive for two reasons. 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
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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 of 18 inches, “interject[ed] a subjective
component . . . into what should be a simple, objective
standard.” 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 the legibility of the
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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
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