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United States v. Timothy Harris, 4th Cir. (2013)
United States v. Timothy Harris, 4th Cir. (2013)
No. 12-4521
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:
Decided:
the
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.
Timothy
Harris
pleaded
guilty
to
two
counts
of
the
district
imprisonment.
under
the
U.S.S.G.
In
computing
Sentencing
court
sentenced
the
applicable
Guidelines,
2K2.1(b)(4)(B),
him
the
which
to
months
sentencing
district
provides
105
court
for
range
applied
four-level
the
scratched,
possessed
rendering
it
by
less
Harris
had
legible,
been
but
gouged
and
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.
conclude
restrictively
illegible
to
in
be
that
Harris
suggesting
altered.
reads
that
As
we
2K2.1(b)(4)(B)
serial
explain
number
herein,
must
a
too
be
serial
Accordingly, we
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
pleaded
presentence
guilty
report
to
illegal
recommended
firearms
four-level
possession.
enhancement
The
under
reports
recommendation,
contending
that
because
the serial number of the firearm was legible, the firearm was
traceable, and therefore the enhancement does not apply.
At
Harris
the
sentencing
objection
considering
the
and
police
hearing,
applied
report,
the
district
the
the
court
overruled
enhancement.
After
court
conducted
its
own
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
legible,
was
2K2.1(b)(4)(B)
that
the
altered,
district
within
(providing
for
court
the
a
found
made
meaning
of
four-level
it
less
U.S.S.G.
sentencing
He argues
so
that
Because
the
Harris
handgun
it
police
was
is
not
report
discernible
stated
legible,
he
that
to
the
argues
the
unaided
serial
that
the
eye.
number
on
enhancement
government,
relying
on
the
district
courts
finding
It argues that
the gouges and scratches were both purposeful and deep enough
that the firearms 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
importers
or
violation
of
922(k),
enhanced
by
application
his
of
recommended
a
sentencing
mimicking
range
provision
in
was
the
U.S.S.G. 2K2.1(b)(4)(B).
such
manner
prescribe.
as
the
Attorney
or
shall
by
regulations
General
manufacturer
conspicuously
placing
legibly
the
identify
serial
number
each
on
firearm
the
frame
by
or
And the
minimum
size
and
depth
of
the
serial
number.
See
id.
(requiring serial numbers to be in print no smaller than onesixteenth of an inch and in depth no less than .003 inch).
depth also ensures permanence.
Firearms
and
Explosives
has
The
that
requiring
serial
enabling
the
tracking
of
inventory
and
record-keeping
by
To
of
possession
of
serial
a
numbers
firearm
on
with
firearms
serial
by
punishing
number
that
has
the
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
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
2K2.1(b)(4)(B)s
firearms
in
the
Cir.
purpose
black
to
2011)
stem
market).
(We
the
must
flow
While
of
Harris
respect
untraceable
argument
is
whether
obliterated,
illegible
but
altered,
also
is
which
includes
less
legible
is
serial
than
it
less
demanding
number
would
be
that
than
is
not
without
the
serial
number,
as
is
reflected
in
the
serial-number
the
on
governments
firearms
that
interest
have
in
minimum
having
serial
level
of
numbers
legibility.
in
changing
into
some
particular
something
characteristic
else.
Websters
without
Third
New
as
to
style,
course,
make
or
different
the
like;
in
some
particular,
modify);
as
size,
Merriam-Websters
the
definitions
altered
when
Obliterate,
undecipherable
International
in
it
of
alter
is
made
contrast,
or
is
recognizes
different
defined
imperceptible.
Dictionary
1557.
that
as
something
in
making
Webster's
Accordingly,
Each
when
some
is
way.
something
Third
a
New
serial
Thus,
while
the
possession
of
firearm
with
serial
that
illegible,
is
is
less
legible
also
covered
2K2.1(b)(4)(B).
rendered
less
This
legible
or
less
by
conspicuous,
interpretation
by
gouges
and
but
922(k)
and
that
serial
scratches
not
U.S.S.G.
is
number
altered
(emphasis
added));
Jones,
643
F.3d
at
259
(A
States
v.
Perez,
585
F.3d
880,
885
(5th
But see
Cir.
2009)
remained
readable,
because
the
serial
number
on
the
serial
serial
number
carefully.
markings
number
correctly,
Moreover,
on
that
the
it
handgun,
precluded
even
as
found
it
it
from
reading
attempted
that
indicating
there
were
that
the
to
no
found
that
these
gouges
and
scratches
made
so
further
gouges
do
the
and
The court
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.
however, is unpersuasive for two reasons.
This argument,
First, there is no
distance
component
standard.
of
.
18
into
inches,
what
interject[ed]
should
be
simple,
subjective
objective
do, and the process used by the district court in this case was
not
an
unreasonable
way
to
determine
11
the
legibility
of
the
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
12