United States v. Carter ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-10377
Plaintiff-Appellee,
v.  D.C. No.
CR-03-0019-CRB
KENNARD CARTER,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
October 7, 2004—San Francisco, California
Filed August 25, 2005
Before: Cynthia Holcomb Hall, Melvin Brunetti, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Brunetti
11473
11476 UNITED STATES v. CARTER
COUNSEL
David W. Fermino, Assistant Federal Public Defender, San
Francisco, California, for the appellant.
Philip J. Kearney, Assistant United States Attorney, San Fran-
cisco, California, for the appellee.
OPINION
BRUNETTI, Circuit Judge:
Kennard Carter appeals the imposition of a sentence
enhancement pursuant to United States Sentencing Guideline
§ 2K2.1(b)(4), which mandates a two-point offense-level
enhancement for certain firearms offenses when any firearm
involved has an altered or obliterated serial number. This case
requires us, as a matter of first impression, to construe the
meaning of the phrase “altered or obliterated” as used in
Guideline § 2K2.1(b)(4).
We hold 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. We further hold that, under that standard, a
serial number which is not discernable to the unaided eye, but
which remains detectable via microscopy, is altered or obliter-
ated. Here, Carter concedes that the serial number on the fire-
arm he possessed is “not decipherable by the naked eye.”
Accordingly, we affirm the district court’s imposition of the
sentence enhancement.
BACKGROUND
On November 2, 2002, in response to a report of a person
with a gun, San Francisco police officers were dispatched to
UNITED STATES v. CARTER 11477
an area near the intersection of Sixth and Market Streets,
where they observed a man, later identified as Carter, throw
a black metal object into a city trash can. Officers took Carter
into custody without incident and recovered the discarded
object, which they preliminarily identified as a loaded .25 cal-
iber Beretta handgun with a defaced serial number. In place
of the serial number was “a bright silver patina” that, accord-
ing to the district court, rendered the serial number “unobserv-
able to the naked eye.” Forensic examination of the weapon
confirmed that the firearm was, indeed, a .25 caliber Beretta
semiautomatic pistol. The laboratory report, dated November
26, 2002, indicated that the serial number, though “partially
defaced,” was “discernible with the use of microscopy,” and
revealed it to be BU12070V.
Carter pleaded guilty to a one-count indictment charging
him with being a felon in possession of a firearm. 18 U.S.C.
§ 922(g)(1). Prior to his sentencing hearing, Carter filed a
memorandum arguing that the two-level enhancement pre-
scribed by § 2K2.1(b)(4) should not apply because the serial
number’s defacement did not render the weapon untraceable.
In that memorandum, as well as on appeal to this court, Carter
concedes that the gun’s serial number is “not decipherable by
the naked eye.”
The district court rejected Carter’s argument, reasoning that
if the words “altered or obliterated” were construed to require
that the weapon be rendered untraceable, the plain meaning of
the statute would be changed. Specifically, the district court
commented: “So, in a sense, you’ve changed it. It’s not that
it was altered, it was whether it’s traceable or not.” The dis-
trict court further noted that the enhancement serves to “dis-
courage the transfers of weapons where the weapons . . . have
an appearance that they are not traceable” because such weap-
ons “have a greater street value . . . or a greater flexibility to
be utilized in [il]licit activities.” The district court thus
imposed the two-level enhancement under § 2K2.1(b)(4), and
11478 UNITED STATES v. CARTER
sentenced Carter to 46 months’ imprisonment and three years’
supervised release. This appeal followed.
STANDARD OF REVIEW
We review de novo the district court’s interpretation and
application of the United States Sentencing Guidelines.
United States v. Garcia, 323 F.3d 1161, 1164 (9th Cir. 2003).
DISCUSSION
[1] Although the Ninth Circuit previously has remarked on
the purpose of § 2K2.1(b)(4), neither we, nor any other fed-
eral court, has passed on the meaning of “altered or obliterat-
ed” as used in that section. With no controlling precedent and
scant case law to guide our inquiry, we begin, as we must,
with the plain language of § 2K2.1(b)(4) itself. Though we
find the language of the guideline unmistakably clear, we go
on to examine the structural context and legislative history of
§ 2K2.1(b)(4), and then consider judicial interpretations of the
purpose of that section. In the end, we affirm because the
ordinary meaning of the phrase “altered or obliterated” cannot
support the contention that a serial number must be rendered
scientifically untraceable for § 2K2.1(b)(4) to apply, and
because interpreting that phrase in accord with its ordinary
meaning remains faithful to the enhancement’s purpose.
A. Plain Language
It is well settled that, in a statutory construction case, analy-
sis must begin with the language of the statute itself; when the
statute is clear, “judicial inquiry into [its] meaning, in all but
the most extraordinary circumstance, is finished.” Estate of
Cowart v. Niklos Drilling Co., 505 U.S. 469, 475 (1992).
Another “fundamental canon of statutory construction is that,
unless otherwise defined, words will be interpreted as taking
their ordinary, contemporary, common meaning.” Perrin v.
United States, 444 U.S. 37, 42 (1979). Accordingly, our anal-
UNITED STATES v. CARTER 11479
ysis begins with the ordinary meanings of “altered” and
“obliterated” at the time that § 2K2.1(b)(4) was adopted.
[2] Guideline § 2K2.1(b)(4) reads, both now and at the time
of Carter’s offense, as follows: “If any firearm was stolen, or
had an altered or obliterated serial number, increase [base
offense level] by 2 levels.” United States Sentencing Com-
mission, Guidelines Manual, § 2K2.1(b)(4) (Nov. 2002). The
Guidelines were promulgated by the U.S. Sentencing Com-
mission in 1987, at which time the precursor to § 2K2.1(b)(4),
then designated § 2K2.1(b)(1), read: “If the firearm was
stolen or had an altered or obliterated serial number, increase
[base offense level] by 1 level.” U.S.S.G. § 2K2.1(b)(1) (Nov.
1987). Neither “altered” nor “obliterated” has at any time
been defined within the Guidelines; thus, we follow the com-
mon practice of consulting dictionary definitions to clarify
their ordinary meanings. See, e.g., MCI Telecomm. Corp. v.
AT&T Co., 512 U.S. 218, 225 (1994). We note preliminarily,
however, that the phrase “altered or obliterated” is presented
in the disjunctive in § 2K2.1(b)(4). Thus, even if we were to
construe “obliterated” as narrowly as Carter urges—which we
do not—the sentence enhancement properly applies so long as
the serial number is merely “altered.”
Carter urges a narrow construction of “obliterated” such as
“total destruction” or “wiping away completely so as to leave
no trace,” and suggests that a serial number is not obliterated
if it remains traceable via microscopy. Relying heavily on a
definition of “alteration” that is most relevant to written
instruments, he then argues that a serial number is not “al-
tered” unless “its meaning is changed or it is made different
in a material way,” suggesting that “unless the serial number
has been changed into a different number, [it] has not been
altered.” From that premise, Carter submits that, even if the
serial number is defaced, so long as it is not changed into a
different number the defacement is not an “alteration” but an
“attempted obliteration”—an act not punishable by the
enhancement. Because such linguistic gymnastics would
11480 UNITED STATES v. CARTER
require us to interpret “altered” in a manner contrary to its
ordinary meaning, we are not persuaded.
1. Ordinary meaning of “obliterated”
Although several dictionary definitions do, in fact, support
Carter’s view that “obliterated” might be read to mean “un-
traceable,” alternative definitions in the same dictionaries sug-
gest that it means something less than scientific
untraceability. For example, “obliterate” is defined by Black’s
Law Dictionary as “[t]o remove from existence; to destroy all
traces of,” Black’s Law Dictionary 1106 (8th ed. 2004); by
Webster’s Dictionary as to “destroy utterly all traces, indica-
tions, significance of,” Webster’s Third New International
Dictionary 1557 (1981); and by the American Heritage Dic-
tionary as “[t]o do away with completely so as to leave no
trace,” American Heritage Dictionary of the English Lan-
guage 1248 (3d ed. 1992).
Such definitions reasonably could embrace a requirement
that a serial number be obliterated not just beyond the unaided
eye, but also beyond scientific recognition. This is not, how-
ever, the only possible interpretation, as alternative definitions
define “obliterate” more flexibly. For example, obliterate is
also defined by both Black’s and American Heritage as “[t]o
wipe out, rub off, or erase,” Black’s, supra, at 1106; Ameri-
can Heritage, supra, at 1248; and by Webster’s as “to make
undecipherable or imperceptible by . . . wearing or chipping
away,” Webster’s, supra, at 1557. Examining dictionaries for
the ordinary meaning of “obliterated” is thus inconclusive,
and our analysis of § 2K2.1(b)(4)’s plain language turns
instead on our construction of “altered.”
2. Ordinary meaning of “altered”
[3] Irrespective of how “obliterated” is construed, “altered”
surely requires a lesser degree of defacement. Black’s does
not define “altered” or “alter,” though it provides two defini-
UNITED STATES v. CARTER 11481
tions of “alteration” that are not relevant here.1 Webster’s
defines “alter” as “to cause to become different in some par-
ticular characteristic (as measure, dimension, course, arrange-
ment, or inclination) without changing into something else.”
Webster’s, supra, at 63. American Heritage similarly defines
alter as “[t]o change or make different; modify.” American
Heritage, supra, at 55. We find these definitions to comport
with the ordinary meaning of the word “altered.”
Carter’s argument that “unless the serial number has been
changed into a different number, [it] has not been altered”
must fail, then, because it is at odds with this ordinary mean-
ing. Seizing on a definition of “alteration” relevant only to
written instruments—an “act done to an instrument, after its
execution, whereby its meaning or language is changed,”
Black’s, supra at 85—Carter urges that to be “altered,” a fire-
arm’s serial number must be more than merely “changed” or
“modified”; it must have a changed meaning. In other words,
Carter would have us view a scratched out “3” as unaltered,
but a “3” that has been changed into an “8” as altered. The
plain meaning of the word “altered” cannot accommodate this
additional requirement.
[4] Thus, we think that the American Heritage and Web-
ster’s definitions of “alter,” which require some degree of
change or modification, but not a changed meaning, better
capture its ordinary meaning. Here, the district court found
that the serial number on Carter’s weapon had been rendered
“unobservable to the naked eye.” On appeal, Carter concedes
this factual issue. His legal argument that such severe deface-
ment does not make the serial number somehow altered—that
is, “changed,” “different,” or “modified”—runs counter to this
ordinary meaning, and is therefore unpersuasive.
1
The first, a “substantial change to real estate,” applies explicitly to
property law; the second, an “act done to an instrument, after its execu-
tion, whereby its meaning or language is changed,” is irrelevant in cases
that do not involve documents. Black’s, supra, at 85.
11482 UNITED STATES v. CARTER
B. Structural Context and Legislative History
[5] Although we find the plain language of the Guideline
unambiguous, we look to the structural context and legislative
history of § 2K2.1(b)(4) for clues that another meaning of the
phrase “altered or obliterated”—other than its ordinary
meaning—was intended. We find no evidence suggesting that
to be the case.
The Sentencing Guidelines were promulgated by the U.S.
Sentencing Commission in 1987. Commentary accompanying
the 1987 version of § 2K2.1 points to “Statutory Provisions”
18 U.S.C. § 922(a)(6), (g), and (h), which criminalize various
firearms offenses. U.S.S.G. § 2K2.1, comment. (statutory pro-
visions) (Nov. 1987). In 1989, these statutory references were
amended to include, inter alia, 18 U.S.C. § 922(k). U.S.S.G.
§ 2K2.1, comment. (statutory provisions) (Nov. 1989). Sec-
tion 922(k) criminalizes the knowing possession of “any fire-
arm which has had the . . . serial number removed, obliterated,
or altered.” 18 U.S.C. § 922(k) (2004). Although the original
version of the Guidelines contains the phrase “altered or oblit-
erated” without reference to § 922(k), that it was shortly
amended to reference a code section criminalizing the same
conduct suggests that the “altered or obliterated” language in
§ 2K2.1(b)(4) perhaps is derived from the “removed, obliter-
ated, or altered” language in § 922(k). Lacking a fuller legis-
lative history of § 2K2.1(b)(4) itself, we thus examine the
evolution of § 922(k) for hints to the source of these words.
The lineage of § 922(k) dates back to the Federal Firearms
Act of 1938, which made it unlawful to “knowingly receive
. . . any firearm from which the . . . serial number has been
removed, obliterated, or altered.” Pub. L. No. 75-785, 52 Stat.
1250. That act did not define the words “removed, obliterated,
or altered,” see id. § 1, and legislative history is unavailable
for that period.
The Omnibus Crime Control and Safe Streets Act of 1968
moved this provision, in substance, from Title 15 to Title 18
UNITED STATES v. CARTER 11483
of the United States Code. Pub. L. No. 90-351, 82 Stat. 197(providing for codification at 18 U.S.C. § 922(i)). Like its pre-
cursor, it did not define the words “removed, obliterated, or
altered.” See id. § 902. Legislative history indicates that the
principal purpose of Title IV of the omnibus bill, under which
§ 922(i) fell, was “to aid in making it possible to keep fire-
arms out of the hands of those not legally entitled to possess
them because of age, criminal background, or incompetency,
and to assist law enforcement authorities in the States and
their subdivisions in combating the increasing prevalence of
crime in the United States.” S. Rep. No. 90-1097 (1968),
reprinted in 1968 U.S.C.C.A.N. 2112, 2113-14. The same
report also expresses concern about the in-state use of fire-
arms obtained in other states, and cites statistics tracking the
movement of firearms among neighboring states. Id. at 2164-
65.
Within months, the Gun Control Act of 1968 expanded the
provisions of the omnibus bill, which covered only handguns,
to additionally include rifles and shotguns. H. Rep. No. 90-
1577 (1968), reprinted in 1968 U.S.C.C.A.N. 4410, 4413. It
did not define the words “removed, obliterated, or altered,”
and—as relevant for our purposes—simply redesignated sub-
section (i) as subsection (k), where it remains today. Pub. L.
90-618, 82 Stat. 1213 (1968) (codified as amended at 18
U.S.C. § 922(k) (2004)).
Thus, the legislative history of Guideline § 2K2.1 suggests
that the words “altered or obliterated” likely are derived from
what is today 18 U.S.C. § 922(k), but no statutory progenitor
of § 922(k) at any point defines these words. Legislative his-
tory, then, is helpful only in casting light on the general pur-
pose for the statutory provisions cited in the commentary to
§ 2K2.1; it does not specify why § 2K2.1(b)(4) was enacted
or why the phrase “altered or obliterated” was chosen.
C. Judicial Interpretations of Purpose
[6] Though we have not before had occasion to construe the
phrase “altered or obliterated” as used in § 2K2.1(b)(4), the
11484 UNITED STATES v. CARTER
Ninth Circuit has previously commented on, but not fully ana-
lyzed, the purpose of that section. In United States v. Seesing,
234 F.3d 456, 460 (9th Cir. 2001), we observed that
§ 2K2.1(b)(4) intends to “discourag[e] the use of untraceable
weaponry.” As we shall explain, applying the enhancement to
Carter on the facts presented here remains wholly consistent
with this purpose.
1. United States v. Seesing
The defendant in Seesing pleaded guilty to possession of an
unregistered firearm and possession of a homemade silencer
not identified by serial number. Id.; 26 U.S.C. §§ 5841,
5861(d), (i). At sentencing, the district court imposed a two-
level enhancement under § 2K2.1(b)(4) because the silencer
lacked a serial number. On appeal, we reversed, holding that
because the homemade silencer never had a serial number in
the first place, it plainly could not have been altered or oblit-
erated. Seesing, 234 F.3d at 460. We observed that “while we
understand the district court’s desire to respect the underlying
purpose of Guidelines § 2K2.1(b)(4), discouraging the use of
untraceable weaponry, and agree that this purpose is frus-
trated by the use of homemade silencers without serial num-
bers, the plain language of the Guideline is clear.” Id.
[7] Emphasizing our use in Seesing of the word “untrace-
able” to describe the purpose of § 2K2.1(b)(4), Carter argues
that, to preserve legislative intent, the enhancement should not
apply when a firearm’s serial number remains traceable, if
only via microscopy. This argument, however, misapprehends
our comments in Seesing about § 2K2.1(b)(4)’s purpose. We
did not say in Seesing that § 2K2.1(b)(4) intends to punish
only those who possess weapons that are “untraceable” by
any means; we said, more broadly, that it intends to “dis-
courag[e] the use of untraceable weaponry.” Id. This purpose
is advanced not only by punishing those who possess untrace-
able firearms, but also by punishing those who possess fire-
UNITED STATES v. CARTER 11485
arms that are more difficult, though not impossible, to trace
because their serial numbers have been defaced.
As this case aptly demonstrates, it may be difficult to deter-
mine, from a visual inspection alone, whether a serial number
that appears defaced is, in fact, untraceable when scientific
means are employed. On the street, where these guns often
trade and where microscopy is rarely available, one cannot
readily distinguish between a serial number that merely looks
untraceable and one that actually is. At that level, it is appear-
ances that count: A gun possessor is likely to be able to deter-
mine only whether or not his firearm appears more difficult,
or impossible, to trace.2
By prescribing enhanced sentences for possessors of fire-
arms with “altered or obliterated” serial numbers,
§ 2K2.1(b)(4) encourages those who deal in firearms to
inspect such weapons and to refuse to handle those with
defaced serial numbers. Yet if, as here, a defendant cannot
visually distinguish—at the moment he contemplates taking
possession—a would-be untraceable firearm from one that is
in fact untraceable, it makes little sense for him to be pun-
ished in the latter circumstance but to escape punishment in
the former. Such an outcome might well encourage, not dis-
courage, the use of untraceable weaponry, for it would signal
that although a firearm’s serial number has been materially
damaged—and thus will visit upon the government the myr-
iad costs of extraordinary tracing measures—its possession
2
We are mindful, of course, that § 2K2.1(b)(4) “applies whether or not
the defendant knew or had reason to believe that the firearm . . . had an
altered or obliterated serial number.” U.S.S.G. § 2K2.1, comment. (n.19)
(Nov. 2002). That fact does not affect our analysis here. We may presume
that a defendant has knowledge of the enhancement, and that such knowl-
edge provides him an incentive to adjust his behavior accordingly; we
need not speculate as to the Sentencing Commission’s possible reasons for
instructing that the enhancement applies without regard to the defendant’s
mental state.
11486 UNITED STATES v. CARTER
occasions no additional punishment, so long as the firearm
ultimately remains traceable.
[8] Because such an interpretation is at odds with
§ 2K2.1(b)(4)’s purpose to discourage the use of untraceable
weaponry, we decline to adopt it. Rather, as we view it, this
enhancement, by punishing possession of weapons that
appear more difficult to trace, necessarily deters traffic in
weapons that are impossible to trace. We conclude, therefore,
as we did in Seesing, that the plain language of § 2K2.1(b)(4)
controls. We note, in addition, that our interpretation of this
plain language remains consistent with § 2K2.1(b)(4)’s pur-
pose as we previously described it in Seesing.
2. United States v. Adams
[9] Our conclusion is buttressed by the First Circuit’s
recent construction of the word “altered” in United States v.
Adams, 305 F.3d 30 (1st Cir. 2002), a case with similar facts,
but which interpreted 18 U.S.C. § 922(k) rather than Guide-
line § 2K2.1(b)(4). The defendant in Adams, a convicted felon
who admitted attempting to scratch out the serial number on
a pistol he owned, was convicted of being a felon in posses-
sion of a firearm and of possessing a firearm with an “altered”
serial number. Id. at 33; 18 U.S.C. § 922(g), (k). At trial, the
district court charged the jury that “to alter” was “to make
some change in the appearance of the serial number.” Adams,
305 F.3d at 30. On appeal, the defendant argued that this
instruction was in error, and contended that a “material alter-
ation . . . rendering the weapon difficult or impossible to
trace” was necessary to justify a conviction. Id. at 34.
The Adams court, reading “altered” in its statutory context
beside the words “removed” and “obliterated,” first noted that
§ 922(k) “aims to punish one who possesses a firearm whose
principal means of tracing origin and transfers in ownership—
its serial number—has been deleted or made appreciably more
difficult to make out.” Id. It further observed that “nothing in
UNITED STATES v. CARTER 11487
[the] language or purpose suggests that the alteration must
make tracing impossible or extraordinarily difficult.” Id.
Because “alter” is not an “obscure or special-purpose term,”
the Adams court concluded that it was enough to charge the
jury in the words of the statute, allowing common sense to be
their guide, holding that “any change that makes the serial
number appreciably more difficult to discern should be
enough.” Id. Since the serial number on the defendant’s pistol
had been abraded such that four of the six digits were “signifi-
cantly more difficult to read,” it upheld the defendant’s con-
viction, noting that “[o]nly by reading the term ‘alter’ to mean
‘obliterate’ or ‘make impossible to interpret’ could we find
the evidence insufficient.” Id. at 35.
[10] Thus the First Circuit in Adams found that § 922(k)’s
purpose—to punish possessors of firearms whose serial num-
bers have been “deleted or made appreciably more difficult to
make out”—comported with the ordinary meaning of the
words used in that statute. Id. at 34. Finding ourselves con-
fronted by a related provision and analogous factual circum-
stances, we find the reasoning of the Adams court persuasive
and adopt it here. Like the Adams court found in the context
of § 922(k), we find that nothing in the language or purpose
of Guideline § 2K2.1(b)(4) suggests that the defacement must
make tracing impossible or extraordinarily difficult for the
enhancement to apply. See id.
CONCLUSION
In sum, the ordinary meaning of the phrase “altered or
obliterated” cannot support the contention that a firearm’s
serial number must be rendered scientifically untraceable for
Guideline § 2K2.1(b)(4) to apply. To the contrary, nothing in
the language, structural context, legislative history, or purpose
of § 2K2.1(b)(4) suggests that any defacement must make
tracing impossible or extraordinarily difficult. We hold, there-
fore, that for the purposes of Guideline § 2K2.1(b)(4), a fire-
arm’s serial number is “altered or obliterated” when it is
11488 UNITED STATES v. CARTER
materially changed in a way that makes accurate information
less accessible. We further hold that, under that standard, a
serial number which is not discernable to the unaided eye, but
which remains detectable via microscopy, is altered or obliter-
ated.
The district court sentenced Carter under a mandatory
Guidelines scheme which, after United States v. Booker, 125
S. Ct. 738 (2005), we now know to be advisory. Nevertheless,
in exercising their broader sentencing discretion post-Booker,
it is clear that district courts must consult the Guidelines—
including, where appropriate, § 2K2.1(b)(4)—in fashioning a
proper sentence. Id. at 757, 764-65. In this case, however,
remand for resentencing is not necessary.
Carter’s Sixth Amendment rights were not violated because
he conceded, both in the district court and on appeal, the fac-
tual issue that his firearm’s serial number is “not decipherable
by the naked eye.” This concession negates the need for a plea
admission or jury determination of this fact; the remaining
issue—whether an indecipherable serial number is “altered or
obliterated” for the purposes of § 2K2.1(b)(4)—is a purely
legal one. See United States v. Beaudion, No. 04-30197, 2005
WL 1668807, at *3 (9th Cir. July 19, 2005) (noting that no
Sixth Amendment issue is raised where a defendant merely
denies that a set of facts amounts, as a question of law, to the
“brandishing” of a firearm); see also United States v. Von
Brown, No. 04-30219, 2005 WL 1863280, *2 (9th Cir. Aug.
8, 2005) (holding that the categorization of a prior conviction
as a “violent felony” or a “crime of violence” is a legal ques-
tion outside the purview of Booker and need not be presented
to a jury).
Moreover, pursuant to United States v. Ameline, 409 F.3d
1073, 1084 & n.8 (9th Cir. 2005) (en banc), we ordered Carter
to indicate whether he wished to pursue resentencing on the
theory that nonconstitutional error affected his sentencing pro-
UNITED STATES v. CARTER 11489
ceeding.3 See also United States v. Moreno-Hernandez, No.
03-30387, 2005 WL 1964483, at *8 (9th Cir. Aug. 17, 2005).
Carter responded, through counsel, that he does not.
[11] Therefore, remand for resentencing is unnecessary,
and we affirm the district court’s imposition of the sentence
enhancement.
AFFIRMED.
3
We recognize, of course, that Ameline indicates that “either the defen-
dant or the government may raise the [issue of] nonconstitutional error.”
Ameline, 409 F.3d at 1084. Here, the government has neither raised this
issue nor indicated that it wishes to seek resentencing on this ground.