United States v. Norman Bowers ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4063
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NORMAN SENEKA BOWERS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:13-cr-00458-NCT-1)
Submitted: June 12, 2015 Decided: July 10, 2015
Before SHEDD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Greensboro, North Carolina, Terry M. Meinecke, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Winston-
Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Norman Seneka Bowers (Bowers)
pled guilty to possession of a firearm after a felony
conviction, 18 U.S.C. § 922(g)(1). At sentencing, over Bowers’
objection, the district court applied a four-level enhancement
under United States Sentencing Commission, Guidelines Manual
(USSG), § 2K2.1(b)(4)(B) to Bowers’ offense level because the
firearm he possessed had an altered serial number. The
application of the § 2K2.1(b)(4)(B) enhancement increased
Bowers’ sentencing range from 46 to 57 months’ imprisonment to
70 to 87 months’ imprisonment. He was sentenced to 78 months’
imprisonment. On appeal, Bowers challenges the district court’s
application of the § 2K2.1(b)(4)(B) enhancement. We affirm.
I
On December 7, 2013, in Lexington, North Carolina, Bowers
fled on foot following a stop of his vehicle by then-Officer
Jason Pardue (Officer Pardue) of the Lexington Police
Department. During the chase, Officer Pardue tackled Bowers,
and a struggle ensued. After Bowers pointed a gun at Officer
Pardue, Officer Pardue punched Bowers in the face which caused
Bowers to fall to the ground. Bowers was then subdued and
placed under arrest.
- 2 -
The gun recovered at the scene was examined by ATF Special
Agent Matt Amato. Such examination revealed that the serial
number on the gun had been altered in that three of the five
digits comprising the gun’s serial number had “gouges” in them
making them “unreadable.” (J.A. 80).
On December 16, 2013, a federal grand jury in the Middle
District of North Carolina charged Bowers with possessing a
firearm after a felony conviction, 18 U.S.C. § 922(g)(1), and
with possessing a firearm with a serial number that had been
altered or obliterated, id. § 922(k). Bowers pled guilty to the
§ 922(g)(1) offense.
In preparation for sentencing, a presentence investigation
report was prepared by a United States Probation Officer. The
probation officer recommended that Bowers’ offense level be
enhanced four levels under USSG § 2K2.1(b)(4)(B) because the gun
he possessed had an altered serial number. Bowers objected to
the § 2K2.1(b)(4)(B) enhancement on the basis that he had no
knowledge of the serial number being altered. At sentencing,
the district court overruled the objection. Following the
imposition of a 78-month sentence, the district court entered
judgment from which Bowers now appeals.
- 3 -
II
Bowers challenges the district court’s application of the
§ 2K2.1(b)(4)(B) enhancement to his offense level. According to
Bowers, § 2K2.1(b)(4)(B) requires the government to prove that,
at the time the defendant possessed the firearm, he had
knowledge that the serial number on the gun was altered or
obliterated. Since the government did not offer proof of such
knowledge at his sentencing, Bowers posits that the district
court erred in applying the enhancement.
In applying enhancements under the Sentencing Guidelines,
the district court employs the preponderance of the evidence
standard, not the reasonable doubt standard. United States v.
Battle, 499 F.3d 315, 322–23 (4th Cir. 2007). In considering
the district court’s application of the Sentencing Guidelines,
we review factual findings for clear error and legal conclusions
de novo. United States v. Allen, 446 F.3d 522, 527 (4th Cir.
2006).
Section 2K2.1(a)(4)(A) of the Sentencing Guidelines
provides a base offense level of 20 when a defendant with one
prior felony conviction for either a crime of violence or a
controlled substance offense is convicted of possessing a
firearm. This Guideline applied to Bowers because he had a
qualifying prior controlled substance offense.
Section 2K2.1(b)(4) of the Sentencing Guidelines provides for a
- 4 -
two-level enhancement where the defendant possessed a stolen
firearm, USSG § 2K2.1(b)(4)(A), and a four-level enhancement
where the defendant possessed a firearm with an altered or
obliterated serial number, id. § 2K2.1(b)(4)(B). The USSG
§ 2K2.1(b)(4) enhancements apply “regardless of whether the
defendant knew or had reason to believe that the firearm was
stolen or had an altered or obliterated serial number.” Id.
§ 2K2.1, comment. (n.8(B)). The district court applied the
§ 2K2.1(b)(4)(B) enhancement because the gun Bowers possessed
had an altered serial number. Bowers received a two-level
enhancement for obstruction of justice, id. § 3C1.2, and a
three-level downward adjustment for acceptance of
responsibility, id. § 3E1.1(a), (b), resulting in a sentencing
range of 70 to 87 months’ imprisonment, using Bowers’ Criminal
History Category IV.
Bowers does not dispute that the gun he possessed on
December 7, 2013 had an altered serial number. Under the
Guidelines’ commentary, there is no requirement that he have any
knowledge, or reason to believe, the gun had an altered serial
number. Id.; see also United States v. Perez, 585 F.3d 880, 883
(5th Cir. 2009) (“This court has continually enforced the clear
and unambiguous language of § 2K2.1(b)(4) and its strict
liability standard.”); United States v. Statham, 581 F.3d 548,
553 (7th Cir. 2009) (“[The defendant] need not have known that
- 5 -
serial numbers had been removed from the weapons.”); United
States v. Brown, 514 F.3d 256, 269 (2d Cir. 2008) (holding that
§ 2K2.1(b)(4) is a strict liability enhancement provision);
United States v. Murphy, 96 F.3d 846, 849 (6th Cir. 1996)
(holding that § 2K2.1(b)(4) is a “‘strict liability’”
enhancement provision and that the “‘omission of a mens rea
requirement’” in § 2K2.1(b)(4) “‘does not violate due process’”
(quoting United States v. Goodell, 990 F.2d 497, 499 (9th Cir.
1993))). Thus, the district court properly applied the
§ 2K2.1(b)(4)(B) enhancement to Bowers’ offense level.
Notwithstanding the plain language of § 2K2.1’s commentary
and the persuasive circuit authority cited above, Bowers points
us to the Sixth Circuit’s decision in United States v.
Roxborough, 99 F.3d 212 (6th Cir. 1996), in support of his
argument. In Roxborough, undercover ATF agents purchased two
firearms with obliterated serial numbers from an individual.
Id. at 213. When the obliterated serial numbers were restored,
the firearms were traced back to the defendant, a licensed
firearms dealer. Id. With regard to these two firearms, the
defendant pled guilty to dealing in firearms away from his
licensed premises, 18 U.S.C. § 922(c). Roxborough, 99 F.3d at
213. At his sentencing, the defendant’s offense level was
enhanced because the serial numbers on the firearms had been
obliterated. Id. Notably, the government could not establish
- 6 -
that the serial numbers had been obliterated by the defendant or
that the serial numbers were obliterated when he sold the
firearms. Id. On these facts, the Roxborough court declined
to uphold the district court’s application of the enhancement.
Id. at 214-15.
Bowers’ reliance on Roxborough is misplaced. First, the
decision in Roxborough conflicts with the plain language of
§ 2K2.1’s commentary which clearly states that the § 2K2.1(b)(4)
enhancements apply regardless of whether the defendant knew or
had reason to believe that the firearm was stolen or had an
altered or obliterated serial number. Second, the court in
Roxborough considered it important that the government could not
prove that the firearms’ serial numbers were obliterated at the
time of the offense. Id. at 214 (stating that there was “no
evidence at sentencing either that Roxborough obliterated the
serial numbers or that the firearms had obliterated serial
numbers at the time that he sold them”). In our case, there is
no dispute that the gun’s serial number was altered at the time
Bowers committed his offense. Third, the Sixth Circuit has
declined to follow Roxborough on the basis that it conflicts
with its earlier decision in Murphy, which held that
§ 2K2.1(b)(4) is a strict liability enhancement provision. See
United States v. Burns, 109 Fed. App’x 52, 57 (6th Cir. 2004)
(“To the extent that Roxborough conflicts with the earlier-
- 7 -
decided Murphy, we are not constrained to follow it.”).
Consequently, Roxborough is of no help to Bowers.
III
For the reasons stated herein, we conclude that the
district court did not err when it applied the § 2K2.1(b)(4)(B)
enhancement to Bowers’ offense level. Accordingly, the judgment
of the district court is affirmed. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
- 8 -