United States v. Hayes, 100317 FED7, 16-3752

Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
Judge Panel:Before Bauer, Easterbrook, and Hamilton, Circuit Judges.
Opinion Judge:Bauer, Circuit Judge.
Party Name:United States of America, Plaintiff-Appellee, v. Cedric Hayes, Defendant-Appellant.
Case Date:October 03, 2017
Docket Nº:16-3752
 
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United States of America, Plaintiff-Appellee,

v.

Cedric Hayes, Defendant-Appellant.

No. 16-3752

United States Court of Appeals, Seventh Circuit

October 3, 2017

          Argued September 6, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 16 CR 50002 - Frederick J. Kapala, Judge.

          Before Bauer, Easterbrook, and Hamilton, Circuit Judges.

          Bauer, Circuit Judge.

         Cedric Hayes pleaded guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § ; 922(g)(1). He now challenges his sentence, arguing that the district court erred in applying an enhancement to his base offense level under § 2K2.1(b)(4)(B) of the United States Sentencing Commission Guidelines. That section, which applies to offenses involving firearms, states that a four-level enhancement is appropriate where a firearm's serial number has been "altered or obliterated." Hayes also challenges the district court's calculation of his criminal history category.

         I. BACKGROUND

         On February 2, 2016, a grand jury indicted Hayes on two counts of being a felon in possession of a firearm. On June 28, 2016, as part of a plea agreement, Hayes pleaded guilty to Count Two of the indictment, which specifically charged him with possessing a model AK-47 rifle.

         In its recitation of the facts, the plea agreement stated that the serial number on the AK-47 "had been covered by a paintlike substance that prevented the serial number from being visible." It was the government's position that Hayes' offense level should increase by four, pursuant to § 2K2.1(b)(4)(B) of the Guidelines, because the serial number was "altered or obliterated." The plea agreement noted, however, that Hayes disagreed that the enhancement should apply.

         Prior to sentencing, the United States Probation Office prepared a Presentence Investigation Report (PSR). The PSR's factual findings repeated the statement from the plea agreement that the serial number was not visible because it was covered by a "paint-like substance." Based on that finding, the PSR recommended that the court apply the § 2K2.1(b)(4)(B) enhancement.

         In his sentencing memorandum, Hayes conceded that the AK-47's serial number was covered in a paint-like substance, but argued that because the serial number was not "physically altered/' the enhancement should not apply. As support for that argument, Hayes noted that the Forensic Science Laboratory of the Bureau of Alcohol, Tobacco, Firearms, and Explosives applied a "chemical solvent and light polishing" to the gun, which ultimately revealed the serial number.

         On October 17, 2016, the district court held a sentencing hearing. The court acknowledged Hayes' objection, but accepted the position of the PSR and the government that the AK-47's serial number was "altered or obliterated" for purposes of § 2K2.1(b)(4)(B)....

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