United States v. Cortezes Diming ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0672n.06
No. 20-3152
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Nov 23, 2020
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE NORTHERN
CORTEZES DIMING, )
DISTRICT OF OHIO
)
Defendant-Appellee. )
)
BEFORE: MOORE, GILMAN, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendant Cortezes Diming pleaded guilty to being a felon in possession of a firearm. And
because two of the firearm’s serial numbers1 were worn off (which Diming concedes), his
presentence investigation report concluded that U.S.S.G. § 2K2.1(b)(4)(B)’s enhancement for
possessing a firearm with “an altered or obliterated serial number” should apply. The district court
disagreed; it reasoned that the enhancement applies only if the serial number became less legible
because someone acted with “some element of intentionality” and that instances of negligence or
“regular wear and tear” would be insufficient. This conclusion led to a lower base offense level
and ultimately resulted in a ten-month term of imprisonment.
1
At the sentencing hearing, a Bureau of Alcohol, Tobacco, Firearms and Explosives special
agent testified that when the gun was originally stamped, its serial number had seven digits—a “T”
followed by “six numerics.”
No. 20-3152
United States v. Diming
We agree with the government that the district court’s narrow view of the enhancement
caused it to improperly calculate the Guidelines range, which rendered the sentence procedurally
unreasonable. See United States v. Mack, 808 F.3d 1074, 1084 (6th Cir. 2015). This is because
the district court did not have the benefit of our decision in United States v. Sands, 948 F.3d 709(6th Cir. 2020), which we issued a few weeks after the court sentenced Diming. In Sands, we
clarified that § 2K2.1(b)(4) applies if the serial number “is materially changed in a way that makes
accurate information less accessible.” Id. at 715 (citation omitted). We further explained that
because § 2K2.1(b)(4)(B) is a strict liability enhancement, it “make[s] no distinction between serial
numbers that have been obliterated intentionally from those numbers that have otherwise been
obliterated by forces of nature.” Id. at 718 (citation omitted). Thus, whether the changes to the
serial number were intentional (or not) “play[s] no role in the analysis.” Id.
Because Sands expressly rejected the district court’s standard that included intent as a
requirement, we vacate Diming’s sentence and remand for resentencing with instructions to apply
the enhancement in light of Sands and his concession that the firearm’s serial number was missing
digits.
-2-