United States v. Justice

• Decision Date: 30 May 2012
• Docket Number: No. 11–3208.,11–3208.
• Citation: 679 F.3d 1251
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Cody M. JUSTICE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

679 F.3d 1251

UNITED STATES of America, Plaintiff–Appellee,

v.Cody M. JUSTICE, Defendant–Appellant.

No. 11–3208.

United States Court of Appeals, Tenth Circuit.

May 30, 2012.

Submitted on the briefs: ^*

Michael L. Harris, Assistant Federal Public Defender, (Cyd Gilman, Federal Public Defender, with him on the brief), Kansas City, KS, for Defendant–Appellant.

Leon Patton, Assistant United States Attorney, (Barry R. Grissom, with him on the brief), Kansas City, KS, for Plaintiff–Appellee.

Before HARTZ, HOLLOWAY, and HOLMES, Circuit Judges.

HARTZ, Circuit Judge.

Defendant Cody M. Justice pleaded guilty in the United States District Court for the District of Kansas to possession of a firearm by a felon. See18 U.S.C. §§ 922(g)(1), 924(a)(2). In calculating Defendant's offense level under the sentencing guidelines, the district court applied a four-level enhancement under U.S.S.G. § 2K2.1(b)(4) for possession of a weapon with an obliterated serial number and another four-level enhancement under U.S.S.G. § 2K2.1(b)(6) for possession of a firearm in connection with another felony offense. It then imposed a sentence of 108 months' imprisonment.

On appeal Defendant contends that the district court improperly applied the § 2K2.1(b)(4) enhancement because the serial number to his gun was restored with chemicals and therefore was not obliterated; that the evidence was insufficient to support the § 2K2.1(b)(6) enhancement; and that the court applied the § 2K2.1(b)(6) enhancement without making the factual finding that a firearm facilitated his drug possession. We have jurisdiction under 28 U.S.C. § 1291 and affirm. We hold that obliterate in the context of § 2K2.1(b)(4) means to make indecipherable or imperceptible, not necessarily irretrievable; that the evidence sufficed to show that a firearm facilitated Defendant's possession of drugs by emboldening him; and that the court's failure to make a specific facilitation finding was not plain error.

I. BACKGROUND

A resident of Kansas City, Kansas, called the police in the early morning of February 9, 2011, because an unfamiliar truck was parked in the resident's driveway with the engine running. The officers who responded found Defendant asleep in the driver's seat. They saw a rifle on the front passenger seat and a pistol on the seat next to Defendant's right leg. The officers attempted to remove Defendant from the vehicle but he resisted, and a struggle ensued. When the officers eventually arrested him, they found a small bag of methamphetamine in his right front pants pocket.

Both firearms were loaded, and the truck was a stolen vehicle. The serial number on the pistol was illegible, appearing to have been ground down with sandpaper or a tool; but a crime laboratory restored it by smoothing the metal surface and applying acid and water. Because Defendant had a prior felony conviction for robbery, he was indicted for being a felon in possession of a firearm. He pleaded guilty.

Defendant's presentence report (PSR) set the base offense level at 22 and applied a four-level enhancement under U.S.S.G. § 2K2.1(b)(4) because his pistol had an obliterated serial number. It added another four levels under § 2K2.1(b)(6) because Defendant possessed the firearms in connection with other felony offenses (possession of methamphetamine and possession of a stolen truck). The PSR recommended a three-level reduction for acceptance of responsibility, leading to a total offense level of 27. The offense level and Defendant's criminal-history category of III yielded an advisory guidelines range of 87 to 108 months' imprisonment.

Defendant filed a memorandum objecting to the PSR. It complained that the § 2K2.1(b)(4) enhancement was inappropriate because the crime lab was able to make the serial number visible and that the § 2K2.1(b)(6) enhancement was inappropriate because there was no evidence that Defendant knew the truck was stolen or that there was a connection between the weapons and the drug possession.

The district court overruled the objections. It interpreted § 2K2.1(b)(4) to mean that “if the serial number is unidentifiable to the naked eye and can only be restored through laboratory techniques, then that's obliterated....” R., Vol. 2 pt. 2 at 55. And it ruled that § 2K2.1(b)(6) was satisfied because “[D]efendant possessed a firearm in connection with possession of methamphetamine. And the gun was in such close proximity to the methamphetamine that the enhancement is warranted.” Id. at 45. The court then sentenced Defendant to 108 months' imprisonment and three years' supervised release.

Defendant raises three issues on appeal: (1) that the district court misinterpreted the meaning of obliterated; (2) that the evidence was insufficient to support a finding that Defendant's possession of a firearm facilitated the drug offense, a prerequisite for a finding that the firearm was possessed “in connection with a felony offense”; and (3) that the district court failed to make a specific factual finding of facilitation.

II. DISCUSSIONA. Obliterated Serial Number

The sentencing guideline for possession of a firearm provides for a four-level increase in the offense level if the firearm “had an altered or obliterated serial number.” U.S.S.G. § 2K2.1(b)(4). When officers seized Defendant's pistol, they were unable to read the serial number. They sent it to a laboratory, however, where the number was restored through a chemical process. Defendant argues that the serial number was not obliterated because it was eventually recovered. He relies on a dictionary definition of obliterate as “eliminate completely so as to leave no trace.” Webster's New Riverside University Dictionary 811 (1994). He also contends that this definition is supported by the explanation for the 2006 amendment increasing the § 2K2.1(b)(4) enhancement from two levels to four—to “reflect[ ] both the difficulty in tracing firearms with altered or obliterated serial numbers, and the increased market for these types of weapons,” U.S. Sentencing Guidelines Manual app. C vol. III 177, amend. 691 (2011)—which, he says, suggests that an obliterated serial number must be very difficult, if not impossible, to recover.

Reviewing de novo the district court's interpretation of the guidelines, see United States v. Mollner, 643 F.3d 713, 714 (10th Cir.2011), we affirm. Defendant's proffered definition is not the only meaning of obliterate. Another is “to make undecipherable or imperceptible by obscuring, covering, or wearing or chipping away.” Webster's Third New International Dictionary 1557 (2002) (emphasis added). In our view this definition provides the more likely meaning of the guideline. The sentencing guidelines are to govern the practical world, not the world of metaphysical certainty. What matters is what is “perceptible,” not what can be discerned by sophisticated scientific techniques. Recall that the § 2K2.1(b)(4) enhancement applies not only to a firearm with an “obliterated” serial number but also to one with an “altered” number. The word altered does not ordinarily connote a change that destroys all evidence of the original form. We doubt that any court would say that a serial number had not been altered because a laboratory could elicit the original number. Cf. United States v. Carter, 421 F.3d 909, 912–13 (9th Cir.2005) (analyzing meaning of altered in § 2K2.1(b)(4)). Yet it would be nonsensical to say that § 2K2.1(b)(4) applies if the original number can be detected by scientific methods after an alteration but not after an attempted obliteration.

Moreover, the purpose of the guideline enhancement is best served by our construction of the word obliterated. The obvious purpose is “to discourage the use of untraceable weaponry.” Id. at 914 (brackets and internal quotation marks omitted); accord United States v. Perez, 585 F.3d 880, 885 (5th Cir.2009). And “if ... a defendant cannot visually distinguish ... a would-be untraceable firearm from one that is in fact untraceable, it makes little sense for him to be punished in the latter circumstance but to escape punishment in the former.” Carter, 421 F.3d at 915.

We therefore conclude that the district court properly applied the enhancement.

B. Sufficiency of the Evidence for § 2K2.1(b)(6)(B) Enhancement

Defendant's offense level was also enhanced under § 2K2.1(b)(6)(B) because he possessed a firearm “in connection with another felony offense.” The district court found that his firearm possession was in connection with his possession of methamphetamine. The application note to § 2K2.1 defines in connection with to mean that “the firearm ... facilitated, or had the potential of facilitating, another felony offense[.]” USSG § 2K2.1 cmt. n. 14(A). If Defendant had been guilty of a drug-trafficking offense, the enhancement would apply if a firearm had been found “in close proximity to drugs,” id. cmt. n. 14(B), “because the presence of the firearm has the potential of facilitating another felony offense.” Id. But there is no dispute that Defendant's possession-of-methamphetamine offense was not a drug-trafficking offense.

Defendant contends that there was insufficient evidence before the district court to show that his firearm possession facilitated his drug offense. We review the district court's finding for clear error. See Mollner, 643 F.3d at 714. The finding here was not clearly erroneous.

We agree with several other circuits that have held that possession of a firearm may facilitate an offense by emboldening the possessor to commit the offense. See United States v. Jenkins, 566 F.3d 160, 162 (4th Cir.2009); United States v. Fuentes Torres, 529 F.3d 825, 827 (8th Cir.2008); United States v. Bullock, 526 F.3d 312, 318 (6th Cir.2008). See also United States v. West, 643 F.3d 102, 116 (3d Cir.2011) (apparently recognizing emboldenment theory but holding that facts of case did not support it); United States v. Jeffries, 587 F.3d 690, 695 (5th Cir.2009) (same).

With that...